Talaugon v Allight Pty Ltd [2025] FCA 1672

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. During her employment with the first respondent (Allight) the applicant (Ms Talaugon) was the primary carer of her six-year-old daughter and pregnant with her second child. After a protracted period of negotiation, Allight agreed to a formal (written) flexible working arrangement with Ms Talaugon. Shortly after that agreement was reached, Allight began taking steps to place Ms Talaugon on a performance improvement plan and to discipline her with respect to certain conduct. These steps ultimately resulted in the termination of Ms Talaugon's employment about two months after the flexible working arrangement was agreed.
2. Ms Talaugon claims that Allight contravened the National Employment Standards contrary to s 44 of the Fair Work Act 2009 (Cth) in the manner in which it dealt with her request for flexible working arrangements (s 65) and in refusing to approve and pay personal or carer leave on three occasions (s 97). Ms Talaugon also claims that Allight terminated her employment because of her family or carer responsibilities and pregnancy in contravention of s 351(1) and (or) because she made a complaint or inquiry or proposed to make a complaint or inquiry in relation to her employment in contravention of s 340(1) of the Act. Additionally, Ms Talaugon claims that individual Allight employees, the second to third respondents (Mr Dunn, Ms Greensill and Ms Smith), were involved in Allight's contraventions within the meaning of s 550 of the Act. Ms Talaugon claims damages and other relief against all respondents.
3. It is not in issue that the termination of Ms Talaugon's employment was adverse action within the meaning of s 342(1) of the Act, that Ms Talaugon had family or carer responsibilities and was pregnant for the purposes of s 351(1), or that Ms Talaugon had made a complaint or inquiry or proposed to make a complaint or inquiry in relation to her employment that amounted to the exercise or proposed exercise of a workplace right for the purposes of s 340(1) and 341(1) of the Act. Nor is it in issue that Allight has the onus under s 361(1) of proving that the reason it terminated Ms Talaugon's employment was not because of Ms Talaugon's family or carer responsibilities and pregnancy and (or) was not because she had made a complaint or inquiry or proposed to make a complaint or inquiry in relation to her employment. However, all other facts and the characterisation of those facts are disputed. Consequently, the principal issues for determination in the proceeding are as follows.

(1) Was there a breach of the National Employment Standards for flexible working arrangements?

(2) Was there a breach of the National Employment Standards for paid personal or carer's leave?

(3) Was Ms Talaugon's employment terminated because of her family or carer responsibilities and pregnancy?

(4) Was Ms Talaugon's employment terminated because she made a complaint or inquiry or proposed to make a complaint or inquiry in relation to her employment?

(5) If Allight contravened the Act, are each of Mr Dunn, Ms Greensill and Ms Smith taken to have also contravened the Act because he or she was involved in Allight's contravention(s)?

(6) If Allight contravened the Act, has Ms Talaugon suffered loss or damage because of the contravention(s) and, if so, in what amount and, otherwise, is Ms Talaugon entitled to some other form of claimed relief?

(All references in these reasons to sections or Parts are references to the Fair Work Act unless otherwise indicated.)

1. Allight is a private company specialising in the design, manufacture and distribution of mobile lighting and power solutions. It has operations at premises located at Lansdale in the State of Western Australia. The Lansdale premises have a two-storey administration office building and a fabrication facility on that site. These buildings are adjacent to each other and connected by a corridor. The fabrication facility also has an office where, at the relevant time, daily production meetings were held each workday morning. At the relevant time, employees and visitors to the site were required to sign in and sign out at the administration office and comply with the occupational health and safety policies and requirements of Allight upon entering and leaving the fabrication facility.
2. Ms Talaugon gave evidence at the trial. She was employed by Allight between February 2022 and May 2023 as a contracts officer. She initially reported to Ms Pruitt and from about December 2022 reported to Mr Dunn. Ms Talaugon was involved in communications with Mr Dunn, Ms Greensill and Ms Smith. She gave evidence about three meetings with Mr Dunn and Ms Greensill and a discussion with Ms Pruitt. The discussion with Ms Pruitt concerned a flexible working arrangement Ms Talaugon alleges was put in place from the inception of her employment. The first meeting with Mr Dunn and Ms Greensill was a meeting on 24 February 2023 to discuss Ms Talaugon's requests for a flexible working arrangement. The second was an unscheduled meeting to discuss the circumstances in which Ms Talaugon had brought her daughter to work without authority on 5 April 2023. The third was a show cause meeting on 19 May 2023 that immediately preceded the termination of Ms Talaugon's employment. Ms Talaugon's husband, Mr Brunner, also attended the show cause meeting by telephone as her support person. Ms Talaugon also called Mr Brunner to give evidence about that meeting.
3. Allight called Mr Ahmad to give evidence at the trial. Mr Ahmad was Allight's general manager of operations, product and service. He has been employed by Allight since 2005 when he joined the company as a product design engineer. For the last 15 years he has held managerial positions and approximately 70% of Allight's workforce directly or indirectly reports to him. He was the person who ultimately made the decision to terminate Ms Talaugon's employment. He gave direct evidence of his subjective reasons for making that decision.
4. Allight called Ms Smith to give evidence at the trial. Ms Smith was Allight's general manager of people, culture and safety. She has been employed by Allight since about April 2019. She was initially employed as a human resources manager and then promoted to general manager around July 2019. Ms Smith was involved in communications with Mr Dunn about Ms Talaugon's flexible working arrangements and performance. Ms Smith was also involved in communications with Ms Greensill in relation to those matters and steps taken in the management of Ms Talaugon that led to her termination. Ms Smith was also involved in providing advice and recommendations to Mr Ahmad that informed his decision to terminate Ms Talaugon's employment. Ms Smith attended a meeting at which Ms Talaugon's employment was terminated with Ms Greensill.
5. Allight called Ms Greensill to give evidence at trial. Ms Greensill was employed by Allight between March 2021 and April 2024 in the role of people and culture advisor. In that role she had responsibility to provide human resources support to managers and employees throughout the Allight business. She also had responsibility for inducting new employees, disciplinary meetings, performance management and recruitment. In around February 2023 Ms Smith asked her to assist Mr Dunn with the management of Ms Talaugon. Ms Greensill was then involved in communications with Mr Dunn and Ms Smith concerning Ms Talaugon's flexible working arrangements, performance, and management. Ms Greensill was also involved in attempts to arrange a performance meeting and a disciplinary meeting with Ms Talaugon, sending a written warning to Ms Talaugon, scheduling the show cause meeting and holding a termination meeting with Ms Talaugon. She also gave evidence of the meetings on 24 February, 5 April and 19 May 2023.
6. Allight called Mr Dunn to give evidence at trial. Mr Dunn was employed by Allight between September 2022 and February 2024 initially in the role of category manager and shortly thereafter in the role of purchasing and procurement manager. Before working for Allight, Mr Dunn had approximately 30 years of management experience in account management, sales management and supply chain management. Mr Dunn was Ms Talaugon's direct manager and report from about December 2022. He was involved in communications with Ms Talaugon regarding flexible working arrangements, her day-to-day management and meetings with Ms Talaugon and Ms Greensill relating to Ms Talaugon's flexible working arrangements and discipline. Mr Dunn was also in communication with Ms Smith and Ms Greensill regarding concerns he had expressed about Ms Talaugon's performance. He also gave evidence of the meetings on 24 February, 5 April and 19 May 2023.
7. The parties also tendered many documents. These are largely email communications that were contemporaneous with relevant events. Most relevant communications are between Ms Talaugon and one or more of Mr Dunn, Ms Greensill and Ms Smith. There are also certain internal communications between one or more of Mr Dunn, Ms Greensill and Ms Smith that are of relevance.
8. In my assessment, all witnesses were honest and truthful and did their level best to remember events that had taken place two to three years before the trial. The evidence about the meetings on 24 February, 5 April and 19 May 2023 was generally consistent and, to the extent there were material differences, these are addressed and the conflicting evidence resolved in the manner described later in these reasons. Otherwise, I regard the contemporaneous documents as the most reliable record of the events of significance to determining the relevant facts. That evidence and the applicable findings are described later as is necessary to explain my reasons.

1. Allight and Ms Talaugon signed a written contract of employment on 31 January 2022. That contract had a commencement day of 3 February 2022.
2. The terms of the contract of employment required Ms Talaugon to work full-time 38 hours per week during Allight's ordinary business hours principally from Landsdale and at such places as Allight required. Ms Talaugon was also required to devote the whole of her time during her hours of work for Allight to her duties for the company. Although not in evidence, it was common ground that the Clerks-Private Sector Award 2020 applied to the contract of employment. It was also common ground that Ms Talaugon's ordinary working hours were between 6am and 6pm.
3. As already mentioned, at the time of her employment, Ms Talaugon had a six-year-old daughter who was at primary school. Her husband, Mr Brunner, also worked full-time on a fly-in-fly-out schedule with his employer to a location in the north-west of Western Australia. During the course of her employment, Ms Talaugon was also undergoing fertility treatment as the couple were trying to conceive a second child and Ms Talaugon became pregnant around the beginning of 2023. Ms Talaugon wanted Allight to agree to a flexible working arrangement so that she could perform school drop-off and pick-up for her daughter, take her daughter to after school activities such as ballet and swimming classes, and be at home in the after-school period to care for her child. Ms Talaugon was willing to work from home before school and after school during ordinary working hours so as to work a total of 7.6 hours per day as her contract required. She expected to be able to perform her work while her child was asleep in the morning, at school in the early afternoon, and at home but not requiring full-time care in the late afternoon and early evening.
4. It was common ground that Allight had policies relating to flexible working arrangements, but these policies were not in evidence. In any event, the contract of employment contained an entire agreement clause that provided that the company's policies were not part of the terms of the contract. Therefore, Ms Talaugon had no contractual entitlement incorporating Allight's policies.
5. At the relevant time, s 65, which formed part of the National Employment Standards, made provision for an employee to make a written request for flexible working arrangements and for an employer to refuse or grant the request. A refusal could only be made on reasonable business grounds. However, in the case of a full-time employee such as Ms Talaugon, an employee was only entitled to make a request after 12 months continuous services with the employer. Therefore, until 3 February 2023, Ms Talaugon had no entitlement under the National Employment Standards to request Allight and Allight had no obligation to consider or grant her a flexible working arrangement under the National Employment Standards.

Was there a breach of the NES for requests for flexible working arrangements?

1. Ms Talaugon alleges that Allight contravened s 65 by not agreeing to the terms of flexible working arrangements she proposed from time to time and contravened s 65A by terminating, without notice, a flexible working arrangement that had been in place from the inception of her contract of employment. The alleged breach of s 65A can be put to one side because that section was not in force at any time during Ms Talaugon's employment with Allight.
2. Relevantly, s 65 provided (notes omitted):

65 Requests for flexible working arrangements

Employee may request change in working arrangements

(1) If:

(a) any of the circumstances referred to in subsection (1A) apply to an employee; and

(b) the employee would like to change his or her working arrangements because of those circumstances;

then the employee may request the employer for a change in working arrangements relating to those circumstances.

(1A) The following are the circumstances:

(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

(2) The employee is not entitled to make the request unless:

(a) for an employee other than a casual employee - the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

...

Formal requirements

(3) The request must:

(a) be in writing; and

(b) set out details of the change sought and of the reasons for the change.

(4) The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(5) The employer may refuse the request only on reasonable business grounds.

