1 Fair Work Act 2009 s.365—General protections Leigh Hoang v Endeavour Energy Network Management Pty Ltd Trading as Endeavour Energy (C2025/3130) DEPUTY PRESIDENT WRIGHT SYDNEY, 25 NOVEMBER 2025 Application to deal with contraventions involving dismissal – jurisdictional objection – not dismissed on the basis the Applicant resigned – objection dismissed – application to proceed Introduction and outcome [1] Ms Leigh Hoang has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that she has been dismissed from her employment with Endeavour Energy Network Management Pty Ltd Trading as Endeavour Energy (Endeavour) in contravention of Part 3-1 of the FW Act. [2] Ms Hoang claims that she was dismissed on 25 March 2025. The application was filed on 14 April 2025, and as such is within the timeframe required by s.366(1)(a) of the FW Act. [3] Endeavour has objected to the application on the ground that Ms Hoang resigned and therefore was not dismissed from her employment. [4] Before dealing with the dispute under s.368, I must be satisfied that Ms Hoang was dismissed. [5] In summary, I have found that Ms Hoang was dismissed by Endeavour on 25 March 2025, within the meaning of s.365 of the FW Act. Directions [6] The matter was listed for directions on 7 May 2025. Directions were made for the filing and serving of evidence and submissions. [7] On 26 May 2025, Ms Hoang filed submissions, witness statements of Mr Mark Barton and Ms Diane Samaroo and a witness statement on her own behalf. Ms Hoang filed further submissions on 17 June 2025 and 1 August 2025. [2025] FWC 3225 DECISION [2025] FWC 3225 2 [8] On 10 and 11 June 2025, Endeavour filed submissions and statements from the following witnesses: 1) Ms Emma Murison, Head of People & Culture 2) Ms Jan Roden, Head of Organisation Development and Learning 3) Ms Joanne McManus, Organisation Development and Learning and Inclusion and Diversity Manager [9] Endeavour filed further submissions on 27 July 2025. [10] I granted Endeavour permission to be legally represented at the hearing pursuant to s.596 of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently having regard to the complexity of the matter. All of the witnesses gave evidence and were cross examined at the hearing. Witnesses Ms Leigh Hoang [11] Ms Hoang was employed by Endeavour as an Inclusion & Diversity Specialist from 18 March 2024 to 25 March 2025 pursuant to an Employment Contract dated 18 March 2024. Ms Hoang received an annual salary of $190,000 inclusive of superannuation. Mr Mark Barton [12] Mr Barton commenced employment with Endeavour on 31 January 1994. Mr Barton is currently employed as a High Voltage Operator. In addition to this role, Mr Barton has been working with the People & Culture team as the Reconciliation Action Plan Lead one day per week for the past five years. In this role Mr Barton worked closely with Ms Hoang and Ms McManus. Ms Diane Samaroo [13] Ms Samaroo is a Diversity, Equity and Inclusion Leader with significant human resources and strategic experience. Ms Samaroo held an Inclusion and Diversity role with Endeavour during the period from August 2023 to January 2024. Ms Emma Murison [14] Ms Murison commenced employment with Endeavour in May 2016. Since November 2023, Ms Murison has held the role of the Head of People & Culture. [15] Ms Murison has approximately 20 years of experience working in the field of human resources and industrial relations across multiple organisations. [2025] FWC 3225 3 [16] Ms Murison’s responsibilities at Endeavour include broadly Organisational Development & Learning, Inclusion & Diversity, Employee Relations, Business Partnering, Health & Wellbeing and People & Culture Services. [17] Ms Murison reports to the Chief Data, People & Sustainability Officer, Ms Melissa Irwin. In turn, Ms Irwin reports to the Chief Executive Officer, Mr Guy Charkley. Ms Jan Roden [18] Ms Roden has been employed by Endeavour for over seven years. Ms Roden is currently the Head of Organisation Development and Learning within the People & Culture Team. Ms Roden reports to Ms Murison, Head of People & Culture. Ms Roden has worked in Organisation Development and Learning for her entire career of almost 30 years. Ms Joanne McManus [19] Ms McManus has been employed by Endeavour for two years and seven months. Ms McManus is currently the Organisation Development and Learning and Inclusion and Diversity Manager within the People & Culture team. Ms McManus reports to Ms Roden, Head of Organisation Development and Learning. Factual background [20] Ms Hoang’s responsibilities at Endeavour included delivering various Inclusion & Diversity initiatives including the following: • Two NAIDOC Week events on 10–11 July 2024; • Family Friendly Workplace accreditation in August 2024; • The Innovate Reconciliation Action Plan (RAP) in November 2024; • The Innovate RAP launch event on 22 November 2024; • Diwali event on 27 November 2024; • The Workplace Gender Equality Agency (WGEA) Gender Pay Gap Employer Statement in March 2025; and • The International Women’s Day (IWD) event on 7 March 2025.1 [21] Ms Hoang’s role was within the Organisational Development team under the People & Culture division. Ms Hoang reported to Ms Joanne McManus.2 [22] Ms Hoang said that from the time she commenced employment, there were inconsistencies in how the role was advertised to her, and how it functioned in practice. Ms Hoang said that there were changes to her position title and the reporting line. Ms Hoang said that the combination of role ambiguity, managerial inexperience, and unexplained changes to structure and authority contributed to later mischaracterisations of her performance.3 Incident on 13 March 2024 and Endeavour’s response [23] On 13 March 2024, five days before Ms Hoang’s official start date, she attended Endeavour’s IWD event. Ms Hoang said that she witnessed a Board member make an [2025] FWC 3225 4 Islamophobic comment during this event. Ms Hoang said that during a meeting with Ms McManus and Ms Roden on 17 May 2024 she was informed that a Muslim employee had submitted feedback regarding the Board member’s comment to Endeavour’s Organisational Development inbox. Ms Hoang said she confirmed that she had witnessed the Islamophobic remark during the meeting.4 [24] Ms Hoang said that Ms Roden responded with visible irritation and expressed disbelief that the Muslim employee had reported the comment to the Islamophobia Register Australia. Ms Hoang said that Ms McManus abruptly ended the discussion, stating that the matter was final and must not be revisited.5 [25] Ms Hoang said that she found this response deeply concerning and it was her view that the response failed to meet Endeavour’s stated diversity equity and inclusion (DEI) values or ethical obligations and created reputational and psychological safety risks for Endeavour. Ms Hoang decided to follow up with the employee directly, and did so on 5 June 2024. Ms Hoang said that the employee indicated that they felt dismissed and punished for raising a legitimate concern and no longer felt safe to provide feedback in the future.6 [26] Ms Roden said