[2025] FWC 3137
General information, not legal advice.
Fair Work Commission
2025-10-20
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - applicant dismissed on basis of alleged underperformance - valid reason for dismissal - dismissal not harsh, unjust or unreasonable- application dismissed
a) An outline of arguments dealing with merits which included both evidence and submissions;
b) A bundle of documents including email correspondence, screenshots of internal exchanges, Mr Glading's dismissal letter, his PIP dated 3 February 2025 and his contract of employment; and
c) A response statement/submission dated 16 July 2025 which included both evidence and submissions.
a) A document showing quarterly records of all of the Life Insurance team employees' talk time on the phone, total calls and application conversion rates from those calls between April 2024 to March 2025;
b) A document showing the number of leads and the lead types that Mr Glading was given in each month of his employment;
c) A document showing the number of leads and lead types given to Mr Glading and 6 other employees in the Life Insurance team; and
d) An overall summary of Mr Glading's performance against his targets.
a) A document showing the percentages of sales targets met by the Respondent's life insurance brokers for the period April 2024 to March 2025, anonymized aside from Mr Glading; and
b) A copy of Mr Glading's Performance Improvement Plan dated February 2025, including Ms Argyrous' notes.
represented by a lawyer or paid agent in a matter before the Commission only if:
(a) It would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) It would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) It would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
a) The matter will likely involve significant contests over both factual and legal matters, likely require detailed cross-examination of witnesses for both parties, and there will be significant contest about the extent to which most of the matters raised by Mr Glading are relevant to the Commission's determination of the matter;
b) Legal representation will assist the Commission in dealing effectively and efficiently with the expected contests about the facts, allegations and claims, and the legal powers of the Commission; and
c) There is material complexity involved in the proceedings, and the hearing is likely to proceed more efficiently if the Commission is assisted by lawyers.
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (the 'Code');
(d) whether the dismissal was a case of genuine redundancy.
a) Mr Glading's application for unfair dismissal was made within the period required in s. 394(2) of the Act;
b) Mr Glading was a person protected from unfair dismissal;
c) Mr Glading's dismissal was not a genuine redundancy; and
d) The Respondent was not a small business, and the Code did not apply to Mr Glading's dismissal.
When can the Commission order a remedy for unfair dismissal?
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
a) Access a panel of Australia's top 10 life insurance providers to offer comprehensive comparison services;
b) Contact leads to help Australians protect their families' assets through the sale of life insurance products;
c) Achieve key sales metrics and targets to deliver the best outcomes for every lead;
d) Engage in meaningful, empathetic conversations while maintaining high compliance standards;
e) Possess a strong drive and motivation to succeed;
f) Have a proven ability to manage sales pipeline and consistently hit targets;
g) Demonstrate resilience, problem-solving skills and a "can do, will do" attitude; and
h) Have excellent communication skills and be a team player.[1]
"The purpose of this performance improvement plan (PIP) is to clarify expectations of your position, document performance issues that are preventing you from meeting those expectations and give you the opportunity to address those issues and raise your performance to meet expectations.
Commencing from 03/02/2025, you are being placed on a performance improvement plan to address the performance improvement areas outlined on the following page/s. Over the next 8 weeks, you are expected to constructively address these areas and meet all expectations for performance. I will meet with you weekly to review your progress, offer guidance, and provide feedback on your performance to assist you to achieve these expectations.
Should you fail to meet the expectations set within this plan by 31/03/2025 without a reasonable explanation, you may be subject to disciplinary action, up to and including the termination of your employment, and the plan may be extended. Furthermore, failure to maintain performance expectations beyond the completion of the plan may result in further disciplinary action.
If you have any questions about your performance improvement plan, or if you identify any gaps within your skill set that prevent you from meeting the expectations of your plan, please contact me immediately to discuss.
I look forward to working with you to achieve the required improvements in your performance."
"To be more honest and upfront if you need help to call it out to me. Tone - even when you're feeling flat, hype it up to get clients engaged and selling the product."
"To stay focused on not asking for the business but being assumptive to get the business. In coaching we have listened to you have not assumed the sale and just emailing the info out (we should assume the sale if we have sold it correctly)."
"Over the last 8 weeks since 3/2/2025, you have been on a PIP, which was implemented with the intention to support and improve your performance against the primary Key Performance indicators (KPI's) in the team - Consistency in hitting sales target, proactively asking for support as required to achieve the targets, and staying focused on not asking for the business but by being assumptive to get the business with customers on the phone.
Unfortunately, over this 8 week PIP period, you did not meet any of the three key performance areas for improvement.
During the meeting on 1/4/2025, when asked for comments and an explanation of your underperformance you stated the following:
When considering the appropriate disciplinary action to take, the Company considered:
You were previously advised in writing as part of your PIP that if you failed to meet the minimum expectations required, that you would be subject to disciplinary action up to and including the consideration of termination of your employment.