(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:

(a) that the new working arrangements requested by the employee would be too costly for the employer;

(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;

(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;

(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

Ms Talaugon's informal flexible working arrangements

1. Ms Talaugon gave evidence to the effect that shortly after she commenced working for Allight she had agreed to a working from home arrangement with Ms Pruitt who was then her line manager. Although her evidence was vague on detail, Ms Talaugon said that under that arrangement she was permitted to work from home on Monday, Wednesday and Friday and worked in the office on Tuesday and Thursday. Ms Pruitt was not called to give evidence, but the documentary evidence confirms there was some form of flexible working arrangement to which Ms Pruitt had agreed at some time before 2 September 2022. However, there is no evidence that the arrangement was in writing or that it had been reached in accordance with Allight's applicable policies. There is also evidence that suggests that, shortly before Ms Pruitt resigned around September 2022, Ms Pruitt had given Ms Talaugon notice that the arrangement was under review and Ms Pruitt had started to take steps to formalise the arrangement and bring it into line with the Allight policy.
2. The reason Ms Pruitt gave for a 'need to revisit the arrangements' was Ms Talaugon sending 'a message about working from home half an hour before [she was] due into the office' and 'this [was] a reoccurring issue and the second time [Ms Pruitt had] communicated directly to [Ms Talaugon] on flexible working arrangements'. In Ms Talaugon's probation review in May 2022 Ms Pruitt had also noted that Ms Talaugon occasionally did not meet expectations for punctuality, attendance and how her appearance was perceived by internal and external customers. There was a handwritten observation on the probation review to the effect that areas of concern had been discussed and that a work from home roster had been put in place to help with attendance. When cross-examined about that probation review and the comment regarding attendance Ms Talaugon's answers were non-responsive and evasive.
3. The probation review contains previous representations (hearsay) that are generally not admissible as evidence of the representations under s 59 of the Evidence Act 1995 (Cth). There is an exception to the hearsay rule where the document is a business record: s 69 of the Evidence Act. The probation review is a business record and the representations were made by a person (Ms Pruitt) who might reasonably be supposed to have had personal knowledge of the asserted fact. Further, the document was admitted without objection. In these circumstances, the previous representations are in evidence and may be given such probative weight as the Court considers appropriate: see, e.g., Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 214, 219-220; McLennan v Taylor (1967) 85 WN (PT1) (NSW) 525 at 528-529, 537-538, 540. Similarly, the email communications between Ms Pruitt and Ms Talaugon referencing a flexible working arrangement and the need to review that arrangement due to Ms Talaugon's conduct contained previous representations that were admitted without objection. As Ms Talaugon's evidence was quite vague and she was evasive in her response to questioning regarding the references to her attendance, I have had regard to the contemporaneous documents and consider the documents a more reliable source of evidence than Ms Talaugon's oral evidence.
4. Taking the oral and documentary evidence as a whole, I find that Ms Talaugon had occasionally not attended work at the Landsdale office as her contract of employment required during the first three months of her employment. At her three-month probation review her punctuality and non-attendance were discussed with Ms Pruitt. An informal flexible working arrangement was put in place to assist Ms Talaugon with attendance at the Landsdale office. As a result of last-minute communications of non-attendance for pre-planned appointments on more than one occasion, Ms Pruitt decided to revisit the arrangement and formalise a flexible working arrangement in accordance with Allight's policy in September 2022.
5. In email communications on 1 and 2 September 2022 Ms Pruitt invited Ms Talaugon to send her a proposal and her reasoning for wanting to work from home 'so [Ms Pruitt could] review with HR and advise'. In response, Ms Talaugon sent a proposal that would have her work every morning in the office from 9.30am to 2pm (or 1pm on Wednesday) and from home in the afternoons up to 6.30pm to make up the required 7.6 hours. Ms Talaugon also proposed that she work from home from 9am to 5pm on school holidays and pupil free days. Ms Pruitt forwarded Ms Talaugon's proposal to Ms Smith.
6. Ms Smith sent Ms Pruitt an email asking if a flexible working arrangement had been discussed during Ms Talaugon's interview. There is no documentary evidence of Ms Pruitt responding to Ms Smith's email. In a later email message to Mr Dunn, Ms Smith said she had not received a response from Ms Pruitt. Ms Smith gave oral evidence to the effect that she did not receive a response to that email. Likewise, there is no documentary or oral evidence of any written response to Ms Talaugon refusing or granting her request. However, on 20 September 2022 Ms Pruitt sent an email to Ms Smith 'wanting to flag a concern with [Ms Talaugon] working from home'. Ms Talaugon had sent Ms Pruitt an email indicating that she would be working from home that day because her daughter was unwell. Ms Smith advised, in effect, that Ms Talaugon should take the day as carer's leave. Ms Pruitt resigned around September or October 2022.
7. On the basis of this evidence, I find that there was no formal flexible working arrangement in writing between Ms Talaugon and Allight before Ms Pruitt resigned. Ms Talaugon had an informal arrangement in place that permitted her to work from home on some days at some times, but she was expected to attend the office in the morning of each day of the week.
8. After a brief period during which Mr Uusimaki was her line manager, Mr Dunn became Ms Talaugon's line manager around December 2022. There is also no evidence of any formal flexible working arrangement agreed between Ms Talaugon and Mr Uusimaki.

Allight's steps to formalise Ms Talaugon's flexible working arrangement

1. Commencing in December 2022 Mr Dunn expressed concern to Ms Talaugon about a lack of communication from her regarding her attendance and working arrangements. Mr Dunn also expressed concern to Ms Smith about the impact that lack of communication was having on his ability to manage his team efficiently and effectively.
2. In December 2022 Ms Talaugon was on leave and visiting the Murchison region of Western Australia (Kalbarri and Shark Bay). Mr Dunn was initially not aware that Ms Talaugon was on leave, but her leave was evidently approved by Mr Uusimaki. While on leave Ms Talaugon was working half days. Mr Dunn instructed her to take full days leave. Ms Talaugon resisted that instruction and said that she preferred to work half days to stay on top of her work. Mr Dunn expressed concern about how the leave had been taken and that in future he wanted to put in place a system that would ensure that Ms Talaugon could take leave knowing that her work would be covered. Ms Talaugon later emailed to explain that she could not work a half day while in Shark Bay because of a problem with connectivity.
3. On 20 December 2022 Mr Dunn emailed Ms Talaugon to ask her if she was coming into the office that day as he had not received any communication from her and he understood her leave had concluded. Ms Talaugon responded that as school holidays had started on 14 December 2022 she was working at home with her daughter. Mr Dunn responded indicating that she had not requested from him and had not discussed or agreed with him that she could work from home for the duration of the school holidays. He requested Ms Talaugon to provide him with any documentation confirming that she could work full-time from home during the school holidays. He also complained that it was the second time in a week that Ms Talaugon had not informed him of her whereabouts and that he had understood that she 'would be working in the Office on Tuesday's and Thursday's'. Ms Talaugon responded that she would send a working from home proposal and Mr Dunn expressed his preference for Ms Talaugon to be in the office each day of the week with flexibility around start and finish times. Ms Talaugon then sent Mr Dunn a proposal to work from home Monday, Wednesday and Friday, in the office on Tuesday and Thursday mornings and from home in the afternoons of those days and to work from home for the duration of school holidays. The reason for her wanting to work from home on three normal work days was because her daughter had ballet and swimming classes on those days.
4. On 9 January 2023 Ms Talaugon sent Mr Dunn an email in which she said that her 'working schedule [was] as follows' and set out a similar schedule to her proposal of 20 December 2022. Mr Dunn was in regular communication with Ms Smith about Ms Talaugon's requests for flexible working arrangements. The tenor of those communications indicates that Mr Dunn was not in favour of granting Ms Talaugon's request and he was doubtful that ballet and swimming classes were a sufficient reason. However, Ms Smith informed him that these may be legitimate reasons and there was a need to go through the formal process so there was not a complaint.
5. On 12 January 2023 Ms Smith sent an email to Ms Talaugon and others in the following terms.

...

We are formalising flexible working arrangements across the business in line with Fair Work requirements.

Today I have uploaded a policy and procedure that outlines the process for requesting flexible working arrangements to SALT https://allightsykes.saltcompliance.com/

I am aware we have some informal arrangements in place for flexible working, however as per our policy and Fair Work requirements, we will formalise these.

Please review the policy and procedure by the end of this week and provide your requests to me and Chris Dunn in line with the policy and procedure requirements early next week.

...

1. On 19 January 2023 Ms Talaugon responded with a written request for a flexible working arrangement with the following proposed schedule 'because she had a six year old daughter for whom she was the sole carer'.

...

I would like to request flexible work arrangements as per the proposed schedule below:

MWF 8:00AM-4:00PM - Home

TTH 8:00-9:00AM - Home

9:30-2:00PM - Office

2:30-5:00PM - Home

School Holidays 8:00AM - 4:00PM

Hoping for your kind consideration.

...

1. After further email communications, an email from Mr Dunn to Ms Talaugon records that an agreement was reached at a meeting on 7 February 2023 by which Ms Talaugon would work in the office Tuesday, Thursday and Friday from 9.00am to 2.00pm and from home before and after these times up to the required 7.6 hours per day. On Monday and Wednesday she would work from home. Then, by an email of 15 February 2023, Ms Talaugon proposed another arrangement by which she would work from home between 6.00am and 8.30am, in the office from 9.30am to 1.45pm and from home from 2.15pm to 3.00pm on Tuesdays, Thursdays and Fridays. In that email Ms Talaugon said that she was experiencing 'heavy morning sickness' and that there were smells that contributed to it. Following that email, a meeting was then arranged between Ms Greensill, Mr Dunn and Ms Talaugon for 24 February 2023 to discuss Ms Talaugon's requests for flexible working arrangements.

Flexible working arrangement meeting on 24 February 2023

1. Each of Ms Talaugon, Mr Dunn and Ms Greensill gave evidence of the discussions they had at the meeting on 24 February 2023. That evidence was generally consistent.
2. Ms Talaugon indicated that she was pregnant and suffering from morning sickness and that there were certain smells in the office that made it worse. Ms Greensill and Mr Dunn expressed concern about Ms Talaugon's health and fitness to work. Ms Talaugon considered she was fit to work, but Ms Greensill was of the view that Ms Talaugon should get a medical certificate to confirm that she was fit to work.
3. Ms Greensill asked Ms Talaugon questions about the manner in which she worked from home and the extent to which she was able to perform her work for Allight while also caring for her daughter. Ms Greensill gave evidence to the effect that she formed the view that Ms Talaugon was not devoting the whole of her time to her work in the mornings because she was also caring for her daughter. Ms Greensill asked Ms Talaugon if she was aware that she needed to devote her full time to her job and Ms Talaugon indicated that she was not so aware. There was also a general discussion around Mr Dunn's expectations and what he wanted regarding attendance in the office including that she had to complete her work within ordinary working hours between 6.00am to 6.00pm. The possibility of Ms Talaugon working part-time was raised, but Ms Talaugon said that she needed to work full-time.
4. After the meeting Ms Talaugon sent an email to Ms Greensill in the following terms.

...

I'd like to confirm that, as per our meeting today in which I attended along with Chris Dunn and Alexandra Greensill that I was advised by Alexandra that I cannot return to work at the office due to morning sickness at this time unless a doctor gives me a doctor's clearance, and I am not allowed to work from home during the hours in which I prep my daughter for school, and she requires assurances that during the hours of 3.30PM to 6.00PM that I am not participating in the care of my daughter while she is in the same residence as me, otherwise it is not allowable to work.

...

1. Ms Greensill responded with an email in the following terms.

...