that she did not speak to Ms Hoang about this matter and that she denied the version of events set out in Ms Hoang’s evidence. Ms Roden said that the complaint was made prior to Ms Hoang’s employment. Ms Roden said that she had managed the complaint to the employee’s satisfaction, and the matter was resolved.7 Development of the Reconciliation Action Plan (RAP) vision statement [27] Ms Hoang said that between 27 March and 11 June 2024 the development of Endeavour’s Innovate RAP vision statement was delayed by two and a half months due to persistent stalling by Ms McManus. Ms Hoang said that this delay occurred despite consistent input and endorsement from her Aboriginal colleagues, external Aboriginal consultants and herself. Ms Hoang said that Ms McManus repeatedly deferred decision-making to colleagues without lived or professional reconciliation experience and ignored her advice.8 [28] Ms McManus denied that she stalled the RAP vision statement. Ms McManus said that the statement took a long time to progress due to the number of stakeholders involved, including two groups of people making decisions relating to all aspects of the RAP.9 Interviews with Employees of Colour and Program Development [29] Between May and August 2024, Ms Hoang said that she conducted one-on-one empathy interviews with employees of colour across the organisation to inform the development of a program tailored to their experiences. Ms Hoang said that Ms McManus encouraged her to interview individuals who would provide positive feedback about workplace culture. Ms Hoang said that while she felt that Ms McManus’ directive reflected a fundamental misunderstanding of the purpose of her work, she sought to accommodate the request by including employees who Ms McManus recommended. Ms Hoang said that these interviews revealed consistent themes of racial exclusion and inequity, including negative differential treatment, increased scrutiny of performance, limited access to leadership opportunities, feedback being ignored or diminished, and fear of speaking up.10 Ms Hoang said that one colleague recommended by Ms [2025] FWC 3225 5 McManus asked her directly: ‘Have you wondered why the other DEI people didn’t stay long?’11 [30] Ms Hoang said that she proposed establishing an Employee Resource Group to provide a culturally safe space for employees of colour as part of this program. Ms Hoang said that when she invited participation from employees, including the employee recommended by Ms McManus and the Muslim employee referenced earlier, they both declined.12 Denial of Access to People & Culture (P&C) Process Data [31] Ms Hoang said that she requested internal People and Culture process data related to grievances, professional development and performance calibration to allow her to design effective, evidence-based DEI programs. Ms Hoang said that she encountered consistent resistance to her requests, including basic process data of who had accessed development opportunities and how. Ms Hoang said that without access to internal data, her ability to fulfil the core functions of her role was significantly impaired.13 NAIDOC Week Events [32] In June 2024, Ms Hoang was responsible for planning two NAIDOC Week events scheduled for 10 and 11 July 2024 with oversight from Ms McManus and Ms Roden. Ms Hoang said that after planning was well underway, she was informed that Ms Roden wished to host the events herself to raise her professional profile. Ms Hoang said that Ms McManus advised her in two meetings that she should accommodate Ms Roden’s request. Ms Hoang said that she found the directive concerning, noting that she had prepared an event agenda where the RAP Lead, Mr Mark Barton, an Aboriginal man, would host the event consistent with reconciliation best practice.14 [33] Ms Hoang said that while she followed the instruction to update the agendas, she experienced considerable distress. Ms Hoang said that she ultimately decided to raise the matter directly with Ms Roden during a one-on-one meeting, where she recommended that Mr Barton host the events while Ms Roden facilitated the panel discussions. Ms Hoang said that Ms Roden was dismissive of her recommendation and responded with hostility. Following this exchange, Ms Hoang said that she felt that her working relationship with Ms Roden was fundamentally damaged.15 [34] Ms Roden said that she did not speak to Ms Hoang with hostility, and the discussion was to ensure they would better understand each other’s perspectives and positions. Ms Roden said that she did not feel that this interaction damaged her working relationship with Ms Hoang, and that they continued to engage in a professional and courteous way at work. Ms Roden said that she told Ms Hoang that Mr Barton should be part of this event, however suggested another person to host the event as Mr Barton had advised that he is not comfortable with public speaking.16 Mid-probation review [35] In or about late June 2024, Ms Hoang reached the halfway point of her six-month probation period. Ms Hoang said that around this time, she began noticing a shift in Ms [2025] FWC 3225 6 McManus’ demeanour where Ms McManus began avoiding eye contact and appeared visibly uncomfortable during meetings.17 [36] On 24 June 2024, Ms Hoang had her mid-probation review. Ms Hoang said that she shared concerns about Ms Roden’s conduct during this meeting. Ms Hoang said that Ms McManus responded by asking, ‘Do you really want to be here?’ Ms Hoang said that the timing of the question led her to interpret it as a warning to either comply or leave. Ms Hoang said that she decided to limit providing further feedback and focus on delivering her work to a high standard.18 [37] Ms McManus denied saying to Ms Hoang, ‘do you really want to be here?’ Ms McManus said that during her discussion with Ms Hoang on 24 June 2024, they discussed elevating Ms Hoang’s brand and impact. Ms Hoang asked who she should specifically connect with. Ms McManus said that she suggested that Ms Hoang could make connections through going to different sites and sitting in different places. Ms Hoang had informed Ms McManus that she felt that as a millennial, she did not have much in common with many of the people in the office as they were older and have children. Ms McManus said that she suggested finding connections that may not be clear at the outset and sitting in other places around the office.19 [38] Ms McManus said that she felt that the meeting on 24 June 2024 was a productive meeting. She said that she did not feel that Ms Hoang was unhappy in her role or that the working relationship had broken down.20 Selective credit-giving and psychosocial effects [39] In July 2024, Ms Hoang said that she observed repeated public praise of Ms McManus by Ms Roden during the NAIDOC Week events and RAP meetings. Ms Hoang said that Ms Roden publicly credited Ms McManus for outcomes for which Ms Hoang held primary responsibility. Ms Hoang said that she felt that this conduct was exclusionary and retaliatory.21 [40] Ms Hoang said that she began experiencing significant psychosocial impacts at this time. This