Ponte v Greater National Holdings Pty Ltd

1. The applicant, Ms Angelina Ponte (Ms Ponte), was a long-standing employee of the respondent, Greater National Holdings Pty Ltd (GNH). On 17 March 2022, GNH terminated Ms Ponte's employment with immediate effect, citing allegations of serious misconduct.
2. In this proceeding, Ms Ponte challenges the decision to terminate her employment on the basis that it was made for reasons that are prohibited under the Fair Work Act 2009 (Cth) (FW Act). She invites the Court to find that GNH has failed to discharge its reverse onus under s 361(1) of the FW Act to disprove that its reasons were not entirely benign. GNH maintains that it was motivated solely by the view formed by its director, Mr Robert Sinclair, that Ms Ponte had engaged in conduct inimical to the continuation of her employment.

1. In this proceeding, the question of liability is the only issue to be determined, and not the question as to compensation and/or penalty.
2. The following matters are agreed between the parties:
3. First, that the decision by GNH to terminate Ms Ponte's employment involved "adverse action" within the meaning of s 342(1) of the FW Act.
4. Second, that Ms Ponte:

(a) was entitled to take paid personal leave and exercised that entitlement from 11 February 2022 until the date of her dismissal. The possession and exercise of this entitlement was a workplace right within the meaning of s 341(1)(a) of the FW Act.

(b) was entitled to the benefit of, and to participate in, the process of making a workers' compensation claim under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) which she did on 15 March 2022. The possession and exercise of this entitlement was a workplace right within the meaning of s 341(1)(b) of the FW Act.

(c) had a disability, being an injured back, anxiety and depression. The disability was a protected attribute for the purposes of s 351(1) of the FW Act.

(d) was temporarily absent from work because of an illness or injury of the kind prescribed by regulation 3.01 of the Fair Work Regulations 2009 (namely, the injured back, anxiety and depression) and for the purpose of s 352 of the FW Act.

1. The parties remain in dispute as to whether Ms Ponte, on two separate occasions, made complaints and/or inquiries in relation to her employment, within the meaning of s 341(1)(c) of the FW Act. GNH challenges the factual account given by Ms Ponte and the legal characterisation of what is said to have occurred.
2. The question of why GNH made the decision to terminate Ms Ponte's employment and whether it was actuated by a proscribed reason, including those four identified at [6] above, remains very much alive.
3. The resolution of these questions has involved reference to the following material relied upon by the parties:

(a) Originating Application filed on 29 July 2022.

(b) Statement of Claim filed on 4 October 2022.[1]

(c) Reply to Defence filed on 23 November 2022.

(d) Consolidated affidavit of Ms Ponte affirmed on 22 November 2023 (First Ponte affidavit).

(e) Reply affidavit of Ms Ponte affirmed on 16 January 2024 (Second Ponte affidavit).

(f) Outline of submissions filed on 16 August 2023.

(g) Outline of submissions filed on 25 January 2024.

(a) Response filed on 26 August 2022.

(b) Defence filed on 2 November 2022.

(c) Affidavit of Mr Sinclair affirmed on 3 October 2023 (First Sinclair affidavit).

(d) Affidavit of Mr Sinclair affirmed on 6 December 2023 (Second Sinclair affidavit).

(e) Outline of submissions filed on 22 December 2022.

1. However, as is often the case, especially in those situations where the testimony of the decision-maker assumes central importance, the facts have revealed themselves through a study of the protagonists, Ms Ponte and Mr Sinclair. Subject to rulings on evidence, both of these witnesses adopted their affidavits as their evidence in chief and both were cross-examined. The trial was conducted over two days, at the conclusion of which counsel for Ms Ponte and GNH made closing oral submissions.

1. The company Greater National Limited (GNL) was established by Mr Sinclair in 1984 as the successor to an earlier formed insurance broking business. GNL holds an Australian Financial Services Licence and offers a range of insurance lines including personal lines (such as home and motor) and commercial lines (such as property, liability and professional indemnity).
2. The respondent, GNH was established in 1986 and supplies administrative services to GNL, including equipment and staff.
3. GNL and GNH are privately owned family companies and are run from a small office in Caulfield that is attached to Mr Sinclair's home residence. Mr Sinclair is a director of both entities. GNL and GNH are referred to collectively as Greater National Group, or "GNG".
4. Ms Ponte commenced employment with GNH on 1 July 2002 in an administrative role. Within the space of a few years, Ms Ponte had completed a Certificate III in Financial Services and her role had evolved so that she attended to most of the day-to-day personal insurance processing functions and daily receipting and banking and adopted the title of Personal Lines Manager. Ms Ponte's employment has never been the subject of a written agreement.
5. At all times throughout her employment, Ms Ponte's co-worker was another insurance broker, Ross Dahlstrom who started with GNH a year or so prior to Ms Ponte. Both Ms Ponte and Mr Dahlstrom worked full-time hours, Monday to Friday. At relevant times, GNH engaged the services of a bookkeeper Llou Shepherd of Shepherd Books. Ms Shepherd worked two days a week for GNH.

1. By the time that her employment with GNH came to an end, Ms Ponte was managing approximately 400 client accounts. In the management of these accounts, she performed the following range of tasks:

(a) issuing requests to underwriters for policies;

(b) liaising with clients directly concerning policy details and information;

(c) organising quotes for existing and/or new clients;

(d) organising endorsements and policy alterations as required;

(e) organising renewals of existing policies;

(f) assisting with the processing of any claims submitted against policies by clients;

(g) liaising with underwriters/insurers regarding requirements for policies; and

(h) recording all client policy activities within "Insight" (a cloud-based accounts database used by GNH from about 2019 to record all client and policy information).

1. The standard procedure for securing a new insurance policy for a client through the GNL business was at relevant times as follows:

(a) a GNL contact (for example, Ms Ponte or Mr Dahlstrom) would receive a request from a client or potential client, by email or phone, to provide one or more quotes for an insurance policy type;

(b) this enquiry, together with the client's details, would be recorded in Insight by the GNL contact. Once on Insight, all GNL contacts could access this information;

(c) the GNL contact managing the particular client would request any applicable documents required from the client;

(d) any documents received from the client would then be uploaded and stored on Insight;

(e) once all relevant documents had been received from the client, the GNL contact would submit relevant forms and documents through the various underwriter platforms, or manually in unique scenarios, to the underwriter, to consider;

(f) the underwriter would respond with a quote setting out the terms and costs of any policy they were willing to offer the client;

(g) all quotes received by underwriters were uploaded to Insight. Ordinarily, a quote was linked automatically through the underwriters' platforms to Insight. However, where a manual quote was obtained, the GNL contact would upload that quote to Insight manually;

(h) the GNL contact would have discretion to circulate what they considered to be the most appropriate quotes for policies to the client for their consideration.

(i) the client would advise the GNL contact which policy (if any) they wished to take out;

(j) when a quote for a policy was accepted and a request to take out a policy was made by a client, the GNL contact would generate an invoice through Insight and circulate the invoice to the client via email. It was at this point, that the quote was essentially converted to a policy. The invoice would show the base premium, government charges and the broker fees applied by GNL. The commission was built into the base premium but not separately identified on the invoice.

(k) By way of example, an invoice total of $1,100 could be made up of $1,000 for the base premium which included 10% commission of $100 and a broker fee of $100. When the client paid the invoice, GNL would retain the commission and broker fee and pay the insurer $900. In the event that a client was not charged a broker fee or commission, GNL would not receive any revenue from the transaction.

1. Although Ms Ponte was employed by GNH for a period of almost 20 years, this case centred on events that took place over a relatively short and recent period of time. It seems that for the most part, and despite both Ms Ponte and Mr Sinclair taking the opportunity in their affidavits to take metaphorical pot-shots at one another, with gratuitous references to historical conduct that reflected poorly on the other,[2] the working relationships at GNH and GNL were largely harmonious and productive. Mr Sinclair acknowledged that until he developed concerns about Ms Ponte's conduct in February 2022, he considered her to be a good worker in terms of the performance of her allocated tasks and duties.
2. As counsel for Ms Ponte described it in his opening submissions, Ms Ponte's dismissal occurred in dramatic circumstances whereby in the context of a 20 year employment history, she obtained a workplace injury, had to take extended leave and during that period she received a letter from her employer that made allegations that she had engaged in serious misconduct, which she subsequently denied. Ms Ponte was then dismissed without ever returning to the workplace.
3. While GNH does not deny the accuracy of this summary of events, it is necessary to set out in greater detail the way in which these circumstances unfolded and to record findings about matters along the way about which Ms Ponte and Mr Sinclair gave divergent accounts.
4. In this respect, it is necessary to make some observations about the way both witnesses gave their evidence, noting that impressions formed based on demeanour are imperfect and that findings on credit are not always absolute and can accommodate a more nuanced, answer or topic-specific, evaluation.
5. Ms Ponte was not a particularly impressive witness. A number of her responses were vague, and she gave evidence about policies maintained by GNL that was confused and unhelpful. Because the issue ultimately was not dispositive, I don't propose to set out the minutiae of what occurred. It can be said however that Ms Ponte adhered to a view, recorded in her second affidavit, that she had not previously seen a staff policies and procedure document that was annexed to the first Sinclair affidavit[3] when the very same document was annexed to her own affidavit,[4] a matter that she conceded in cross-examination. Ms Ponte was not able to adequately explain why she had adopted such a position.
6. Ms Ponte also gave evidence about a response she provided in a message exchange with Mr Dahlstrom, which I will explore in greater detail below, which I consider to be implausible and reflected poorly on her credit.
7. Mr Sinclair was not an exemplar of impeccable witness behaviour either. There were several occasions on which he gave answers that were unresponsive to questions asked in an effort it seemed, to advance and advocate for his own case. The following exchange with Ms Ponte's counsel illustrates this point:[5]

Mr Holding: So, I take it from your evidence that you were aware of all - of the identities of all the clients Ms Ponte was working with; is that right?

Mr Sinclair: No, often not aware of what clients people were working with, and certainly in Angie's case she would handle a lot of the incoming contact with clients over her personal phone rather than in the office. And that wasn't the case for the rest of the office. And then the deleting the - not copying in the invoices and deleting the emails certainly made it very difficult to know what Angie had been processing.

Mr Holding: Well, I haven't asked you about that, Mr Sinclair, but what I am asking you about is whether you knew all the clients with whom Ms Ponte was doing work?

Mr Sinclair: No.