I can confirm:

We require all employees to be fit for work whether they are working from home or in the office.

• We would like to understand your fitness for work, please see the attached letter for your action.
• As per your employment contract, clause 2.1 (b) you must 'devote the whole of your time during your work hours for the Company to your duties for the Company.' We do not believe that when you are the primary carer for your child in the morning and between 3:30pm and 6:00pm that you are able to devote your whole time to the Company for your duties. As per clause 1.4 in your employment contract, you are required to work in the Company's ordinary hours which aligns to the Clerks Award of 6am to 6pm. With your current working structure, we do not believe you are able to fulfil full time hours of 38 hours per week in what you are proposing.
• As a Company we support flexible working arrangements, however anyone under a flexible working arrangement must fulfil all of their contracted hours. For you, this is full time of 38 hours per week being 7.6 hours per day. You are also required to have a lunch break which brings you to 8 working hours per day.

We would like to meet with you on Tuesday to further discuss and consider any alternative arrangements you may propose. I also want to highlight that if it better suits your family arrangements, we are able to consider a part time capacity.

1. Ms Greensill's email also attached a copy of Ms Talaugon's contract of employment, a letter dated 17 February 2023 and a position description. That letter contained a direction that Ms Talaugon have her treating practitioner answer certain questions relating to Ms Talaugon's fitness for work before 8 March 2023.
2. After receiving Ms Greensill's email of 24 February 2023, Ms Talaugon responded with an email of 27 February 2023 which Ms Talaugon describes in her statement of claim as the 'first complaint'. In that email Ms Talaugon proposed another flexible working arrangement by which on the days that she would work from home she would work from 6.00am-7.30am and then from 8.45am to 2.51pm. On the days that she would attend the office she would work from home from 6.00am-7.30am, from the office from 9.30am-1.30pm, from home from 2pm-2.45pm and from home from 3.30pm-4.51pm. She proposed to work in the office on Wednesday, Thursday and Friday. The complaint aspect of that email is addressed later in these reasons.
3. Ms Talaugon sent a follow up email on 1 March 2023 attaching a medical certificate to the effect that Ms Talaugon was seven weeks pregnant and had morning sickness but that she was fit for full duties. Ms Smith then sent Ms Talaugon an email in which she said that as the medical certificate indicated that she was fit for full duties she should not be prevented from coming into the office and that she was to continue with the last working arrangement she had in place while Ms Smith worked through the contents of Ms Talaugon's email of 27 February 2023.

Ms Talaugon's flexible working arrangement agreed

1. On 14 March 2023 Mr Dunn sent a letter refusing Ms Talaugon's latest request for a flexible working arrangement and offering an alternative arrangement. After further communications, Mr Dunn sent a letter dated 21 March 2023 offering a different alternative proposal which Ms Talaugon accepted. By that proposal Ms Talaugon worked at home on Monday and Tuesday and in the office from 9.15am to 2.00pm and after 2.00pm from home up to the daily ordinary hours requirement of her contract of employment on Wednesday to Friday.

No contravention of the NES for flexible working arrangements

1. In each of the letters Mr Dunn sent dated 14 March and 21 March 2023 details of the reasons for refusing Ms Talaugon's request were included. The main reason given was that the proposal would result in significant loss of efficiency and productivity and negatively impact on customer service. Ms Talaugon's request involved splitting her shift which was said to involve a significant impact on operational efficiencies. Allight's alternative proposal was substantially the same as Ms Talaugon's request with less splitting of shifts.
2. There was no evidence to the effect that Mr Dunn's reasons were false or non-genuine. There was evidence that Mr Dunn had granted other employees' requests for flexible working arrangements. These requests were also made because the employees had family or carer responsibilities. I am not inclined to the view that Mr Dunn was inflexible, generally not in favour of or resistant to flexible working arrangements, or looking for an excuse to refuse Ms Talaugon's request.
3. On the face of the letter and the description of the reasons it falls within 'reasonable business grounds' as described in s 65(5) and s 65(5A). Further, insofar as the informal flexible working arrangements that were in place before 3 February 2023 are concerned, Ms Talaugon had no entitlement to request and Allight had no obligation to respond to such a request under s 65 because Ms Talaugon had not been in Allight's employ for 12 months continuous service until 3 February 2023.
4. No contravention of s 65 has been proven by reason of Allight refusing to accept the precise terms of Ms Talaugon's last request for a flexible working arrangement. Likewise, no contravention of s 65 has been proved by reason of Allight requiring the informal arrangement in place before December 2022 to be revisited and formalised in the period between September 2022 and January 2023. Ms Talaugon's claims for contravention of the National Employment Standards for flexible working arrangements should be dismissed.

Was there a contravention of the NES for personal or carer's leave?

1. Ms Talaugon's claims for breach of the National Employment Standards relating to personal or carer's leave were not particularly clear from her statement of claim or opening or closing submissions. However, the alleged contraventions concern a day of leave taken on 11 January 2023, the three days of leave taken on 24, 27 and 28 February 2023 after the meeting on 24 February 2023, and a day of leave taken on 6 April 2023.
2. Section 96 and s 97 provide (notes omitted):
   1. Entitlement to paid personal/carer's leave

(1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to 10 days of paid personal/carer's leave.

(2) An employee's entitlement to paid personal/carer's leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee's ordinary hours of work, and accumulates from year to year.

1. Taking paid personal/carer's leave

An employee may take paid personal/carer's leave if the leave is taken:

(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b) to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of:

(i) a personal illness, or personal injury, affecting the member; or

(ii) an unexpected emergency affecting the member.

1. On 11 January 2023 Ms Talaugon informed Mr Dunn that she would not be working that day because she was caring for a friend who had had surgery and was tired from blood tests. There was no evidence that Ms Talaugon actually claimed that day as carer's leave. But, Mr Dunn asked Ms Smith for advice regarding how to deal with Ms Talaugon's absence and Ms Smith advised Mr Dunn to reject carer's leave and annual leave and 'put it through as unpaid' leave. On any view, caring for a friend falls outside the scope of s 97. Ms Talaugon has not demonstrated that Allight contravened s 97 for failing to pay her carer's leave for a day of leave on 11 January 2023.
2. As already mentioned, there was a meeting between Ms Talaugon, Ms Greensill and Mr Dunn on 24 February 2023. Ms Talaugon left the office after that meeting. She did not return to work (at the officer or from home) until after she obtained the medical certificate that indicating that she was fit for full duties. Ms Talaugon made a claim for personal (sick) leave for the days she was not working in that period.
3. After receiving the medical certificate Mr Dunn sent an email to Ms Talaugon on 1 March 2023 asking her to provide a medical certificate for three days of 'sick leave put in the system and taken'. Ms Talaugon responded with an email on 2 March 2023 in which she said 'I was absent for these days as I was required to get cleared and Wednesday [1 March 2023] was the earliest schedule[d] appointment I could get' and '[y]ou could have informed me last Monday [27 February 2023] so I could tell my GP to include it on my medical certificate.' Mr Dunn responded with an email on the same day indicating that it was Ms Talaugon's responsibility to obtain a medical certificate for sick leave of two days or more and attached an extract from the applicable Allight policy. He added that Ms Talaugon had told him 'when you submitted a sick leave request for Wednesday 1/3, you had a Doctor's appointment ... [t]herefore, it's an assumption that you were also obtaining a Medical Certificate'. Ms Talaugon then responded with a further email that day which she describes in her statement of claim as the second complaint.
4. The complaint aspect of Ms Talaugon's email of 2 March 2023 is addressed later in these reasons, but relevantly, the email contained an assertion that Mr Dunn and Ms Greensill directed Ms Talaugon not to return to work until she had a medical clearance and there was no responsibility for her to obtain a sick leave when she was explicitly told not to return to work. That was similar to the assertion in Ms Talaugon's email of 24 February 2023 to which reference has been made earlier in which she said that Mr Dunn and Ms Greensill had advised her that she could not 'return to work at the office due to morning sickness at this time unless a doctor gives me a doctor's clearance, and I am not allowed to work from home during the hours in which [she prepares her] daughter for school'. Ms Talaugon ended that email with an invitation to correct her 'interpretation' of the meeting if it was mistaken.
5. There were no emails from one or more of Mr Dunn, Ms Greensill or Ms Smith in evidence that directly denied or contradicted Ms Talaugon's assertions in her emails of 24 February and 2 March 2023. However, neither Mr Dunn nor Ms Greensill gave evidence-in-chief to the effect that Ms Talaugon had been given a direction not to work until she had obtained a medical certificate and it was not put to either of them in cross-examination that such a direction had been given. Further, while Ms Greensill's response to Ms Talaugon's email on 27 February 2023 did not directly contradict the assertion in Ms Talaugon's email of 24 February 2023, Ms Greensill expressed a general statement about fitness for work and attached a letter that contained a direction to have Ms Talaugon's treating practitioner answer certain questions relating to Ms Talaugon's fitness for work before 8 March 2023. Ms Greensill's email and the attached letter could not reasonably be understood as a direction or confirmation of a direction not to work until a medical certificate confirming her fitness to work was obtained within a period up to 8 March 2023. Also, Mr Dunn's conduct in requesting a medical certificate for the claimed sick leave is inconsistent with him having an understanding that Ms Talaugon was directed not to work until she obtained a medical certificate. Additionally, the understanding of Ms Talaugon expressed in her email of 24 February 2023 is more equivocal. It was that she could not 'return to work at the office due to morning sickness' which was not a direction not to work all or from home at that time.
6. Ms Talaugon's direct oral evidence of what was said at the meeting on 24 February 2023 was also ambiguous regarding a 'direction'. She said Ms Greensill said that '[Ms Talaugon] needed to check if [Ms Talaugon] was really fit to work, because [she] was having morning sickness' and 'around that discussion, [Ms Greensill] also suggested that [Ms Talaugon] may [need] to get [a] medical certificate to really see if [she was] fit for work.' She said that after the meeting she sent an email to her colleagues indicating that she was going home because she was not feeling well, but she said those things because she was told her conversation with Ms Greensill and Mr Dunn was confidential and the truth was '[she] was required [to get] a medical certificate. That [was] why [she] was sent home by Friday. It [was] a forced leave.'
7. Ms Smith gave evidence to the effect that Allight's policy was that any medical absence exceeding two days required a medical certificate. As the direction to Ms Talaugon was for her to attend a medical assessment, not to stop working, Ms Talaugon was required to provide a medical certificate for the two additional days she claimed as sick leave. Consistently with that evidence there was an exchange of email messages between Ms Smith and Ms Talaugon on 14 March 2023by which Ms Smith informed Ms Talaugon that as she had not provided a medical certificate for the three days of claimed sick leave it would be processed as annual leave paid or unpaid at Ms Talaugon's choice. Ms Talaugon then requesting that her absence on 24 February 2023 be processed as sick leave and absences on 27 and 28 February 2023 be processed as annual leave. Therefore, ultimately, Ms Talaugon's own conduct was not consistent with her maintaining that she had been directed to take sick leave on the additional days of leave that were taken after the meeting on 24 February 2023.
8. Having regard to the state of the evidence, I am not persuaded that either Ms Greensill or Mr Dunn directed Ms Talaugon on 24 February 2023 not to work at all until she obtained a medical certificate. Although Ms Talaugon may have understood that she was given that instruction on 24 February 2023, I am not able to make a positive finding to that effect. Otherwise, the medical certificate is to the effect that Ms Talaugon was fit for work. No other medical certificate was adduced in evidence. Therefore, Ms Talaugon has not demonstrated an entitlement to personal leave under s 97 for the days taken off work after the meeting on 24 February 2023.
9. On 5 April 2023 Ms Talaugon informed Mr Dunn that as school holidays had commenced she would be in the office from 7.30am-11.30am Wednesday, Thursday and Friday and would complete the rest of her work hours from home. On 6 April 2023 Ms Talaugon said that she could not find a carer for her daughter that morning and that she would be working from home that afternoon. Mr Dunn then asked Ms Talaugon to submit carer's leave for that day. In a later email Ms Smith said it was not carer's leave because neither Ms Talaugon nor her daughter had an illness and that Ms Talaugon should submit an application for unpaid leave. No additional evidence was given about the circumstances in which Ms Talaugon took leave on 6 April 2023. On the basis that Ms Talaugon could not find a carer for her daughter and her daughter was not unwell, Ms Talaugon had no entitlement to carer's leave. Ms Talaugon has not demonstrated a contravention of s 97.
10. It follows that Ms Talaugon's claims for contraventions of the National Employment Standards for personal or carer's leave have not been proved and should be dismissed.