included waking with severe jaw pain and difficulty chewing. Ms Hoang said that she associated this emerging condition with the anxiety that she was experiencing in the workplace.22 [41] Ms Roden said that she and Ms McManus actively tried to incorporate Ms Hoang’s input in meetings with external stakeholders. Ms Roden said that she called on Ms Hoang during these meetings, saying, ‘we haven’t heard from you yet Leigh – do you have anything else to add?’23 Ms Hoang’s discussion with Ms Samaroo [42] On 2 July 2024, Ms Hoang said that she met her predecessor, Ms Diane Samaroo to better understand the organisational dynamics she had been observing. [43] Ms Samaroo gave evidence in the proceedings. Ms Samaroo explained that she held a similar DEI role to Ms Hoang’s at Endeavour during the period from August 2023 to January 2024. Ms Samaroo reported directly to Ms Roden. Ms Samaroo said that during her [2025] FWC 3225 7 employment at Endeavour, she experienced ongoing professional challenges relating to extreme micro-management, conflicting direction and unsubstantiated comments. Ms Samaroo said that she did not feel that she could raise these issues, particularly in relation to the leadership culture under Ms Roden due to structural exclusion and a lack of psychological safety. Ms Samaroo said that she chose to resign rather than continue to experience the patterns of behaviour that she believes were systemic. Ms Samaroo said that these concerns were partly documented and partly spoken to in her discussion with Ms Murison when she confirmed her resignation on 15 January 2024.24 [44] Ms Roden confirmed that Ms Samaroo was employed by Endeavour from 8 August 2023 to 26 January 2024. Ms Roden was her manager during this time. Ms Roden denied that she undermined Ms Samaroo’s expertise during her conversations with Ms Samaroo.25 [45] Ms Roden said that she was not aware that Ms Samaroo resigned due to psychosocial distress and did not consider that to have been the case during Ms Samaroo’s employment.26 Ms Roden said that she was aware of the concerns Ms Samaroo raised about her. Ms Roden said that she has not had any concerns, of a similar nature, raised with her or about her since.27 [46] Ms Roden said the following in relation to Ms Samaroo at the hearing: I think she felt she wanted to take the strategy in a much more philosophical process which is one way that you can do things. In the Endeavour context we have stakeholders who want to see a lot more concrete and rigor around the plan about what you're doing, how you're doing it, the impact it's having: 'Can you please measure that and show us the value to the bottom line'? I think that part of it was something that she wasn't quite - had not quite had the experience in getting her head around and that was the bit we spend quite a bit of time on.28 [47] Ms Murison gave evidence that subsequent to Ms Samaroo’s resignation, Ms Murison said that Endeavour changed the role and broadened Ms McManus’ role to include Inclusion & Diversity.29 [48] Ms Murison said that she did not discuss Ms Samaroo’s resignation with Ms Hoang, other than to say that she was unable to share any information about that with Ms Hoang.30 [49] During the hearing, Ms Murison gave evidence that in January 2024 she had a meeting with Ms Samaroo and that Ms Samaroo advised Ms Murison that she did not agree with the strategy or the broader direction of DEI and that she and Ms Roden had different views as to what the strategy should be and how that should play out. Ms Murison said that Ms Samaroo told her that she did not feel that she could put her name to the strategy, she did not feel like she had control of the strategy, and that, ultimately, she had decided to resign.31 Performance Improvement Plan (PIP) and probation extension [50] On 10 September 2024, one week before the scheduled end of Ms Hoang’s six-month probation, Ms Hoang attended a meeting with Ms McManus and Ms Rebecca Dobe, Manager, People Partnering and also the Human Resources contact for People & Culture employees. Ms Hoang requested that Mr Barton attend as her support person. Ms Hoang said that she was not informed in advance of the meeting’s purpose and was only told that she could bring a support person. Ms Hoang said that she suspected that the meeting could result in termination given the [2025] FWC 3225 8 timing and context of Ms McManus’ previous comment during the mid-probation review in June 2024.32 [51] During the meeting, Ms Hoang said that she was advised that her probation would be extended by one month to 18 October 2024, and that she would be placed on a Performance Improvement Plan (PIP). Ms Hoang said that she viewed the PIP as a disciplinary response to her earlier disclosures and feedback about organisational DEI risks. Nonetheless, Ms Hoang said that she accepted the extension and resolved to meet the PIP expectations to retain her position.33 [52] The PIP had the following objective: Elevate the impact of performance in the role of I&D [Inclusion and Diversity] Specialist to include stakeholder management, collaboration broadly across the business and to lead initiatives in consultation with the I&D Manager: 1. Build relationships and develop business partnerships with internal and external stakeholders. 2. Engage stakeholders and manage expectations 3. Partner with others in the P&C team to connect with the various branches 4. Prioritise work to ensure delivery of the actions on the workplan are achieved 5. Design and project manage I&D programs. Manage a range and variety of projects simultaneously across the business 6. Actively and with initiative seek out opportunities to contribute to the ISD portfolio broadly. [53] The PIP listed a number of required outcomes and strategies and explained the timeframe and what support would be provided. The ‘final review date’ for the PIP was 10 October 2024. The PIP concluded: Failure to meet the required performance targets by the relevant deadlines may result in disciplinary action, up to and including termination of employment. [54] On 11 September 2024, Ms Hoang sent an email to Ms Dobe outlining her concerns with the PIP’s lack of clarity, and the ongoing confusion about role expectations. Ms Hoang requested the position descriptions for both her role (Inclusion & Diversity Specialist) and Ms McManus’ role (Inclusion & Diversity Manager) to establish clear boundaries and responsibilities. Ms Hoang said that Ms Dobe agreed that Ms McManus would provide the documents, but Ms McManus did not do so, despite repeated requests.34 [55] On 16 September 2024, Ms Hoang emailed Ms McManus a signed copy of the amended PIP, as agreed during prior one-on-one meetings. She did not receive a countersigned copy from Ms McManus.35 [56] On 11 October 2024, one week before the extended probation end date, Ms Hoang followed up with Ms McManus regarding the signed PIP and reiterated her request for the position descriptions. She did not receive a response from Ms McManus.36 [57] On 18 October 2024, Ms Hoang passed the PIP and probation.37 [2025] FWC 3225 9 Performance concerns [58] As Ms