1. Ms Pase, who appeared for GNH, submitted that Mr Sinclair's predilection for sharing his knowledge of the facts could be attributed to nerves and he should be understood as genuinely wishing to assist the Court by elucidating the issues it was required to determine. However, Mr Sinclair did not strike me as a nervous witness. To the contrary, he appeared anxious to control the narrative in an effort to defend at all costs, his view of Ms Ponte and his decision to terminate her employment.
2. In the end, my observations about both witnesses are not so significant that they would permit me to make wholesale findings about their credit and to reject or favour one witness's account accordingly, on that basis.
3. Instead, as the Full Court (McKerracher, Robertson and Lee JJ) explained in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 (at [94]):

It has been a long time since the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) was part of the common law, its broad applicability having been rejected long ago (including by no less a judge than Lord Ellenborough CJ in R v Teal [1809] EngR 179; (1809) 11 East 307; 103 ER 1022). It is trite that the tribunal of fact (be it a judge or jury), having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence, or accepting some of the evidence and rejecting the rest: Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 at 45-47 [118]- [123]; Flint v Lowe (1995) 22 MVR 1; and S v M (1984) 36 SASR 316. It is for this reason a jury is directed that they may accept some parts of a witness's evidence, but not other parts: Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155. This reflects the accumulated wisdom and experience of the common law that witnesses may lie about some things and yet tell the truth about others, and the tribunal hearing the evidence is best place to fix upon the truth...

1. Accordingly, in the chronology of events that is set out below, I will indicate where there was a factual contest and how it has been resolved.

1. On 13 October 2021, Mr Sinclair sent the following email, with the subject "Xmas Dinner & Holidays" to Ms Ponte, Ms Shepherd and Mr Dahlstrom (Christmas closure email), noting that the reference to Wed 23rd Dec was in error and should have read "22nd Dec":[6]

Hi All

We have booked the below for our GNG Xmas dinner Friday 17th Dec,

6pm Drinks at Bouzy - Bar a Vin (High St Armadale)

8pm Dinner at Sames Said Bistro (down the road)

Rosco - Please let me know if you and Tammy are available to join.

Our last trading day will be Wed 23rd Dec, please advise if you would prefer to return to work either Mon 24th Jan or Mon 31st Jan (note: Australia Day 26th Jan)

Cheers,

Rob Sinclair

1. Ms Ponte did not provide a response by email to advise Mr Sinclair of her preferred return to work date.

1. According to Ms Ponte, on around 22 December 2021, she suggested to Mr Sinclair that the office closure commence from 22 December 2021 and end on 17 January 2022. Ms Ponte described Mr Sinclair as reacting "angrily" and then forcing herself and Mr Dahlstrom to take an extra week of annual leave so that she returned to work on 25 January 2022.
2. Mr Sinclair had a different recollection of these events. His evidence instead was that shortly before the close of business on 22 December 2021, Ms Ponte approached him in the office and said that she and Ross [Dahlstrom] had decided that they would return to the office on 17 January 2022. Mr Sinclair professed his surprise at this given the lack of prior discussion about the matter. He said that he reflected on whether the earlier return date would work and the next day (23 December 2021) sent the following text message to both Ms Ponte and Mr Dahlstrom:[7]

Hi Angie & Ross

As per my email on 18th October the office is closed from 23/12/2021 and reopens Mon 24/01/2022 (not the 17th).

Have a Merry Christmas and a well earned break.

See you in the NY.

Cheers R

1. In cross-examination, Ms Ponte denied that she had told Mr Sinclair that she was coming back to work on 17 January 2022 and said that she had asked him for information about the Christmas closure and the dates involved. She was taken, in this context, to a screenshot of a series of messages she had exchanged with Mr Dahlstrom on Microsoft Teams on the morning of 22 December 2021 that read:[8]

RD: Hey when is our last day?

AP: TODAY?

RD: ok are you still coming back on the 17/1?

AP: Have not spoken about it. That's my plan otherwise too much work build up and emails and renewals.

RD: yep I'm coming back on the 17/01

AP: Have you told him this

RD: ...I just told him I was coming back when you do

AP: Gee thanks...yet to discuss.

1. At 3.31 pm on the same day, Ms Ponte sent a message on Teams to Mr Dahlstrom that read "back on the 17th".
2. Ms Ponte agreed that she may have discussed with Mr Dahlstrom, before she had a discussion with Mr Sinclair, that she was coming back to work on 17 January 2022. However, she continued to deny that she had simply told Mr Sinclair that she was coming back on that date. She also gave evidence that in the context of their discussion about the return date, Mr Sinclair had told her that she had to take time off and had referred to Ms Ponte as "a liability" and "deadwood".
3. Ms Ponte acknowledged having received the text message from Mr Sinclair on 23 December 2021 (referred to at [33] above) and agreed that she had not provided a response to this message. She further agreed that there was nothing in the wording of the text message to suggest that Mr Sinclair appeared angry about the Christmas leave situation.
4. Mr Sinclair maintained under cross-examination that Ms Ponte had told him on the afternoon of 22 December 2021 that she and Mr Dahlstrom had decided they were returning to work on 17 January 2022. Mr Sinclair told the Court that he was surprised by this revelation, given that around 2.5 months had passed since he first raised the topic of Christmas leave but denied that he was angry. He denied having any conversation on that day about long service leave, or saying words to the effect that Ms Ponte was "deadwood" or a "liability".
5. The question of how Ms Ponte's attitude to the Christmas shutdown was communicated to Mr Sinclair assumes significance because it is a matter relied upon by Ms Ponte as constituting or involving the exercise of a workplace right.
6. I have considered the two narratives; Ms Ponte invites the Court to find that the exchange was in the nature of an inquiry or suggestion. Mr Sinclair instead says that Ms Ponte presented her return from Christmas leave as a fait accompli. In the end, I am satisfied that Mr Sinclair's account should prevail. The contemporaneous exchange of messages between Ms Ponte and Mr Dahlstrom on the morning of 22 December 2021 is instructive. It is clear from this exchange, that Ms Ponte had formed and communicated to Mr Dahlstrom an intention to return from Christmas leave on 17 January 2022 and was not entertaining either of the two options identified by Mr Sinclair in his email sent on 13 October 2021. Consistent with this approach, I consider it more likely than not that Ms Ponte then informed Mr Sinclair of her intention to return on this earlier date and had reported the fact of having done so to Mr Dahlstrom when she sent a Teams message to him at 3.31 pm that day.

1. According to Ms Ponte and in an account provided in her first affidavit, on 10 February 2022, just after 2pm, she was working at her desk and had got up to collect printing from the printer, a few steps away. In doing so, she tripped over Mr Sinclair's dog (Rupert), who was sitting next to her desk. Ms Ponte reported the incident to Mr Sinclair, as she had strained her back. In her second affidavit, Ms Ponte elaborated that she had told Mr Sinclair words to the effect that "I had jarred my back by tripping over Rupert". According to Ms Ponte, Mr Sinclair had responded by asking whether Ms Ponte had stepped on the dog.
2. Mr Sinclar instead had a slightly different recollection of events. He deposed that Ms Ponte had casually mentioned to him (in passing) that she had tripped on Rupert earlier in the afternoon when no one else was in the office at the time. Mr Sinclair thought nothing more of the event as Ms Ponte appeared fit and well and did not mention any injury to him. Ms Ponte left the office at the usual time of 5pm.
3. When taken to this event in cross-examination, Ms Ponte continued to insist that when mentioning the dog, she had told Mr Sinclair that when breaking her fall, she had jarred her back. She acknowledged however that she had experienced back pain for a few years and because of this, there had been occasions when she had taken a few days off work.
4. Mr Sinclair maintained that Ms Ponte had made no connection between tripping on the dog and a back injury. Mr Sinclair acknowledged the receipt of a text message from Ms Ponte the next day (11 February 2022) in which she said that she would not be in because her back was stiff and hurting. He said that he again made no connection between the dog and any back injury, including because Ms Ponte had pre-existing back trouble.
5. Again, from this seemingly innocuous event, I am required to decide which of the competing narratives should be preferred given that Ms Ponte seeks to rely on her version of events as establishing the exercise of a workplace right.
6. I prefer the evidence of Mr Sinclair on this point. Ms Ponte gave sparse detail in her first affidavit and importantly made no explicit statement connecting the dog to a back injury. In her text message the next day, the connection she now seeks to make was likewise not identified. It seems to me that if the connection was one of significance, it would have been identified in her evidence (on the first occasion) and in the text message that sought to explain her absence from work. I accept that Mr Sinclair did not understand Ms Ponte to be communicating to him on 10 February 2022 that she had suffered a back injury as a result of tripping on his dog and that is because Ms Ponte did not mention this when she told him that she had tripped over Rupert.
7. It is however not contentious that 10 February 2022 turned out to be Ms Ponte's last day at work. In the days leading up to the termination of her employment with GNH the following events took place.
8. On 11 February 2022, Mr Sinclair sent Ms Ponte a text message in which he acknowledged her absence that day and requested "as today is Friday" to please arrange a doctor's certificate.
9. On the following Monday 14 February 2022, Ms Ponte sent Mr Sinclair a text message in which she told him that her back was still hurting, and she was getting treatment that day. She said that she would arrange a certificate for Friday and that day. Ms Ponte attended a chiropractor who issued her with a medical certificate that covered the period 11 February to 18 February 2022 and which she provided to Mr Sinclair on the same day.
10. On 17 February 2022, Mr Sinclair sent Ms Ponte a text message in which he referred to the certificate from the chiropractor as "not acceptable" and said that in future a certificate would need to be from a qualified medical practitioner.
11. On the same day, Ms Ponte attended upon her general practitioner and obtained a medical certificate that certified her as unfit for work from 11 February 2022 to 18 March 2022 inclusive. No further information was provided.

1. On 1 March 2022 Mr Sinclair sent the following email to Ms Ponte, Mr Dahlstrom and Ms Shepherd:[9]

Dear All

Insurance for staff and immediate family - commission and fees

It has come to my attention that some staff have been rebating commission directly to family and/or friends without approval. In effect, there has been no income or earnings on this business written. There is no point in being in business if we do not make any money. None of my family, that I know of, have ever received a rebate on GNG's commission.

All insurance policies (including family) must be processed gross with commission and under no circumstances should the broker fee be negative.

Broker fees may only be reduced or waived within reason. A broker fee may be waived for your personal insurance and your immediate family only. Immediate family is considered as: spouse, de facto partner, child, parent, grandparent, grandchild or sibling.

Any transaction with a net commission or negative or nil broker fee must be approved, in writing by a director of GNG.

If you have any questions regarding this, please let me know.

Regards,

ROB SINCLAIR

1. On 8 March 2022, Mr Sinclair sent by courier to Ms Ponte the following letter, which, given its significance to the proceeding, is reproduced in full:[10]

Dear Angelina

PRIVATE & CONFIDENTIAL

Re: Alleged Serious Misconduct causing financial loss

It is with great disappointment that I write to you in relation to allegations of serious misconduct by you that we have recently identified.

A review of various transactions initiated and processed by you over the past few years reveal over 100 cases where the evidence suggests that you have not charged clients the appropriate commission and fees on invoices. If substantiated, this alleged misconduct may amount to unlawful conduct including but not limited to obtaining a financial advantage by deception.

The invoices involved appear to have either been processed with nil commission, with a subsequent reduction in the total amount payable by the client and/or a nil fee, or involve a negative broker fee applied to offset some, or all, of the insurer commission we receive.

The clients we have identified in our review include, but are not limited to, your family and friends. Over the 19 plus years that you have been employed by us, you have never requested the authority to nett the premium or to apply a negative broker fee for any of these clients. Likewise, over this time, I have never authorised or even indicated a preparedness to adjust client invoices in the way that you have.