1. Ms Talaugon alleges that her employment with Allight was terminated because she was the primary carer of her daughter and pregnant and (or) because she made the first and second complaints. Allight contends that Ms Talaugon's employment was terminated for the reasons given in the letter by which her employment was terminated.

Events leading to the termination of Ms Talaugon's employment

1. As mentioned, during the course of the exchanges of emails and meetings leading up to Ms Talaugon and Allight reaching agreement on a flexible working arrangement on 22 March 2023, Ms Talaugon had sent emails dated 27 February and 2 March 2023 which she describes as the first complaint and second complaint.
2. After setting out her flexible working arrangement proposal in her email of 27 February 2023, Ms Talaugon said:

...

I would also like to understand flexible work arrangements as they pertain to the law and to company policy.

There are many mothers who work at this company and have had to access flexible work arrangements in one form or another, especially after giving birth. When these other mothers have performed their roles from home, were they also required not to have their newborn babies/special children/ sick children in the same residence? In most cases, these mothers would have working partners.

I am trying to understand why flexible work arrangements have been legislated by the government when it seems the only option is to use it as a mechanism to force a reduction of hours, as opposed to giving a reasonable, flexible option which allows for the workload to be attended to and the hours to be committed to.

If there are moments at the end of my work day (which is currently a duration of one hour), when my daughter is at home, that require my attention, and therefore I must walk away from my desk, would it not then be reasonable to make up those times when I can then return to my desk?

As I recall, my direct manager and other colleagues who have various child commitments have, over the last year or so, changed their times in the office at the beginning of their shift and end of their shift as required, to take care of additional or unforeseen legal requirements of their children, including sickness and extracurricular activities or simply just transporting their child as there are no other transportation options.

When suitable, they have then made up those hours at home or on other days back in the office in a reasonable manner.

I am struggling to comprehend the purpose of flexible work arrangements unless it is to facilitate flexibility when it comes to a parent's legal responsibility to a child, they have primary care of.

If the parent can still clearly commit the hours and work in a reasonable manner and have plenty of extra time to cover within our business' operating hours (6am-6pm) just in case they can't do it in the first intended timeframe, then why would an adjustment to part-time be required or suitable or reasonable?

...

...

Wednesday was the earliest time I could get an appointment at my doctor's agency, and with a doctor I would not usually see. I have updated you with these times as they've been booked.

You and Alexandra directed me not to return to work until I had a medical clearance. This is workplace directed leave with permission by you, as directed by you.

There is no responsibility by the employee for obtaining sick leave when they are explicitly told they cannot return to work.

I have maintained adequate communication, so you were aware of the steps I was taking to fulfill your demands.

I have now fulfilled your demands.

It is generally impossible to obtain sick leave for past days and therefore is not a reasonable request.

I was told by you and Alexandra not to return to work until I had a medical clearance. By all reasonable logic this means you have placed me on medical leave, directed by you.

It is becoming obvious you've been harassing me ever since I have become pregnant. You appear to only be throwing up roadblocks or being incessantly meticulous on my requirements to either work from home or attend medical appointments. It's not reasonable to consider this the standard procedure as your attitude towards every other employee is much more in line with a reasonably understanding workplace.

Due to now multiple instances of your unreasonable treatment of me and your unreasonable attitude towards me, compared to other workers, I will be escalating this to the fair work ombudsman.

I am not feeling any support from my management team or HR, rather, I'm getting vitriol and micromanagement. I did not experience any examples of this before my pregnancy.

While in another company it may be hard to pinpoint exactly what constitutes as harassment, but in this case it is easy to see.

All the difficult attitude has occurred as soon as I made the company aware of my pregnancy, and, other employees who exhibit the same needs as me are not being hounded or harassed like I am.

It is obvious and clear I am being discriminated against due to pregnancy and being a primary carer of my child.

...

1. Later that day Ms Smith asked Ms Talaugon to see her when she had a moment. Ms Talaugon did not do so and, instead, sent Ms Smith an email that evening in which she said she was arranging an appointment with the Fair Work Ombudsman and said:

...

Due to the constant harassment, I am getting from HR and my direct line manager, please understand I do not wish to attend any meeting without government agency representation or support.

The way I am being treated is not in line with the way other employees are being treated for the same issues.

It is clearly only occurring since I made the company aware of my pregnancy, I have experienced none of this before I was pregnant.

Please understand I do not feel safe and I do not in any way feel supported.

...

1. Ms Smith responded by informing Ms Talaugon that Allight had an internal process for raising concerns and said she would be grateful if Ms Talaugon would engage through that process to work towards a resolution. Ms Smith also reassured Ms Talaugon that she was a valued member of the team and she was open to working through her queries with her. Ms Smith also expressed concern that Ms Talaugon did not feel safe and reassured her that she was supported. Ms Smith invited Ms Talaugon to meet with her to explain why she did not feel safe in the workplace. Ms Smith said that Ms Talaugon was not being treated differently to anyone else and that the process that was followed was consistent with Allight's policy. There is no evidence of Ms Talaugon taking Ms Smith up on her invitations.

1. Separately from the question of flexible working arrangements, from around early January 2023, Mr Dunn began to express concerns to Ms Smith regarding Ms Talaugon's performance. On 11 January 2023 Mr Dunn sent an email to Ms Smith informing her of Ms Talaugon's claim for carer's leave relating to her friend that had had surgery referred to earlier in these reasons in which he complained:

...

It's becoming increasingly difficult to balance my Teams workload as I do not know if or when Axel is working.

Compounding this is the fact that several tasks are being missed, (see email attachment) and myself and the rest of the team can never get a handle on what she has/isn't doing.

Axel is not sticking to the routine that she had suggested (which I intend to reject). Do I have options to redirect or replace?

...

• Send a Notice of Meeting on Monday advising that myself and Chris want to sit with Axel to discuss her attendance
• Talk through our concerns and give an opportunity to respond
• Dependent on response, disciplinary may be appropriate and place on a PIP with clear expectations

@Chris Dunn - regarding the replace or redirect, yes this can be done but you will need to manage Axel to the point where you can replace her (i.e performance management) - no to redirect, we can't shuffle the problem around.

...

1. The proposed meeting for the following week was not arranged. There was no evidence from any witness giving any reason for not making that arrangement. However, later email communications suggest that the meeting was delayed while Mr Dunn collected information relating to Ms Talaugon's performance for him to provide to Ms Smith for her consideration.
2. On 6 February 2023 Mr Dunn sent Ms Smith an email which included the following statement:

...

At this stage I have arrived at the following conclusions with Axel:

1. Crossing over of Actions and Tasks due to lack of communication.

2. Lack of notice on Leave requests.

3. Refuses to work at any time in the Office during School Holidays.

4. Has dictated rather than requesting weekly working hours with no flexibility.

5. Refuses to acknowledge that her Husband can share care duties of their daughter as he is FIFO and home 1-2 weeks out of 4.

6. Has not communicated to me in a timely manner why she has not come into the office or updated me on movements.

7. Had IT issues at home, meaning could not log in to work.

...

1. Mr Dunn's email included a number of examples of Teams messages between Ms Talaugon and Mr Dunn. Amongst the messages from Mr Dunn to Ms Talaugon was the following.

Hi Axel, I don't think it's unreasonable that we can expect to see you in the Office at some time - spending 8 weeks of school holidays working from home makes it difficult for planned Tool Box meetings and a bit of face to face, one on one time. Furthermore, I only find out at 8:50am this morning of your plan for today - which is not acceptable.

1. After the issue of Ms Talaugon's flexible working arrangement was resolved, on 4 April 2023 Ms Greensill sent Ms Talaugon a meeting invitation to attend a meeting on 5 April 2023 at 1.30pm with Mr Dunn and Ms Greensill to discuss Ms Talaugon's performance. Following enquiries by Ms Talaugon about the purposes of the meeting, Ms Greensill sent Ms Talaugon further information and the Allight Individual Performance policy.
2. The documentary evidence also indicates that Ms Greensill prepared a draft letter before that meeting with an enclosure that was a draft performance improvement plan. The draft plan had been pre-prepared with areas requiring improvement and performance objectives. The areas requiring improvement identified were: effective communication; attendance; and role responsibility. The draft plan had two columns with check boxes for: 'Meets expectations' and 'Does not meet expectations'. I infer Ms Greensill intended to tick the appropriate box in the first of these columns based on Mr Dunn's concerns and Ms Talaugon's responses expressed during the proposed meeting. I also infer that Ms Greensill intended to arrange a second meeting some time after the first and complete the second column by ticking the appropriate box so as to compare the responses between meetings to identify the extent to which there was or was not improvement in the identified areas requiring improvement.

1. The meeting to discuss performance to which Ms Talaugon had been invited on 5 April 2023 was not held. However, there was an unscheduled meeting in the morning of 5 April 2023 between Ms Greensill, Mr Dunn and Ms Talaugon because Ms Talaugon had brought her daughter to work that morning and had taken her daughter to a production meeting held in the office of the production facility adjacent to the administrative office.
2. Ms Talaugon had not sought or obtained permission from Mr Dunn or any other person to take her daughter to work that day. Also, upon her arrival at work, Ms Talaugon had not signed-in her daughter as a visitor. In the production facility Allight fabricates generators and lighting towers. It is an assembly line with many movements of the items under fabrication around the production floor as well as welding, fabrication work, drills and air hoses on the production floor. Due to the hazardous nature of the work performed in the production facility, before entering that facility personnel or visitors are required to receive a safety site induction and to wear appropriate personal protective equipment.
3. During the meeting it was confirmed that Ms Talaugon had not obtained permission to bring her daughter to work. Ms Greensill informed Ms Talaugon that she could not bring her daughter to work for occupational health and safety reasons and, in particular, could not take her child into the production facility area for those reasons. Ms Greensill gave evidence to the effect that she considered that she had to speak with Ms Talaugon about bringing her daughter to work and, in particular, taking her into the production facility area because it was a breach of Allight's safety policies.
4. While accounts differed regarding the reason that Ms Talaugon gave for bringing her daughter to work, that difference is immaterial. The evidence of Ms Greensill and Ms Talaugon was consistent in that after Ms Greensill had asked Ms Talaugon why she had brought her daughter to work, Ms Greensill informed Ms Talaugon that the fact she could not obtain care for her daughter did not mean she could bring her child to work and that if Ms Talaugon was sick she could take sick leave, if her daughter was sick Ms Talaugon could take carer's leave, and if they were both well then Ms Talaugon could take annual leave. The accounts again differed to varying degrees about what happened next, but the evidence was consistent in that Ms Talaugon became emotional, spoke loudly, and abruptly left the room in which the meeting was being held.
5. Ms Greensill said that Ms Talaugon said words to the effect that Ms Greensill was discriminating against her and harassing her and did not understand Ms Talaugon's circumstances. Ms Talaugon raised flexible working arrangements and the scheduling of the performance meeting. Ms Greensill said that it was not acceptable for Ms Talaugon to have her daughter at work. Ms Greensill said that Ms Talaugon's tone and the way that she spoke to Ms Greensill in the meeting was rude and that no one else in her human resources career had spoken to her in the way Ms Talaugon spoke to her that day. Ms Greensill said that Ms Talaugon's daughter said at one point 'Mum I'm scared'. Ms Greensill said that Ms Talaugon slammed her hand on the desk and yelled at Ms Greensill loudly. Ms Greensill said that she asked Ms Talaugon numerous times to let Ms Greensill try to talk but she continued to talk over Ms Greensill. Ms Greensill described her state at the end of the meeting as 'a little bit shocked'.
6. Mr Dunn said the meeting 'got quite heated'. He said there was 'a lot of yelling by [Ms Talaugon]'. He said Ms Greensill asked her to refrain from yelling and screaming and try to talk through the situation. He said Ms Talaugon 'stormed out of the office'. Mr Dunn made a file note of the meeting and sent it by email to Ms Greensill and Ms Smith on 5 April 2023. It records the following:

