2025 WAIRC 00301
UNFAIR DISMISSAL APPLICATION
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00301

CORAM
: SENIOR COMMISSIONER R COSENTINO

HEARD
:
MONDAY, 10 FEBRUARY 2025,
TUESDAY, 11 FEBRUARY 2025

DELIVERED : THURSDAY, 15 MAY 2025

FILE NO. : U 73 OF 2024

BETWEEN
:
AJAH OBANG ABUY
Applicant

AND

TOWN OF PORT HEDLAND
Respondent

CatchWords : Industrial Law (WA) - Unfair dismissal - Dismissal for reasons related to performance - Whether performance concerns were justified - Whether improvement action was justified - Whether performance improved - Whether performance improvement process was unfair or unreasonable - Procedural fairness - Was the termination outcome predetermined - Whether manner of termination unfair - Finding that the termination was not harsh, oppressive or unfair - Application dismissed
Legislation : Industrial Relations Act 1979 (WA)
Result : Application Dismissed
REPRESENTATION:

Counsel:
APPLICANT : MS A ABUY (IN PERSON)
RESPONDENT : MS H MILLAR (OF COUNSEL)
Solicitors:
APPLICANT : NOT APPLICABLE
RESPONDENT : MINTER ELLISON

Case(s) referred to in reasons:
BHP Coal Pty Ltd v Schmidt [2016] FWCFB 72
Farkas v Abacus Calculators (WA) Pty Ltd [2005] WAIRC 02267; (2005) WAIG 3134
Finlay v Commissioner of Police [2022] WASC 272
GIBSON V BOSMAC PTY LTD (1995) 60 IR 1
Gilmore v Cecil Bros & Ors (1996) 76 WAIG 1184
Kerton v Bandaberry Pty Ltd t/a Mandurah Holden [2004] WAIRC 11731; (2004) 84 WAIG 2652
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 93 ALR 435
Shire of Esperance v Mouritz (1991) 71 WAIG 891
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00344: (2013) 93 WAIG 618
The Undercliffe Nursing Home v The Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385


Contents
Jurisdiction 4
Relevant principles 4
Background 4
Timeline of events relevant to Ms Abuy’s performance 5
Witnesses 8
Ajah Abuy 8
Sasha Gubbins 10
Ciara Dillon 11
Mark Dacombe 12
How should Ms Abuy’s performance have been assessed? 12
Did Ms Abuy’s performance justify improvement action? 15
Reliability 15
Following reasonable directions 17
Respectful communications 18
Did Ms Abuy’s performance improve sufficiently? 21
Was the performance improvement process unfair? 26
Was the PIP process unfair because it was not preceded by performance coaching and performance counselling? 26
Was the PIP process unfair because Ms Savill was not present for performance counselling? 28
Was Ms Abuy denied the opportunity to bring her preferred support person to the 12 June 2024 PIP implementation meeting? If so, did this render the dismissal unfair? 28
Was Ms Abuy denied the opportunity to give feedback on the PIP plan? If so, did this render the dismissal unfair? 28
Were the PIP plan expectations unreasonable? 29
Were the Town’s performance expectations as expressed in the PIP plan unclear? 30
Was Ms Abuy denied the opportunity to be heard during the PIP process? 32
Was the process unfair because mediation was not offered or implemented 32
Was the process unfair because check-in meetings were inconsistent? 33
Was the process unfair because the review period was not long enough? 33
Did the Town fail to have sufficient regard to Ms Abuy’s grievances about interpersonal conflicts as a mitigating circumstance? 34
Was the manner of termination unfair? 37
Was the outcome predetermined? 37
Unfair termination process 39
Conclusion and disposition 40

Reasons for Decision
1 The Town of Port Hedland employed Ms Ajah Abuy as a Graduate Community Safety Officer in March 2023. On 2 August 2024 the Town terminated Ms Abuy’s employment for performance reasons.
2 Ms Abuy claims the termination was harsh, oppressive or unfair and referred this matter to the Western Australian Industrial Relations Commission under s 29(1)(c) of the Industrial Relations Act 1979 (WA) (IR Act). Ms Abuy’s grounds supporting her claim are extensive but broadly follow three themes. First, she says that there was no valid reason for the termination because her performance was at all times satisfactory or better than satisfactory. Second, she says the performance management process which led to the termination of her employment was procedurally unfair. Third, she says the manner of the termination itself was harsh and unfair.
3 The Town denies that the termination was unfair. It maintains that its concerns about Ms Abuy’s performance were genuine and legitimate, that it provided Ms Abuy with ample opportunities to improve her performance with a fair performance management process, but Ms Abuy failed to acknowledge there was any need for improvement, and did not utilise the opportunities she was given to improve.
Jurisdiction
4 There is no dispute that the Commission has jurisdiction to determine Ms Abuy’s claim under s 29(1)(c) of the IR Act as Ms Abuy was the Town’s employee, the Town dismissed her, her application was made within time, and none of the exclusions in s 29AA of the IR Act apply.
Relevant principles
5 The test for determining whether a dismissal is unfair is well settled. The question is whether the employer has abused its right to dismiss as outlined by the Industrial Appeal Court in The Undercliffe Nursing Home v The Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385 (Undercliffe Nursing Home) at 386.
6 Ms Abuy has the onus of establishing that the dismissal was, in all the circumstances, unfair.
7 The Commission’s core task is to decide whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against the applicant as to amount to an abuse of the right. A dismissal for a valid reason within the meaning of the IR Act may still be unfair if, for example, it is effected in a manner which is unfair. However, terminating an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair: See Shire of Esperance v Mouritz (1991) 71 WAIG 891 at 895 where Kennedy J observed that unfair procedures adopted by an employer when dismissing an employee are only one element that needs to be considered when determining whether a dismissal was harsh or unjust.
Background
8 The following background facts are uncontentious and are drawn from the witnesses’ unchallenged evidence and the documents before the Commission.
9 At the relevant times, the Town of Port Hedland Industrial Agreement 2023 applied to the Town and Ms Abuy.
10 Ms Abuy’s position of Graduate Community Safety Officer was classified as a Level 4 position for the purpose of the Industrial Agreement.
11 The purpose of the Graduate role was to identify, address and monitor issues of community safety and crime prevention, and assist to plan, develop and support a range of programs, projects and initiatives in the local community, in partnership with stakeholders, to proactively address local community safety needs: Exhibit (Ex) A43.
12 Ms Abuy’s contract of employment specified that her ordinary hours of work were an average of 38 hours per week, determined by her manager.
13 Ms Abuy reported to the position of Community Safety Advisor. From on or about 15 January 2024, Ms Sasha Gubbins was the Advisor.
14 The core purpose of the Advisor role was to identify, address and monitor issues of community safety and crime prevention and to plan, develop and support a range of programs, projects and initiatives in the local community to proactively address local community safety needs.
15 To fulfil this purpose, the Advisor was required to, amongst other things:
(a) Develop, coordinate and implement the Town’s Community Safety Plan and other initiatives to improve community safety and improve public perception across the wider community.
(b) Pursue and manage key stakeholder partnership agreements in relation to community safety.
(c) Provide leadership and executive support to community safety governance groups and other relevant community working groups.
16 The Advisor position was a level 7, reporting in turn to the Manager Youth and Community Development, who was at all relevant times, Ms Anna Savill.
17 The Town has a Leave Management Internal Operating Procedure (Leave Management Procedure) and a Discipline Internal Operating Procedure (Discipline Procedure).
Timeline of events relevant to Ms Abuy’s performance
18 The following chronology of the key events relevant to Ms Abuy’s performance are also uncontentious and drawn from the witnesses’ unchallenged evidence and the documents before the Commission.
19 Prior to, and on 12 October 2023, Ms Savill reminded Ms Abuy that her agreed hours of work were 9:00am to 5:30pm with a 1-hour lunch break or 9:00am to 5:00pm with a 30 min lunch break: Ex R5.
20 Subsequently, on 23 October 2023, Ms Abuy was observed arriving to work late. Ms Savill raised this issue in an email to Ms Abuy on 23 October 2023.
21 On 1 February 2024 Ms Abuy and Ms Savill met to discuss Ms Abuy’s employment and future. On 8 February 2024 Ms Savill sent Ms Abuy an email summarising their discussion: Ex R9. The summary says, amongst other things:
Behaviours
We also had a discussion around behaviours that are being displayed and how these may be interpreted as disrespectful or dismissive.
Please remember that it is imperative that you participate in team activities and communicate with staff in a positive manner.
I have attached the Code of Conduct (particularly Above and Below the Line Behaviours, page 41, also attached below) for you to reflect on how your comments or behaviours need to improve to meet the expectation within the organisation.
I will put some time aside for us to discuss this further with Sasha.
22 Ms Abuy responded to the email:
Just to let you know, I do not wish to remain in this position and am actively seeking other roles. I intend to keep you updated on this matter.
23 Also on 8 February 2024 Ms Gubbins sent Ms Abuy an email following a ‘brief chat’ between them that morning. It referred to Ms Abuy’s late attendance at work that morning, and their agreement that Ms Abuy would text Ms Gubbins if she was going to be more than 10 minutes late in arriving. It also referred to a previous discussion about the requirement to take a lunch break within 5 hours of starting work. Ms Abuy had indicated she was taking her lunch break at 3:30pm. Ms Gubbins directed Ms Abuy to make sure she takes her breaks no later than 2:00pm: Ex A45 and Ex R11.
24 Ms Abuy considered this email showed she was being unnecessarily scrutinised and micromanaged.
25 Ms Abuy’s email responding to Ms Gubbins said:
…
Lastly, as previously explained on multiple instances, there is reasoning for my preference in breaktime and although I understand your concern, I completely disagree as our workflow is not disrupted nor am I negatively impacted in any way. I really do not appreciate you trying to micromanage my break times and constantly enforcing new rules; in this instance, I will continue to do what works for me to achieve maximum productivity. I am trying my best to be civil, transparent and compliant but you are only making it difficult for me with all of the unnecessary scrutiny and extreme control.
26 On Friday 16 February 2024 Ms Abuy commenced annual leave with no advance notice to the Town. At 11:06am on that day, Ms Abuy Microsoft Teams messaged Ms Gubbins to say, ‘there is some stuff going on in Perth at the moment’. She had planned to visit Perth over the weekend and return on Monday, but it looked like she would need to ‘stay longer’. She foreshadowed making an annual leave application for Ms Gubbins to approve. She stated that she hoped to be back in Port Hedland within the next fortnight but ‘I’ll keep you updated’: Ex R6.
27 Ms Abuy returned to work on 5 March 2024.
28 On 10 April 2024 Ms Abuy attended a meeting with Ms Gubbins and Robyn Fox, the Town’s Human Resources Business Partner. Ms Abuy’s performance was discussed, and a letter outlining areas of concern and performance expectations was given to Ms Abuy (Letter of Expectations): Ex A7.
29 According to the Letter of Expectations, Ms Abuy’s progress was to be evaluated over a four-week period commencing on 15 April 2024 with weekly catch-up meetings to check in.
30 Three check-in meetings occurred during the four-week period. The meeting of 17 April 2024 was attended by Ms Abuy and Ms Gubbins. Ms Savill also attended meetings on 6 May 2024 and 10 May 2024.
31 On 13 May 2024 Ms Abuy commenced a period of personal leave, indicating she would need a week off. She remained off work until Friday 24 May 2024.
32 On 27 May 2024, Ms Fox and the Town’s Acting Director Community Services, Louise Gee, met with Ms Abuy to advise her that the Town required her to undergo a fitness for work assessment before she could return to work. She was directed to remain away from work, on full pay, in the meantime: Ex A30.
33 On 28 May 2024 Ms Abuy attended an appointment with a psychologist for the purpose of the Town’s fitness for work assessment. A report was produced dated 29 May 2024: Ex A11.
34 Ms Abuy returned to work on 4 June 2024.
35 On 10 June 2024 Ms Gubbins advised Ms Abuy that a Performance Improvement Process (PIP process) was going to be implemented.