Consequently, it is not appropriate to continue you in your role and this letter confirms what was communicated to you in yesterday's meeting, that your employment with the company is terminated effective immediately 1/4/2025. You will not be required to work out your notice, and will be paid 2 weeks' pay in lieu of notice."
Was the dismissal harsh, unjust or unreasonable?
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Was there a valid reason for the dismissal related to the Applicant's capacity or conduct
a) policies submitted to the insurer (i.e. applications made); and
b) policies that went in force with the insurer (i.e. policies that the customer proceeded with to completion).
a) Mr Glading was given leads that were commensurate to his experience and equivalent to other advisers who had similar experience to Mr Glading;
b) Mr Glading's leads were no different in either their volume or quality to his colleagues within the life insurance team including those with a similar amount of experience as him;
c) Mr Glading took more of those leads off the dial and his output was 70% less than his colleagues who had less leads off the dial;
d) there are instances where Mr Glading was provided with leads on campaigns which he says are "favourable".
Conclusions on whether there was a valid reason for the Applicant's dismissal.
"Reasonableness is "a question of fact having regard to all the circumstances" and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment. The approach to the task of assessing the reasonableness of a direction to an employee was identified by Dixon J in Darling, as follows:
"But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service."
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
"At 3.30 pm on 1 April 2025, I met with Mr Glading in person. He did not ask for, or bring a support person to this meeting. In this meeting, I outlined that Mr Glading had not successfully completed his second performance improvement plan. I told him that as a result, the business was proposing to terminate his employment for poor performance. I then gave Mr Glading an opportunity to respond. Instead of acknowledging his poor performance, Mr Glading told me that the reason he had not met his performance targets consistently was because of the type of leads that he had been given. Mr Glading appeared focused on blaming the dialler (the dialler is the system that allocates leads to agents at random) for his poor performance.
Based on my experience and understanding of Mr Glading's performance since at least November 2024, I knew that it was not true that Mr Glading had underperformed due to allocation of leads through the dialler.
After taking Mr Glading's responses into account, I offered Mr Glading the opportunity to take a break and bring a support person to the meeting. Mr Glading declined my offer of a break and a support person.
I then told Mr Glading that the decision had been made to terminate his employment for poor performance."
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Was the Applicant warned about unsatisfactory performance before the dismissal?
"Should you fail to meet the expectations set within this plan by 31/03/2025 without a reasonable explanation, you may be subject to disciplinary action, up to and including the termination of your employment, and the plan may be extended. Furthermore failure to maintain performance expectations beyond the completion of the plan may result in further disciplinary action."
To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?
(a) An argument that the termination was in retaliation for complaints about the quality of his leads (and in particular the 1 April 2025 email);
(b) That he was dismissed and/or denied a flexible working arrangement due to his responsibilities as a parent; and
(c) Various issues arising in the workplace including the behaviour of other employees of the Respondent that was said to be inconsistent with legal, compliance and regulatory requirements. This included safety and discrimination obligations: including misconduct and bullying behaviours of various colleagues, racial insensitivity, berating and pressuring of staff by Mr Lang, Ms Argyrous using 'sexually suggestive language' and the harsh treatment of visa-sponsored staff.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
S. Thirukumar and M Roberts on behalf of the Respondent
[1] Exhibit R2, Digital Hearing Book pg 143-148, Statement of Ms. Billie Argyrous [7].
[2] Exhibit R4, Digital Hearing Book pg 169, Annexure ML04 to Statement of Mr Matthew Lang.
[3] Exhibit R2, Digital Hearing Book pg 143-148, Statement of Ms. Billie Argyrous [19].
[5] Exhibit R2, Digital Hearing Book pg 154, Annexure BA-01 to Statement of Ms Billie Argyrous.
[6] Exhibit R2, Digital Hearing Book pg 143-148, Statement of Ms. Billie Argyrous [15].
[7] Exhibit A2, Digital Hearing Book pg 91, Performance Improvement Plan Cover Letter 2025.
[8] Exhibit A2, Digital Hearing Book pg 92, Performance Improvement Plan 2025.
[10] Exhibit R3, Bundle of Documents under Order to Produce, pg 26, Ms Argyrous's notes.
[11] Exhibit A2, Digital Hearing Book pg 83, Email to Ms Argyrous from Mr Glading.
[12] Ibid; Transcript PN458-PN461, Transcript PN535-PN536.
[13] Exhibit A3, Digital Hearing Book pg 28-29, Statement of Mr Nicholas Glading.
[14] Exhibit A2, Digital Hearing Book pg 87-88, Termination Letter.
[15] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[16] Exhibit A2, Digital Hearing Book pg 83, Email to Ms Argyrous from Mr Glading.