• During discussions between Axel and Alex, Axel became very upset, crying.
• Again, when asked by Alex why she had brought her daughter into the workplace, Axel started shouting, interrupting Alex and would not respond to the question.
• Alex repeatedly asked Axel to please do not interrupt, please do not shout at me, we will cease the meeting if it continues.
• Axel continued crying, also constantly shouting at both of us, wouldn't answer Alex's question, continued shouting, threated us with Lawyers and stormed out of the Office.

1. Neither Ms Greensill's nor Mr Dunn's evidence-in-chief regarding the meeting of 5 April 2023 was challenged in cross-examination.
2. Ms Talaugon gave evidence-in-chief to the effect that she was frustrated, crying and very loud during the meeting and that she said that she thought that she was being targeted. Ms Talaugon made a number of concessions during her cross-examination of significance. Ms Talaugon accepted that: for part of the meeting she was facing the wall of the office in which the meeting was held and not Ms Greensill and Mr Dunn; she was loud during the meeting; although not intentionally interrupting Ms Greensill, at times she was talking at the same time as Ms Greensill during the meeting; Ms Greensill might have said 'please do not interrupt me'; Ms Greensill said 'please do not shout at me'; Ms Greensill or Mr Dunn said words to the effect that they were going to need to stop the meeting if Ms Talaugon kept shouting. Further, Ms Talaugon volunteered that Ms Greensill had asked Ms Talaugon to be calm and Ms Talaugon had walked out of the meeting because she could not control her emotions at the time and she was 'so frustrated'. However, Ms Talaugon denied that she was shouting.
3. I consider all three witnesses were honest and doing their best to recall the relevant events and to the extent that there was variation on the detail that is to be expected. While Ms Greensill's statement to the effect that she had not been spoken to in her human resources career in the way that Ms Talaugon had spoken to her on 5 April 2023 landed as likely embellishment or exaggeration, Ms Talaugon's characterisation of her voice as 'very loud' struck me as self-interested understatement.
4. During her cross-examination Ms Talaugon's demeanour was defensive and somewhat defiant and, at times, her voice was noticeably raised. Although at all times Ms Talaugon conducted herself appropriately in Court, from her demeanour I gained an impression of her character from which I could well imagine that she may become defensive, defiant, emotional and raise her voice if her conduct or actions were challenged in her workplace or in other out-of-Court contexts. Therefore, her demeanour as a witness tends to lend credibility to the evidence of Mr Dunn and Ms Greensill regarding Ms Talaugon's tone and demeanour at the meeting on 5 April 2023 during which Ms Talaugon's conduct was questioned. I find that at the meeting on 5 April 2023 Ms Talaugon raised her voice to the point of shouting or yelling at Ms Greensill and Mr Dunn and that she talked over Ms Greensill while Ms Greensill was attempting to explain that she was not permitted to bring her child to work.
5. Nonetheless, the meeting on 5 April 2023 also took place against a backdrop of a protracted period of negotiation over Ms Talaugon's flexible working arrangements to permit her the flexibility to care for her child and work from home, Ms Greensill having questioned Ms Talaugon's ability to perform her work and care for her child at the meeting on 24 February 2023, Ms Talaugon's email in which she had expressed the view that she felt unsupported, Ms Talaugon's disputed sick leave entitlement in connection with obtaining her medical certificate, Ms Talaugon's ongoing morning sickness, and notice the day before of an unscheduled performance meeting. In those circumstances it is unsurprising that Ms Talaugon became emotional and felt targeted when her conduct in bringing her daughter to work without permission was challenged. However, a reasonable person in the position of Ms Talaugon would have understood that it was not appropriate to take a child to work without permission and, in particular, it was unsafe and inappropriate to take a child into the production facility area even if the child was under the direct supervision and care of her parent. Further, her reaction to Ms Greensill and conduct in that meeting was not an appropriate way for an employee to treat her co-workers even if understandable in the circumstances.

1. After the unscheduled meeting, Ms Greensill sent Ms Talaugon an email responding to an enquiry Ms Talaugon had made the previous day about the purpose of the meeting scheduled for that day. Ms Greensill indicated that if Ms Talaugon was unable to attend that meeting alternative arrangements would have to be made. Ms Talaugon requested that the meeting be re-scheduled for 10am on 21 April 2023. Ms Greensill later confirmed that Ms Talaugon's request could be accommodated. After exchanges of emails between Ms Greensill and Ms Talaugon the meeting was rescheduled to 21 April 2023. Ms Talaugon then requested that the meeting be re-scheduled to a date after 21 April 2023 because she was meeting with her lawyer on that day. Ms Greensill responded declining to again re-schedule the meeting and indicating that Ms Talaugon was required to attend the meeting on 21 April 2023.

1. Separately to the performance meeting scheduled for 21 April 2023, on 18 April 2023 Ms Greensill sent a letter to Ms Talaugon requiring her to attend a meeting with Ms Greensill at 11.00am on 19 April 2023. The purpose of that meeting was to discuss Ms Talaugon's 'inappropriate behaviour during the meeting held on 5 April 2023'. Ms Talaugon asked Ms Greensill to move the meeting because she was meeting with her lawyer on 21 April 2023. Ms Greensill refused to re-schedule the meeting and informed Ms Talaugon that she was required to attend the meeting. Ms Talaugon sent an email in which she said 'I will not attend any meeting with you or HR until I have discussed everything with my lawyer.'

1. Ms Talaugon did not attend the meeting scheduled with Ms Greensill on 19 April 2023. After her non-attendance, Ms Greensill sent Ms Talaugon a letter described as a written warning setting out a number of concerns regarding Ms Talaugon's recent conduct. The conduct included bringing her daughter to work without consultation or permission, 'yelling' at Ms Greensill during the meeting on 5 April 2023, unauthorised departure from the flexible working arrangements agreed on 21 March 2023 and failing to attend the office on 6 April 2023. Ms Greensill said that 'Allight considers [Ms Talaugon's] conduct ... is in contravention of its Respect in the Workplace Policy and Code of Conduct and Ethics.' Also, that Ms Talaugon's conduct amounted to 'a breach of Allight's lawful and reasonable directions that [she] devote [her] time and attention to the performance of [her] duties during [her] agreed working hours' and her contract of employment. The letter concluded that in the event Ms Talaugon engaged in further inappropriate conduct or failed to comply with Allight's lawful and reasonable directions, she may be subject to further disciplinary action including termination of employment.

1. Ms Talaugon did not attend the performance meeting scheduled for 21 April 2023. That meeting was again re-scheduled to 3 May 2023. Ms Greensill sent Ms Talaugon a letter on 2 May 2023 indicating that she was required to attend a meeting the following day. Ms Talaugon responded with an email requesting Ms Greensill to await a letter from her lawyer. Ms Greensill then agreed to again re-schedule the meeting to 9 May 2023 or 10 May 2023. Ms Talaugon responded with an email on 5 May 2023 indicating that she would not be attending the scheduled meeting until she had confirmed her lawyer's and support person's availability.

1. On 16 May 2023 Ms Greensill sent a letter to Ms Talaugon directing her to attend a meeting with Ms Greensill and Mr Dunn at 1.00pm on 19 May 2023. The letter indicated that she was able to bring a suitable support person with her. The letter indicated that Ms Talaugon had been given the warning letter of 19 April 2023 and after that letter she had refused to attend the re-scheduled performance meeting on 9 May 2023 in breach of a lawful and reasonable direction of Allight. The letter said that Allight was concerned that Ms Talaugon's conduct evinced an intention that she no longer sought to be bound by her employment contract and that she was in breach of that contract and its Respect in the Workplace Policy and Code of Conduct and Ethics. The letter said no decision had been made and Allight would consider her responses before making a final decision about her ongoing employment.
2. Ms Talaugon responded indicating that she would not attend the meeting and her lawyer would be sending an email later that day or the following day. Ms Smith then sent Ms Talaugon an email indicating that was not acceptable and that if she did not attend a decision would be made on the information then available. Ms Smith indicated that the meeting was Ms Talaugon's opportunity to provide her response and that she could provide a written response in addition to attending the meeting. Ms Talaugon then indicated that she would attend with a support person and requested that she be permitted to record the meeting which Ms Smith declined.
3. The show cause meeting was held on 19 May 2023. Ms Greensill, Mr Dunn and Ms Talaugon attended in person and Mr Brunner attended by telephone as Ms Talaugon's support person. Each of the attendees gave evidence of the discussion at the meeting and, again, while there was a degree of variation in the witnesses' accounts about the detail, the evidence was broadly consistent regarding the main themes. However, the evidence adduced about the show cause meeting was largely irrelevant because, although the duration of the meeting was close to one hour, very little of the meeting time was occupied addressing the matters identified in the show cause letter. The evidence of the witnesses was generally to the effect that Ms Talaugon or Mr Brunner raised or wanted to raise other matters of no direct relevance to Ms Talaugon 'showing cause' or reasons for Allight not to terminate her employment for the potential serious breaches of her contract of employment identified in the show cause letter. Ms Talaugon raised the performance meeting and that a request she had made to be provided with her key performance indicators (KPIs) had not been answered. Ms Talaugon said that Ms Greensill and Mr Dunn made her angry. Ms Talaugon said that she was being targeted and discriminated against and that they (Ms Greensill and Mr Dunn) wanted to terminate her employment. Mr Brunner had seven pages of questions. Although he was not permitted to ask all of them, these were evidently directed to ascertaining particulars of the assertions in the show cause letter about failures to attend meetings and the tone of email correspondence that was said to be disrespectful. Mr Brunner also asserted that Ms Greensill had a conflict of interest and should not be holding the meeting. None of these matters assisted Ms Talaugon to demonstrate to Ms Greensill and Mr Dunn that Ms Talaugon had an appropriate explanation for her failure to attend the scheduled performance meetings or that Allight could be satisfied that she intended to comply with lawful and reasonable directions in the future.
4. Mr Dunn also made a file note of the meeting on 19 May 2023 and sent it as an email to Ms Greensill. Mr Dunn's file note is generally consistent with the evidence Ms Greensill and he gave about the discussion at the meeting. Mr Dunn's note does not identify any explanation Ms Talaugon gave during the meeting for her failure to attend the scheduled performance meetings.
5. I find that at the show cause meeting Ms Greensill explained to Ms Talaugon and Mr Brunner that the show cause meeting was not a termination meeting, but it was an opportunity for Ms Talaugon to respond to the matters raised in the show cause letter of 16 May 2023. Ms Greensill went through that letter and the matters raised in it and asked for Ms Talaugon's response. Other than to indicate that Ms Talaugon considered that she was entitled to obtain legal advice before any meeting, Ms Talaugon proffered no other explanation for her refusal to attend the meeting scheduled for 9 or 10 May 2023 or the earlier scheduled performance review and other meetings. While other topics were canvassed during the meeting, these were not relevant to the purpose of the show cause meeting or Ms Talaugon providing an explanation that explained or mitigated her failure to attend the performance meeting scheduled for 9 or 10 May 2023.
6. Again, there was conflicting evidence about Ms Talaugon's tone and demeanour during the meeting. While there was agreement that Ms Talaugon was upset and her voice was somewhat raised, the gist of the evidence was that she was agitated but her conduct was not like the meeting on 5 April 2023. I find that Ms Talaugon became agitated during that meeting and raised her voice and raised topics that were not relevant to the show cause matters. She said that Mr Dunn and Ms Greensill made her angry. She also asked Mr Dunn to stop smirking. Mr Dunn said words to the effect that he was not smirking.
7. As the individuals primarily responsible for managing Ms Talaugon, I expect it was true that Ms Greensill and Mr Dunn made Ms Talaugon angry. Mr Dunn clearly found Ms Talaugon difficult to manage. Also, during Ms Talaugon's cross-examination of Mr Dunn, his demeanour and certain of his answers were condescending or conceited in nature. For example, after answering a question Ms Talaugon said 'thank you' to which Mr Dunn said 'you're welcome'. Ms Talaugon said in a question that she was giving Mr Dunn a 'hint' and he replied 'thank you for that hint'. In response to another question Mr Dunn said that he did not see the relevance of it. There were also many answers to questions where Mr Dunn's tone was patronising. Although the exchanges were polite and civil, I was left with the impression that Mr Dunn was somewhat irritated by and intolerant of Ms Talaugon. Therefore, I accept that Mr Dunn may have been smirking during the show cause meeting or, at least, Ms Talaugon reasonably perceived him to be doing so.
8. Notwithstanding that Ms Greensill and Mr Dunn made Ms Talaugon angry, Ms Talaugon reasonably perceived Mr Dunn to be condescending towards her during the show cause meeting, and Ms Talaugon was in an emotionally charged state, none of those matters justified or made it appropriate for Ms Talaugon to make negative personal comments about Ms Greensill and Mr Dunn such as that they made her angry, they wanted to terminate her, or that Mr Dunn was smirking. Nor was it appropriate to raise her voice.