36 On 12 June 2024 Ms Gubbins and Ms Ciara Dillon met with Ms Abuy to discuss the PIP process. Ms Dillon had replaced Ms Fox as the Human Resources Business Partner.
37 The Town produced a draft Performance Improvement Plan (PIP plan). The draft PIP plan detailed areas of concern relating to Ms Abuy’s performance, under the headings ‘Following reasonable directions’, ‘Reliability’, ‘Communication and Collaboration’, and ‘Town of Port Hedland Core Values’.
38 The PIP plan laid out improvement goals in each of these four areas and established a six-week PIP process period, excluding leave periods. During this time, Ms Abuy was expected to make progress on the PIP plan, while providing an opportunity to demonstrate improvement and commitment: Ex A6.
39 On 1 July 2024 Ms Abuy took 4 days’ personal leave.
40 Ms Gubbins and Ms Dillon conducted PIP review and progress update meetings with Ms Abuy on 20 June 2024, 27 June 2024, 8 July 2024, 11 July 2024, 17 July 2024 and 25 July 2024.
41 The Final PIP review and progress update meeting occurred on 1 August 2024. It was attended by Mark Dacombe, Director Community Services and Domenica Marvelli, Acting Principal Human Resources Operations. They advised Ms Abuy that she had not improved sufficiently in her performance against expectations and that the Town was considering terminating the employment.
42 Ms Abuy was escorted from the Town’s premises on 1 August 2024.
43 On 2 August 2024 the Town confirmed the termination of Ms Abuy’s employment in a letter to her.
Witnesses
Ajah Abuy
44 Ms Abuy described how she came to be employed by the Town of Port Hedland and her relocation from Perth to Port Hedland to commence in the Graduate role. She described the Graduate role as being part of the community safety team, a team of two people, both reporting to the Manager of Youth and Community Development. The Manager was Anna Savill, for the duration of Ms Abuy’s employment.
45 Ms Abuy’s work involved administrative support for local networks, functioning as the secretary for working groups across family and domestic violence, road safety, wellbeing and suicide. She was also responsible for the dissemination and presentation of data on crime and its prevention, developing crime prevention projects, and processing home safety and security rebates.
46 Ms Abuy thought that prior to January 2024 she was doing very well in her role, as she had received good feedback. She described herself as thriving in the first ten months. She gave examples of her involvement in planning a baby shower for a previous line leader, and being captain of the social netball team, which she also helped to coordinate and manage.
47 However, by early February 2024 Ms Abuy was struggling with the amount of oversight she was being subjected to under Ms Gubbins’ supervision. She conveyed to Ms Savill that the amount of visibility Ms Gubbins was expecting was excessive.
48 On 16 February 2024 Ms Abuy commenced a period of unplanned annual leave with short notice. During this period, Ms Gubbins attempted to contact Ms Abuy by telephone. Ms Abuy felt this contact was ‘an extra burden that was just suddenly being placed on me’: Transcript (TS)18.
49 When Ms Abuy returned from leave, on or about 4 March 2024, the interpersonal conflict between her and Ms Gubbins increased. Ms Abuy provided examples of exchanges she had with Ms Gubbins which she perceived to be unreasonable on Ms Gubbins’ part, leaving her feeling that she was being treated as ‘beneath’ Ms Gubbins, rather than as an equal: TS21.
50 On 22 March 2024 Ms Abuy met with Ms Carryl Price in the Town’s Human Resources team, to find out what she could do to escalate her concerns about the way she was being treated: TS22.
51 When the Letter of Expectation was presented to Ms Abuy on 10 April 2024, she did not understand why expectations were being imposed on her about when she took her lunch breaks, when this had not previously been an issue with other supervisors. She challenged the reasonableness of the directions given to her about her lunch breaks. She didn’t understand the criticisms of her communications as being ‘overly formal’, when they could also be characterised as ‘professional’: TS24.
52 Ms Abuy gave evidence about the meetings that followed the Letter of Expectations, explaining the context of matters that were discussed about her performance.
53 Ms Abuy stated that on her return to work after the May to June personal leave, she met with Ms Gee, who was then the Human Resources Director, to discuss why she had taken personal leave, and the stress and other impacts of the work environment on her. The outcome of the meeting was that she was expected to ‘kind of jump straight back into everything without any accommodations or without addressing what led to me even needing all of that time off’: TS30.
54 In a further meeting the following day, Ms Gee confirmed to Ms Abuy that the reason no adjustments had been made, was because none were recommended by the fitness for work assessment. This surprised Ms Abuy, although she had not at that stage seen the fitness for work assessment: TS31, TS32.
55 Ms Abuy formed the view that the Town did not act on recommendations made in the fitness for work assessment. However, the only recommendations the fitness for work assessment contained, were:
(a) that Ms Abuy could safely return to her role from 29 May 2024;
(b) that conversations about the Letter of Expectations commence on the first day Ms Abuy was to return to work, with active listening, paraphrasing, empathy and validation to Ms Abuy’s interpretations.
56 In response to a question as to whether there was anything else the Town could do to support Ms Abuy to work safely, the psychologist suggested appointments with the psychologist and provision of a mentor.
57 The Town therefore did implement the report’s recommendations (a) and (b).
58 Ms Abuy detailed how the PIP process started, that she had 24 hours’ notice to arrange a support person, and her attempts to arrange a support person for the PIP meeting of 12 June 2024, which was delayed by a day because of Ms Gubbins’ absence from work. She did not have a support person at the meeting because her preferred support person, Ms Price, told her that she was unable to attend.
59 At the 12 June 2024 meeting, Ms Gubbins and Ms Dillon wanted Ms Abuy to sign the PIP plan so that it could take effect from the following day. Ms Abuy asked for time to give feedback on it. She was, then, allowed several days to review the PIP plan: TS36.
60 The PIP process period commenced on 17 June 2024. Ms Abuy met with Ms Dillon and Ms Gubbins on that day to provide her feedback on the document. After some minor amendments were made, she signed and returned it, even though not all of her concerns were addressed and not all changes she wanted were adopted.
61 Initially it was agreed that the PIP review and progress update meetings would occur each Thursday morning. Ms Abuy received emails recapping what was discussed at each of these meetings, although she noted that the emails ‘did not utilise the official document’: TS39.
62 Ms Abuy did not dispute that she was reluctant to participate in the PIP review and progress update meetings. She explained that this was due to her feeling that ‘the conversations were being manipulated or certain things were being omitted’ from the recap emails and there was a lack of transparency. She said she did not feel it was safe for her to ‘partake in verbal exchanges’ with Ms Gubbins. She did not explain why it was unsafe to participate in the meetings or why there was a lack of transparency: TS54. Her examples of matters that were omitted from the recap emails were relatively trivial and few. At a general level, she agreed the recap emails were accurate summaries of the meetings. She agreed that the key points recorded in the summaries were discussed and key messages from Ms Gubbins were relayed. She did not agree with those messages.
63 When asked to describe how she was performing against the expectations during the PIP period, Ms Abuy said that she was regularly updating the ‘teams board,’ was ensuring her calendar was up to date and complete, and was ensuring her lunch breaks were taken at the times allocated: TS40. She said these were the things she was actively or consciously doing to achieve the expectations. Many of the other expectations were things she naturally did within the role, subconsciously and without conscious effort. However, overall, she considered she was meeting expectations and had demonstrated that she was.
64 Ms Abuy gave evidence about the final PIP review meeting with Mr Dacombe and Ms Marvelli on 1 August 2024. She said it was only a brief meeting that lasted around 10 minutes. She was told that the PIP process outcome was that she had not met expectations and so the Town was considering termination of her employment. She was presented with a Deed of Settlement for her to consider as an alternative. She was asked to leave the premises and go home following the meeting, although she had not yet been given notice of the termination of her employment. She was required to pack up her desk in the presence of Ms Marvelli and other employees. She was then escorted outside by Ms Marvelli. The process made her feel ashamed and embarrassed.
65 Ms Abuy did not agree to the Deed of Settlement and did not sign it.
66 At about 3:20pm on 2 August 2024, she received the letter confirming her employment was terminated with immediate effect, and that she would be paid 2 weeks’ pay in lieu of notice: Ex A1.
67 She described the termination as resulting in her feeling both financial and housing insecurity, as she and her partner were living in Town supplied accommodation which she was required to then vacate. The termination compounded her feelings of stress and anxiety, and impacted on her sleep patterns.
68 In late August 2024 Ms Abuy commenced a new full-time role with the Department of Justice, having secured this employment within a couple of weeks of the termination. She had applied for that position while the PIP process was on foot. Her income in the Department of Justice role varies, but is around the same as she was earning with the Town.
Sasha Gubbins
69 Ms Gubbins said that when she initially started in the role of Advisor in January 2024, Ms Abuy was welcoming and friendly, but this changed quite quickly in the coming weeks, so that, by February 2024 the working relationship and their communications had become ‘quite strained’: TS169.
70 Ms Gubbins maintained a document to summarise and track her supervision of Ms Abuy: Ex R1.
71 Ms Gubbins noted that, as a team of two people, she and Ms Abuy needed to work closely together. Their workstations were within a metre from one another. She described the Graduate role as supporting the Advisor, where the Advisor made overall decisions on what projects to do and how to implement the community safety plan, and the Graduate executing those projects. And yet the amount of communication between them was ‘relatively limited’: TS169.
72 Ms Gubbins developed concerns about Ms Abuy’s communications, frequent lateness in arriving to work, practices around taking lunch breaks, and not following her directions. She gave examples of how these concerns had arisen in practice.
73 The Position Description for the Graduate role requires the incumbent to possess ‘solid communication and interpersonal skills with the ability to work collaboratively with a wide range of stakeholders’: Ex A43. Ms Gubbins explained this was essential because collaboration is at the heart of almost all of what the community safety team does. It is rare for community safety to work on a project independently. Almost all projects are in collaboration with other internal business units, such as youth development or parks and gardens, or external stakeholders in the community, such as family and domestic violence service providers.
74 Ms Gubbins formed the view that Ms Abuy was not really interested in the work that the community safety team was doing and was not being cooperative. This view was informed by Ms Abuy’s comments to her, such as suggesting that she would be away for certain meetings, was intending to leave the job, or considered important projects to be ‘nothing’: TS175.
75 Ms Gubbins gave her account of meetings with Ms Abuy during the Letter of Expectation process, and the PIP process, confirming the accuracy of various documents summarising what was discussed in those meetings.
76 In cross-examination, Ms Gubbins agreed that there was a breakdown in the working relationship between her and Ms Abuy. She also agreed that there were times when she felt personally attacked by Ms Abuy. But she did not agree that interpersonal conflicts contributed to her perception of Ms Abuy’s performance. She said that she tried hard to remain objective, and recognised that when Ms Abuy applied herself, she was highly competent. She also relied on other people within the organisation, including Human Resources personnel, to make their assessments and verify hers. Ultimately, as Ms Abuy’s line leader, she felt it was her responsibility to manage Ms Abuy’s performance.
Ciara Dillon
77 Ms Dillon has been a Human Resources business partner at the Town since March 2024. At around the time she commenced in the role, she was made aware that Ms Abuy had been stood down from work for the purpose of a fitness for work assessment and that there had been a Letter of Expectation process commenced but she was not directly involved in either of those matters.
78 Ms Dillon’s involvement with Ms Abuy really only commenced with the PIP process, starting from early June 2024.
79 Ms Dillon described the PIP process as being driven by the performance counselling paragraphs of the Discipline Procedure.
80 Ms Dillon said that the initial draft of the PIP plan was prepared by Ms Gubbins with input from Ms Savill and Ms Fox. She took the draft to the PIP implementation meeting of 12 June 2024 with an understanding that changes could still be made, once feedback from Ms Abuy had been received.