Hoang’s manager, Ms McManus said that she had daily interactions with Ms Hoang during her employment.38 [59] Ms McManus said that after months of training, coaching and guidance with Ms Hoang, she felt that Ms Hoang was unable to execute tasks on her own or know what to do proactively. Ms McManus said that she expected Ms Hoang to identify areas of concern, engage with internal and external stakeholders, develop plans to improve these concerns and manage the programs. Ms McManus said that she had to provide Ms Hoang with a significant amount of direction and guidance, more than what she thought she should for someone at Ms Hoang’s level.39 [60] Ms McManus said that despite the performance concerns, she was insistent that Ms Hoang continued working in the role past her probation period as she hoped that Ms Hoang would improve.40 [61] Ms McManus said that she felt that Ms Hoang would not take on any of the feedback provided. Ms McManus said that Ms Hoang continued to miss deadlines, not complete tasks, and put pressure on her to complete Ms Hoang’s work. Ms McManus said despite asking Ms Hoang whether she required any additional support, she did not ask for support and advised Ms McManus that she could do her job.41 [62] Ms McManus said that she felt that she had a collegiate and friendly relationship with Ms Hoang, even throughout the performance management process. Ms McManus said that Ms Hoang bought her a Christmas present in December 2024 and that Ms Hoang shared personal photos and stories with her.42 [63] Ms McManus said that Ms Hoang’s performance significantly declined in 2025. She provided an example of Ms Hoang missing an external deadline and signoff which would allow Endeavour to publish its WGEA Gender Pay Gap Statement alongside other organisations. She also provided an example of the time it took for Ms Hoang to organise and progress the 2025 IWD event.43 [64] Ms McManus said that she obtained advice about how to manage concerns regarding Ms Hoang’s performance from a Senior Human Resources business partner. She said that she received advice to engage in informal and formal performance management and coaching with Ms Hoang’s involvement. Ms McManus said that the show cause process came after approximately 10 months of performance management and Ms Hoang’s continued failures to meet the requirements of her role.44 [65] Ms Roden said that she attended meetings with Ms Hoang on key projects and events relevant to their team. Ms Roden said that this happened around once or twice every month and that she did not have many one-on-one interactions with Ms Hoang during her employment.45 [66] Ms Roden said that she became aware of performance concerns regarding Ms Hoang in her capacity as Ms McManus’ manager around June 2024. Ms Roden said that Ms McManus told her about these concerns during her one-on-one meetings with Ms McManus. Ms Roden [2025] FWC 3225 10 said that she was aware that Ms Hoang was on a PIP. Ms Roden said that she witnessed some of these concerns in her interactions with Ms Hoang, such as: (a) Ms Hoang did not adapt her approach when given feedback. Ms Roden gave an example of feedback she provided to Ms Hoang that her communication to employees was too academic and needed to be simplified; (b) Ms Hoang did not engage with the broader workforce to plan and create Inclusion & Diversity work programs and initiatives. Ms Roden said that she had multiple conversations with Ms Hoang about the need for this engagement; (c) Ms Hoang was unable to execute key functions of her role. Ms Roden gave an example of the ‘empathy interviews’ Ms Hoang conducted with employees, and suggested that her approach to the matter was not robust enough for the data collected to be useful.46 [67] Ms Roden said that she never had any interactions with Ms Hoang that led her to believe that Ms Hoang was unhappy or wanting to resign.47 [68] Ms Hoang gave evidence during the hearing that Ms McManus did not raise any concerns with her about her performance during the first six months of her employment and following the conclusion of the PIP. Disclosures to Ms Dobe and Ms Murison [69] On 12 September 2024, Ms Hoang sent an email to Ms Dobe, raising concerns about exclusionary conduct from senior leadership. [70] On 20 September 2024, Ms Hoang attended a meeting with Ms Dobe and Ms Murison that was arranged by Ms Dobe. During this meeting, Ms Hoang said that she raised concerns regarding: • the unreasonableness of the PIP; • the mishandling of feedback from the Muslim employee; • the hostile treatment she experienced from Ms Roden following her feedback regarding NAIDOC Week; • the delayed RAP vision statement; • Ms McManus’ lack of DEI expertise and her undermining of DEI best practice; • Ms McManus’ behaviour had changed, including avoiding eye contact; • her belief that Ms Roden was acting through Ms McManus, based on the observed shifts in Ms McManus’ behaviour following her feedback to Ms Roden; and • her growing psychosocial symptoms, including nightly teeth grinding and anxiety due to a fear of retaliation.48 [71] Ms Murison’s version of the meeting was that Ms Hoang: (a) Raised concerns around Endeavour’s diversity and inclusion work; (b) Raised concerns in relation to Ms Roden’s management. Ms Murison said that she found this surprising as Ms Hoang reported to Ms McManus and not Ms Roden. This included: [2025] FWC 3225 11 i. A prior conversation regarding the decision for Ms Roden to chair the NAIDOC event instead of Ms Hoang’s recommendation Mr Barton. Ms Murison said that Ms Hoang said that she provided feedback about her concerns to Ms Roden after this event and felt that she was being treated differently by Ms Roden as a result of her feedback; ii. How Ms Roden dealt with a concern raised by a Muslim employee about a comment made by a Board Director. Ms Murison said she understood that the Board Director was herself a Muslim, and made the comment based on her personal experiences as a woman growing up in a Muslim country; iii. Ms Roden micro-managing Ms McManus; iv. The reasons for Ms Samaroo departing her role. Ms Murison said that she felt that this discussion would be inappropriate. (c) Indicated that she believed that she had been grinding her teeth in her sleep as she had a sore jaw for some months. Ms Murison said that she asked for more information however Ms Hoang did not provide much more context. As such, Ms Murison said she considered it could have been related to any range of issues and that it was just a passing comment; (d) Raised concerns around the confidentiality of her concerns about Ms Roden. Ms Murison said to Ms Hoang that she would keep her concerns confidential from Ms Roden; (e) Raised concerns around the PIP and that she wondered if the PIP was retaliatory for the feedback she raised with Ms Roden; and (f) Indicated that her main concern was Ms Roden, and that she did not feel comfortable working with Ms Roden or providing feedback to her. Ms Murison said that Ms Hoang made no mention of feeling unsafe.49 [72] Ms Murison said that she asked Ms Hoang about the resolution she sought