1. On 26 May 2023 Ms Smith, Ms Greensill and Ms Talaugon attended a termination meeting. Ms Smith provided Ms Talaugon a letter terminating her employment. Mr Ahmad signed the letter.
2. The letter said that Ms Talaugon had not provided any reasonable or mitigatory explanation for her conduct or otherwise satisfactorily addressed Allight's concerns in the show cause meeting. The letter also said Ms Talaugon had become agitated and defensive during the meeting and had raised her voice towards Mr Dunn and Ms Greensill. That was also said to involve a breach of the Respect in the Workplace Policy and Code of Conduct and Ethics. Specifically, the expectation that Ms Talaugon would demonstrate appropriate behaviour and treat everyone with dignity, courtesy and respect. The letter indicated that Allight had determined that Ms Talaugon had failed to meet her obligations to comply with its lawful and reasonable directions as well as her obligations under her contract of employment and the Respect in the Workplace Policy and Code of Conduct and Ethics. On that basis, Allight had decided to terminate Ms Talaugon's employment effective immediately.

Was Ms Talaugon's employment terminated because of her family or carer responsibilities and pregnancy?

1. The decision to terminate Ms Talaugon's employment was made by Mr Ahmad on advice or recommendation of Ms Smith. Both Ms Smith and Mr Ahmad gave unchallenged evidence about the decision-making process and reasons for the decision which I accept as accurate and truthful.
2. Although Ms Smith had not attended the meetings on 5 April 2023 and 19 May 2023, Ms Greensill and (or) Mr Dunn had informed her of the discussions and outcomes of those meetings. Ms Smith had also been providing advice to Ms Greensill and Mr Dunn from December 2022 regarding the management of Ms Talaugon. After the show cause meeting, Ms Greensill informed Ms Smith that Mr Brunner had tried to lead the discussion and Ms Talaugon had not really contributed during the meeting. Ms Smith then met with Mr Ahmad.
3. Mr Ahmad had been generally aware of the process by which a flexible working arrangement was agreed with Ms Talaugon and of Mr Dunn's concerns with Ms Talaugon's performance. He was also aware that Ms Talaugon had brought her daughter to work on 5 April 2023 without permission and that as a result there was a meeting with Ms Greensill and Mr Dunn on that day. Further, that Ms Talaugon was to be issued with a written warning. In May 2023 Mr Ahmad attended a meeting with Ms Smith and Ms Greensill at which he agreed with the decision to send Ms Talaugon the show cause letter. After the show cause meeting he met with Ms Smith.
4. Ms Smith conveyed to Mr Ahmad her recommendation that given Ms Talaugon's ongoing refusal to follow directions, attend meetings and inappropriate behaviour towards Ms Greensill, she believed that there were sufficient grounds for Allight to terminate Ms Talaugon's employment. Ms Smith saw no alternative but to proceed to terminate considering the extensive efforts that had already been made to encourage Ms Talaugon's engagement.
5. Mr Ahmad decided to terminate Ms Talaugon's employment on Ms Smith's recommendation for the following reasons.

(a) Ms Talaugon's repeated failure to engage with routine processes like the performance improvement plan indicated to him that she did not want to work at Allight.

(b) Ms Talaugon had repeatedly acted in a manner towards other employees that was disrespectful and dismissive.

(c) He felt that Allight had no other remaining options.

1. In a further insight into Mr Ahmad's process of reasoning he made the following statement which I accept:

Axel was given the same opportunity to engage with ordinary workplace processes as any other Allight employee. However, she responded to these processes with avoidance and aggression. What should have been routine discussions became incredibly stressful for those involved, particularly Alex and Chris.

1. In substance, Ms Talaugon contends that the direct evidence of Mr Ahmad should be disregarded and an inference should be drawn from other evidence to the effect that Allight engaged in a protracted campaign based on her carer responsibilities and pregnancy. She contends that the reasons given for her termination were not genuine and Ms Smith and Mr Dunn had a plan to 'manage' Ms Talaugon out of Allight from early January 2023. The reasons for that plan were all related to her carer responsibilities and pregnancy. Discrimination on these grounds also manifested in changes to her flexible working arrangements and refusals of carer's leave. Ms Talaugon also contends that the foundation for the proposed performance improvement plan, written warning and show cause meeting were not genuine and, in effect, were pretexts for her dismissal.

1. Relevantly, s 351(1) provided that an employer must not take adverse action against a person who is an employee because of the person's family or carer responsibilities or pregnancy. Relevantly, s 361(1) provided that if in an application in relation to a contravention of Pt 3-1, it is alleged that a person took action for a particular reason and taking that action for that reason would constitute a contravention of Pt 3-1, it is presumed that the action was taken for that reason unless the person proves otherwise. As Ms Talaugon alleges that Allight terminated her employment because of her family or carer responsibilities and (or) pregnancy, the presumption applies and Allight is taken to have contravened s 351(1) unless it proves otherwise. Section 360 provided that for the purposes of Pt 3-1 a person takes action for a particular reason if the reasons for the action include that reason.
2. The leading authority concerning the interpretation and meaning of s 360 and s 361 is Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500. I draw the following relevant propositions from the reasons of the High Court in that case.

(1) The reason for the adverse action is a question of fact arising from the operation of the interdependent provisions of the Fair Work Act: [41].

(2) Determining why an employer took adverse action against an employee involves consideration of the decision-maker's 'particular reason' for taking adverse action (s 361(1)) and, relevantly here, consideration of the employee's family or carer responsibilities and (or) pregnancy at the time the adverse action was taken (s 351(1)); or workplace right that the employee has or has not exercised or proposes or proposes not to exercise at the time the adverse action was taken (s 340(1)): [42].

(3) An employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action: [43].

(4) The question of fact must be answered in light of all of the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence: [45].

(5) Direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer: [45].

(6) Although the effect of s 360 is that the proscribed reason need not be the only reason that adverse action was taken, the proscribed reason must be 'a substantial or operative factor' or 'operative or immediate reason': [62], [104], [140].

See, Barclay at [41]-[45], [62] (French CJ and Crennan J), [104], [119]-[128] (Gummow and Hayne JJ), [140], [149] (Heydon J).

1. Although there may be circumstances in which a single decision-maker has made the decision to take the adverse action and the employer's reasons for the action may be attributed to that decision-maker, a common circumstance, particularly for large corporate employers, is that the ultimate decision-maker has made a decision based on advice or information provided to that person by other employees. In those circumstances, if other employees have provided information or advice because of a proscribed reason and that advice or information has influenced the ultimate decision-maker's decision, the reason for the adverse action may be tainted by the proscribed reason even if the ultimate decision-maker subjectively made the decision to take adverse action for non-proscribed reasons: Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; 273 FCR 332 at [90]- [91] (Greenwood, Besanko and Rangiah JJ), citing Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251 (Lee, Madgwick and Gyles JJ) and Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; 253 IR 166 at [121]- [122] (Reeves J).
2. Relevantly, the factual enquiry under s 360 and s 361(1) focusses on the reason the employer took adverse action and the reasoning process that resulted in the ultimate decision to take that action. Where that reasoning process involves a number of people, the reasons for each person whose involvement has had a material effect on the ultimate decision may be relevant to determining if a proscribed reason was a substantial operative factor or the operative or immediate reason for the employer taking the adverse action. Accordingly, the reasons for Ms Smith making her recommendation to Mr Ahmad and, in turn, for Ms Greensill and Mr Dunn providing information expressing views about Ms Talaugon's performance and conduct may be relevant to determining the reason that Mr Ahmad ultimately made his decision to terminate Ms Talaugon's employment.
3. Nonetheless, in considering the reason for adverse action of an employer it is important to keep in mind that the mere consideration or taking into account a proscribed reason within a decision-making process is not sufficient to render the proscribed reason a substantial operative factor or operative or immediate reason for the decision to take adverse action. In addressing an earlier version of similar provisions to s 360 and s 361 in General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605, Mason J (at 616) rejected a construction of the provision favoured by Isaacs J in Pearce v WD Peacock & Co Ltd [1917] HCA 28; 23 CLR 199 (at 205) to the effect that the onus cast on the employer was to demonstrate that the proscribed reason 'must not enter in any way into the reason of the [employer] if [it] desires exculpation'. Justice Mason, with whom Gibbs, Stephen and Jacobs JJ agreed, said (at 616):

The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons.