81 Ms Dillon could not recall Ms Abuy providing specific feedback during the 12 June 2024 meeting itself, but she responded to it in writing over the weekend, and during a further meeting on 17 June 2024. She recalled Ms Abuy had raised concerns about how her performance would be measured. Ms Dillon said that she and Ms Gubbins worked though the PIP plan’s improvement goals with Ms Abuy, point by point, and in detail.
82 Ms Dillon maintained notes of the PIP check-in meetings, and gave evidence as to her recollection of Ms Abuy’s conduct and contributions to those meetings. She noted that there was a final informal check-in meeting on 25 July 2024 at which Ms Gubbins told Ms Abuy that her progress was not tracking well, that the outcome of the PIP process would be communicated at a final meeting of 1 August 2024, and that the outcome may include termination.
83 Ms Dillon also recalled meeting with Ms Abuy after the PIP check-in meeting on 25 July 2024, at Ms Abuy’s request, during which Ms Abuy asked for information about the Town’s grievance process. Ms Dillon asked Ms Abuy whether she had details that she wanted to provide about a grievance and if she would like to raise a grievance, but Ms Abuy declined to provide any specific details. Ms Dillon was therefore unaware of what grievance Ms Abuy had in mind or who it concerned. Ms Abuy said that if she was to make a grievance she would email it through.
84 On or about 31 July 2024 Ms Dillon compiled her observations about the history of Ms Abuy’s performance and the PIP process into a report with a recommendation for termination.
Mark Dacombe
85 Mr Dacombe is currently the Town’s CEO. He commenced in the role of Interim Director of Community Services for the Town on 10 June 2024. Soon after he started, he was made aware that a PIP process had been implemented for Ms Abuy. His involvement, however, was limited to receiving Ms Dillon’s report and recommendation for termination at the end of the PIP process.
86 Mr Dacombe said he considered the recommendation carefully, and discussed it with Ms Savill, Ms Dillon, and Ms Marvelli. He was satisfied the recommendation should be followed.
87 To that end, he and Ms Marvelli met with Ms Abuy on 1 August 2024 to inform Ms Abuy that the PIP had not resulted in ‘significant progress towards improvement’: TS203. He told Ms Abuy that it was his view that they had reached a point where termination was appropriate. He explained that Ms Abuy would receive two weeks’ pay in lieu of notice and any accrued leave entitlements. A Deed of Settlement was discussed as an alternative to this course.
88 He said there was also discussion about Ms Abuy’s tenancy in the Town’s residential property. He said the usual position was to allow two weeks for the property to be vacated, but that the Town was willing to extend this to four weeks if Ms Abuy entered into the Deed of Settlement.
89 According to Mr Dacombe, Ms Abuy did not provide any substantive response to the proposal that the employment be terminated, although she had the opportunity to do so.
How should Ms Abuy’s performance have been assessed?
90 A fundamental platform of Ms Abuy’s case is her argument that the Town’s performance criteria were not proper indications of her performance. Ms Abuy asserts that her performance could only be assessed by reference to ‘assignment completion’ and nothing else. She says this is the effect of the Industrial Agreement’s classification system for a level 4 employee. If this is right, then the Town did not have a valid performance justification for termination.
91 Clause 41 of the Industrial Agreement sets out classifications for the purpose of the Town’s salary system. Clause 41 is prefaced:
The Classification contained within this Agreement consists of entry level skill-based ‘Levels’ defined according to the following skill descriptors and in [sic] read in conjunction with the Town’s relevant salary system….
Positions will be classified in accordance with the level definitions provided for in this Agreement. Job descriptions shall be used as the primary source of classifying positions. The position shall be evaluated and considered against the classification definitions….
92 The Level 4 classification is described as:
Level 4 covers an Employee undertaking duties and responsibilities in excess of Level 3 and is the entry level for a technical and a trades Employee.
At this level employees work under general direction in the application of procedures, methods and guidelines which are well established. Employees will be responsible for managing and planning their own work
General features of this level involve solving problems of limited difficulty using knowledge, judgement and work organisational skills acquired through qualifications and/or previous work experience. Assistance is available from senior employees. Employees may be required to oversee and/or guide the work of a limited number of lower classified employees.
a) Education, Training and Experience
Upon appointment:
Qualifications or relevant experience in accordance with the requirements of work in this level which may be acquired through:
A trade certificate or diploma or certificate IV or equivalent;
Certificate III and subsequent relevant experience leading to the development of areas of specialisation through a depth of skills’) completion of accredited/industry-based training courses equivalent to a Certificate IV (non-trade); and/or
an equivalent knowledge gained through any other combination of education, training and/or experience
b) Tasks
Perform a variety of tasks which require a sound working knowledge of relevant trade, technical or administrative practices, including limited creative or planning or design functions, and require an awareness of the relevant theoretical or policy context.
Knowledge is applied to recurring circumstances, at a level of complexity equivalent to using a range of computer software applications to assist with job assignments, to setting up, using and demonstrating a range of standard procedures, equipment use and/or experiments or to applying skills equivalent to a trade qualification.
May involve the application of specialist skills, e.g. producing documents involving complex layouts, instrument calibration or maintenance, or guidance to others in the use of a limited range of equipment. May also include the operations of tools, plant machinery and/or equipment in accordance with the requirements of the position. Performance of trades and nontrade tasks incidental to the work.
c) Judgement and Problem Solving
Solve standard problems within an established framework or body of knowledge by
Applying a range of procedures and work methods,
Being proficient in and interpreting a set of relatively straightforward rules, guidelines, manuals or technical procedures, and
Selecting from a range and combination of possible responses, based on some understanding of the principles or policies underlying established procedures, practices or systems.
Will use operational experience to monitor and contribute to local procedures and systems.
d) Supervision and Independence
General direction.
Direction is provided on the assignments to be undertaken, with the occupant determining the appropriate use of established methods and sequences, where choices are made which require some understanding of a well-defined policy framework or recourse to technical knowledge. Assistance is available from more senior staff.
May be responsible for supervising others performing a range of tasks within a single work unit, providing on the job training and assistance to others, directing staff and/or providing contributions to assignments or projects.
May undertake standalone work appropriate to this level.
e) Organisational Relationships and Impact
An Employee at this level requires effective communication skills to enable them to communicate with clients, other Employees and members of the public and in the resolution of routine and usual matters.
Apply a sound knowledge of the impact of the activities undertaken on other related functions or sections. Provide advice or assistance based on some depth of knowledge in own area. Assist others by providing information about procedures, rules or techniques, and by having an appropriate understanding of procedures and selecting between work methods and sequences. Where complexities arise, suggest solutions and or seek guidance on changes to procedures, schedules or routines from senior staff.
93 The level 4 classification description refers to ‘general direction’ This is defined as:
Direction is provided on the assignments to be undertaken, with the occupant determining the appropriate use of established methods and sequences. There is some scope to determine an approach in the absence of established procedures or detailed instruction, but guidance is available. Performance is checked by assignment completion.
(emphasis added)
94 This is contrasted with classifications requiring ‘close supervision’ where ‘work is frequently checked’, routine supervision where ‘checking is selective rather than constant’ and ‘broad direction where ‘Performance will be measured against objectives’. It would appear that for higher classifications involving ‘broad direction’, work is not checked by a supervisor, but rather, performance is measured. For lower classifications, supervision involves some degree of checking of work.
95 Ms Abuy’s contention that the effect of the description of level 4 supervision is to limit the way performance for her role is measured is wrong. Clause 41 is about how to classify positions, based on the positions’ requirements. It does not deal with performance in positions. The definition of ‘general direction’ reflects the level or degree of supervision involved in a role for the purpose of correctly classifying the role. It does not dictate either the process of, nor the criteria for, performance assessment.
96 The reference in the definition to ‘checking’, particularly contrasted with ‘measuring’ is a description of the degree of oversight a supervisor of the level exercises, not an indication of how performance in the role is measured, let alone what the measurements of performance are.
97 Ms Abuy’s construction is narrow, pedantic, ignores the relevant industrial and textual context and is out of touch with industrial reality.
98 To suggest that an employee whose classification involves ‘general direction’ can only have their performance assessed by reference to ‘assignment completion’ is nonsensical. If that were true, an employee must be assessed as performing satisfactorily if they complete an assignment, even if the completed assignment is of poor quality, or was completed in an unsafe manner, was completed late, or was completed by deceitful means. Indeed, on Ms Abuy’s construction of the Industrial Agreement, the Town would be unable to intervene or act in the event any employee was persistently late to work or absent or dilatory in completing tasks, as punctuality and timeliness are not part of the classification descriptions.
99 There’s no merit to the suggestion that the Industrial Agreement should be read in this way. Accordingly, the way in which Ms Abuy went about fulfilling her role responsibilities was not immune from her supervisor’s or the Town’s scrutiny.
100 Ms Abuy also, incidentally, submitted that this provision of the Industrial Agreement ‘stipulates that it is up to the occupant to decide how and what sequence they will complete these assignments’: Applicant’s Written Closing Submissions [19]. That is not what the Industrial Agreement says. The occupant decides in what sequence the established methods are deployed for an assignment, not in what sequence assignments are to be commenced or completed. This is another instance of Ms Abuy selectively and narrowly construing the Industrial Agreement.
101 Ms Abuy was confident that her reading of the Industrial Agreement was correct. Her misconceived views about these matters might have fed into the way she went about her work, and therefore, explain her inability to redress the Town’s performance concerns.
Did Ms Abuy’s performance justify improvement action?
Reliability
102 Ms Abuy submitted that rigid attendance rules were only applicable to employees who work according to rosters or in special circumstances. Those working in non-rostered roles, such as herself, were not subject to such restrictions and generally worked business hours. She did not produce any evidence to establish this assertion was consistent with the custom and practice at the Town. Nor did she provide a cogent argument as to why attendance rules did not apply to her.
103 Ms Abuy produced copies of her time sheets for the period 27 September 2023 to 7 November 2023: Ex A15. These time sheets pre-date Ms Gubbins’ commencement in the role of Advisor. They show that while Ms Abuy was recording an average of at least 38 hours per week prior to 7 November 2023, her start and finish times were variable. The earliest start time was 8:00 a.m. but the latest start time was 12:30pm. She was finishing work from 4:10pm to 8:30pm. Breaks were generally taken at or after 2:00pm. This was at a time when Ms Abuy was required to commence work at 9:00am.
104 Ms Abuy suggested that until Ms Gubbins commenced as her line leader, her previous line leaders and managers did not scrutinise her start and finish times, or break times. She said ‘[p]rior to Sasha Gubbins commencing her tenure, I was never subject to such stern break-time regulations or stringent work hour conditions – instead, I was afforded the freedom to independently manage my work schedule’: Applicant’s Written Closing Submissions [139].
105 I reject this assertion. On 12 October 2023, that is, during the period covered by the time sheets discussed above and several months prior to Ms Gubbins commencing in the role of Ms Abuy’s line leader, Ms Savill emailed Ms Abuy stating:
As discussed, there are a few areas that I would like to reiterate the importance of developing as part of your professional practice.
1. There have been a few instances in which you have arrived late to work, at times, without communication. As discussed, your agreed hours of work will be 9am to 5:30pm (1hr lunch break) or 9am to 5pm (30min lunch break). We understand that emergencies happen, but it's important that you notify us if you're going to be late and try to minimise such instances. If there is any deviation from these hours, please ensure that you inform your line leader at your earliest opportunity. It is our responsibilities as employees that we manage our fitness for work and this includes ensuring we get enough rest and are well prepared for work.
2. The use of Outlook is our preferred method of managing our time and also ensuring that there is visibility within our teams on where staff are. Please ensure that you are scheduling lunch breaks and meetings in outlook and ensure that your line leader has access to your calendar for these purposes.
3. Teamwork is critical to our success as a team and is one of our organisation core values. It's important that we communicate effectively, support each other, and collaborate. We're here to work together and help each other succeed and sometimes this means that we look to engage outside of a transactional task. If you have any concerns, feedback, or need assistance with tasks, please don't hesitate to reach out.