through raising her concerns with Ms Murison. Ms Murison said that Ms Hoang suggested that the reporting line for Inclusion & Diversity should be changed so that it does not sit under Ms Roden, and should sit under the Chief Executive Officer instead.50 [73] Ms Murison said that Ms Hoang also said that she felt that the PIP was unfair. In response, Ms Murison said that she asked Ms Hoang to send her a copy of the PIP for her review. Ms Murison said that as Ms Hoang did not say that she felt unsafe or that she was unable to continue working, she did not consider this meeting to be a disclosure of psychosocial harm.51 [74] After this meeting, Ms Murison said she considered the issues raised by Ms Hoang, reviewed the PIP, and discussed elements of Ms Hoang’s concerns with Ms McManus and Ms Dobe as well as her manager Ms Irwin. Ms Murison said that she also discussed the matter involving the concerns that the Muslim employee had raised with Ms Roden, without flagging that Ms Hoang had raised the concerns with her. Ms Murison said that she formed the view that: (a) It was appropriate for Ms Hoang to be on a PIP as she needed to focus more on building relationships with others and build a brand and recognition across the [2025] FWC 3225 12 company in relation to Inclusion & Diversity. She said that she observed Ms Hoang was quiet and tended to isolate herself in the office or worked from home; (b) Ms Hoang formed a dislike for Ms Roden. In her view, Ms Hoang’s perception of Ms Roden’s motivations were not consistent with objective records; and (c) Ms Hoang did not agree with Endeavour’s approach to Diversity and Inclusion and the reporting structure.52 [75] Ms Murison said that, having regard to Ms Hoang’s concerns about Ms Roden, she was conscious that Ms Roden managed a broader team of six people and that Ms Hoang’s view may be affected by her dislike of Ms Roden. As a result, Ms Murison said that she determined it would be appropriate to implement a 360-degree feedback tool to obtain broader feedback from the team about Ms Roden’s leadership.53 Alleged exclusionary conduct by Ms Roden [76] On 20 September 2024, Ms Hoang messaged Ms Murison on Microsoft Teams to document an incident. She wrote: Jan is excluding me again, this time in front of externals…Still trying to make it work, so I’ll continue to keep my head down and nudge as best I can.54 Follow up meeting with Ms Murison [77] On 24 October 2024, Ms Hoang had a one-on-one follow up meeting with Ms Murison. Ms Hoang said that during this meeting, Ms Murison advised that she intended to initiate a 360- degree feedback survey of her direct reports, including Ms Roden. Ms Hoang said that Ms Murison explained that the other direct reports were included in the process to avoid the impression that the survey was being initiated solely in response to Ms Hoang’s disclosures to protect her from potential retaliation.55 [78] Ms Murison said that she advised Ms Hoang in the meeting that she felt that the PIP was appropriate and that it would continue.56 [79] Ms Murison said that she was absorbed with other work commitments during October and November. She said that while she commenced discussions around a suitable 360-degree survey tool, she had not identified an appropriate tool. Ms Murison said that she was conscious that many People & Culture team members would be taking leave over December and January, including herself.57 [80] In or around December 2024, Ms Murison said that she reminded her direct reports, including Ms Roden, to remind their teams about how to report psychosocial incidents in the company’s system. Ms Murison said that she understood Ms Roden had updated her team about this shortly thereafter. Ms Murison said that she understood Ms Hoang had declined a further follow up demonstration offered by Ms Roden. Ms Murison said that Ms Hoang did not submit a psychosocial hazard incident or report during her employment.58 [81] In February 2025, Ms Murison said that she sought approval from the Executive Leadership Team to trial a psychosocial survey within People & Culture. The survey was ultimately deployed to the People & Culture team in June 2025.59 [2025] FWC 3225 13 RAP Launch [82] On 22 November 2024, Ms Hoang led the delivery of Endeavour’s Innovate RAP Launch event which was attended by internal and external guests. As part of the event planning, Ms Hoang organised symbolic gifts of Akubra hats for Aboriginal Elders and partners, as well, Mr Barton. Ms Hoang said that the event was a success, and she received positive feedback from an Aboriginal partner. Subsequently, Ms Hoang said she had a meeting with Ms McManus where Ms McManus relayed that someone had asked, ‘Why did Mark get a hat?’. Ms Hoang said that Ms McManus repeated the question with visible frustration and a critical tone. Ms Hoang said that this interaction left her feeling undermined and disempowered.60 Preparations for the IWD Event [83] In February 2025, Ms Hoang led the planning and agenda development for an IWD event on 7 March 2025. Ms Hoang said that she presented the event agenda to Ms Roden during a one-on-one meeting on 12 February 2025, who reviewed and endorsed it. Ms Hoang said that Ms McManus subsequently suggested in a separate meeting that she might take the event off Ms Hoang altogether. Ms Hoang said that when she expressed frustration at Ms McManus’ intervention, Ms McManus said that she sounded ‘aggressive’. Following this exchange, Ms Hoang said that Ms McManus directed her to rework the agenda multiple times and rejected her recommendation for an appropriate keynote speaker of colour. Ms Hoang said that this conduct led her to feel disempowered as her professional judgment was dismissed.61 Further interaction with Ms McManus and Ms Dobe in late February and March 2025 [84] In late February 2025, Ms Hoang had several meetings with Ms McManus. Ms Hoang said in one meeting, she said: ‘I feel like you’re trying to get rid of me’. Ms Hoang said that as Ms McManus did not respond to the comment, she felt that she was correct in her assessment. Ms Hoang said that in a further follow up meeting, Ms Hoang repeated the concern and Ms McManus responded by saying that Ms Hoang was wrong and that she was not trying to get rid of Ms Hoang. In early March 2025, Ms Hoang said that Ms McManus was repeatedly cancelling their one-on-one meetings.62 [85] On 11 March 2025, Ms Hoang said that she called an external consultant, Ms Crisford- Eade, to follow up on an email she had sent her that copied in Ms McManus and Ms Dobe. Ms Hoang said that she had learned from Ms Crisford-Eade that she had already responded to Ms McManus. Ms Hoang subsequently discovered that Ms McManus had emailed Ms Crisford- Eade on 10 March 2025, asking if Ms Hoang had responded to her questions below. Ms Hoang said that she found this conduct inappropriate and professionally concerning and raised her concerns directly with Ms McManus that same day. Ms Hoang said that she then forwarded that communication to Ms Dobe for her awareness.63 [86] On 13 March 2025, Ms Dobe invited Ms Hoang to catch up. Ms Hoang responded