1. In Barclay most members of the High Court made positive reference to the approach of Mason J to determining whether adverse action was taken for a proscribed reason or reasons that included a proscribed reason: Barclay at [53]-[62] (French CJ and Crennan J), [104], [127] (Gummow and Hayne JJ). The reasoning of Mason J in Bowling may be applied to 'if the reasons for the action include that reason' in s 360. Put another way, the mere fact that a person has considered or taken into account a proscribed characteristic of an employee (family or carer responsibilities or pregnancy) does not mean that the decision to take adverse action was taken because of that characteristic. An operative or immediate reason for action is a reason that moved the person to take the action. By way of example or illustration, a judge will frequently take into account a party's submissions on a particular matter and those submissions may influence the decision the judge makes, but a submission that is not accepted or not accepted in its entirety is not the reason or a reason for the ultimate decision or judgment: see, e.g., Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; 231 FCR 150 at [91] (Perram J).

Reasons for Mr Dunn, Ms Smith and Ms Greensill taking various actions

1. As already mentioned Mr Dunn clearly found Ms Talaugon difficult to manage and during his cross-examination he revealed that he was intolerant of and irritated by her. It is also evident that Mr Dunn was not in favour of granting Ms Talaugon the flexible working arrangements she had requested. Nonetheless, based on Allight's legal obligations under s 65 and the advice he was given by Ms Smith, Mr Dunn ultimately offered Ms Talaugon a formal flexible working arrangement on 21 March 2023 to which Ms Talaugon agreed. As already mentioned, Allight has not contravened s 65 with respect to the circumstances in which Ms Talaugon's informal arrangement was converted into a formal arrangement after she had completed 12 months of continuous full-time employment with the company.
2. Separately to his reluctance to approve a flexible working arrangement, Mr Dunn had concerns about Ms Talaugon's communication, attendance and role responsibility. His concerns about her attendance pre-dated his becoming aware that she was pregnant. These related to Ms Talaugon not attending the office on the days or at the times that had been agreed in accordance with informal or formal flexible working arrangements. His concerns about communication related in part to late or no notice of absences from the office and, otherwise, not keeping him informed of when she was working and what she was doing when she was working. Mr Dunn conveyed his concerns to Ms Smith. However, it was not only Mr Dunn who had complained to Ms Smith about Ms Talaugon's lack of communication and last-minute absences from the office. Ms Pruitt had also raised concerns of that nature in Ms Talaugon's three-month probation review in May 2022 and in correspondence with Ms Smith during September 2022. Therefore, lack of communication and absence from the office was a performance concern of Ms Talaugon's line mangers more-or-less from the inception of her employment with Allight.
3. As already mentioned, on 11 January 2023 Ms Talaugon informed Mr Dunn that she would not be working that day because she was 'caring for a friend' who had had surgery and was tired from blood tests. For the reasons already given, Mr Dunn's refusal to approve Ms Talaugon's application for carer's leave for that day was not a contravention of the National Employment Standards. Carer's leave was not refused because Ms Talaugon had carer responsibilities for her daughter or was pregnant but because s 97 had no application to the circumstances of her caring for a friend.
4. On 11 January 2023 Mr Dunn informed Ms Smith of Ms Talaugon's application for carer's leave and sought advice regarding how to deal with that request. He also complained about Ms Talaugon's performance and asked if he had the option 'to redirect or replace'. Ms Smith's response was to advise Mr Dunn to arrange a performance meeting to talk through the concerns and give Ms Talaugon an opportunity to respond. And, depending upon the response, discipline may be appropriate and placement on a performance improvement plan with clear expectations. Ms Smith also said 'no to redirect' because the problem could not be moved to another manager, but said replacement (termination) could be done 'but [Mr Dunn] will need to manage [Ms Talaugon] to the point where [Mr Dunn] can replace her (i.e. performance management)'.
5. Ms Smith's email to Mr Dunn does not convey a 'plan' to deliberately performance manage Ms Talaugon out of Allight. It places responsibility on Mr Dunn to manage Ms Talaugon's performance, including through a performance meeting and possible performance improvement plan. The implication of Ms Smith's advice, in context, was that Ms Talaugon could be replaced (dismissed) if performance management failed and the conditions for lawful termination were met.
6. Although Mr Dunn's concerns may have had their source in the flexible working arrangements Ms Talaugon requested or was granted, lack of communication and attendance were concerns that existed within that arrangement. Ms Talaugon's responsibilities as carer of her daughter were the reasons for permitting her to have a flexible working arrangement, but they were not reasons for her lack of communication or unexplained or late notice of absence from the office. Mr Dunn's reasons for raising redirection or replacement were not because Ms Talaugon had a flexible working arrangement or carer responsibilities. It was because he did not know if or when Ms Talaugon was working, tasks were being missed because his team was unclear on what she had and had not done, and she was not keeping to the flexible working arrangement that she had requested. Therefore, his enquiry about redirection or replacement was directed to an objective of managing his team, including Ms Talaugon, efficiently and effectively.
7. In later email communications with Ms Smith in preparation for a performance meeting with Ms Talaugon, Mr Dunn expanded on his concerns about communication, absence and lack of notice for leave requests and provided details and examples of communications with Ms Talaugon. He also expressed frustration at a lack of flexibility on the part of Ms Talaugon to work in the office during school holidays or when her husband was able to share carer responsibilities. That information was provided so Ms Smith and Mr Dunn could 'have an informed discussion with [Ms Talaugon]'. There is nothing in the internal communications between Ms Smith and Mr Dunn to suggest that Mr Dunn's concerns about Ms Talaugon's performance were not genuine or were contrived or were because Ms Talaugon had carer responsibilities or was pregnant or had a flexible working arrangement rather than because of the manner in which Ms Talaugon performed her work within that arrangement.
8. It was also logical to deal with Mr Dunn's performance concerns after putting in place a formal flexible working arrangement. While notice of a performance meeting may have come as a surprise to Ms Talaugon on 4 April 2023, it was a meeting that was first mooted by Ms Smith in January 2023 and was the subject of further communications in February 2023. Ms Smith then delegated the task of meeting with Mr Dunn and Ms Talaugon to Ms Greensill. The absence of Ms Smith, Ms Greensill or Mr Dunn giving Ms Talaugon notice of the performance concerns before the proposed meeting also does not suggest that the meeting was not genuine or was contrived. The very purpose of the meeting was to provide Ms Talaugon with notice of the performance concerns and to engage with her about them including getting her response and feedback on the extent to which the concerns were reasonable or well-founded.
9. The sequence of events and preparation of material for the performance meeting scheduled for 5 April 2023 also does not suggest that the intention to hold that meeting and place Ms Talaugon on a performance improvement plan with a view to managing her performance was not genuine. Nor does it suggest that it was a pre-text for terminating Ms Talaugon's employment or that termination was the only outcome of performance management. If the areas of concern regarding Ms Talaugon's performance improved there would not be grounds to terminate for non-performance. In Mr Ahmad's evidence, which I accept, he described performance improvement plans as a common management tool and routine.
10. Ms Smith, Ms Greensill and Mr Dunn became aware that Ms Talaugon was pregnant no later than 15 February 2023 when she sent an email to Mr Dunn requesting another change to her proposed flexible working arrangement because she was having 'heavy morning sickness'. Mr Dunn forwarded that email to Ms Smith and Ms Greensill. After that communication the meeting of 24 February 2023 was arranged to discuss Ms Talaugon's requests for a flexible working arrangement.
11. At the meeting on 24 February 2023 Ms Talaugon had said she was not able to attend the office in the morning due to her morning sickness. Therefore, it is understandable that Ms Greensill and Mr Dunn would want to be reassured that she was fit to work both in the office and at home from an occupational health and safety perspective. Ms Talaugon was requesting changes to her flexible working arrangements on the basis of her morning sickness. Therefore, it was not unreasonable for her employer to want to understand the extent of any impediment she had to work so as to assess whether or not to grant the requested change. That was not discriminatory. For the reasons already given, refusing Ms Talaugon's application for leave for the days she did not work while waiting for an appointment to get a medical certificate was not a contravention of the National Employment Standards. It was also not refused because Ms Talaugon was pregnant. It was refused because she was not sick, had not been directed not to work or take leave, but had not worked. Therefore, she was required to take leave without pay or annual leave.
12. From the perspective of Ms Greensill, the meeting on 24 February 2023 was to ascertain the extent of Ms Talaugon's responsibilities as primary carer for her daughter and what kind of flexible working arrangement could be reached that would meet both her needs as a parent and the company's needs as employer. In that context, it was not unreasonable of Ms Greensill to convey to Ms Talaugon an expectation that she would devote the whole of her time during her hours of work for the company to her duties for the company as her contract of employment required. Nor was it unreasonable to probe Ms Talaugon regarding how she could or would effectively perform that obligation while her daughter was in her sole care at home. That is not to say that Ms Talaugon could not or would not be able to perform both functions adequately, but it was not unreasonable for her employer to ask questions so as to understand and ascertain how she could do so before agreeing to a flexible working arrangement. That is also not to say that Ms Talaugon was wrong to question Ms Greensill or to seek to better understand Allight's policy regarding flexible working arrangements. It is merely to observe that it was not unreasonable for her employer to make appropriate enquiries about how she would perform her contractual duties under a flexible working arrangement. That is not discriminating against her because she had carer responsibilities.
13. As already mentioned, Ms Talaugon attended the office on 5 April 2023 with her daughter. She left the office after the meeting with Ms Greensill and Mr Dunn. She also did not attend work the following day (6 April 2023). For the reasons already given, refusing Ms Talaugon's application for carer's leave for 6 April 2023 was not a contravention of the National Employment Standards. It was also not refused because Ms Talaugon had carer responsibilities or because she was pregnant. It was refused because she was not performing carer responsibilities within the meaning s 97. Therefore, she was required to take leave without pay or annual leave for that day.
14. As already mentioned, Ms Greensill scheduled a meeting with Ms Talaugon to attend a meeting on 19 April 2023 to discuss her behaviour at the unscheduled meeting on 5 April 2023. For the reasons already given, Ms Greensill had a reasonable and proper foundation for convening that meeting and disciplining Ms Talaugon. Ms Talaugon refused to attend that meeting which was contrary to a lawful and reasonable direction. Consequently, Ms Greensill sent Ms Talaugon the warning letter. The reason that Ms Greensill wanted to discuss Ms Talaugon's conduct on 5 April 2023 had nothing to do with Ms Talaugon's carer responsibilities or pregnancy. Ms Greensill's reasons were that she considered Ms Talaugon's conduct on 5 April 2023 was inappropriate and in breach of her contract of employment and Allight's policies. The written warning was sent to Ms Talaugon for the same reason.
15. As already mentioned, Ms Greensill made numerous attempts from 4 April to 5 May 2023 to schedule a meeting with Ms Talaugon to discuss her performance. Ms Talaugon requested and was provided with further information about the purpose of that meeting on 4 and 5 April 2023. The meeting was rescheduled on 12 April 2023, at Ms Talaugon's request, to 21 April 2023. Ms Talaugon refused to meet until she had obtained legal advice. In the meantime, Ms Talaugon, Ms Greensill and Mr Dunn had the unscheduled meeting on 5 April 2023. No doubt the events of 5 April 2023 were a significant reason for Ms Talaugon to want to obtain legal advice. In any event, the meeting on 21 April 2023 did not proceed and it was rescheduled for 9 or 10 May 2023.
16. While it would not ordinarily be necessary to obtain legal advice before a performance meeting, if Ms Talaugon had wanted to obtain that advice, by the time of the meeting scheduled on 9 or 10 May 2023 she would have had over one month to obtain that legal advice. Therefore, an opportunity to obtain advice had been afforded and it was not unreasonable for Allight to insist that the meeting proceed as planned.
17. The reason Ms Greensill sent the show cause letter was because Ms Talaugon had refused to meet with Ms Greensill and Mr Dunn to discuss her performance. Again, her reasons were unrelated to Ms Talaugon's carer responsibilities or pregnancy. The reason was because Ms Talaugon had refused to comply with a lawful and reasonable direction to attend meetings with her employer.
18. As mentioned, Ms Talaugon, Mr Brunner (by telephone), Ms Greensill and Mr Dunn attended the show cause meeting on 19 May 2023. For the reasons already given, Ms Talaugon provided no reasonable or mitigating explanation for her failure to attend the performance meetings. Ms Talaugon was also somewhat discourteous towards Ms Greensill and Mr Dunn in that meeting.