106 On 23 October 2023, Ms Savill emailed Ms Abuy in clear terms (Ex R5):
It was noticed that you were not in at work this morning until 9:15.
As discussed, and as mentioned below, if there is ANY deviation from your normal hours of work, this must be communicated to your line leader.
Please ensure that you adhere to this expectation moving forward.
107 Ms Gubbins’ evidence was that Ms Abuy would often attend work noticeably late, arriving 20 or 30 minutes late. Further, Ms Gubbins would not always receive communication from Ms Abuy about her lateness, so that Ms Gubbins did not know Ms Abuy’s whereabouts. She noted that Ms Abuy was skipping lunch breaks and then leaving work early or taking lunch breaks at late or odd times. Ms Gubbins was concerned that there was a risk Ms Abuy was not completing her contracted average of 38 hours per week.
108 Ms Gubbins’ evidence in this regard was not challenged. Ms Abuy did not attempt to demonstrate that she was consistently or mostly punctual in her attendance at work. She did test how Ms Gubbins assessed her punctuality, by putting to Ms Gubbins that there were occasions when Ms Gubbins was not herself at her desk, and was unable to verify whether Ms Abuy had arrived on time. Ms Gubbins conceded that was the case, but said ‘for the most part I was around…I was there with a sufficient amount of time to get an idea of what was going on’ (TS189). This does not mean, as Ms Abuy submits, that Ms Gubbins’ concerns were based on mere speculation and assumptions.
109 That Ms Gubbins had concerns, and that they were justified, is corroborated by the documents in evidence. For example:
(a) On 8 February 2024 Ms Gubbins notes in an email to Ms Abuy (Ex R11):
When you were running late yesterday you texted me to let me know, which was very appreciated. However, I didn’t hear anything this morning and you weren’t at your desk until 9:20. Confirming our agreement that you will text me if you are going to be any more than 10 minutes late arriving in the morning. Even if you will be less than 10 minutes late, a courtesy text is always a good idea
(b) On 18 March 2024 at 3:05pm there is a Teams message from Ms Gubbins asking Ms Abuy ‘where are you?’ to which the response is ‘Just returned from my break outside…’: Ex R6.
(c) On 5 April 2024 at 3:55pm there is a Teams message from Ms Gubbins asking Ms Abuy ‘Where are you? Pre-start is happening:’ Ex R6.
(d) Ms Gubbins’ file note of 17 April 2024 records that the previous week, Ms Abuy had taken two days’ leave without discussing it with Ms Gubbins in advance, and had arrived to work 10-15 minutes late on Monday 15 April, with no explanation provided: Ex R16.
110 The overall picture is that Ms Abuy’s work attendance was inconsistent over a period of time leading to 15 April 2024. It was a matter that was repeatedly raised with her, yet she appeared to take no heed of what was expected and required of her, consistent with her unwarranted pretentions of having unfettered autonomy and flexibility.
111 The Town acted reasonably in seeking performance improvement in this area.
Following reasonable directions
112 Ms Abuy submitted that the ‘following reasonable directions’ target was not a fair or valid improvement area because it lacked objective standards, ignored critical contextual factors, included vague and subjective expectations, and placed a burden on her to manage and resolve barriers to compliance.
113 In cross-examination, Ms Gubbins described her concern about this aspect of Ms Abuy’s performance (TS184):
I would say for the most part, Ajah, you did follow directions where you agreed with those directions. The issue arose where there were instances if you didn’t agree with the directions that you were provided with. That’s when I would generally find that those directions they either wouldn’t be followed, or we’d spend quite some time going backwards and forwards about whether or not those directions were to be followed.
114 An example of a direction that Ms Gubbins gave Ms Abuy prior to 15 April 2024 was for her to take her lunch break no later than 2:00pm (see email dated 8 February 2024: Ex R11). But on 20 March 2024, Ms Gubbins had reason to counsel Ms Abuy at a meeting which was scheduled for 3:00pm because Ms Abuy had not yet taken her lunch break at the time the meeting took place. Ms Gubbins had to reiterate her instruction that lunch breaks should be taken between 12:00pm and 2:00pm, with any break outside that time to be entered in her calendar: Ex R14.
115 On 17 April 2024, Ms Gubbins recorded that Ms Abuy was not including her lunch breaks and time away from her desk in her calendar. Further, Ms Gubbins recorded that Ms Abuy told her in a meeting on 17 April 2024 that she would only follow reasonable directions given to her and she did not believe this was a reasonable direction.
116 This sentiment was repeated by Ms Abuy in her evidence. She said she viewed the direction as unreasonable and so one which she did not need to comply with. In cross-examination she said that the directions were not lawful directions, because there was nothing in her contract or in policy or anything legally binding on her to fulfil those directions. She elaborated that ‘there was never any justification or further context about why those things were suddenly being put in place’: TS90.
117 In her Written Closing Submissions, Ms Abuy submitted that ‘[t]he requirement to take lunch between 12:00pm and 2:00pm every day was overly rigid, inconducive to my productivity, and failed to consider operational needs, workload demands, preferences, or reasonable flexibility’. She saw the direction as an ‘unnecessary level of control’ that was inconsistent with her position classification [137]-[138].
118 The relevant requirements had been in place at least since Ms Savill’s email of 12 October 2023, referred to above. That email also provided clear and coherent justification for the directions.
119 In any event, if Ms Abuy’s position is that a direction is only reasonable and need only be complied with if a justification for it is given, she is wrong. Justice Allanson described employees’ duty to obey reasonable directions by their employer in Finlay v Commissioner of Police [2022] WASC 272 at [21] (citations omitted):
It is a fundamental term implied by law into all employment contracts that employees are contractually obliged to follow the lawful and reasonable directions of their employer. At common law, an employee's obligation of obedience is to lawful commands - commands which involve no illegality, which fall within the scope of the contract of service, and are reasonable. Reasonableness is not a separate requirement, but is the standard or test by which the common law determines whether an order is lawful. Reasonableness is not determined in a vacuum, but rather by reference to 'the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship...'.
120 The direction was plainly a lawful and reasonable direction in this sense. The Industrial Agreement obliged the Town to afford employees an unpaid meal break of at least thirty minutes for shifts greater than five hours: cl 11.6. A meal break could be delayed only in ‘unforeseen circumstances’ in which case the break must be taken ‘as soon as practicable.’ Although cl 11.6 does not expressly state the time that the meal break is to be taken, the Town’s obligations under cl 11.6 could only be fulfilled if a meal break is ordinarily taken within or at five hours from the shift commencement.
121 In circumstance where Ms Abuy had demonstrated a history of failing to take a meal break as cl 11.6 required, it was reasonable for the Town to give her express directions to do so, and for the Town to require her to diarise those breaks so that her compliance with the direction could be monitored. In this context, I reject Ms Abuy’s criticism that the expectation she follow reasonable direction lacked objective standards, included vague and subjective expectations, or placed any unreasonable burden on her. Her duty to obey the directions was fundamental, and the expectations that were set out were clear and readily achievable.
122 While there may be other examples of directions that Ms Gubbins was concerned were not being followed by Ms Abuy, this single example is sufficient for me to be satisfied that the Town was justified in seeking improvement in Ms Abuy’s performance in this area.
Respectful communications
123 Ms Abuy audaciously submitted that the Town did not provide evidence that she was failing to meet expectations about her communications before they were imposed as performance measures. It provided ample evidence. It is telling that Ms Abuy did not consider the evidence reflected on her performance in this area.
124 Below are just two examples of communications between Ms Gubbins and Ms Abuy (shown in blue) the Town relied on. They speak for themselves.




125 The Town was looking for improvement in the way that Ms Abuy interacted with other people, and in particular, her line leader. It wanted Ms Abuy to become less adversarial in her communications and more collaborative. The way Ms Abuy interacted with stakeholders reflected on the Town’s reputation. The way she interacted with colleagues had the potential to impact on the effectiveness and productivity of her team, as well as the morale and wellbeing of team members. The Town was justified in seeking improvement in Ms Abuy’s performance in this area.
Did Ms Abuy’s performance improve sufficiently?
126 The PIP process commenced on 17 June 2024 and ended on 1 August 2024.
127 Ms Abuy submits that she met the expectations of the PIP plan, and therefore termination was not an appropriate proceeding action. Her evidence was that throughout the PIP process, she documented her progress in a spreadsheet, which she tendered as Exhibit A14. She conceded however, that this spreadsheet was not shared with the Town during PIP meetings, or at any other time.
128 Ms Abuy quantified the precise number of instances where her spreadsheet showed she had followed reasonable directions, and met expectations around communications and collaboration, met the Town’s Core Values, and met deadlines for community safety deliverables.
129 The Town does not take issue with the fact that Ms Abuy sometimes met its performance expectations before and during the PIP process. What the PIP process was designed to achieve was improvement in performance, resulting in such expectations being consistently achieved.
130 The real question, therefore, is whether there were times when Ms Abuy failed to meet the Town’s reasonable performance expectations. Ms Abuy’s selective tally does not assist her in this regard.
131 Ms Gubbins’s evidence was that Ms Abuy’s punctuality and attendance in the office did improve after 17 June 2024. She provided Ms Abuy with feedback on other areas where she felt Ms Abuy was doing well. For example, her feedback at the 20 June 2024 check-in mostly reported that things were going well in relation to following reasonable directions, reliability, and communication and collaboration, although Ms Gubbins had identified a couple of instances of miscommunication or potential for improved communications: Ex A24.
132 However, from 11 July 2024, Ms Gubbins’ view was that still more needed to be done by Ms Abuy to demonstrate a commitment to follow all reasonable directions, that improvement was still needed in relation to communications about work hour variations and private appointments, and significant improvement was needed in relation to communication and collaboration.
133 It is not necessary for me to consider every instance where Ms Abuy is alleged to have underperformed. There are at least three clear examples of failures which, on their own, justified the Town’s decision. These three examples are not necessarily the only ones that demonstrate Ms Abuy’s performance remained unsatisfactory.
134 The first relates to the way Ms Abuy dealt with a dispute with Ms Gubbins in relation to a leave request. The Town’s Leave Management Procedure relevantly provides:
1. Employees shall be entitled to leave consistent with the provisions of the Minimum Conditions of Employment Act 1993 (WA), National Employment Standards (for Parental Leave only), Town’s Industrial Agreement, their contract of employment and the Local Government (Long Service Leave) Regulations (WA).
…
2.3.5 Employees are entitled to use personal leave when they are absent:
2.3.5.a due to personal illness or injury affecting the employee; or
2.3.5.b to provide care or support to a member of the employees family or household because of illness or injury affecting the member; or
2.3.5.c due to an unexpected emergency affecting the employee or a member of the employees’ family or household.
2.3.6 Employees shall be required to provide a medical certificate from a registered medical practitioner; or other supporting documentation that would satisfy a reasonable person in the following situations:
…
2.3.4.c Where an employee claims a day off as personal leave on an ordinary working day either immediately before or after a weekend, public holiday, annual leave, or rostered day off;
2.3.7 Acceptable forms of evidence include:
2.3.7.a A medical certificate from a registered medical practitioner; or
2.3.7.b Childcare or school exclusion letter; or
2.3.7.c Statutory declaration
135 Ms Abuy made a request to take one day of personal leave for Friday 21 June 2024. She specified in the leave request that the reason for the application was ‘appointment.’
136 The application was supported by a statutory declaration (Ex R23) that just said:
‘I required one day (7.6 hours) of personal leave absence on Friday 21 June 2024 due to attending an appointment’
137 The statutory declaration provided no details of where the appointment was, the nature of the appointment or the purpose of the appointment, such that it qualified for the grant of 7.6 hours of personal leave. It could have been an appointment for a manicure, which of course would not meet the conditions for personal leave. It could have been a GP appointment of 15 or 30 minutes, which would not meet the conditions for 7.6 hours’ personal leave.