Based on our investigation of these matters it is apparent that you may have taken specific steps and processes to hide such conduct from me. This includes, but is not limited to, omitting to copy me in on emails which is standard office practice for all clients when you send out invoices.

To date, we estimate that this alleged misconduct has resulted in over $25,000 of lost income to the business and we have evidence of your actions and our loss. Based on the above, I believe we are entitled to terminate your employment immediately. I am also considering whether to take action against you to recover our loss. To mitigate further risk for our clients and our business, I have immediately suspended your access to our business' portal and redirected your email to me whilst further investigating your conduct. Please immediately return to me your office key and the key for our post office box.

As you are currently off work on personal leave, I invite you to respond to the matters set out above in writing. In particular, should you believe that the conduct does not constitute Serious Misconduct or a fundamental breach of your obligations as an employee, then I ask you to provide such reasons in writing by 15th of March 2022. If we do not receive a response from you by 15 March 2022, we will make a decision regarding your employment based on the information currently before us.

Yours faithfully

ROB SINCLAIR

Director

1. On 15 March 2022, Ms Ponte sent the following email to Mr Sinclair:[11]

Dear Rob

I refer to your letter dated the 8th March 2022.

I do not believe I'm guilty of the misconduct alleged by you.

I also believe that you have accused me of a criminal offence which I deny.

I require you to retract the allegations that I may have acted in a way that is unlawful.

In response to your unfound allegations, you are aware that since I commenced employment in July 2002:

(1) You authorised me on many occasions to not charge clients a broker fee in particular new client.

(2) You authorised me on many occasions to not charge existing clients a brokerage fee.

(3) I renewed policies that were placed by other employees when there was no brokerage fee.

(4) I followed the practice of not charging the brokerage fee and reducing the commission for some close family members as was the case with Ross Dahlstrom who did the same for his close family members.

Please note that I have blocked any emails from your company and any associated companies as well as your personal mobile number and associated directors.

This is necessary because of your repeated bullying and harassment over the last 10 years which has resulted in my anxiety and depression, and inability to return to work.

Regards

Angelina Ponte

1. On 15 March 2022, Ms Ponte (through her lawyer) sent by express registered mail to Mr Sinclair a completed Workers Injury Claim Form.[12] The letter enclosing the Claim Form described a "low back injury". However, the Claim Form described Ms Ponte's injury/condition as "Anxiety & Depression" which was the result of "Verbal and Electronic Bullying & Harassment by Rob Sinclair" that occurred "Over time from about 10 years ago".
2. On 17 March 2022, Mr Sinclair arranged for the following letter to be hand delivered to Ms Ponte by courier.[13] Again, given its significance to the case, I have chosen to reproduce it in full. As will be evident, the letter communicated to Ms Ponte that a decision had been taken by Mr Sinclair that her employment with GNH would end that day.

Dear Angelina

PRIVATE & CONFIDENTIAL

Re: Termination for Serious Misconduct

I refer to my letter to you of 8 March 2022 and to your response of 15 March 2022.

Your response, which simply contains bald denials and false claims that certain transaction were authorised, has done nothing to change our view that you have engaged in systematic, repeated unlawful conduct that has cost the business more than $50,000 in financial loss (our further investigations since 8 March 2022 reveal greater loss than the $25,000 referred to in our earlier letter).

As set out in our letter to you of 8 March, a review of various transactions initiated and processed by you over the past few years reveal over 100 cases where the evidence suggests that you have not charged clients the appropriate commission and fees on invoices. The clients we have identified in our review include, but are not limited to, your family and friends. None of this conduct was authorised and indeed, you went to great lengths to hide this conduct from us.

Your conduct constitutes serious misconduct and leaves us with no option but to terminate your employment summarily (i.e. without notice). Your employment will end today. You will be paid up to and including today but you have no entitlement to any payment in lieu of notice.

We reserve all our rights in relation to this matter, including our right to take action against you to recover our loss.

We also intend reporting this conduct to the relevant authorities.

Please immediately return to us any outstanding property of the business which is in your possession or control.

Yours faithfully

ROB SINCLAIR

Director

1. This fairly sterile chronology is helpful in establishing the timing and placement of events leading up to the termination of Ms Ponte's employment. It cannot however answer the central question of why the dismissal decision was made. The answer to this question will involve an understanding of the motivations at play, through an interrogation of the human dimensions of the dispute and against a legal framework that comprises the provisions of the FW Act relied upon and the Court's interpretation of these provisions, as developed over a significant period of time.
2. It is convenient to begin with the legislation.

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

(a) because the other person:

(i) has a workplace right; or

(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).

(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:

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

(c) is able to make a complaint or inquiry:

(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.

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

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

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Note: This section is a civil remedy provision (see Part 4-1).

(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.

Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

(a) 24 hours after the commencement of the absence; or

(b) such longer period as is reasonable in the circumstances.

Note: The Act defines medical certificate in section 12.

(3) A prescribed kind of illness or injury exists if the employee:

(a) is required by the terms of a workplace instrument:

(i) to notify the employer of an absence from work; and

(ii) to substantiate the reason for the absence; and

(b) complies with those terms.

1. Section 342(1) of the FW Act sets out in table form the circumstances in which a person is taken to have engaged in adverse action against an employee. Item 1 in s 342(1) provides that adverse action is taken by an employer against an employee if the employer (a) dismisses the employee, (b) injures the employee in his or her employment, (c) alters the position of the employee to the employee's prejudice, or (d) discriminates between the employee and other employees of the employer.
2. It is sufficient that a proscribed reason is one of multiple reasons for adverse action taken against a person: s 360 of the FW Act.
3. Section 361(1) of the FW Act reverses the normal onus in civil proceedings, and provides:

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent unless the person proves otherwise.

GENERAL PROTECTIONS CLAIMS - MATTERS OF PRINCIPLE

1. A live issue is whether Ms Ponte has done enough through her pleadings and factual case to establish that she had the ability to make a complaint or inquiry in relation to her employment within the meaning of s 341(1)(c)(ii) of the FW Act.
2. As far as legal principle is concerned, I adopt the following summary taken from the judgment of Halley J Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401 that with respect, reconciles the different judicial views on the meaning of this provision that have circulated over time. At [84]-[87] his Honour explains:
   1. In the context of s 341(c)(ii) of the FW Act, a "complaint" is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation", and (b) the "grievance, finding of fault, or accusation must be genuinely held or considered valid by the complainant": Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [29] (Dodds-Streeton J); Serpanos v Commonwealth of Australia [2022] FCA 1226 at [84] (Snaden J); PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; [2020] FCAFC 15 at [137] (Snaden J), [26] (Rangiah and Charlesworth JJ); Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178 at [59] (White, O'Callaghan and Colvin JJ). Further, the term "complain" has been said to connote "an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved": Alam at [59]; Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421; [2020] FCAFC 204 at [13] (Bromberg J).
   2. A person has, and therefore may exercise, a right to complain or inquire in relation to their employment if the complaint or inquiry is one that they are "able to make" under s 341(1)(c) of the FW Act. In Shea, Dodds-Streeton J considered the meaning of "able to make" in s 341(1)(c) at [625]:

[T]he requirement that the complaint be one that the employee is "able to make" in relation to his or her employments suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it is underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

1. In Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677, Snaden J said the following in relation to the statutory meaning of being "able to make" in s 341(1)(c) at [150]:

I am bound in any event by what successive full courts have now made clear; in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.

1. A complaint is "in relation to...employment" if the subject matter about which a complaint is made concerns an aspect of employment: Serpanos at [89]. There must be a relationship between the subject matter of the complaint and the complainant's employment: Alam at [74]; Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534 at [33]- [34] (Collier J). A complaint can be directly or indirectly related to its maker's employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [64] (Katzmann J); Shea at [631]. A connection between a complaint and employment will likely exist in circumstances "where the subject matter of the complaint raises an issue with potential implications for the complainant's employment": Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468; [2014] FCA 456 at [42] (Bromberg J).

The application of section 361 - the reverse onus

1. Although with different emphasis, both Ms Ponte and Mr Sinclair took the Court to [14] of Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178, in which a Full Court of the Federal Court of Australia identified a catalogue of matters which bear on the application of s 361 of the FW Act in relation to s 340 (and cognate provisions):

(a) in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute "adverse action" and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];

(b) the party making the allegation that adverse action was taken "because" of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100];

(c) an employer takes adverse action in contravention of s 340 if a proscribed reason is a "substantial and operative" reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ).

(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];

(e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal**)** at [27]; ABCC v Hall at [19];

(f) while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];

(g) the Court's rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be "a weighty consideration and often a determinative consideration" in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid, CFMEU v Anglo Gold at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker's evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in accessing whether the reasons asserted by an applicant were a substantial and operative reason for the action: ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]- [106].

(h) even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);

(i) the decision-maker's knowledge of the circumstances asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76. (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and

(j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).

DETERMINATION OF MS PONTE'S GENERAL PROTECTION CLAIMS

1. Given the matters agreed between the parties, the outstanding matters for determination are:

(a) Whether Ms Ponte exercised workplace rights within the meaning of s 341(1)(c) of the FW Act;

(b) Identification of the decision maker with respect to Ms Ponte's dismissal;

(c) The reasons for the decision to dismiss, having regard to s 360 and s 361 of the FW Act.

Did Ms Ponte exercise workplace rights within the meaning of s 341(1)(c) of the Act?