the next day indicating she preferred to wait for Ms McManus’ response first.64 [87] On 18 March 2025, Ms Hoang said that Ms Dobe made a short call to her via Microsoft Teams where she informed Ms Hoang that there would be a meeting the next day with herself, [2025] FWC 3225 14 Ms McManus and Ms Murison. Ms Hoang said that Ms Dobe did not disclose the purpose of the meeting, however indicated that Ms Hoang could bring a support person.65 Notice to Show Cause [88] On 19 March 2025, Ms Hoang attended a meeting with Ms McManus, Ms Murison and Ms Dobe in Endeavour’s Parramatta office. Ms Hoang’s support person, Mr Barton, dialled in via Microsoft Teams as he had left Parramatta earlier in the day to attend a meeting at Hoxton Park. At this meeting, Ms Murison read out a Notice to Show Cause letter, explained that Endeavour was proposing to terminate Ms Hoang’s employment and offered Ms Hoang one week of paid leave to respond in writing. Ms Hoang said that she was shocked by the meeting and the contents of the letter. Ms Hoang said that Ms Murison indicated that she had consulted Ms Roden in forming this decision. Ms Hoang said that Ms Murison advised that her response would be reviewed by herself and her manager, Ms Irwin.66 [89] The letter relevantly provided: Endeavour’s expectations of you in your role as Inclusion and Diversity Specialist include building relationships with internal and external stakeholders and through those relationships identifying the areas which require increased diversity and inclusion strategies and outcomes or where engagement from a diversity and inclusion perspective needs to be lifted and to do this in a way that is suitable and appropriate for our business. From this engagement, you are required to create and build projects to achieve these outcomes and ensure its implementation has lasting effect. This role is pivotal to Endeavour consistently ensuring that it is improving and implementing best practices. Your performance has demonstrated that you have not been able to meet these outcomes to support Endeavour’s inclusion and diversity strategy and your competency remains below what we expect of a Specialist at the level required for this role and what we need for a fully functioning member of our team. Because of this, and despite our considered efforts to support you in performing your role, in our view your performance is not to the standard reasonably expected by Endeavour and unfortunately, we are proposing to terminate your employment with Endeavour. We would like to understand from you whether there are any reasons why you believe that your employment should not be terminated. Please provide your response to me in writing by COB Tuesday 25 March 2025. If you have any questions about this process or wish to discuss the matter please give me a call on [redacted]. I am happy to provide you with a period of paid special leave through 25 March 2025 if it will assist you to provide your response. If this is something you wish to take up please confirm it in writing with Jo. [90] Ms Hoang said that she responded saying that she believed that Endeavour had a structural racism issue. Ms Hoang said that Ms Murison was dismissive of her and said that Ms Hoang held a ‘particular worldview’. Ms Hoang also said and that she felt that she was being pushed out for doing her job. Ms Hoang said that Ms Murison responded defensively and said she took offence. By the conclusion of the meeting, Ms Hoang said that she felt that she believed the decision to terminate her employment had already been made.67 [91] Mr Barton gave evidence that at the conclusion of the meeting, he was shocked by the treatment of Ms. Hoang, as he had always found her to be diligent, thorough, and consistently [2025] FWC 3225 15 seeking approval for all documents she handled. Mr Barton said that following the meeting, he called Ms Hoang to check on her welfare. Mr Barton said that Ms Hoang was crying and distraught over the way she had been treated. Mr Barton told Ms Hoang that, in his opinion, the meeting felt like an ‘ambush’ and reinforced his previous belief that Endeavour was attempting to push Ms Hoang towards resignation.68 [92] Ms Murison said that she disagreed with Mr Barton’s view that the meeting was an ambush. Ms Murison pointed to the fact that Ms Hoang had been provided with notice of the meeting and had the opportunity to organise to have a support person present.69 [93] Following the meeting, Ms Murison sent Ms Hoang a copy of the show cause notice by email. Ms Hoang then took a week off work to prepare her response. [94] On 20 March 2025, Ms McManus said that she was with Mr Barton at an offsite event. She said that she asked Mr Barton whether he and Ms Hoang were okay. Ms McManus said that Mr Barton said that Ms Hoang was still processing the meeting.70 [95] Ms McManus said that while she wanted to check in on Ms Hoang, she waited a few days given Mr Barton’s response. On 23 March 2025, Ms McManus said that she sent Ms Hoang a text message saying, ‘Hi Leigh I just wanted to reach out to see how you are?’. Ms McManus said she expected Ms Hoang to respond and that they would have a discussion. On 25 March 2025, Ms McManus said that she was advised by Ms Murison that Ms Hoang had resigned.71 Show Cause Letter and Resignation [96] On 25 March 2025, Ms Hoang submitted her response to the show cause letter where she resigned effective immediately. In that letter, Ms Hoang cited the prior disclosures she had made relating to allegations of structural racism, psychosocial harm and exclusion. Ms Hoang said that she did not wish to resign, however she felt that the situation had become untenable, and she was forced to leave to protect her dignity, mental health and wellbeing. Ms Hoang said that she did not have alternative employment secured at the time of her resignation and she resigned under duress in response to Endeavour’s pattern of conduct.72 [97] Ms Murison said that she received Ms Hoang’s response that day at 4:52pm, that it was extensive, and that she did not have an opportunity to consider the response until later that evening. Ms Murison said that, in resigning this way, she and Ms Irwin did not have an opportunity to consider Ms Hoang’s response and decide whether or not Endeavour would terminate Ms Hoang’s employment. [98] Ms Murison said that she emailed Ms Hoang to confirm that Endeavour would pay her one month’s notice that she requested in her resignation. Ms Murison said that she was happy to do this even though it was not required, to allow time for Ms Hoang to find another job. [2025] FWC 3225 16 Legislation [99] The application has been brought under s.365 of the FW Act which provides: 365 Application for the FWC to deal with a dismissal dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute. [100] The issue between the parties which the Commission has been asked to determine is whether Ms Hoang was dismissed by Endeavour. The dictionary at clause 12 of the FW Act refers to section 386 for the definition of ‘dismissed’. [101] Section 386 of the FW Act provides: 