138 Ms Gubbins, reasonably, advised Ms Abuy that the statutory declaration did not provide sufficient support for personal leave. Her email to Ms Abuy said:
‘We’re looking for something that confirms that the reason you were taking leave meets the criteria for personal leave.’
139 Ms Gubbins asked Ms Abuy to provide evidence to substantiate the reasons for applying for the personal leave that matched the criteria, namely personal illness or injury, to provide care or support to a family member because of illness or injury affecting the family member, or an unexpected emergency affecting the employee or a family member.
140 Ms Abuy did not accept Ms Gubbins’ decision. She insisted ‘statutory declarations are an admissible form of evidence for personal leave’, quoting clause 2.3.7 of the Leave Management Procedure and completely missing or ignoring Ms Gubbins’ point that the statutory declaration did not link the leave request to a reason that meets the criteria for personal leave.
141 Ms Abuy did state in her email ‘I have utilised my Personal Leave entitlement due to personal illness’ but the Leave Management Procedure does not list an email as an acceptable form of evidence for the purpose of taking personal leave.
142 Despite Ms Gubbins explaining clearly and logically why the statutory declaration did not provide appropriate information to confirm the leave was classified as personal leave, Ms Abuy remained staunch, brazenly alleging that it was Ms Gubbins who had misinterpreted the requirements. This is her email to Ms Gubbins of 26 June 2024 (Ex R24):
Hi,
Thank you for the elaboration, however, there is no confusion on my part.
To clarify to you, I did not state whether it was or was not specifically a medical appointment that I was required to attend, nor am I obligated to provide ‘sufficient details on the reason for leave being taken’ if it is requested in addition to the supplied evidence.
Furthermore, HR have already reiterated that a valid Statutory Declaration can be submitted as a permissible support document that serves as alternative to a medical certificate; therefore, it is sufficient evidence to satisfy Clause 24.3 which you have evidently misinterpreted.
The following resource contains valuable information that may help increase your understanding of this:
https://www.healthdirect.gov.au/talking-to-your-employer-aboutillness#:~:text=Your%20employer%20has%20the%20right%20to%20ask%20you,of%20your%20illness%20or%20injury.
If you need any further explanation or confirmation, please don’t hesitate to contact HR!
(original emphasis)
143 On 26 June 2024 Ms Abuy was notified by an automated message generated by the Town’s payroll software that Ms Gubbins had approved her leave request. I do not know why the leave request was approved. Ms Abuy had still not provided evidence that would satisfy a reasonable person of her entitlement to take personal leave. And yet, Ms Abuy sent the following passive-aggressive and accusatory communication by email to Ms Gubbins (Ex R23):
Thanks for approving my request. Glad to see your adherence to this organisational policy that is in fact legislation as well.
I believe an apology would be appropriate and greatly appreciated in this situation to acknowledge your error, and to ensure we can move forward positively.
144 Ms Abuy maintained throughout the PIP process that her communications to Ms Gubbins were appropriate, and that Ms Gubbins should apologise or admit she made an error.
145 Ms Abuy may have thought she was right, but she was clearly in the wrong here. Her communications made no allowance for the fact that she might have been wrong, or that there might be some grey area. Her communications were adversarial and made no room for working though a solution. They were disrespectful and hurtful. This was precisely the type of interaction which the Town was endeavouring, by the PIP process, to avoid. It was an opportunity for Ms Abuy to demonstrate that she had improved in her approach to communicating and relating. She missed it by a mile.
146 While this instance occurred relatively early in the PIP process, Ms Abuy maintained her position that her communications were satisfactory until the end of the PIP process. When the matter was raised with her during the PIP process, her written response was ‘[c]ould you please clearly identify and articulate your concerns regarding the tone of my communication in this matter, providing applicable references to support your claims?’: Ex R25.
147 The second example of a failure to demonstrate sufficient improvement was in the area of following reasonable directions. At a PIP check-in meeting on 27 June 2024, Ms Abuy was directed to remove training from her calendar if she was not intending to attend it. This direction was confirmed in an email dated 1 July 2024 summarising the meeting outcomes.
148 Ms Abuy responded to this direction by email on 6 July 2024 (Ex R25):
As mentioned in the meeting, I am the primary user of my calendar, and it is customised to suit my personal workflow and productivity requirements. Therefore, I am unable to prioritise your individual preferences in this matter, although I appreciate your proposed suggestion. To reiterate again, the management of my calendar is based on my own consumption needs which are essential for achieving and maximising my efficiency.
149 Ms Abuy maintained at the hearing of these proceedings that the direction was unreasonable. In cross-examination (TS107) she said this was because:
[I]t’s overstepping to ask someone to operate their calendar in a different way, just because you’re confused by it. I think that just impedes on boundaries. I guess, my response is well articulated enough, that I think my point is conveyed
150 The direction was given to Ms Abuy in circumstances where Ms Gubbins’ had ongoing concerns about Ms Abuy’s reliability and availability. Ms Gubbins had, for several months, been trying to find ways to ensure she had adequate oversight of Ms Abuy’s whereabouts and activities, and had better communication from Ms Abuy about these matters. Her direction, which sought to ensure the calendar accurately recorded Ms Abuy’s activities and whereabouts, was not unreasonable in this context. The Town was justified in concluding that this was an instance of Ms Abuy failing to meet the expectation that she follow reasonable directions.
151 Ms Abuy again pushed back against a direction Ms Gubbins gave her in communications exchanged with Ms Gubbins on 18 July 2024 via Teams:

152 While technically Ms Abuy agreed to comply with the direction, her response made it clear that she considered the direction unreasonable. In doing so, she mistook the direction, which was not to take a break at 10:00am but rather, to try to take a break in advance when other commitments might interfere with the usual break time. Further, rather than explain why she was unable to take a break in advance on the particular occasion, or seek to clarify what Ms Gubbins intended, she turned the exchange into a personal criticism of Ms Gubbins.
153 The third example of Ms Abuy’s lack of progress in meeting expectations was Ms Abuy’s conduct in the PIP meetings themselves. Ms Gubbins alerted Ms Abuy to the fact that the PIP check-in meetings were an ‘opportunity for you to demonstrate your collaboration and communication skills’: Ex A34.
154 Ms Dillon made notes of the 8 July 2024 PIP check-in meeting: Ex R26. They record that Ms Abuy’s responses were limited and she displayed a lack of willingness to engage. Ms Dillon’s evidence was that she observed, over a number of the PIP check-in meetings, that Ms Abuy would bring in her computer and would type away ‘quite intensely’ but when questions were asked she either would not respond or her responses would be in one word. If she responded it would often be something like ‘I would prefer to respond in writing’ or ‘please just send me the question in writing and I’ll respond in writing’: TS137.
155 Ms Abuy was ten minutes late in arriving at the 17 July 2024 check-in meeting at 8:40am, without providing an apology: Ex R32.
156 Ms Dillon’s notes of Ms Abuy’s conduct in the 25 July 2024 PIP check-in meeting (Ex R34) records:
Ajah was typing notes and looking down for the entirety of the meeting. She very rarely looked up to make eye contact and there was little to no response for most questions asked. Ajah had no contribution to add in how she was achieving the targets.
157 Ms Gubbins’ summary of the same meeting (Ex R35) was consistent with Ms Dillon’s evidence.
158 Ms Abuy did not challenge this evidence. She argued that her silence in the PIP check-in meetings should not be taken to be evidence of not engaging in the process. However, Ms Abuy was on notice that the manner in which she communicated and interacted was being gauged in these meetings. At the 8 July 2024 PIP check-in Ms Abuy said she considered the meeting was not a productive use of time. She was right, in the sense that to demonstrate she was meeting performance expectations she had to communicate her understanding of what was required of her, of where she was failing to meet those expectations, and what she would do to improve. She did not do any of those things.
159 At the conclusion of the 25 July 2024 PIP check-in (Ex R36), Ms Gubbins concluded that:
There remains development needed in communication when discussing directions or suggestions
…
Overall, I feel there has been a decrease in communication this week, and progress in communication and collaboration is not where it needs to be.
160 It is not for me to assume the role of Ms Abuy’s manager in considering whether the dismissal is or is not unfair: The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00344: (2013) 93 WAIG 618 at 20. Ms Abuy must demonstrate that the Town’s dismissal was unfair, for present purposes, by showing that her performance had improved so as to meet the Town’s reasonable expectations, such that there was no valid reason for her dismissal. She has not done so.
Was the performance improvement process unfair?
161 Ms Abuy has failed to demonstrate that there was not a valid reason for her dismissal. I must therefore now consider her grounds that relate to the process of the dismissal.
162 A denial of procedural fairness is but one factor in determining whether a dismissal is harsh, oppressive or unfair: Shire of Esperance v Mouritz. A denial of procedural fairness on its own will not necessarily mean that dismissal is unfair. The test in the unfair dismissal application is ultimately whether the Town has abused its right to dismiss as outlined by the Industrial Appeal Court in Undercliffe Nursing Home at 386.
163 I made attempts prior to the hearing of this matter to pin down exactly what Ms Abuy’s case was in relation to her allegations of procedural deficiencies. At the commencement of the hearing, I listed ten grounds which I had gleaned from Ms Abuy’s written submissions filed prior to the hearing. Ms Abuy agreed my list was an accurate statement of her grounds, and she added one further ground.
164 Ms Abuy’s written closing submissions occasionally deviated from the 11 grounds articulated at the commencement of the hearing. To ensure fairness to the Town, I have only considered the 11 grounds that were raised at the commencement of the hearing. Any which Ms Abuy tacked on after the conclusion of the hearing should not be able to be pursued, because the Town had no opportunity to answer them by evidence at the hearing.
Was the PIP process unfair because it was not preceded by performance coaching and performance counselling?
165 Ms Abuy says she was denied the benefit of performance coaching and performance counselling as set out in the Discipline Procedure, before the PIP commenced.
166 She asserts that the Letter of Expectation process was neither performance coaching nor performance counselling for the purpose of the Discipline Procedure. It was not performance coaching because:
(a) The Discipline Procedure requires that the manager provide the relevant feedback and coaching.
(b) The relevant manager was Ms Savill.
(c) Ms Gubbins, and not Ms Savill, conducted the initial discussions about the Letter of Expectation and authored the Letter of Expectation.
(d) The Letter of Expectation did not expressly refer to performance feedback and coaching
(e) The PIP plan however described the 10 April 2024 meeting about the Letter of Expectation as our ‘performance counselling meeting’.
167 Ms Abuy says the Letter of Expectation could not be performance counselling either. The reason is unclear but it is inconsequential as the Town does not rely on the Letter of Expectation process as constituting performance counselling for the purpose of the Discipline Procedure.
168 I do not agree that the word ‘Manager’ under the Discipline Procedure can only mean Ms Savill. The Discipline Procedure does not define who is a ‘Manager.’ But there are 2 reasons why I reject Ms Abuy’s narrow reading of the Discipline Procedure. First, paragraph 4.0(a) of the Discipline Procedure says:
Where termination of employment is being considered, the following steps must be actioned:
a) The Manager with their People & Culture Representative will review information collected from the investigation, including the employee's response concerning the allegations (e.g. performance history). The Manager and People & Culture will then provide a recommendation to the appropriate Manager/ Director. A decision to terminate an employee must be endorsed by the CEO.
169 This clearly contemplates at least two levels of management, and two managers involved in different stages of the Discipline Procedure: The ‘Manager’ who conducts the performance counselling, and the ‘appropriate Manager’ to whom that first manager reports. The word ‘appropriate’ allows for flexibility in how the Discipline Procedure applies, so that those who are most appropriate to be involved in the various stages, can be.
170 Second, the Discipline Procedure should be interpreted in a way that best fits its purpose, which is to ensure employees are informed of performance expectations and standards of behaviour, and for the Town to assist employees to improve their performance. This purpose is achieved through the requirement to provide employees with ‘feedback’ about their performance. The individuals best placed to give feedback, discuss performance and provide assistance to improve performance, is the employee’s immediate supervisor or line leader, whether or not their title is ‘Manager’.