1. As noted earlier, Ms Ponte submits that she exercised a workplace right within the meaning of s 341(1)(c)(ii) on 22 December 2021 concerning the Christmas shutdown, and again on 10 February 2022 in connection with the dog tripping incident.
2. I have recorded factual findings above which largely resolve the dispute around these purported workplace rights in favour of the respondent. However, for completeness I wish to say something about the arguments made by both parties concerning how the Court should approach the issue.
3. Ms Ponte submits that the Court should accept her characterisation of what occurred on 22 December 2021 as involving the making of a suggestion to Mr Sinclair that employees return from annual leave a work early after the Christmas shutdown period. Ms Ponte submits that the suggestion was in the nature of an inquiry that was "underpinned" by a legal right she held, which she describes as the right to agree with her employer as to a period of annual leave (invoking s 88 of the FW Act) or, alternatively, to only comply with a direction to take annual leave during the Christmas shutdown if it was a valid direction under the relevant instrument (referring to cl 22.5 of the Banking, Finance and Insurance Award 2020). Ms Ponte accepts that the particularisation of this alleged workplace right in the pleadings was unsatisfactory but contends that any unfairness to GNH has been subsequently cured through a combination of the evidence contained in her two affidavits and her opening written submissions.
4. GNH submits that in addition to the factual basis for the asserted workplace right not being established on the evidence, the Court should be slow to recognise a workplace right in circumstances where the pleadings are manifestly lacking in detail and where the detail later supplied does not in any case satisfy the essential elements of a complaint or inquiry within the meaning of s 341(1)(c)(ii) as now settled by case law. In this last respect, GNH submits that the circumstances relied upon by Ms Ponte concerning the Christmas shutdown are lacking the essential characteristics of either a complaint or an inquiry and furthermore, Ms Ponte has failed to plead the source of entitlement on which her alleged ability to make a complaint or inquiry is founded.
5. GNH submits that to the extent that Ms Ponte seeks to invoke s 88 of the FW Act, she has failed to account for the manner in which this provision intersects with terms of a Modern Award (by reason of s 93 of the FW Act). GNH submits that in circumstances where cl 22.5 of the Banking, Finance and Insurance Award 2020 gave the respondent the right to direct Ms Ponte to take annual leave over the Christmas shutdown provided that relevant notice of four weeks was provided (which it was), Ms Ponte had no recourse to this provision and therefore no source of entitlement to make either a complaint or inquiry.
6. GNH identifies the more fundamental problem with the asserted workplace right however as being that the "suggestion" was a one-way statement, resolute in character and in no way indicative of a complaint or question directed at Mr Sinclair. In this respect, GNH relies on the decisions of Flageul v WeDrive Pty Ltd [2020] FCA 1666 at [248] and PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [136]. The last decision in particular emphasises the reciprocal character of the inquiry, as connoting a request for information or act of inquiring.
7. Ms Ponte submits that the Court should accept her characterisation of what occurred on 10 February 2022 as involving a complaint in the form of her reporting to Mr Sinclair that she had injured her back at the workplace. She submits that the only reasonable inference from her evidence is that she expressed a grievance to her employer about having sustained an injury and that the complaint was underpinned by a legal right she held - for example, under workplace health and safety legislation - and that such a complaint was related to her employment.
8. Ms Ponte accepts that the particularisation of this second alleged workplace right in the pleadings was also unsatisfactory but makes the same submission that any prejudice to GNH has been subsequently cured through a combination of the evidence contained in her two affidavits and her opening written submissions.
9. GNH directs the same catalogue of concerns towards this second alleged workplace right. It submits that it was not adequately pleaded and that more recent efforts to furnish relevant detail do not overcome its fundamental deficiencies. GNH submits that the act of reporting her workplace injury to Mr Sinclair was not a complaint or inquiry as a matter of substance and Ms Ponte has not claimed, nor adduced any evidence that in the act of reporting the relevant incident to Mr Sinclair, she was expressing discontent or that she was aggrieved by the incident. GNH was especially critical of Ms Ponte's efforts to particularise the source of entitlement which was said to underpin this complaint, noting that there was a total failure to identify a piece of legislation, provision, protection or obligation.
10. In short, I accept the submissions of GNH in relation to these two alleged workplace rights. In the first place and mindful of the significant consequences that attend a finding of liability for a contravention of the general protection provisions, I am not persuaded that the obvious prejudice flowing to the respondent from the deficient pleadings was ameliorated by the subsequent efforts by Ms Ponte to bring clarity through evidence and submissions. The difficulty was that the articulation of the alleged workplace rights had a dynamic quality that reached its zenith (in terms of clarity) in closing submissions. While it is one thing to meet a case by way of submissions, there are obvious challenges with meeting and/or testing an evidential case.
11. Second, and relatedly, I am not satisfied that Ms Ponte had identified the necessary source of entitlement within the statutory meaning of being "able to make" an inquiry or complaint. I accept the submissions of GNH in this respect.
12. Third, and reflecting the factual findings recorded at [40] and [46] I am not satisfied that on either 22 December 2021 or 10 January 2022, Ms Ponte communicated a complaint or an inquiry, whether in relation to her employment or otherwise. The communication on 22 December 2021 involved Ms Ponte informing Mr Sinclair that she had made a decision about her date of return following the Christmas shutdown. It was not a communication that involved a request for information. The communication on 10 February 2022 involved Ms Ponte mentioning to Mr Sinclair that she had tripped on his dog, Rupert. Nothing in this communication involved the expression of a grievance or a complaint. Insofar as I am asked by Ms Ponte to find that such a communication was inferred, I decline to do so. I cannot identify anything in the bland communication of this information that would permit such an inference.
13. Although I have found that Ms Ponte has failed to establish the existence of these two alleged workplace rights, there is agreement that she has established the existence of the workplace rights and protected attributes that have been identified at [6] above. There is also agreement that the decision taken by GNH to dismiss Ms Ponte from employment was a form of adverse action. These matters having been proven, Ms Ponte has established a basis from which it may be inferred that the adverse action was taken because she exercised the relevant workplace rights and/or possessed the relevant protected attributes and accordingly, the presumption under s 361(1) is enlivened.

1. Because the respondent is a corporation, in practical terms, it can only act via the agency of its human officers. This is recognised by s 793(1) of the FW Act which provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent of the body within the scope of his or her actual or apparent authority is taken to have been engaged in also by the body.
2. It is not in dispute that Mr Sinclair, including by reason of his directorship of GNH, is an "officer" of GNH and therefore his conduct is capable of being captured by this provision and attributed to GNH. It is not in dispute that it was within the scope of Mr Sinclair's actual or apparent authority to take the adverse action that was taken.
3. GNH has sought to discharge its onus through Mr Sinclair's direct evidence of his reasons for taking the adverse action. The onus will be discharged if I accept that GNH has demonstrated, to the civil standard, that the reasons for taking the adverse action did not include, as a substantial and operative factor, that Ms Ponte exercised the relevant workplace rights and/or possessed the relevant protected attributes.
4. There is no suggestion in this case that any other individual made a contribution to the decision to terminate Ms Ponte's employment that achieved the necessary threshold; described in cases such as Wong v National Australia Bank Limited [2022] FCAFC 155; (2022) 318 IR 148 as "indispensable", "material", "significant", "plainly important", "major", 'substantial" or "essential". Instead, a matter to which I will return, Ms Ponte is critical of the failure of GNH to call as witnesses other members of the GNH team and contends that the failure to do so exposes gaps in the respondent's evidentiary case which mean it is unable to discharge its reverse onus.

1. The starting point is that Mr Sinclair expressly deposes that his reasons for terminating Ms Ponte's employment were not, and did not include, that she:

(a) was able to make a workers compensation claim and was entitled to workers compensation benefits if any such claim was successful;

(b) had made a workers compensation claim;

(c) was on personal leave;

(d) was temporarily absent from work;

(e) suffered from a back injury and/or anxiety and/or depression.

1. Mr Sinclair also deposes that his reasons for terminating Ms Ponte's employment did not include her ability to make, or that she had made, a complaint or inquiry about her employment. This last denial was directed at the two alleged workplace rights that I have found were not substantiated.
2. Mr Sinclair identifies his only reasons for terminating Ms Ponte's employment as:

(a) his belief that Ms Ponte had potentially committed criminal offences by reason of the unauthorised transactions, the rolling policies, the cancelled policies and the backdated policy;

(b) he had lost trust that Ms Ponte was working honestly;

(c) he had lost confidence that Ms Ponte was working in the best interest of the company and its shareholders;

(d) he believed that Ms Ponte's conduct referred to in (a) was in breach of the Broking Policy (cl. 23) - which I note is concerned with "Fees and Commissions"; and

(e) he believed that Ms Ponte's conduct referred to in (a) was in breach of the Staff Policy (cl. 29.6) which is concerned with "Business Ethics & Conflicts of Interest".

1. Apart from exploring what the references in [90(a)] are intended by Mr Sinclair to comprehend, it is necessary to examine whether there are any reasons to doubt the reliability of the reasons offered by Mr Sinclair and his evidence directed at his decision-making process.
2. A useful starting point for this evaluation is the matters relied upon by Ms Ponte as (according to her) casting doubt on the veracity and/or exhaustiveness of the reasons offered by Mr Sinclair (and GNH) for her dismissal.
3. Ms Ponte submits that GNH has left gaping holes in its evidentiary case that mean that even if the Court was to accept the reasons proffered by Mr Sinclair relating to the alleged misconduct of Ms Ponte, it could not be satisfied that there were no other proscribed reasons for the dismissal decision. This submission relies in substantial part on the failure of GNH to call evidence from both Mr Dahlstrom and Ms Shepherd and to adequately explain how it came to be that Ms Ponte's insurance transactions suddenly aroused the suspicion of the business (in the context of an otherwise unremarkable 20 year employment history) and how the alleged transgressions discovered, especially those referred to in the show-cause letter, involved a departure from established practice or one so grave as to justify summary dismissal. Ms Ponte also submits that it is telling that Mr Dahlstrom, who on her evidence also engaged in the practice of discounting broker fees and commissions, did not receive the same disciplinary response from GNH.
4. In making this submission Ms Ponte acknowledges, as she must, that the task for the Court is to identify the true reasons for the adverse action. This means that the question is not whether the adverse action was unfair, unjust or even taken on a correct understanding of the facts: see CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273 at [136]; Wong v National Australia Bank Limited [2021] FCA 671 at [81]- [83] (approved by the Full Court in Wong at [93]).
5. However, Ms Ponte submits that such matters are not wholly irrelevant and relies for this submission on the observations of Snaden J in Serpanos v Commonwealth of Australia [2022] FCA 1226, where at [126]-[127] his Honour said:
   1. That is not to say, however, that any substantive or procedural unfairness or illogicality inherent in what a respondent nominates as its reasons for conducting itself in any given way are wholly irrelevant. In Wong v National Australia Bank Limited [2021] FCA 671 (Snaden J), [83] I made the following observations, which bear repeating now:

In some circumstances, it might be possible to infer from evidence tending to show that a respondent's opinions were formed wrongly or unfairly - that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism - that those opinions either were not, in fact, formed, or did not relevantly actuate the respondent's conduct (or both). Such circumstances might warrant the rejection of the respondent's evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?

1. Similarly, where the reasons for which a respondent claims to have conducted itself were formed in consequence of a process that was tainted by obvious or significant shortcomings, that too might, in the right circumstances, ground a finding that they did not, in fact, form in the mind or minds of those who effected - or substantially or indispensably or significantly or materially contributed to - the conduct, and/or did not, in fact, actuate or partially actuate it.

1. Furthermore, in circumstances where both GNH and Ms Ponte placed the brokerage fee and commission discounting practices of GNL front and centre of the trial and both invite me to record findings as to the extent (if any) of discounting practices, it is necessary to record some of the evidence directed at the issue and to reconcile this where possible.