[19] Transcript PN98-99; Transcript PN101-PN103.
[20] Exhibit A2, Digital Hearing Book pg 83, Email to Ms Argyrous from Mr Glading.
[21] Exhibit A3, Digital Hearing Book pg 30, Statement of Mr Nicholas Glading.
[24] Exhibit A2, Digital Hearing Book pg 63, Applicant's outline of argument: merits.
[25] Exhibit A5, Digital Hearing Book pg 35, Statement of Mr Charles Ndibe 1.
[29] Exhibit A2, Digital Hearing Book pg 66, 68, Applicant's outline of argument: merits.
[30] Exhibit R4, Digital Hearing Book pg 157, Statement of Mr Matthew Lang [21].
[32] Exhibit R2, Digital Hearing Book pg 146, Statement of Ms Billie Argyrous [19].
[33] Exhibit R4, Digital Hearing Book pg 157, Statement of Mr Matthew Lang [23].
[36] Crozier v Australian Industrial Relations Commission [2001] FCA 1031, [14]. ('Crozier')
[37] J Boag and Son Brewing Pty Ltd v Button (2010) 195 IR 292, [2010] FWAFB 4022, [29].
[38] Exhibit R4, Digital Hearing Book pg 158, Statement of Mr Matthew Lang [30]; Digital Hearing Book pg 161-164, Annexure ML01 to Statement of Mr Matthew Lang.
[39] Exhibit R4, Digital Hearing Book pg 158, Statement of Mr Matthew Lang [31]; Digital Hearing Book pg 165, Annexure ML02 to Statement of Mr Matthew Lang; Digital Hearing Book pg 167, Annexure ML03 to Statement of Mr Matthew Lang.
[40] Exhibit R4, Digital Hearing Book pg 159, Statement of Mr Matthew Lang [32]; Digital Hearing Book pg 169, Annexure ML04 to Statement of Mr Matthew Lang.
[42] Exhibit R2, Digital Hearing Book pg 144, Statement of Ms Billie Argyrous [11]; Digital Hearing Book pg 154, Annexure BA-01 to Statement of Ms Billie Argyrous.
[43] Exhibit A4, Digital Hearing Book pg 118, Response to Respondent's submissions.
[44] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373; Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033, [25], quoting B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, [35].
[45] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.
[46] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24].
[47] Pastrycooks Union v Gartrell White (No. 3) [1990] 35 IR 70, [84].
[48] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, [7].
[50] Jetstar Airways Ltd v Neeteson-Lemkes [2013] FWCFB 9075; CSL Limited v Chris Papaioannou [2018] FWCFB 1005.
[51] Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport, Print S5897 AIRCFB (2000), [62]. ('Palazzo')
[52] R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday [1938] HCA 44; (1938) 60 CLR 601, 621-622_; CFMMEU v Mt Arthur Coal Pty Ltd_ [2021] FWCFB 6059, [67].
[54] Ibid [72], quoting R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday [1938] HCA 44; (1938) 60 CLR 601, 622.
[55] Advanced Health Invest Pty Ltd v Chan [2019] FWCFB 5104, [43]; Jain v Infosys Limited [2014] FWCFB 5595, [35]-[36].
[57] Applying a methodology of adding each cell containing a figure for each broker and dividing this by the number of cells that contained a percentage figure for each employee.
[58] As against meeting his targets per Exhibit R-1.
[61] Annexure ML03 to the statement of Mr Lang records that two colleagues had fewer LNA 13-20 leads and four had more LNA 13-20 leads.
[62] Digital Hearing Book pg 165, Annexure ML02 to Statement of Mr Matthew Lang.
[63] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[65] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[69] Exhibit R2, Digital Hearing Book pg 147, Statement of Ms Billie Argyrous [26]-[27].
[71] Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200; (2010) 194 IR 1, [26] quoting Wilcox CJ in Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.
[72] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.
[73] Exhibit R2, Digital Hearing Book pg 147, Statement of Ms Billie Argyrous.
[74] Transcript PN489-490; Transcript PN502-503.
[79] UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241, [44].
[80] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
[81] Transcript PN717; Transcript PN721.
[82] Transcript PN723-724; Transcript PN796.
[84] Exhibit A2, Digital Hearing Book pg 91, Performance Improvement Plan Cover Letter 2025.
[86] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
Printed by authority of the Commonwealth Government Printer
Nicholas Glading
Advizer Pty Ltd [2025] FWC 3137
(2010) 195 IR 292
(1995) 62 IR 371
(1996) 142 ALR 681
(1999) 94 FCR 561
(1999) 169 ALR 89
(1938) 60 CLR 601
(2010) 194 IR 1
(1995) 60 IR 1
(2002) 117 IR 357