171 Ms Abuy made no argument as to why the narrow meaning of ‘Manager’ should be preferred.
172 Even if I am wrong, it does not assist Ms Abuy. Because if Ms Savill is the relevant Manager under the Discipline Procedure, then there has still been compliant feedback and coaching in the form of the discussions Ms Savill had with Ms Abuy in October 2023. Additionally, Ms Savill was involved in the Letter of Expectation process meetings of 6 and 10 May 2024: TS25, TS27.
173 The fact that the PIP plan referred to the 10 April 2024 meeting as performance counselling is of no consequence either. Performance counselling is one of any of a number of descriptions that could have been given to the 10 April 2024 meeting. It could have been described as a ‘performance discussion’, or simply a ‘meeting.’ The use of the phrase ‘performance counselling’ in the PIP plan does not operate as a legal conclusion either that the 10 April 2024 meeting was performance counselling for the purpose of the Discipline Procedure (which Ms Abuy denied, in any event), or that the PIP process was not performance counselling for the purpose of the Discipline Procedure. The Discipline Procedure does not preclude performance being managed in ways that are in addition to the steps the Discipline Procedure requires.
174 There can be no question that Ms Abuy was given ample feedback about her performance, and areas of concern about her performance, before the PIP process was instigated. Much of this is recorded at paragraphs [19]-[23], [28]-[30] and [105]-[106] above commencing with the meetings Ms Savill had with Ms Abuy in October 2023, summarised in her email of 12 October 2023: Ex R5. See also exhibits R7, R11, R14 and R15.
175 Ms Abuy’s arguments are matters of form not substance. Even if there were departures from the strict letter of the Discipline Procedure, and I do not accept that there was, it is difficult to see how such departures would render the PIP process unfair to Ms Abuy, or render the dismissal itself unfair.
Was the PIP process unfair because Ms Savill was not present for performance counselling?
176 This part of Ms Abuy’s claim falls away because of my previous finding that Ms Savill was not the only ‘Manager’ for the purpose of the Discipline Procedure. It also falls away because, as I understand her position, Ms Abuy only considered Ms Savill’s involvement was necessary for the Letter of Expectation process: TS93. Ms Savill was involved in the process because she attended two of the meetings at which the Letter of Expectation outcomes were discussed.
Was Ms Abuy denied the opportunity to bring her preferred support person to the 12 June 2024 PIP implementation meeting? If so, did this render the dismissal unfair?
177 As I understand her argument, Ms Abuy does not say that the Town expressly refused to allow her to have a support person attend the PIP implementation meeting on 12 June 2024. Rather, her concern is that she wanted Ms Price to attend as her support person, and Ms Price was prevented from being her support person.
178 Ms Abuy points out that because of her isolation in Port Hedland, her options for having a support person were limited so that, when she could not bring Ms Price, this effectively meant that she was left without a support person. She also says the short notice of the meeting limited her ability to find a support person.
179 Even if the Town had refused to allow Ms Price to attend as a support person, Ms Abuy did not lead any evidence which would allow me to conclude that this practically meant she could not have any support person. She led no evidence that she approached any other work or non-work colleague. While Port Hedland may be isolated, it is not unpopulated. It is an obvious fact that the Town had employees other than those in the Human Resources team.
180 Ms Dillon’s uncontested evidence is that when the meeting commenced, she asked Ms Abuy if she wanted to postpone the meeting so that she had time to find a support person. Ms Abuy refused this offer and said she was ‘happy to proceed’:TS98.
181 The facts do not establish any unfairness to Ms Abuy.
Was Ms Abuy denied the opportunity to give feedback on the PIP plan? If so, did this render the dismissal unfair?
182 Ms Abuy complains that when the PIP plan was first introduced to her on 12 June 2024, she was not consulted on its terms.
183 It is uncontroversial that the draft PIP plan was prepared without Ms Abuy’s input. There’s nothing unusual or unexpected about that.
184 Ms Dillon’s notes of the 12 June 2024 meeting were in evidence. They record that Ms Gubbins sought feedback from Ms Abuy several times during the meeting itself: Ex R20. Ms Abuy did not dispute the accuracy of the notes in this regard: TS97. Ms Abuy’s evidence was that at the 12 June 2024 meeting to discuss the draft PIP plan she gave some limited feedback, asked for more time to give further feedback, and that request was agreed to: TS36.
185 Ms Dillon received written feedback from Ms Abuy over the weekend following the 12 June 2024 meeting. That feedback resulted in minor modifications in the PIP plan’s format (measurements were numbered), an added requirement that Ms Abuy lead team meetings fortnightly (item 3), and a change of the required arrival time from 9:00am to 8:30am (item 2.1).
186 Further, on Ms Abuy’s own evidence she raised all of her concerns at the meeting of 17 June 2024: TS50.
187 Ms Abuy submitted that ‘[b]y disregarding my feedback and refusing to make adjustments, the PIP became a one-sided tool that did not allow for meaningful dialogue or constructive input’: Applicant’s Written Closing Submissions [58].
188 The Town did not require Ms Abuy’s agreement to the PIP plan. Its refusal to make the adjustments Ms Abuy requested does not mean her feedback was disregarded. It means the Town did not agree to make the requested adjustments. This is not unfair. The purpose of the PIP plan is stated on the form itself:
The purpose of this Performance Improvement Plan is to define areas of concern and gaps in work performance. It will reiterate the Town of Port Hedland’s and the Line Leaders expectation’s of an employee and provide an opportunity to demonstrate improvement and commitment.
(emphasis added)
189 I do not agree that the finalised PIP plan ‘did not allow for meaningful dialogue or constructive input’. The plan envisaged regular check-in meetings throughout the PIP process, during which dialogue and input was given by Ms Gubbins and sought from Ms Abuy.
190 Ms Abuy’s real beef is not that she was not consulted in relation to the PIP plan’s content. Rather, her grievance is that her suggested changes were not all agreed to. Ms Abuy would say any plan short of one that acceded to all of her demands was unfair to her.
Were the PIP plan expectations unreasonable?
191 Ms Abuy argued that the Town’s performance expectations were unreasonable because:
(a) Her employment contract designated a 38 hour work week and the Industrial Agreement permits flexible start times within the 7:00am to 9:00am operational period.
(b) Rigid attendance rules were only applicable to employees who work according to rosters or in special circumstances.
(c) The requirement to take lunch between 12:00pm to 2:00pm was overly rigid, inconducive to her productivity and failed to consider operational needs, workload demands and her own preferences. It did not provide reasonable flexibility and involved an unnecessary level of control.
(d) She had not previously been subjected to these expectations
(e) These expectations contradict ‘workplace norms’ that allow employees to use their own discretion.
(f) The PIP plan made no allowance for the fact that Ms Abuy considered Ms Gubbins’ directions to sometimes be unreasonable.
(g) The expectation that Ms Abuy communicate with Ms Gubbins ‘proactively and respectfully’ was unrealistic in light of the history of interpersonal conflict and considerations of Ms Abuy’s psychological safety.
(h) The expectations were about work style, attitude and personality rather than actual performance in the role.
192 I have already dealt with some of these themes under the heading ‘Did Ms Abuy’s performance justify improvement action’. I will try not to repeat what I have already said.
193 Ms Abuy’s employment contract specified that her ordinary hours of work were an average of 38 hours per week, with start and finish times for the purpose of working ordinary hours ‘determined by your manager to fulfil the operational requirements of the organisation’. The contract refers to ‘rostered hours’ which ‘may vary, at the discretion of your manager, to meet the Town’s operational requirements’: Ex A2.
194 It is so obvious that it hardly needs be said that to perform satisfactorily, Ms Abuy had to meet her contractual obligations. Accordingly, it was reasonable for the Town to require her to meet performance criteria around reliability and work attendance.
195 Ms Abuy did not establish by evidence that the Town’s attendance requirements were only applicable to employees working on rosters or in special circumstances, or contrary to ‘work norms’. Nor did she establish that the requirement to take lunch breaks within a specified two hour window adversely impacted on productivity or operational needs.
196 To the extent that Ms Abuy suggests that the Industrial Agreement permits flexible start times within 7:00am to 9:00am, her understanding of the Industrial Agreement is misconceived. The Industrial Agreement specifies a span of hours during which ordinary hours can be worked. This does not give an individual employee flexibility to determine their own start and finish times within the span of ordinary hours.
197 The position description for the Graduate Community Safety Officer role indicates the role reports to the Advisor and sets out 13 accountabilities of the role, including ‘[o]ngoing compliance with the relevant…. policies, procedures and work instructions’. Several of the accountabilities are described in terms of ‘assisting’ and it is implicit that the role was to assist the Advisor, and be subject to the direction and supervision of the Advisor. The Graduate reports to the Advisor because the Advisor has authority. Unless the Advisor has authority to give the Graduate directions, and specify what is required of the Graduate, there can be no substantive reporting by the Graduate to the Advisor.
198 Accordingly, it was reasonable for the Town to require Ms Abuy to meet performance criteria around following reasonable directions given to her by the Advisor. The Town did not require Ms Abuy to comply with unreasonable directions. That Ms Abuy would therefore be required to discern for herself whether a direction was reasonable or not is neither unusual nor unfair. It is the day to day reality for all employees. If Ms Abuy refuses to follow a direction because she considers it to be unreasonable, she bears some risk. But Ms Abuy has not established that any of the directions given to her were unreasonable.
199 In accepting the offer of employment, Ms Abuy agreed to abide by the Town’s policies and internal operating procedures. Clause 34 of the Industrial Agreement also requires employees to abide by the Town’s policies. It was reasonable for the Town to require Ms Abuy to meet performance criteria about communicating respectfully and complying with the Town’s Code of Conduct.
200 In any event, Ms Abuy did not demonstrate why the interpersonal conflict between her and Ms Gubbins precluded her from being able to communicate proactively and respectfully.
Were the Town’s performance expectations as expressed in the PIP plan unclear?
201 Ms Abuy submits that:
(a) The PIP plan did not define what constituted ‘reasonable directions’.
(b) The PIP plan did not clearly define what was meant by ‘regular updates’.
(c) The PIP plan’s required hours of work conflicted with Ms Abuy’s contracted hours of work.
(d) The PIP plan did not provide objective criteria for assessing communications as being ‘appropriate’ and ‘collaborative’.
(e) Performance measures were not based on objective measurable behaviours.
(f) Goals were not measurable and measurements were not tangible or quantifiable.
202 It is unnecessary to consider all of Ms Abuy’s points, because the Town accepts that Ms Abuy met some of the performance expectations set out in the PIP plan. The question is whether the way the PIP plan was worded could be said to have contributed to Ms Abuy’s failure to meet the Town’s reasonable expectations.
203 The PIP plan itself should not be viewed in isolation. It should be viewed in the context of the many discussions and communications with Ms Abuy about her performance prior to the PIP process, as well as the discussions that were occurring at the time of its implementation.
204 In relation to the ‘reasonable directions’ expectations, the PIP plan explained that:
All employees have an obligation under our Code of Conduct and as part of the employment relationship, to follow any reasonable direction given to them by someone with authority to give such direction. It is also important that. if there are barriers that may prevent a direction from being followed, team members communicate this and make their best efforts to find a solution, to make it possible to follow the direction.
Respectful feedback is welcome. discussed through the right channels. Final direction on task allocation and priorities is set by the line leader, as they have the overview of expected deliverables & timeframes.
205 The PIP plan also provided three examples of past instances where Ms Abuy had failed to follow the reasonable directions given to her.
206 I cannot see anything more the Town could have done to make the expectation clear. This was not a case of Ms Abuy being unable to understand the expectation. Rather, Ms Abuy formed her own view that particular directions were not reasonable.
207 The PIP plan provided a ‘recap’ of previous observations that had been made about Ms Abuy’s performance, including the statement:
Regular, respectful and positive communication is crucial to foster a collaborative team environment which facilitates producing the best quality work possible.