1. In her first affidavit, Ms Ponte deposed that in her role as Personal Lines Manager, she had a discretion to place insurance for clients by sometimes waiving the broker fee to either attract new business or retain clients of the respondent when premiums became uncompetitive. She described how in the first few years of her employment, she would approach Mr Sinclair for approval when waiving a fee, which approval would usually be given verbally without question. Ms Ponte stated that after a while, Mr Sinclair left this to Ms Ponte to decide and that he allowed herself and Mr Dahlstrom considerable autonomy and independence in this regard. It was also Ms Ponte's evidence, implicit in her response to the show cause letter, that she had understood herself to be acting in accordance with a policy and practice of not charging brokerage fees and reducing commission for some close family members. She stated that Mr Dahlstrom engaged in the same practice with respect to his close family members.
2. In her second affidavit, Ms Ponte explained that she could not remember when, but Mr Dahlstrom had told her it was OK to reduce commissions for family members. She said that Mr Dahlstrom had taught her how to reduce commission and remove brokerage fees on the "Insight" system when GNL moved over to that system in about 2019.
3. In her second affidavit, Ms Ponte deposed that she did not copy in Mr Dahlstrom or Mr Sinclair to emails to her family members and neither did Mr Dahlstrom. She stated this was based on a belief that she did not think there was a reason to do so and because she did not consider that Mr Sinclair wanted her to do this. It was her evidence that Mr Sinclair would have been aware that she was sending invoices to her family members and that she was giving them discounts, including the amount. This was because (according to Ms Ponte), the sheet of daily earnings that she produced each day and which she gave to Mr Sinclair, recorded the names of clients (including family members) as well as the commission or brokerage fees charged to the account. It was Ms Ponte's evidence that she was able to establish from this daily earnings sheet that Mr Dahlstrom was also giving discounts to his family members.
4. In his first affidavit, Mr Sinclair refuted Ms Ponte's account of discounting practices. His evidence was that he had not at any time communicated to Ms Ponte or to Mr Dahlstrom (or any other employee) that they had discretion or authority to waive broker fees or commission to attract new business or retain clients. Neither had he simply left this question (of whether to waive a fee) to Ms Ponte to decide.
5. Mr Sinclair explained in his affidavit that it was common business practice, but only with his approval, for GNL contacts to waive broker fees (not commission) for staff's personal insurance and for that of immediate family members, which he described as a "staff benefit". According to Mr Sinclair, this meant that the broker fee for that policy would be manually set to nil and GNL would not recoup the broker fee for that policy. The commission would still be paid because this was set and agreed in advance with the underwriter.
6. Mr Sinclair also deposed that he did not at any time communicate to Ms Ponte or any other GNL contact, that they had approval to waive commission or charge negative broker fees to effectively cancel or override the commission. He said that when Ms Ponte placed insurance policies for himself or his family members, she did not alter or remove the commission.
7. The topic of discounting practices took up considerable time during cross-examination of both witnesses and produced differences in the responses of Ms Ponte and Mr Sinclair.
8. During her cross-examination, Ms Ponte agreed that she was authorised to reduce or remove broker fees when processing policies for her immediate family and the immediate family of Mr Sinclair. Ms Ponte went on to explain that her colleague, Mr Dahlstrom, had advised her when she first started working that she didn't have to pay a brokers fee or commission on policies because she worked in the business. She gave evidence that Mr Sinclair had also given her authority beyond this on occasion to reduce or remove entirely a brokers fee for other (non-family) clients.
9. When pressed on this evidence Ms Ponte explained that after being at GNL a few years, she got more experience, and she would ask Mr Sinclair what to do. He would respond by saying "I leave it up to you. Use your discretion". According to Ms Ponte, he gave the same instruction to Mr Dahlstrom. In effect he left it to them both to roll over and take out policies as they felt was correct and "to keep the business to be competitive". Ms Ponte agreed that on occasions during her employment she therefore removed or reduced broker fees on transactions without seeking express approval from Mr Sinclair to do so.
10. On the topic of commissions, Ms Ponte agreed that during her employment, she removed or reduced commissions on transactions and that importantly, she didn't have authority from GNL, GNH or Mr Sinclair to reduce or remove commissions on transactions.
11. Ms Ponte was taken during cross examination to the following text-message exchange between herself and Mr Dahlstrom which, it was established, took place on 28 February 2022 at around the time that Mr Sinclair sent the email to staff referred to at [52] and while Ms Ponte was on personal leave.[14]

RD: Rob called me this morning wanting to renew your family renewals as he doesn't want us to net out the commission for family members but will allow us to still net out for our own policies. He will be sending us a email confirming this.��

AP: Thanks for letting me know.

RD: ��no doubt you will be seeing a email about this very soon.

AP: I don't check anything to do with work, maybe will send to personal

RD: Oh it will be sitting there in your inbox when you return. He sent the email through but he has her dirty fingers all over it.

AP: Of course it does

RD: We are being treated like children again.��

AP: It's a joke

RD: Plus now he wants a list from us of all the policies that we have invoiced in the past where we have altered the commission and fees to our family and friends. He won't be getting it from me.

AP: Are you serious? Me neither and to think we bring business to him too

RD: nope it's in his email. He he bangs on about it I will just leave and he can pay me out. I'm only really doing this job to keep me occupied

AP: You do what suits you...it's like you said. Treated like children

1. One might ask rhetorically what forensic purpose was served by Ms Ponte annexing this text exchange to her affidavit as it did not reflect well on her (or on Mr Dahlstrom) in either tone or content. My impression of Ms Ponte in relation to this exchange did not improve when she denied that her use of the words "it's a joke" conveyed her annoyance that Mr Sinclair didn't want her to net out the commission for family members. She sought to explain her response as instead being reactive to Mr Dahlstrom's comment that they were being "treated like children". I consider that this response was disingenuous and unreliable.
2. Ms Ponte also denied that her response conveyed that she was annoyed because she could no longer reduce commission for family members, although she did acknowledge that they (the family members) received better policies when the commission was reduced.
3. Ms Ponte also denied that she considered the request from Mr Sinclair for a list of policies to be unreasonable. This produced the following exchange:[15]

Ms Pase: Okay. And yet, you intended to refuse to comply with any direction that Mr Sinclair would give you about providing a list, didn't you? That's what you mean by "me neither"?

Ms Ponte: It would be a hard thing to do. You would have to go through a lot of invoices. Big job, kind of

Ms Pase: Okay?

Ms Ponte: looking through them all.

1. Reflecting on this evidence and my impression at the time that it was given, I consider that the responses given by Ms Ponte sought to conceal her true reaction to what had been conveyed to her by Mr Dahlstrom. I find that Ms Ponte was annoyed by the prospect that she would have to cease the practice of discounting commissions and by the suggestion that she would be required to account, by the provision of a list of transactions, for instances in the past when she had engaged in this practice.
2. Mr Sinclair's evidence on the topic of discounting of policies was more emphatic.
3. In evidence in chief, he said that he was very happy for staff to discount the broker fee to zero for their family, but this practice left the business earning the commission paid by the insurer as a small amount of income on each transaction. Mr Sinclair said that he had "no idea" that Ms Ponte was not doing exactly the same thing as she did for his family - i.e. only discounting the broker fee. He had understood that the invoices for family members of Ms Ponte were being communicated to Mr Dahlstrom and himself consistently with the practice of copying in each staff member so that they were each aware of what the other staff were doing.
4. Mr Sinclair refuted the suggestion made by Ms Ponte that the daily earnings sheet contained information from which he could understand the extent of any discounting of broker fees or commission. Mr Sinclair said that his only interest in this report was to transfer the brokerage and fees that were earnt on the day from the trust account into the trading account. He said that there was no information in the document about who had processed anything, it was simply a listing of names of people with earnings for commission and earnings for fees. Mr Sinclair disclaimed its usefulness as a document that he could have looked at in any detail. He was interested in just the "bottom line".
5. Mr Sinclair was adamant that the daily earnings sheet did not show what commission or brokerage fees Ms Ponte, or any other staff member, was charging. Mr Sinclair explained that the only way to find out who had processed a particular transaction was to look at the transaction screen for each transaction or each policy that had been processed.
6. Mr Sinclair said that he had "no idea" that Mr Dahlstrom was giving discounts to family members. He explained that it was only after investigating Ms Ponte, that they found that Mr Dahlstrom was providing discounts on policies to his immediate family, being his two daughters. It was Mr Sinclair's evidence that Ross had subsequently apologised, paid the business the loss of earnings and been disciplined.
7. Mr Sinclair acknowledged in his evidence in chief that he had on one occasion, given permission to Ms Ponte to remove the commission for a policy that was issued to his daughter for car insurance. Mr Sinclair described this occasion, that occurred in around 2021, as the only time he could remember Ms Ponte asking him to remove commission on any policy at all.
8. In cross-examination Mr Sinclair denied that Ms Ponte would ever have to exercise discretion in the application of broker fees. He insisted that the fees were locked into the system, and it was simply a matter of processing the transaction. Mr Sinclair did however acknowledge that "very occasionally" Ms Ponte would ask him if she could discount a brokerage fee for a new client. He denied that he had given Ms Ponte a more general authority to apply a discount for new clients and maintained that the understanding was that Ms Ponte could process transactions for her immediate family with no broker fee without him being asked and he was "quite comfortable" that this was what was going on in the office. Mr Sinclair said that on the other hand, he had "no idea" that Ms Ponte was invoicing transactions with negative broker fees or processing with zero commission, to achieve the same result.
9. Mr Sinclair was taken in cross-examination to the Broking Policy and Procedures document and the Staff Policy and Procedures document. He accepted that he had never spoken with Ms Ponte about these documents. He also agreed that nowhere in these policies was anything said on the topic of staff discounts for family members, and neither was it written down anywhere else. Mr Sinclair described this as being "just general office practice".
10. Mr Sinclair was quizzed about the distinction between broker fees and commissions. This produced the following exchange:[16]

Mr Holding: You never said to Ms Ponte, did you, that she was permitted to discount brokerage fees but not commissions?

Mr Sinclair: I never said she was permitted to discount the commissions at all. I agree - I never said she was permitted to discount the broker fees and not the commissions. I never said that she was not - she was allowed to discount the commissions. It was just not...

Mr Holding: So your answer is?

Mr Sinclair: Considered.

Mr Holding: Your answer is yes?

Mr Sinclair: That's right.

Mr Holding: You never said to her?

Mr Sinclair: I never combined the two things together. That's right.

Mr Holding: And you said that this was general office practice?

Mr Sinclair: Yes.

Mr Holding: I suggest that you had never said that employees were permitted to discount fees but were not permitted to discount commissions?

Mr Sinclair: They were certainly never permitted to discount commission. The commissions were not.

Mr Holding: Well, you never said that, did you?

Mr Sinclair: It says it in the brokerage policies and procedures very clearly.

Mr Holding: Well, as I asked you before, it doesn't say in that brokerage policy and procedure?

Mr Sinclair: It doesn't say

Mr Holding: anything about discounting anything?

Mr Sinclair: Broker fee.

Mr Holding: for family members, does it?

Mr Sinclair: That's true. Yes. I agree.

Mr Holding: So you accept that you have never said that staff may discount fees but not commissions?

Mr Sinclair: I've said staff can discount fees for immediate family. That's all.

Mr Holding: But you've never said that to Angelina, have you?

Mr Sinclair: I've said that they can discount fees for family, yes.

Mr Holding: Well, you've never?

Mr Sinclair: It was common practice.

Mr Holding: You've never said that to Angelina, have you?

Mr Sinclair: Yes. I've - she has processed numerous policies for my family and that's what - the way they were processed.

Mr Holdng: Nowhere in your witness statement is there a conversation between you and Angelina about anything where you told her what she could and couldn't do; that's true isn't it?

Mr Sinclair: Nowhere in the affidavit or ---

Mr Holding: Yes. Excuse me?

Mr Sinclair: that we've never had that conversation? I would ---

Mr Holding: Yes. There's nothing in your affidavit?

Mr Sinclair: Yes.