1. It follows that the context and circumstances provided a proper and reasonable foundation for Allight to terminate Ms Talaugon's employment. There is nothing in that context or circumstances to suggest that termination was because Ms Talaugon had carer responsibilities and was pregnant.
2. The reason Mr Ahmad decided to terminate Ms Talaugon's employment and signed the termination letter are the reasons he gave in his evidence-in-chief and as are expressed in the letter. He was, no doubt, acting on the advice of Ms Smith and Ms Smith, in turn, on information she obtained from Ms Greensill and Mr Dunn. None of Mr Ahmad, Ms Smith, Ms Greensill or Mr Dunn was motivated to terminate Ms Talaugon's employment because she was the primary carer for her daughter or pregnant. Their primary motivation was that Ms Talaugon was not complying with lawful and reasonable directions to attend meetings to address her performance and conduct in the workplace and was behaving as if she no longer considered herself bound by her contract of employment.

Was Ms Talaugon's employment terminated because of her complaints?

1. Section 340(1) provided that a person must not take adverse action against another person because the other person has a workplace right, or has or has not exercised a workplace right or proposes or proposes not to, or has at any time proposed or proposed not, to exercise a workplace right. Section 341(1), relevantly, provided that a person has a workplace right if the person is entitled to the benefit of a workplace law or is able to make a complaint or inquiry in relation to her employment.
2. Allight accepts that: (1) proposing to make a complaint or inquiry about Ms Talaugon's employment situation would comprise the exercise of a workplace right; (2) Ms Talaugon exercised such a workplace right in relation to the first and second complaints; and (3) as Ms Talaugon alleges that she was terminated because she proposed to make a complaint about her employment situation, Allight has the onus of proving that Ms Talaugon was not terminated for that reason.
3. Allight appropriately made these concessions based on what it understood to be the allegations Ms Talaugon advanced in her statement of claim. However, having regard to the contents of the first and second complaints read in the context of the other pleaded facts, in substance, Ms Talaugon alleges that she had exercised or was proposing to exercise a right to request a flexible working arrangement under s 65 (a workplace law) from, at least, 3 February 2023, she had made an inquiry or complaint in relation to her employment to Allight (first complaint) and was proposing to make a complaint in relation to her employment to the Fair Work Ombudsman (second complaint). Therefore, in substance, Allight has the onus of proving that none of these matters was the reason Ms Talaugon's employment was terminated.
4. For the reasons already given, Allight has discharged its onus of proof. None of Mr Ahmad, Ms Smith, Ms Greensill or Mr Dunn was motivated to terminate Ms Talaugon's employment because she had requested a flexible working arrangement, had made a complaint or inquiry to Allight in relation to her employment and (or) proposed to make a complaint to the Fair Work Ombudsman in relation to her employment.

1. The preceding reasons deal with the principal allegations and substance of Ms Talaugon's claims against Allight. However, for completeness, there are three further aspects of Ms Talaugon's claims for which brief reasons are required to explain why those aspects are also not accepted.

1. The meaning of adverse action is described in s 342. Adverse action is a broader concept than dismissal of an employee or termination of employment. It includes injuring the employee in her employment, altering the position of the employee to her prejudice, discriminating against the employee and other employees of the employer.
2. In paras [129]-[130] of her statement of claim Ms Talaugon alleges that the respondents owed and breached a duty of care owed to her as her employer to ensure that she could work in a safe environment and free from discrimination. Ms Talaugon alleges the duty was breached and she experienced discrimination in various forms comprised of an extensive range of actions that she characterised as discriminatory and (or) wrongful conduct. In para [132] of the statement of claim Ms Talaugon alleges that Allight contravened s 351 by 'subjecting her to discrimination'. Therefore, Ms Talaugon alleges that the discriminatory and (or) wrongful conduct pleaded in paras [129]-[130] was also adverse action. I accept that, if proved, that conduct would comprise adverse action.
3. In para [129] of the respondents' defence they do not plead to the allegations in paras [129]-[130] of the statement of claim on the ground that no material fact or point of law is raised in a comprehensible manner in the statement of claim. Insofar as para [132] of the statement of claim alleges adverse action other than dismissal, in para [131] of the respondents' defence that allegation is denied. Although the respondents have not specifically denied the allegations in paras [129]-[130] of the statement of claim, having regard to the manner in which they responded to those allegations, the lack of clarity in the statement of claim and the specific denial of adverse action in para [131] of the defence, I do not regard the allegations in paras [129]-[130] of the statement of claim as admitted by operation of r 16.07(2) of the Federal Court Rules 2011 (Cth). Rather, I take the effect of the plea in para [129] of the defence to be a non-admission and the allegations in paras [129]-[130] of the statement of claim to be in issue.
4. Unlike the termination of Ms Talaugon that is admitted and accepted as adverse action, Ms Talaugon has the onus of proving that the relevant circumstances pleaded in paras [129]-[130] of the statement of claim (adverse action) exist: Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [119] (Jessup J, Allsop CJ and White J, agreeing); Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 at [16], [100] (Tracey, Reeves and Bromwich JJ). Ms Talaugon has not proved any of the relevant allegations. Further, to the extent that Ms Talaugon claims that refusal of personal or carer's leave is also adverse action, for the reasons already given, there was no wrongful refusal and, in any event, the reasons for the refusals were not proscribed reasons. Likewise, for the reasons already given, Allight has positively proved its reasons for terminating Ms Talaugon's employment and none of those reasons falls within the description of any of the alleged adverse action pleaded in the statement of claim at paras [129]-[130].
5. In paras [117]-[128] of the statement of claim Ms Talaugon also alleged that Allight had not followed or had breached its policies on performance, flexible working arrangements and flexible working procedure. In paras [117] and [118] of the defence the respondents admitted the existence of the policies but denied the terms of the policies pleaded and the facts upon which the alleged breaches were founded. None of those policies was tendered or was in evidence and, therefore, Ms Talaugon has failed to prove the terms of those policies. Accordingly, Ms Talaugon cannot prove any breach or non-compliance with those policies to the extent that any such breach or non-compliance has or could have any relevance to the other allegations in the statement of claim.

Alleged breaches of Work Health and Safety Act

1. Although not pleaded in her statement of claim, in Ms Talaugon's written submissions she asserted that Allight breached ss 27, 28, 46 and 47 of the Work Health and Safety Act 2020 (WA). In her oral submissions Ms Talaugon clarified that, in effect, it was a submission that as Allight had not taken certain action under the Work Health and Safety Act after Ms Talaugon took her daughter to work on 5 April 2023, it undermined Allight's contention that Ms Talaugon had breached the company's policy by bringing her daughter to work. Ms Talaugon evidently contends that the meeting on 5 April 2023 and following scheduled disciplinary meeting and warning letter form part of the alleged pre-text for her dismissal. That submission was not developed any further and no submission was made based on the evidence at trial and the provisions of the Work Health and Safety Act.
2. Relevantly, it was common ground that Ms Talaugon had taken her daughter to work without authority and had taken her to a meeting in the office of the production facility. There was evidence, which I accept, that Ms Talaugon had also not signed her daughter in as a visitor when she arrived at work. For the reasons already given, irrespective of whether or not it was a breach of Allight's policy or Allight was obliged to take some action under the Work Health and Safety Act, it was reasonable for Allight to take steps to discipline Ms Talaugon in those circumstances. For the reasons already given, the meeting on 5 April 2023, discipline meeting scheduled for 19 April 2023 and warning letter were genuine and not actions taken for any proscribed reason.

Alleged breaches of the Australian Privacy Principles

1. Again, although not pleaded in her statement of claim, Ms Talaugon asserts that Allight has breached cll 5, 10, 11 and 12 of the Australian Privacy Principles under the Privacy Act 1988 (Cth). Ms Talaugon alleges that:

(1) Allight collected personal information relating to Ms Talaugon that was used as a basis to terminate her employment.

(2) Allight failed to notify or otherwise ensure that she was aware that her personal information was being collected.

(3) Allight's privacy policy failed to contain information on how Ms Talaugon may access her personal information or complain about it being withheld.

(4) Allight failed to ensure Ms Talaugon's personal information was up to date, accurate and complete.

(5) Allight failed to take reasonable steps to prevent her personal information from being misused, or interfered with.

(6) Ms Greensill failed to provide Ms Talaugon with her personal information within a reasonable timeframe (KPIs) the lack of which led to her termination.

(7) Allight failed to give Ms Talaugon access to her personal information within a reasonable timeframe, such as before disciplinary proceedings commenced which were related to the withholding of her personal information.

(8) Allight failed to give Ms Talaugon access to her personal information in the manner she requested.

(9) Ms Greensill failed to provide Ms Talaugon with the reasons why her personal information was not provided to her despite relying on that information to terminate her.

(10) Ms Greensill failed to inform Ms Talaugon of any mechanisms available to her to complain about the refusal to provide her with her personal information.

1. Again, these submissions were not developed to any significant extent. The evidence of the alleged 'personal information' and its collection was not identified. Allight's privacy policy was not tendered. The Court was not taken to the relevant provisions of the Australian Privacy Principles or the Privacy Act. Otherwise, the submissions on Ms Talaugon's personal information were hard to follow and the significance, if any, of any asserted breach of the Australian Privacy Principles or Privacy Act was not explained. The submission appears to relate to the circumstances in which Ms Greensill scheduled a performance meeting, Ms Talaugon requested, but was not provided, with her KPIs and Ms Talaugon was not informed before the meeting of any concerns relating to her performance or the information that had been collected regarding her performance. Ms Talaugon appears to allege that her non-attendance at the performance meetings was explained by the absence of that information and, therefore, terminating her employment for non-attendance at that meeting was not justified. Further, that personal information was deliberately (and in breach of the Australian Privacy Principles and Privacy Act) withheld from her to prevent her from rectifying the asserted grounds of non-performance.
2. Ms Talaugon has not demonstrated that Allight breached any provision of the Australian Privacy Principles. Nor has she demonstrated that Allight deliberately withheld personal or other information from her to prevent her from being able to address performance concerns. For the reasons already given, the purpose of the performance meeting was to discuss Mr Dunn's performance concerns with Ms Talaugon and, depending upon her response, put in place a performance improvement plan. Ms Talaugon would have been informed of the performance concerns at that meeting had she attended, but she chose not to do so. Also, Ms Smith gave evidence, which I accept, that there were no KPIs for Ms Talaugon's position.

1. As a result of the conclusions reached that Allight has not contravened the Act it is unnecessary to consider if any of the individual respondents was involved in a contravention as alleged. It is also unnecessary to consider whether Ms Talaugon has suffered any loss or damage or is entitled to any other relief in the proceeding.

1. For the foregoing reasons, the application should be dismissed.
2. The respondents have made a submission that they wish to be heard on the question of costs. Accordingly, orders should be made to give the respondents an opportunity to apply for an order under s 570.

I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.