208 This led to the inclusion of a goal of ‘improved communication and collaboration with your Line Leader to achieve Community Safety outcomes’. One of six measurements of this goal was:
3.4 You are initiating discussion outside of team meetings to keep your line leader informed and regularly updated on team projects and daily work and consult on next steps.
209 This expectation was discussed at a number of PIP meetings, where Ms Gubbins informed Ms Abuy when she had provided timely updates, and occasions when she could have done more by reference to recent actual events. In this context, nothing about the way this goal was to be measured resulted in any unfairness to Ms Abuy.
210 The PIP plan contained a measure of improved communication by reference to:
You are choosing a communication method and tone that is collaborative and an appropriate level of formality in the circumstances, with consideration to the way in which communication may be interpreted
211 Again, this expectation was discussed at a number of PIP meetings where Ms Gubbins provided Ms Abuy examples of where communications could be improved: Ex R22, Ex R25. The way the PIP articulated the goal was not unfair when Ms Abuy was given significant guidance about where her communications were falling short and how they could be improved.
212 Some of the PIP plan’s measurements were not quantifiable. However, the nature of some performance issues was such that it was entirely appropriate that they be measured in a qualitative way rather than a quantitative way. Qualitative assessments are a valid basis to assess performance.
213 I accept that some of the PIP plan’s measurements involved subjective assessments and value judgments of Ms Abuy’s performance. This is neither unreasonable nor unfair.
Was Ms Abuy denied the opportunity to be heard during the PIP process?
214 Ms Abuy did not present any evidence that would lead me to a conclusion that she was denied a fair opportunity to be heard during the PIP process. To the contrary, her evidence was that she did share examples of her progress during PIP check-in meetings, by reference to her progress monitor.
215 Ms Gubbins’ and Ms Dillon’s evidence was to the effect that they went to great efforts to draw out Ms Abuy and have her engage with the process, but that she did not engage, preferring all communications to be in writing. The written PIP check-in meeting summaries paint the same picture, and were themselves further opportunities for Ms Abuy to provide her comments and feedback.
216 Part of Ms Abuy’s complaint was that the Town did not consistently utilise a pro-forma PIP review and progress update template document during the PIP process. She did not make out a case that the Town was obliged to use such a document, or that the failure to use the document contravened the Discipline Procedure. The Discipline Procedure makes no reference to such a document.
Was the process unfair because mediation was not offered or implemented
217 At the start of the hearing of this case, Ms Abuy’s argument was that the process was unfair because she was not offered mediation.
218 The evidence easily established that mediation was suggested to Ms Abuy repeatedly. Ms Abuy conceded that mediation was ‘continuously being offered’. Ms Abuy said she never ‘outrightly declined the entire process and said I would never, ever do it’: TS98. But each time when it was offered, she did not want to take it up. She said that if she changed her mind about it she would be ‘well within my rights’: TS99.
219 In light of this evidence, Ms Abuy adapted her case, so that in closing submissions she only relied on the Town’s failure to implement mediation or follow up ‘when the offer was accepted.’: Applicant’s Witten Closing Submissions [9] (emphasis added).
220 The first vague and equivocal suggestion that mediation had been accepted was when Ms Abuy said in cross-examination (TS99):
There’s a meeting, ah – ah – there’s an email, where I had articulated several questions about mediation. And I said I would love to proceed, um – or um not exactly worded in that way, but I said or indicated that I was wanting to proceed, um, with the mediation. So we were in discussions.
221 Later in her evidence she clarified that she met with Ms Dillon on 25 July 2024. The Town’s counsel asked:
And did you, in that meeting with Ciara, agree to mediation?
Ah, in that meeting with Ciara, she wasn’t able to answer my questions about mediation
Did you agree to doing mediation in that meeting with Ciara on 25 July?
No
Did you ever indicate, during the course of your employment, that you positively wanted to – were saying "Yes" to mediation? Did you ever do that?
Yes. I recall sending an email to Ciara [Dillon] around the 31st, um – I believe it was around 31 July, with a list of questions around mediation, and saying I was wanting to proceed.
222 Ms Abuy later agreed there might have been an email sent to someone other than Ms Dillon. She did not, in any event, produce any such email.
223 In cross-examination, Ms Dillon said she did not recall mediation being raised during the 25 July 2024 conversation with Ms Abuy: TS158. I accept her evidence in this regard as preferable to Ms Abuy’s shifting story. Ms Abuy consistently declined mediation at all times until 25 July 2024. No plausible reason was advanced by her as to why she would suddenly backflip on this issue.
224 This ground must fail simply because the evidence does not show that the offer of mediation was ever accepted by Ms Abuy.
Was the process unfair because check-in meetings were inconsistent?
225 Ms Abuy noted that at the commencement of the PIP process, weekly check-in meetings were scheduled to occur at 9:00am every Thursday throughout the duration of the PIP process.
226 As it transpired there was seven check-in meetings, on 20 June 2024, 27 June 2024, 8 July 2024, 11 July 2024, 17 July 2024, 25 July 2024, and 1 August 2024.
227 Ms Abuy was on personal leave for some days during the PIP process. One meeting date was changed to accommodate Ms Dillon’s availability. As a result, the working days between meetings varied from 3 to 5 days.
228 Ms Abuy has not established why this meeting schedule was unfair to her, or what the Town ought to have done differently, or how doing it differently would have changed the outcome of the PIP process. This complaint is pedantry. If anything, the fact that Ms Abuy presses it reveals her obstinance.
Was the process unfair because the review period was not long enough?
229 When it was first formalised, the PIP plan was expressed as having a commencement date of 17 June 2024 and an end date of 26 July 2024.
230 The PIP plan also stated under the heading ‘Timeline for Improvement, Consequences & Expectations’:
Effective immediately, you are placed on a six-week PIP (excluding leave periods). During this time, you will be expected to make regular progress on the plan outlined above. Failure to meet these expectations, or any display of serious misconduct may result in further disciplinary action, up to and including termination of employment. Furthermore, failure to maintain performance expectations after the completion of the PIP may result in additional disciplinary action up to and including termination.
231 The end date of the PIP process was later extended to 2 August 2024, as a consequence of Ms Abuy taking leave.
232 The first part of Ms Abuy’s complaint is that the first day of the PIP period, 17 June 2024, could not be counted, because she had not signed the PIP plan until the end of that day. She was, however, provided the PIP plan on 12 June 2024 so there is no reason why she ought not to have understood her performance from 17 June 2024 was going to be assessed.
233 Another part of Ms Abuy’s complaint was that she had 7 days off work on leave after the PIP process commenced, so that there was two days less than a full six weeks from 17 June to 2 August.
234 Ms Abuy also submitted that the PIP process was scheduled to conclude on 2 August 2024, but the outcome was communicated on 1 August 2024. Further, the evidence was that Ms Dillon had recommended termination on 31 July 2024, before the end of the PIP process, and the CEO had approved that recommendation on 31 July 2024: Ex R37.
235 I accept that the duration of the PIP could impact on Ms Abuy’s ability to achieve expectations when it came to deadlines for project deliverables. However, the Town’s reasons for finding Ms Abuy’s performance had not improved were not to do with the project deliverables. As Ms Abuy herself concedes, there were no deadlines for the Community Safety deliverables area in the final week of the PIP process: Applicant’s Written Closing Submissions [185].
236 Ms Abuy did not establish that a difference of two or three days in the context of the lengthy history of performance feedback and counselling, would have meant that her performance would have been assessed any differently. She did not demonstrate that a full 30 working days was necessary for her to demonstrate improvement in her performance. It was sufficiently clear by 25 July 2024 that Ms Abuy’s performance had not met expectations, and Ms Abuy was not going to be able to demonstrate sufficient improvement to hold on to her job. That is primarily because she had not ever recognised that her performance was deficient.
Did the Town fail to have sufficient regard to Ms Abuy’s grievances about interpersonal conflicts as a mitigating circumstance?
237 Ms Abuy submitted that the PIP plan and its execution failed to acknowledge, consider, and address significant interpersonal conflict issues that had a direct impact on her ability to perform her role and participate in the process. She said this was a mitigating factor in the sense of it creating ‘barriers in me being able to meet the expectation[s]’: TS13.
238 The first question is, what did the Town know about the ‘significant interpersonal conflict issues’? The Town could only acknowledge or take into account matters of which it was actually aware.
239 In her evidence, Ms Abuy referred vaguely to having raised with Human Resources concerns and disclosures about interpersonal conflict (TS52) and having disclosed that she did not feel safe in Ms Gubbins’ presence: TS109. Her evidence about this was curtailed by me because Ms Abuy’s outline of witness evidence had not given notice that evidence of this type would be led by her, other than meetings with Human Resources on 5 July 2024 and 25 July 2024 concerning unfair treatment and micromanagement. But even in relation to those dates, Ms Abuy gave no evidence of having made specific complaints or disclosures about interpersonal conflict or its impacts on her.
240 Ms Abuy did not suggest to Ms Dillon that there was any instance where Ms Abuy disclosed such matters directly to Ms Dillon: TS157, TS158. However, Ms Dillon’s evidence was that at the time she took over as the Human Resources business partner involved in Ms Abuy’s PIP process, she was made aware at a basic level of some concerns regarding the breakdown in relationship between Ms Abuy and Ms Gubbins but she had no specific details or examples: TS164.
241 Ms Dillon’s report to the Town’s CEO recommending Ms Abuy’s termination contains a summary of the history of Human Resources’ interactions with Ms Abuy. It notes that during Ms Abuy’s period of unplanned leave in May 2024, Ms Abuy ‘raised concerns about psychological safety and distress’. The report indicates that the concerns were raised by Ms Abuy to Ms Fox in the course of a 50-minute phone call, referring to ‘bullying and feelings of being unsafe, trauma and distress’.
242 This led to the Town standing Ms Abuy down on full pay pending a fitness for work assessment.
243 The fitness for work assessment was conducted by Hedland Psychologists, and resulted in a report dated 29 May 2024. It stated:
In your opinion, can you confirm whether Ms Abuy is safe to return to her role as Graduate Community Safety Officer from 29 May 2024? Yes/ No
Response: Yes
If yes, in your opinion, are there any reasonable adjustments that the Town can make, to support Ms Abuy's to work safely in her role?
Response: Ms Abuy reports feeling unsupported, vulnerable and targeted by the immediate Manager of the Business Unit, Anna. Reflecting the expectations by Anna are somewhat “excessive". Subsequently Ms Abuy appears open to discussions of alternatives i.e. (a) temporary secondment to another area (b) more flexible work locations (c) consistency in instructions and expectations when interacting with Anna.
…
Ms Abuy reports and presents ready for returning to work.
Ms Abuy indicated the recent receipt of a letter of expectation in relation to her work performance which was interpreted by Ms Abuy as “excessive”. The “expectations" reflected more micromanaging i.e. a request was made for Ms Abuy to a closer social bond with Sasha, which Ms Abuy regards as inappropriate as she is at work. Additional comments noted was Anna was often dismissive of Ms Abuy.
I would recommend the conversations to commence on the first day Ms Abuy returns to work - to minimise psychosocial impacts.
…
Upon the initial appointments there was no psychological diagnosis, no family history of mental illness. The assessment completed at the time reflected minimal stress, anxiety and depression. However tensions/frustrations were noted when discussions were held around interpersonal relationships/communication/behaviours with other team work colleagues.
In your opinion, does Ms Abuy need further medical advice or assessment for a return to work?
Response: No
244 While the report demonstrates that Ms Abuy had disclosed concerns about Ms Savill’s treatment of her, it does not support her allegation that she disclosed interpersonal conflict with Ms Gubbins as a source of her feelings of being bullied or unsafe.
245 However, on 14 July 2024 Ms Abuy did copy Ms Dillon into an email (Ex R28) in which she indicated that she wanted to report Ms Gubbins’:
[P]oor behaviour that violates the organisational Code of Conduct and contravenes the guidelines of ‘above and below the line behaviours’…I would greatly appreciate your guidance on whom I should approach to address these concerns, including other related issues involving this individual that I need to escalate further.