Mr Holding: you haven't given any evidence about a conversation in which you told Angelina that she couldn't discount commissions?

Mr Sinclair: It was, as I've said, common practice within the business to discount the broker fee for the immediate family. Apart from that I needed to be asked. Angie did ask me on one occasion for my daughter and it was an insignificant amount and I readily agreed. That was the only occasion.

1. Despite the slightly ramshackle way in which the evidence on the topic of discounting emerged, I consider that the evidence of Ms Ponte and Mr Sinclair is largely reconcilable and without resort to credit findings.
2. I find, as Ms Ponte acknowledged, that she had not been given permission explicitly by Mr Sinclair to apply a discount on commission to any insurance policy, including those issued for family members, and yet she engaged in this practice by applying commission discounts to policies taken out for family members. While it is not necessary that I record a finding as to why Ms Ponte applied these commission discounts without authority from Mr Sinclair, taking a generous view to Ms Ponte it is at least conceivable that she did so because she believed that she had implicit authority from the business to do so, based on information provided to her by Mr Dahlstrom and/or because she took the view that the business, by its silence or inaction, acquiesced in the practice.
3. In this respect, I have difficulty with Mr Sinclair's evidence that he was unable to ascertain from the daily earnings sheet whether any discounting of commissions had been applied. Instead, I consider his response was rather indicative of the fact that his practice was not to interrogate these reports for this information. As he said in his evidence, the utility of these reports to him was so that he could identify the amount to transfer in brokerage and fees that was earnt from the trust account into the trading account.
4. I also consider that Ms Ponte more likely than not, engaged in a practice of discounting broker fees that went beyond the scope of what Mr Sinclair considered he had given her authority to transact. Mr Sinclair gave credible and consistent evidence that he permitted employees (namely, Ms Ponte and Ms Dahlstrom) to apply a discount on the brokerage fee for immediate family members (although who this category comprehended was not precisely defined) but that other clients were to be considered on a case-by-case basis and by first seeking Mr Sinclair's approval. However, it also appears that Ms Ponte took the view that she was at liberty to apply this discount more liberally, including to attract new clients to the business. The reality of the situation is that practices evolved over time that appear not to have been subject to censure or to have troubled Mr Sinclair or the GNL business.
5. What do these findings mean in the context of an evaluation of Mr Sinclair's reasons for terminating Ms Ponte's employment. Because this is not an unfair dismissal case, I am not required to be satisfied that the reasons for dismissal were valid. However, I do need to be satisfied, if GNH is to discharge its evidentiary onus, that they reflected the genuinely held view of Mr Sinclair that Ms Ponte had acted contrary to instruction or policy of the GNL business. In this respect I accept, based on the reconciliation of evidence set out above, that Mr Sinclair was troubled by the discovery that Ms Ponte had been altering or removing commission without his approval and knowledge for family members and for other clients and this was a reason for his decision to terminate Ms Ponte's employment.
6. However, Ms Ponte's case is principally concerned with the thesis that Mr Sinclair's decision to terminate her employment was additionally motivated by other proscribed reasons and in aid of this contention, she invites the Court to take a closer look at the explanations given by Mr Sinclair as to how he came to learn about Ms Ponte's unauthorised transactions in the first place.

How did GNH come to discover the unauthorised transactions?

1. In his first affidavit, Mr Sinclair deposed that on around 25 February 2022, the bookkeeper, Shepherd Books (being a reference to Ms Llou Shepherd) informed him that she had found details of a policy on the client transaction screen in Insight, where Ms Ponte had rebated the full commission to be paid to GNL by the insurer for the insurance policy provided to her daughter and son-in-law. Mr Sinclair went on to explain that when he looked into the details on Insight, he realised that Ms Ponte had been altering and/or removing the commission, without his approval or knowledge, for insurance policies for both of Ms Ponte's daughters and other clients. Mr Sinclair further discovered that there were different ways in which Ms Ponte was achieving the discount. In some cases, she would override the default commission rate that was previously agreed with the insurer and change the amount to $0.00. In other cases, where the insurer (or its platform) did not allow the commission to be altered or overridden, Ms Ponte would sometimes override the default broker fee on Insight and enter a negative amount in the field for the broker fee. There were further cases where Ms Ponte simply emailed the insurer directly and asked for a discount in the underwriting agency fees and commission, citing a family relationship.
2. Mr Sinclair deposed to having given instructions to Shepherd Books to conduct a review on Insight of the GNL client accounts managed by Ms Ponte. The review was said to reveal that Ms Ponte had manipulated Insight, and two other online insurers' portals, "SVU" and "Sunrise", to not only remove or reduce broker fees but also to remove or reduce commissions to provide large discounts to Ms Ponte's family. It was Mr Sinclair's evidence that after this information came to light, he sent the email on 1 March 2022 reproduced at [52] above.
3. Mr Sinclair deposed that as part of the review performed by Shepherd Books, he was alerted to the fact that Ms Ponte had not blind copied him into numerous invoices that were emails to clients and that cross-referencing of these invoices disclosed that there were more transactions where the broker fee and/or commission was reduced or removed. Mr Sinclair described this as indicative of a systematic pattern where emails that were not blind copied to him related to clients that had been charged minimal or no broker fee and/or netted out or reduced commission.
4. Mr Sinclair deposed that between 4 March and 8 March 2022, Shepherd Books identified hundreds of transactions involving over 40 clients in which Ms Ponte had manipulated invoices to remove or reduce brokerage fees and/or commission which should have been charged to clients. Mr Sinclair deposed to being "shocked and disappointed" by the discovery of this conduct. He responded by giving instructions to Microsoft Exchange to cut off Ms Ponte's access to her business email address and deactivated her access to the Insight system and the insurers platforms. As we also know, on 8 March 2022, Mr Sinclair caused the show cause letter to be delivered to Ms Ponte.
5. In cross-examination, Mr Sinclair agreed that it was during the week of 21 February 2022 that he had started looking into the transactions with Ms Ponte's family. However, he denied that this came about because he had instructed Ms Shepherd to start an investigation into the transactions that Ms Ponte had processed. As he explained it, Ms Shepherd had looked at one policy and asked Mr Sinclair if the transaction had been processed correctly. Mr Sinclair had responded "no" as it had a zero commission. Mr Sinclair was not able to adequately explain how Ms Shepherd came to be looking at this policy and of course, the Court did not have the benefit of Ms Shepherd's evidence about the topic.
6. Mr Sinclair resisted the suggestion that he had instead instructed Ms Shepherd to look at Ms Ponte's personal transactions because he was frustrated that Ms Ponte was at that time undertaking a period of extended personal leave and he sought an opportunity to discipline her.
7. Mr Sinclair was taken to a statement dated 7 April 2022 that he had provided to SECA Group in the context of responding to an investigation into the WorkCover claim that Ms Ponte filed 15 March 2022.[17] In that document he had stated at paragraphs 7 and 8 in relation to Ms Ponte:

While she was on leave Llou started looking at her personal transactions and found that she had been processing insurance policies for her family and friends and processing the sale with no fee and or minus the commissions so we were making nothing or minimal amount for the sale.

There were a few things that occurred that made us look into her activities. Angie never took phone calls from her family and/or friends at work and would only communicate with them via email or text. One of the staff members received a phone call from a friend of Angie's at the office and when Angie spoke to that person she said she had told them never to call the office. One of the staff members asked the name of the person that sends flowers to Angie every year and when their name was recalled we looked them up on the system and found they had received the same discount we later realised Angie was processing on a regular basis.

1. Mr Sinclair was questioned and provided responses about this evidence as follows:[18]

Mr Holding: You haven't given any evidence about that, have you, in this proceedings?

Mr Sinclair: Well, Lou looked into the transaction. We were - we were all involved in looking into the transactions in different ways.

Mr Holding: Well, paragraph 8 says that - I suggest to you the effect of paragraph - your evidence in paragraph 8 or your statement in paragraph 8 is that you and Lou started looking into her activities because she never took phone calls from her family or friends at work and would only communicate with them via email or text?

Mr Sinclair: Well, it doesn't say because she - no. Lou - Lou advised me of - asked me to look at one of the transactions and that was - after looking at that transaction, I asked Lou to look into more transactions. Then we discovered it was very difficult to find much of a record because her computer had been so thoroughly wiped of most information. However, we found a trail in the archives where I could see the transactions were not - where Ross and I hadn't BCC'd into some archived transactions and then Lou looked into those transactions.

...

Mr Holding: What you've said here, in paragraph 8, is that those are the things that made you and Lou Shepherd look into her activities, isn't it?

Mr Sinclair: The - instigated by Lou finding this transaction and asking me if it was correct.

Mr Holding: But that's not what it says, is it

Mr Sinclair: No. But it doesn't change it. That's the way it happened. It doesn't change - this is correct.

1. Ms Ponte submitted that the two accounts recorded above exposed inconsistencies in Mr Sinclair's explanation as to how irregularities in Ms Ponte's personal insurance transactions first came to his attention. This is self-evidently the case. On one version, Ms Shepherd just happened to identify an errant policy, on the other version, both Ms Shepherd and Mr Sinclair, responding to suspicious behaviours around email and phone calls, started digging around in Ms Ponte's personal transactions. One version relies on serendipity, the other suggests a more targeted approach to Ms Ponte which she submits is a strong indicator that Mr Sinclair was motivated by animus to look for something incriminating about her work practices.
2. Ms Ponte invites the Court to draw a Jones v Dunkel[19] inference that the evidence of Ms Shepherd, who was not called by GNH in this proceeding, would not have assisted GNH in discharging its onus under s 361(1) of the FW Act. The submission proceeds as follows:
3. First, Ms Shepherd was a witness in the respondent's camp, in that one would expect her to be called by GNH as part of its responsive case.
4. Second, there had been no explanation provided by GNH for its failure to call Ms Shepherd.
5. Third, the evidence of Ms Shepherd would have elucidated information on the topic of how she came to be involved in the investigation of Ms Ponte's personal insurance transactions and how she brought the issue of errant transactions to Mr Sinclair's attention.
6. GNH submitted that the conditions for the application of the rule in Jones v Dunkel were absent in this case in relation to both Ms Shepherd and Mr Dahlstrom. The submission in relation to Ms Shepherd did not however descend to the particular topic of the inception of the investigation. Despite this, I must consider the submission on its merits.
7. I am persuaded that the failure to produce evidence from Ms Shepherd on the topic of the investigation process does permit an inference that her evidence would not have assisted the respondent. Ms Shepherd is clearly a witness who resides in the camp of the respondent and at relevant times, continued to be retained on a regular and systemic basis by GNH. No explanation was given for her failure to participate in the hearing. The global submission from GNH as I understood it was that where Mr Sinclair was the sole decision-maker in relation to the decision to terminate Ms Ponte's employment, the focus of the respondent's case must necessarily be directed at extracting from him the asserted reasons for decision. This proposition is undoubtedly correct. However, where the Court is also concerned with understanding the decision-making process in a broader factual context and by reference to a range of objective circumstances, the role of other "more peripheral" players cannot be overlooked.
8. Proceeding then on the basis that any evidence from Ms Shepherd would not have assisted the respondent, including to provide corroboration of Mr Sinclair's account that she happened upon an unauthorised policy transacted by Ms Ponte, I am left to construe Mr Sinclair's competing accounts through a single lens. In this respect, I prefer the account provided by Mr Sinclair to the WorkCover investigator on a date close in time to the events described. As noted above, this account commenced with the explanation that while Ms Ponte was on leave, Ms Shepherd started looking at her (Ms Ponte's) personal transactions and found irregularities.
9. While Mr Sinclair attempted to justify the digging around based on concerns around covert-styled behaviours, I did not consider his efforts to be persuasive. While these concerns might have been genuinely held, I do not consider that they explain or adequately account for the first step taken by Ms Shepherd. I find, including in the absence of an explanation from Ms Shepherd which I infer would not have been helpful, that Mr Sinclair gave an instruction to Ms Shepherd to start investigating Ms Ponte's insurance transactions for reasons that were not explained by GNH in the proceeding.