246 Ms Abuy’s evidence was that on 25 July 2024, she spoke to Ms Dillon further with a view to lodging a grievance. Ms Dillon denied that there was any specific detail provided to her as to the substance of Ms Abuy’s grievance. She said what was discussed during the meeting was the grievance process itself, including the fact that it would be independent of the PIP process. Ms Dillon also alerted Ms Abuy to the fact that a grievance had been lodged against Ms Abuy.
247 On the basis of this evidence, I find that the Town was aware that Ms Abuy was aggrieved by Ms Gubbins’ treatment of her, and that her relationship with Ms Gubbins had broken down. The evidence does not substantiate that the Town was aware or ought to have known that the relationship issues were such that the workplace was unsafe for Ms Abuy. In fact, the fitness for work assessment indicated that Ms Abuy could work safely.
248 What does this mean for the PIP process?
249 Ms Abuy maintains that she was performing satisfactorily in her role. She consistently maintained that she was justified in not following particular directions because they were unreasonable, and that her communications were appropriate. It is difficult to see where this factor fits in the face of these assertions. She was not really saying that the conflict mitigated her conduct in the sense of being a barrier to being able to meet expectations.
250 It is certainly possible that the interpersonal conflict clouded Ms Abuy’s judgment, when she was deciding whether Ms Gubbins’ directions were reasonable and when she was communicating with Ms Gubbins. But this was not Ms Abuy’s case. She does not accept her conduct was deficient.
251 In light of this, there was no room for the Town to treat the interpersonal conflict as a mitigating factor. In order for the Town to treat this as a mitigating factor, Ms Abuy needed to first accept that her performance was substandard.
252 Ms Abuy’s other concern was that this context meant that Ms Gubbins was in a position of conflict of interest, and was unable to be impartial in her role in the PIP process and in assessing Ms Abuy’s performance. The PIP process was, in this sense, tainted and could never amount to a fair and supportive process while there were unresolved interpersonal conflicts.
253 What Ms Abuy is raising in this respect is an allegation of bias, which was not how the case was put at the commencement.
254 Ms Abuy’s concern in this regard is understandable. But at the end of the day, she has not shown that the Town’s conclusions about her performance were objectively unreasonable. Ms Gubbins may well have been deep in conflict with Ms Abuy, but her conclusions about Ms Abuy’s performance were nevertheless justified.
255 The Town, and Ms Gubbins, were not oblivious to the fact that Ms Gubbins was managing Ms Abuy’s performance when that very thing was fuelling Ms Abuy’s grievances. It was for this reason that Ms Gubbins involved Ms Dillon in the PIP process, and supplied her observations to others within the organisation (TS192). Ms Dillon’s involvement tempered Ms Gubbins’ lack of neutrality, by ensuring that if Ms Dillon considered any part of the process to be unreasonable, unfair or not objectively justified, Ms Dillon could advise Ms Gubbins accordingly.
Was the manner of termination unfair?
256 The manner of the dismissal may render it unfair even without constituting a denial of procedural fairness: Gilmore v Cecil Bros & Ors (1996) 76 WAIG 1184.
257 Ms Abuy argues that the termination of her employment was unfair because:
(a) The outcome was predetermined; and
(b) The manner of the termination was excessive and harsh in its execution and consequences.
Was the outcome predetermined?
258 The concept of a decision being predetermined usually invokes the concept of bias. However, when Ms Abuy says that the termination decision was ‘predetermined’ she is just pointing out that the decision was made before the final PIP check-in meeting of 1 August 2024.
259 I accept that the decision to terminate was made on 31 July 2024 when the CEO signed Ms Dillon’s recommendation for termination.
260 It is not enough to merely point to the timing of the decision to terminate as evidence that the decision is unfair. A termination will be unfair as being ‘predetermined’ if it is firmly established that the Town’s mind was so prejudiced in favour of a conclusion already formed that it would not alter that conclusion, regardless of information presented to it: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 93 ALR 435 at 458. A termination might be unfair as being ‘predetermined’ if the employer has gone through the motions, without maintaining an open mind. This does not require an employer to not have leanings or inclinations as to the likely sanction: BHP Coal Pty Ltd v Schmidt [2016] FWCFB 72 at [35].
261 In the present context, this means that Ms Abuy must show the Town decided to terminate her employment either without giving her an opportunity to respond to the proposed reasons for termination, in this case, performance concerns, or without genuinely considering her response.
262 It is clear that Ms Abuy was on notice that the Town would consider terminating her employment if performance concerns were not satisfactorily addressed during the PIP process. As I have already observed, the PIP plan itself, which was provided to Ms Abuy on 12 June 2024, indicated that failure to meet expectations could result in the termination of her employment. The PIP process was the opportunity for Ms Abuy to respond to those performance concerns.
263 At the commencement of the PIP check-in meeting of 25 July 2024, Ms Abuy was told that it was the final meeting ‘before the last meeting next week’. Ms Abuy was told that she was not tracking well, and that the outcome of the process would be communicated at the final meeting the following Thursday. She was also told that if there was to be a considerable change across the next week, this would be taken into consideration in the final decision: Ex R35; Ex R36.
264 Ms Abuy is recorded as making ‘minimal contributions’ to the discussion of 25 July 2024. Her response was considered as part of the recommendation for termination.
265 Ms Abuy’s submissions focused on the 1 August 2024 meeting at which she was advised that the Town was ‘considering’ terminating her employment: TS41. Her evidence was to the effect that although Mr Dacombe and Ms Marvelli indicated that termination was being considered, it was presented as a fait accompli, with no opportunity for her to respond or demonstrate why termination was inappropriate. Given the discussion of 25 July 2024, that would have needed to involve Ms Abuy demonstrating considerable change in her performance since 25 July 2024.
266 Mr Dacombe’s evidence was that when he met with Ms Abuy on 1 August 2024, an opportunity was given to her to respond to the proposal to terminate her employment part way through the meeting, but she provided no substantive response. He was not cross-examined about this, nor was it put to Ms Abuy that she was given such opportunity to respond.
267 I prefer Ms Abuy’s version over Mr Dacombe’s. Ms Abuy’s version, that is, that she had no opportunity to respond to the proposed termination at the 1 August 2024 meeting is consistent with:
(a) the recommendation which said that ‘the expected outcome’ of the 1 August 2024 meeting was that the requirements of the PIP plan have not been met, and that the Town will be progressing with termination.
(b) The recommendation to approve the termination was not expressed as being subject to or conditional on the outcome of the 1 August 2024 meeting.
(c) The recommendation for termination was signed by the CEO before the 1 August 2024 meeting occurred.
(d) The letter of termination does not refer to Ms Abuy’s response or lack of response to the proposed termination of her employment, but did refer to Ms Abuy’s lack of response in the 25 July 2024 meeting.
(e) The letter of termination says, ‘during yesterday’s meeting we advised you that due to you not meeting the agreed improvement goals, the decision has been made in accordance with the Town’s Discipline Procedure, to terminate your employment immediately’.
(f) There was no evidence that the Town assessed Ms Abuy’s performance in the final week, or made any finding as to whether it had or had not improved.
268 The decision to terminate was made one day before the formal conclusion of the PIP process. It was made without Ms Abuy having an opportunity to demonstrate ‘considerable improvement’ in her performance in the final week of her employment.
269 In matters of this kind, the practical realities of the workplace need to be considered and a commonsense approach to the application of the statutory provisions should be adopted: Gibson v Bosmac Pty Ltd (1995) 60 IR 1 cited in Farkas v Abacus Calculators (WA) Pty Ltd [2005] WAIRC 02267; (2005) WAIG 3134 at [19]. The IR Act’s requirement that the Commission must act in accordance with the substantial merits of the case, means that an employer is not to be held to standards of perfection in its processes. What is required is that their process be reasonable in the circumstances, providing the employee with fair notice of the performance concerns, and a fair opportunity to address those concerns. As Commissioner Kenner (as he then was) stated in Kerton v Bandaberry Pty Ltd t/a Mandurah Holden [2004] WAIRC 11731; (2004) 84 WAIG 2652 at [17]-[18]:
It is also the case, that a dismissal may be held to be harsh, oppressive or unfair, on the basis that it is either substantively or procedurally unfair: Bostik (Australia) Pty Ltd v. Gorgevski [1992] FCA 209; (1992) 41 IR 452. However, it is important to recognise that all of the circumstances must be taken into account, and in the case of misconduct, the gravity of the conduct must be balanced against any suggested failure to afford procedural fairness: Byrne and Frew v. Australian Airlines Ltd (1992) 45 IR 178: Shire of Esperance per Nicholson J at 899; Bostik per Gray J at 466.
For example, if it can be established that given the gravity of the conduct complained of, affording procedural fairness would not have altered the outcome in any event, then such a failure will not of itself, render a dismissal harsh, oppressive or unfair. Moreover, to conclude that procedural fairness alone may render a dismissal unfair, without considering the substantive performance or conduct issues surrounding the dismissal of an employee, and their gravity, would be to ignore the requirements of s 26(1)(a) of the Act, requiring the Commission in the exercise of its jurisdiction, to have regard to the substantial merits of the case. In each case, it is a matter of judgement in the exercise of a discretion as to the weight to be apportioned to substantive and procedural factors.
270 The Town’s slightly premature decision to terminate the employment does not mean that the decision was unfair to Ms Abuy. The practical reality is that Ms Abuy was not engaging in the PIP process. The practical reality is that even if the final week of the PIP process had been assessed, no significant change would have been demonstrated.
271 It is clear on all the evidence that Ms Abuy was simply not trying to demonstrate improvement in meeting the Town’s expectations. Had the Town deferred its decision and conducted further assessment of Ms Abuy’s performance on 1 or 2 August 2024, it would not have altered the outcome.
Unfair termination process
272 Ms Abuy found the events of 1 and 2 August 2024 distressing because:
(a) The termination of her employment meant that she would need to vacate the home she leased from the Town, which was dependent on her continued employment. In this regard, Mr Dacombe confirmed in his evidence that while the Town was willing to give Ms Abuy a 4 week notice period, that was conditional on her signing a Deed of Settlement and Release.
(b) The meeting with Mr Dacombe and Ms Marvelli of 1 August 2024 was brief and cursory, lasting only around 10 minutes.
(c) Following the meeting, Ms Abuy’s work equipment was taken from her, she had to pack up her desk and she was escorted from the premises in view of other staff.
(d) She was removed from the premises on 1 August 2024 before being notified of the termination (which happened on 2 August 2024).
(e) These actions were consistent with being dismissed for misconduct and were not aligned with termination for performance reasons. This caused her to feel humiliated, ashamed and embarrassed.
(f) On 2 August 2024 at about 2:15pm she received an email from Ms Marvelli erroneously referring to ‘misconduct’ as well as ‘performance.’ This created confusion as she had not yet been provided with the official termination letter but had been put on notice that a grievance had been lodged against her.
(g) The manner of termination was likely to cause reputational harm in a small town such as Port Hedland.
273 It is no doubt the case that the matters set out above have had some adverse impacts on Ms Abuy. However, they do not render the termination of her employment unfair in light of the facts that:
(a) The Town had given Ms Abuy ample warning that her ongoing employment was at risk.
(b) The Town had a valid reason related to her performance to terminate her employment.
(c) The Town had engaged in lengthy processes to enable Ms Abuy to avoid that consequence.
274 I also note that Ms Abuy secured alternative employment commencing a couple of weeks after the termination took effect. The alternative employment came about as a result of an application she made during the PIP process. Ms Abuy was paid two weeks’ pay in lieu of notice. This suggests that Ms Abuy was prepared for her employment with the Town to end, if not by the Town terminating her employment, then by her resignation. It also shows that any reputational damage has not been such as to prevent Ms Abuy from securing alternative work very quickly.
Conclusion and disposition
275 Ms Abuy has not established that the termination of her employment was harsh, oppressive or unfair. Her application will be dismissed.