Relationship between the investigation, the dismissal and the workplace rights, temporary absence and protected attributes

1. Ms Ponte submits that in the absence of an explanation from GNH, the Court cannot rule out the possibility that the instruction was given in retaliation for Ms Ponte's exercise of workplace rights, temporary absence from employment and/or possession of protected attributes.
2. Ms Ponte invites the Court to find that this animus effectively flowed through to the decision to terminate her employment for the following reasons (identified in no particular order), each of which are said to operate with cumulative force:
3. First, it is not in contest that Ms Ponte provided a medical certificate that certified her absence from the workplace for the period of 11 February 2022 to 18 March 2022, meaning that she would be off work for a period of one month.
4. Relatedly, in the context of acknowledging that his wife (Alina) had, at his direction, telephoned Ms Ponte's medical practice to find out if the dates recorded in the medical certificate were correct, Mr Sinclair accepted that he had been concerned about the long period of time that Ms Ponte was going to be away, as well what he described as the "backdating" of the medical certificate.
5. Mr Sinclair also accepted during cross-examination that he was concerned because it was quite an inconvenience for him to have one of his two employees away for such a long time.
6. Ms Ponte also invited the Court to take account of Mr Sinclair's acknowledgement that this period of absence was the longest that Ms Ponte had taken in a significant time, as well as Mr Sinclair's evidence that he had recently introduced the practice of insisting on a medical certificate for absences on a Friday or a Monday, the available inference being that he had become increasingly concerned about the taking of leave, and in particular, personal leave.
7. Ms Ponte submitted that there was good reason for the Court to find that Mr Sinclair had been frustrated when Ms Ponte took a period of protracted personal leave and took vindictive action, despite his statements to the contrary.
8. Second, Ms Ponte placed significant emphasis on the failure of GNH to call Mr Dahlstrom as a witness in circumstances where there was some evidence that he had engaged in similar discounting practices to Ms Ponte and had, upon this discovery, not been subjected to the same disciplinary response.
9. Ms Ponte submitted that her uncontroverted evidence was that Ms Dahlstrom had discounted commission and brokerage fees for himself and his family members and the failure of GNH to call him to give evidence about the extent of his discounting practice, and what, if anything, Mr Sinclair did to investigate him, exposed a gaping hole in the response of GNH and one that was unexplained, and permitted an inference that any evidence he provided would have been unhelpful to GNH (drawing again on the rule in Jones v Dunkel).
10. Ms Ponte submitted that in circumstances where there was evidence from Mr Sinclair to the effect that it was the discounting practice in combination with other misconduct that was later discovered, that justified dismissal, it was not sufficiently explained why Mr Sinclair had issued a show cause letter based only on the discounting practice, when (according to Ms Ponte) Mr Dahlstrom was engaging in precisely the same conduct. The Court was entitled to conclude that there was another reason that Ms Sinclair issued the show cause letter (and commenced the show cause process).
11. Ms Ponte was also critical of the failure of GNH to call Ms Shepherd to give evidence on the topic of the substantive investigation and what she uncovered regarding the allegations that Ms Ponte had engaged in the practice of taking out rolling policies, cancelling policies, and backdating policies. She submitted that again (by recourse to Jones v Dunkel) her evidence would not have assisted GNH which left in place only Mr Sinclair's "bare assertions" that he believed that Ms Ponte had engaged in these species of misconduct, which the Court should treat as unreliable and uncorroborated.
12. Third, Ms Ponte submitted that there was evidence that GNH had deducted long service leave from her account balance during February 2022 when she was entitled, across that period, to use her personal leave instead and she had exercised that entitlement. Ms Ponte described there being an attempt to explain this away in a letter sent by GNH's lawyer on 30 January 2024 (on the eve of the trial) which attributed the error to the bookkeeper, who, as we know, had not been called.
13. Fourth, Ms Ponte submitted that the Court was entitled to take account of the denial of procedural fairness to her concerning the allegations of rolling policies, cancelling policies and backdating policies, which were not referred to in the show cause letter and which consequently, she did not have an opportunity to respond to. The Court was entitled to take this procedural failure into account as part of the objective circumstances against which Mr Sinclair's reasons should be assessed.
14. Fifth, Ms Ponte submitted that there was a temporal relationship between the exercise of the workplace rights and the dismissal, or at the very least, the disciplinary action that led to the dismissal.

1. GNH submitted that it had discharged its "negation task" of establishing, through the evidence of Mr Sinclair, that the reasons for dismissal did not include any of the prohibited reasons alleged by Ms Ponte in this proceeding and had therefore negated the statutory presumption.
2. GNH made the further submission that Mr Sinclair's asserted operative reasons for the dismissal were reinforced by the following objective circumstances.
3. First, as has been recorded above at [52], on 1 March 2022, Mr Sinclair sent an email to staff about practices in relation to the rebating of commissions and the reduction or waiver of broker fees. This was said to be contemporaneous evidence that as that this date and before the WorkCover claim was filed, Mr Sinclair was concerned about these practices, and he was taking steps to put a stop to them. It was also evidence that was created prior to the filing of this proceeding and supported the position that neither Mr Sinclair, GNH or GNL had given authority to any person to rebate commissions on insurance transactions.
4. Second, both the show cause letter and the termination letter set out the reasons for which the decision to dismiss was taken and neither of them included any express or implied reference to any of the alleged prohibited reasons.
5. Third, contemporaneous email correspondence from Mr Sinclair to his legal representatives of 16 March 2022 showed that Mr Sinclair considered Ms Ponte's show cause response in good faith and was not persuaded by her version of events relating to the allegations of serious misconduct. This demonstrated that the process adopted by Mr Sinclair was not simply a reactive decision but was instead, considered and deliberate.
6. Fourth, there was a collection of objective evidence demonstrating that GNH (and other external bodies) took Ms Ponte's conduct very seriously. In this category was the evidence that following the dismissal, Mr Ponte reported Ms Ponte's conduct to the Victoria Police, ASIC and to GNL's crime insurer. It was Mr Sinclair's unchallenged evidence that (at the time of hearing) Ms Ponte's conduct remained the subject of an active and ongoing police investigation by the Moorabbin Crime Investigation Unit of Victoria Police. He also gave unchallenged evidence that the crime insurer claim was later accepted following a thorough investigation by the insurer. GNH submitted that it was simply not plausible that Mr Sinclair would have taken all of these steps if he did not have a genuine belief in the conduct referred to in these reports.
7. As far as responding to the matters relied upon by Ms Ponte, GNH made the following submissions.
8. First, that Ms Ponte's theory connecting the exercise of workplace rights to the dismissal was flawed. GNH submitted that had Mr Sinclair wanted to dismiss Ms Ponte for her entitlement to personal leave, why would he have then undertaken an investigation, let alone have reported the conduct to the authorities and waited a month to affect the dismissal.
9. GNH described the email sent by Mr Sinclair to his lawyer on 16 March 2022 as the best contemporaneous evidence of what was activating his mind about Ms Ponte's employment at a time proximate to the decision to dismiss and had a particular cogency given that such communications are subject to legal professional privilege. The email read (formalities omitted):[20]

A response from Angie was received at 4.57 pm yesterday is attached.

I have never authorised Angie or anyone else, to discount fees or rebate commission in the way she has. She has systematically hidden copies of all these transactions from us. The total loss of income, we have discovered so far (and still counting) is over many years and in excess of $60,000. There are well over 150 transactions.

We completely deny any bullying or harassment, on the contrary, we have evidence of her bullying other staff members and have text messages describing her unprofessional behaviour.

In addition to the above, since our last conversation, we have discovered she has created policies for her children that have never been paid. These policies were then cancelled after 3 months and another new policy with a different insurer was issued. This pattern of starting policies and then cancelling them around 90 days (before payment was due) was repeated for up to 15 months or 5 cycles, resulting in her children effectively having free insurance for this period. We have evidence of this being done on several occasions on different types of policies.

We also have found, what looks like a back dated policy for her son-in-law, where a claim appears to have been made on the same day as she processed the transaction. I need to further investigate this instance and will be looking to see if there are other similar claims for her family.

Let me know if you need further details or have any questions.

1. GNH submitted that the tenor of this email was that nothing in Ms Ponte's response had swayed Mr Sinclair from his inclination to terminate her employment as set out in the show cause letter and that this resolve was reinforced when Mr Sinclair received paperwork from the insurance agent, MECON, which Mr Sinclair understood showed that Ms Ponte had been backdating claims, and which discovery he described as "the straw that broke the camel's back". GNH submitted that the significant temporal relationship was between these events and the decision the next day to terminate Ms Ponte's employment.
2. Second, that there was no merit to Ms Ponte's case theory that Mr Sinclair was concerned about leave accruals and leave liabilities and that this should lead to a finding that a substantial and operative reason for the dismissal included that Ms Ponte was entitled to take personal leave and was temporarily absent from work.
3. GNH submitted that even if the Court was to find that Mr Sinclair was concerned about leave liabilities, in the form of long service leave and annual leave, this could have no bearing on the exercise of the right to take personal leave as this category of leave did not crystallise as a liability. It was simply not plausible that any concern about leave liabilities would manifest in a dismissal because of an entitlement to personal leave. The two were not related.
4. GNH was dismissive of the submission that there was evidence that Mr Sinclair had knowingly deducted long service leave instead of personal leave from Ms Ponte's accrued balance during the period 11 February to 17 March 2022. GNH submitted that reference to the complete exchange of correspondence between the parties on the topic of statutory entitlements, and in particular a letter sent from the lawyers for GNH to Ms Ponte's lawyers on 30 January 2024, demonstrated instead that Shepherd Books (specifically Ms Shepherd) had, in an effort to accommodate Ms Ponte's request to take a period of annual leave, converted a portion of long service leave to annual leave, in circumstances where Ms Ponte had an annual leave balance that was in arrears but plenty of long service leave. GNH explained in this correspondence that it had not authorised the adjustment and since discovering its occurrence had directed Shepherd Books to reverse the adjustment. It was noted in the correspondence (and not challenged by Ms Ponte) that the steps taken by Shepherd Books had no impact on the total amount payable by GNH to Ms Ponte in respect of her termination entitlements. Furthermore, Mr Sinclair treated Ms Ponte as being on personal leave for the entire period between 11 February and 17 March 2022.
5. Third, GNH submitted that the issue of whether there had been disparate treatment as between Ms Ponte and Mr Dahlstrom was a distraction in a proceeding where the central question was whether Ms Ponte was dismissed because of a prohibited reason. The case was about what Mr Sinclair believed about what Ms Ponte was doing, and not what anyone else was doing. In any event, a comparison between the two employees and their respective treatment was not a useful exercise in circumstances where there was a paucity of evidence about what Mr Dahlstrom did or didn't do by way of discounting of broker fees and/or commissions and Ms Ponte's evidence on the topic was inherently unreliable when it changed as between her first and second affidavit; in the first Ponte affidavit she referred to Mr Dahlstrom engaging in the practice of not charging brokerage fees and reducing commission for some close family members. In her second affidavit, Ms Ponte deposed to a practice that extended more broadly to family members.
6. GNH submitted that in circumstances where Ms Ponte sought to "hide behind" Mr Dahlstrom in a number of respects, and they were seemingly close and friendly, an inference might instead be drawn that her failure to call him reflected the position that his evidence would not have assisted her case.
7. GNH submitted that the evidence of Ms Shepherd concerning the conduct relied upon by Mr Sinclair as justifying the decision to dismiss Ms Ponte was likewise unnecessary and the failure to call Ms Shepherd to elucidate evidence on this topic was not fatal to the ability of GNH to discharge its statutory onus. Mr Sinclair had given evidence about the reasons that activated his decision which were based on his consideration of the facts of the transactions uncovered by Ms Shepherd and the response provided by Ms Ponte, which he considered did not redress his concerns.
8. Finally, GNH submitted that Ms Ponte's disabilities were inconsequential in the narrative and timing of events and did not feature in the reasons for the decision to terminate. The submission reflected Ms Ponte's evidence that between 14 February 2022 when Mr Sinclair received the certificate from the chiropractor and 17 March 2022, Ms Ponte did not communicate with Mr Sinclair about her back injury. It was also significant that Ms Ponte had acknowledged a history of back pain (for which she had previously taken period of leave) and which was known to Mr Sinclair. GNH described as 'implausible" the contention that Mr Sinclair had decided to dismiss Ms Ponte from employment because she had a back injury.

Consideration - has GNH discharged its onus under s 361(1) of the FW Act?

1. At the outset I acknowledge that this case was finely balanced and there can be no suggestion that its commencement or maintenance by Ms Ponte was unmeritorious.
2. Ultimately however, I am persuaded that GNH has done enough to discharge its statutory onus. In this case, this task was principally concerned with establishing, on the balance of probabilities, that there were no additional proscribed reasons that contributed, to the required level, to the decision to terminate Ms Ponte's employment.
3. It is necessary at this juncture to restate my earlier finding that I accept that at least one of the reasons for the decision by Mr Sinclair to dismiss Ms Ponte was his discovery that she had been altering or removing commission and brokerage fees for family members and friends without his permission. Ms Ponte did not deny engaging in this practice but rather that it was done with the knowledge and the authority of Mr Sinclair and the GNG business and did not therefore warrant censure by her employer.
4. This finding is not disturbed by the evidence of Mr Sinclair that other examples of misconduct that he later identified operated in combination with the discounting practice as justifying Ms Ponte's dismissal. My impression of Mr Sinclair was that he was genuinely aggrieved by the approach taken by Ms Ponte to the discounting of insurance policies and the extent to which he understood it had occurred. His later discoveries only served to compound the reaction and elevated the conduct to the level of what Mr Sinclair understood to be and described as "fraud".
5. Both the show cause letter and the letter communicating the decision to terminate Ms Ponte's employment referred to the discounting of brokerage fees and commission for family members and friends as the conduct that warranted summary dismissal. Both letters attributed figures of the alleged loss to the business that this conduct had caused that objectively speaking, demonstrated a not insignificant loss to the business. While it is regrettable that Ms Ponte was not given the opportunity to respond to the examples of conduct that were later discovered - the rolling, cancelled and back-dated policies - I do not consider that in this case, the denial of procedural fairness operates as evidence of a decision taken for questionable reasons.
6. Ms Ponte was critical of the failure of GNH to call Mr Dahlstrom to give evidence about discounting practices and the approach taken by GNH to his conduct. However, I am not persuaded that this failure supports the drawing of an adverse inference in circumstances where the case against GNH was not one alleging differential treatment as a form of adverse action and where I agree that the evidence before the Court did not establish Mr Dahlstrom as an appropriate comparator. Instead, I consider that having regard to the case theory advanced by Ms Ponte, one would have anticipated it would be she who called Mr Dahlstrom to give evidence. I draw no negative inference however from this inaction.
7. I am likewise not persuaded that there is substance to the criticism of the failure by GNH to call Ms Shepherd as a witness on the topic of the misconduct constituted by the rolling, cancelled and back-dated policies. Ms Ponte described Mr Sinclair's evidence about these allegations as "bare assertions". I disagree with this characterisation. Mr Sinclair gave evidence in detail about each of these categories of further "misconduct" and while I acknowledge that Ms Ponte provided explanations about the "back-dated" policy procured through MECON, which if accepted, would cast her behaviour in a more favourable light, it is also the case that she did not make any serious attempt to challenge the substratum of facts and documents relied upon by Mr Sinclair and GNH in respect of these series of allegations. More importantly, I am persuaded that Mr Sinclair was himself firmly of the opinion that the conduct had occurred and that it justified termination. This position was reinforced by the serious steps taken in the aftermath of the termination to make formal reports to Victoria Police, ASIC and the crime insurer for GNL.
8. Of course, while I am satisfied that these categories of insurance transactions were substantial and operative reasons for the decision to dismiss Ms Ponte, I must also be satisfied that there were no other proscribed reasons.
9. I have earlier found that Mr Sinclair instructed Ms Shepherd in February 2022 and while Ms Ponte was on personal leave, to start investigating Ms Ponte's personal insurance transactions. GNH denies that this was the case and has not, for this reason, offered an explanation for the instruction. Ms Ponte invites the Court to find that her taking of personal leave, temporary absence from the workplace, and disabilities (or any combination thereof) provide the answer.
10. Before recording my findings on this submission, it is necessary to recall that the enquiry in a case of this kind is not to be assimilated to a "but-for" test but is instead concerned with an enquiry into the "'substantial and operative' reason, or reasons for the employer's relevant action"[21] which involves a qualitative judgment as to whether the adverse action was taken because the employee exercised the workplace right.
11. This distinction assumes importance in this case because I am satisfied, for the reasons relied upon by Ms Ponte and set out at [147] to [149] above, that Mr Sinclair instructed Ms Shepherd to commence a review of Ms Ponte's personal insurance transactions because he was frustrated about her period of absence, which was expected to be at least a month and coincided with the start of the new year.
12. However, I am also satisfied that this animus, which was responsive to the exercise by Ms Ponte of her workplace right to take personal leave and to enjoy a temporary period of absence from employment, did not carry through, in a substantial or operative sense, to the later decision made by Mr Sinclair to terminate Ms Ponte's employment.
13. This finding reflects my satisfaction that the matters discovered and relied upon by Mr Sinclair during the investigation of Ms Ponte's personal insurance transactions overwhelmed any earlier disquiet he felt about Ms Ponte's absence from the workplace so that they no longer possessed the quality of being substantial or operative. In other words, although in a causal sense, the decision to investigate (and the investigation itself) was the basis for the discovery of the unauthorised transactions and I have found this to have been made for proscribed reasons, those proscribed reasons no longer explained the decision to dismiss.
14. I accept in this regard the submission of GNH that it was not plausible that any concern maintained by Mr Sinclair about leave liabilities would manifest in a dismissal because of an entitlement to personal leave. It is uncontroversial that the decision to terminate left intact the liability of GNH to account for Ms Ponte's accrued and unpaid annual leave and long service leave entitlements. Furthermore, I consider that the approach to the deduction of long service leave in February and March 2022 was satisfactorily explained and I note, was not challenged in a substantive sense by Ms Ponte.
15. I further accept the submission of GNH that I can be satisfied that Ms Ponte's disabilities had no role to play in the decision to terminate her employment. Little attention or evidence was directed to the significance of Ms Ponte's back injury, anxiety or depression to the dismissal decision, and I accept, including because of the history of Ms Ponte's back injury (known to Mr Sinclair) that they did not possess the quality of substantial or operative to the decision taken by Mr Sinclair.
16. I am likewise satisfied that Ms Ponte's possession and exercise of the entitlement to make a WorkCover claim did not contribute in the required sense to the dismissal decision. The lodgement of this application was notified to Mr Sinclair on 16 March 2022 and although there is an obvious temporal connection between the exercise of this workplace right and the decision communicated the next day to terminate Ms Ponte's employment, it is also the case that Mr Sinclair had communicated his firm view in an email sent earlier that day to his lawyer that he considered Ms Ponte's show cause response to be inadequate. I consider that by the time that Mr Sinclair received the WorkCover claim, the horse had well and truly bolted, and the dismissal decision was inevitable.

1. For the foregoing reasons, I dismiss the claim that GNH contravened s 340(1), s 351(1) or s 352 of the FW Act when it terminated Ms Ponte's employment. I will order accordingly that her application lodged on 27 July 2022 and accepted for filing on 29 July 2022 be dismissed.

I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

[1] Paragraphs 10(a), 10(e) and 11, and the words "requesting a flexible work arrangement during the Victorian Government stay at home directions" in paragraph 19 were no longer pressed.

[2] For example, Ms Ponte referred to Mr Sinclair making "snide remarks" to her suggesting that she was not interested in making the business more profitable or actively placing the business at risk. Mr Sinclair criticised Ms Ponte reacting unprofessionally and aggressively on occasion in the workplace.

[3] CB 372-431; Annexure RWS-2 to the First Sinclair affidavit.

[4] CB 61-120; Annexure AP-1 to the First Ponte affidavit.

[6] CB 433; Annexure RWS-3 to the First Sinclair affidavit.

[7] CB 435; Annexure RWS-4 to the First Sinclair affidavit.

[8] CB 436; Annexure RWS-5 to the First Sinclair affidavit.

[9] CB 464; Annexure RWS-12 to the First Sinclair affidavit.

[10] CB 466; Annexure RWS-13 to the First Sinclair affidavit.

[11] CB 468; Annexure RWS-12 to the First Sinclair affidavit.

[12] CB 474-483; Annexure RWS-16 to the First Sinclair affidavit.

[13] CB 484-485; Annexure RWS-17 to the First Sinclair affidavit.

[14] CB 213-218; Annexure AP-15 to the Second Ponte affidavit.

[17] CB 475-482; Annexure RWS-16 to the First Sinclair affidavit.

[18] T 88 lines 17 to 31 and T 89 lines 7-12.

[19] (1959) 101 CLR 298; [1959] HCA 8.

[20] Annexure RWS-15; CB 469-470 to the First Sinclair affidavit.

[21] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [104].