386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the person was an employee: i. to whom a training arrangement applied; and ii. whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or (c) the person was demoted in employment but: i. the demotion does not involve a significant reduction in his or her remuneration or duties; and ii. he or she remains employed with the employer that effected the demotion. (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment [2025] FWC 3225 17 of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part. Consideration [102] I have considered the submissions made by the parties and all the evidence in my determination of this matter and the conclusions I have reached. [103] Ms Hoang alleged that she was terminated by Endeavour on 25 March 2025 for exercising workplace rights and due to unlawful discrimination, in breach of ss.340–341 and 351 of the FW Act. However, these claims cannot be determined until the Commission deals with the matter under s.368, and only if the Commission issues a certificate of attempted conciliation under s.368(3). Under s.368, the Commission may deal with the matter in numerous ways including by mediation or conciliation, or by making a recommendation or expressing an opinion. [104] If there is a dispute as to whether the alleged dismissal the subject of the application has occurred, this is a preliminary issue which, according to the Federal Court Full Court decision in Coles Supply Chain Pty Ltd v Milford,73 ‘must be resolved before the powers conferred by s.368 can be exercised at all’.74 [105] In this regard, the Full Bench in Lipa Pharmaceuticals Ltd v Mariam Jarouche75 stated: Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.76 [106] As Endeavour has claimed that Ms Hoang was not dismissed, I must find that a dismissal occurred within the meaning of s.386(1) before conducting a conciliation conference or otherwise dealing with this matter under s.368. [107] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli,77 the Full Bench said the following in relation to the proper construction of s.386(1): [47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows: (1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the [2025] FWC 3225 18 employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. (2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element. [48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter. [108] Ms Hoang claimed that she had been forced to resign pursuant to s.386(1)(b) but contended during closing submissions that in the alternative, she was dismissed pursuant to s.386(1)(a). As Endeavour had prepared its case on the basis that Ms Hoang was relying on s.386(1)(b), it sought and was granted an opportunity to file submissions after the hearing in relation to s.386(1)(a). [109] From the outset, it appeared that Ms Hoang and Endeavour had different expectations in relation to the duties that Ms Hoang would be required to perform in her role and different views about how DEI should be implemented at Endeavour. Ms Hoang believed that these different expectations with respect to her role arose from Endeavour’s failure to advise her that it was recruiting for an Inclusion & Diversity Specialist, a lower level role than the Inclusion & Diversity Manager role she applied for. A key aspect of the role was the establishment of an Employee Reference Group which Ms Hoang had no previous experience of setting up.78 [110] In relation to DEI at Endeavour, Ms Hoang’s view was that her responsibility was to document, analyse and bring attention to the systems, behaviours and decisions that impact equity outcomes within an organisation.79 She believed that arising from these responsibilities, she was obliged to raise concerns about Ms Roden hosting the NAIDOC Week events instead of Mr Barton and was distressed when these concerns were dismissed by Ms Roden. There is no dispute between the parties that Ms Hoang had a conversation with Ms Roden about Mr Barton hosting the NAIDOC Week events and that Mr Barton ultimately did not host these events. However, Ms Hoang and Ms Roden gave different accounts about the outcome of their meeting, with Ms Hoang claiming that Ms Roden was hostile and dismissive of her recommendation that Mr Barton host the events and that their working relationship was fundamentally damaged. Ms Roden on the other hand, said that she was not hostile, that the discussion was to ensure they would better understand each other’s perspectives and positions and that Ms Roden and Ms Hoang continued to engage in a professional and courteous way at work. [2025] FWC 3225 19 [111] In my view, Ms Hoang was genuine in her concerns about Ms Roden not accepting her recommendation about Mr Barton hosting the NAIDOC Week events. It is understandable that a person in Ms Hoang’s position, employed and recognised as a DEI specialist, would feel undermined if they believed their employer was ignoring their advice about best practice. In my view, both Ms Hoang and Ms Roden both made their best efforts to give truthful evidence to the Commission about their meeting in June 2024 and their different accounts can be explained by their subjective perceptions of what occurred, which were potentially influenced by their respective views about the matters they were discussing. However ultimately, regardless of whether Ms Roden responded positively or negatively to Ms Hoang’s advice at the meeting, I am not satisfied on the balance of probabilities, that the meeting between Ms Hoang and Ms Roden in June 2024 was the catalyst for the PIP having regard to the evidence before me. [112] From Endeavour’s point of view, the reason for the PIP was because Ms Hoang needed to focus more on connecting with others, building relationships and be more recognised and have more of a voice across Endeavour in relation to DEI. In this regard, Ms Murison said she had observed that Ms Hoang was quiet and tended to isolate herself in the office or worked from home.80 It is relevant to my consideration of this matter that the PIP meeting on 10 September 2025 was the first time that Endeavour confirmed in writing its concerns about Ms Hoang’s performance. Ms McManus’ evidence suggested that she had concerns about Ms Hoang’s performance for a period prior to the PIP meeting, however, I am satisfied, based on the evidence before me, that Ms McManus did not advise Ms Hoang that she had such concerns prior to 10 September 2025. [113] Mr Barton was Ms Hoang’s support person at the meeting 10 September 2025 and said that after the meeting, Ms Hoang was visibly distraught, believing that, through the Innovate RAP development process, she had already built meaningful relationships with staff and external Innovate RAP partners.81 Mr Barton said that some time later, he shared his opinion with Ms Hoang, that, based on everything that had transpired, he believed that she had completed the RAP document and that Endeavour was now pushing her toward resignation.82 [114] The PIP listed a number of required outcomes and strategies and explained the timeframe and what support would be provided. The ‘final review date’ for the PIP was 10 October 2024. [115] Under the terms of the PIP, it was open to Endeavour to subject Ms Hoang to disciplinary action up to and including termination of employment if she did not meet the required performance targets. The fact that this did not occur and that Ms Hoang subsequently passed the PIP and probation on 18 October 2024 established that Endeavour’s concerns about Ms Hoang’s performance had been addressed by this time. [116] Ms McManus’ evidence was that the show cause process came after approximately 10 months of performance management however there is no written record of any performance management process prior to the show cause process apart from the PIP in September 2024. Ms McManus said that she had such records however these records were not before the Commission. Ms McManus’ evidence that approximately 10 months of performance management occurred is inconsistent with Endeavour’s decision not to commence the [2025] FWC 3225 20 disciplinary action referred to in the PIP and to confirm that Ms Hoang passed the PIP and probation on 18 October 2024. [117] The evidence shows that following the PIP, Ms McManus next became concerned about Ms Hoang’s performance in relation to missing a deadline for a WGEA Report and her work in organising an IWD event. These concerns were confirmed in an email from Ms McManus to Ms Murison on 20 February 2025 which refers to meetings which occurred between Ms McManus and Ms Hoang on 18 February 2025 to discuss the IWD event. Ms McManus’ email shows that from her point of view, the relationship between Ms McManus and Ms Hoang was under significant strain by February 2025. Ms Hoang’s evidence was that the communications team had delayed the issuing of the WGEA report. Ms Hoang’s evidence in relation to IWD event was that Ms McManus directed her to rework the agenda multiple times which had been agreed with Ms Roden and rejected her recommendation for an appropriate keynote speaker of colour. [118] Ms McManus gave the following evidence about the show cause process: So after repeated attempts at trying to rectify performance and giving lots of performance feedback, those two critical pieces of work that I gave to Ms Hoang were the International Women's Day event, and our gender pay gap statement. Both of those were – the gender pay gap statement, we missed the deadline from WGEA, so I had to call up and get some advice around how we could manage that to still be included, because they had a cut-off, and so I did that. And the International Women's Day agenda just wasn't progressing. So we were kind of three weeks out. We hadn't invited anybody, the agenda wasn't locked in, we hadn't locked in external speakers. And so I raised my concern to Ms Dobe in the first instance, around what do we need to do to continue to kind of get some performance structure happening. And the advice was around – at the end of the PIP, so going back to the PIP, we – I wanted to keep Ms Hoang on. I was desperate to keep working with her, and so we agreed that I would make sure that we had regular performance discussions, and so this was part of that. For me, those two pieces of work are where it really escalated to her not being able to deliver the requirements of her role independently, and that's when the decision was made to then go down the path of the show cause letter.83 [119] Based on this evidence, I find that Endeavour’s concerns about the WGEA report and the IWD event were the catalyst for the show cause process. However, Endeavour has not provided a satisfactory explanation as to why it did not undertake an initial investigation in relation to its concerns about these matters, which would have involved seeking a response from Ms Hoang to its concerns and then making findings about whether the performance issues were substantiated. Instead, Endeavour made determinations about these matters without seeking a response from Ms Hoang and relied on matters which had been resolved through the completion of the PIP in proposing to terminate Ms Hoang’s employment. It is therefore difficult to see how there was any genuine prospect of Ms Hoang being able to convince Endeavour, as part of the show cause process, to revisit matters which it had already made adverse findings about. [120] During the hearing, Ms Murison gave evidence that a full investigation would not usually be undertaken before a show cause letter is issued and that the show cause is asking someone to explain and provide their side of the story.84 Ms Murison went on to say: [2025] FWC 3225 21 the very act of giving [Ms Hoang] the notice to respond to is her opportunity to respond and is important, in my view, that you set out the concerns quite clearly and articulately so that she knows exactly what she's responding to rather than me just having a meeting with her about something. There needs to be more structure and format to a matter like this which, you know, I think as you appreciate is relatively serious. So, it's important that the concerns get captured in the show cause letter, that that letter is then given to Leigh and that she is then given an opportunity to respond.85 [121] During the hearing, I asked Ms Murison whether all disciplinary meetings or procedures start with a show cause letter. Ms Murison responded as follows: It depends on what it is. So, for example, like safety type ones and that there'd usually be like a safety investigation. Like if someone's not followed a procedure or something on the network there's usually safety investigations. And then they would have already usually been interviewed as part of that and then there might be a letter like this. Other things, it may be something where we engage an investigator something. If it's serious kind of bullying allegations or something like that we'd engage an investigator. So there would be a letter of allegations. There'd be an investigation and then there'd be, depending on what the outcome is a show cause letter or something like this, if it was substantiated. Or it could be some other kind of outcome, depending on what the finding would be about it. It just really depends on the circumstances of the matter.86 [122] I do not accept that the show cause process was a genuine opportunity for Ms Hoang to respond to Endeavour’s concerns about the WGEA report and the IWD event based upon the plain and ordinary meaning of the words in the show cause letter. The letter: • made specific findings about Ms Hoang’s performance in relation to the WGEA report and the IWD event and with respect to Ms Hoang’s role more generally; • advised that Endeavour was proposing to terminate Ms Hoang’s employment; and • stated that Endeavour wanted to understand from Ms Hoang whether there were any reasons why she believed that her employment should not be terminated. [123] Relevantly the show cause letter used different language than the PIP. The PIP advised that failure to meet the required performance targets by the relevant deadlines may result in disciplinary action, up to and including termination of employment. In contrast, the show cause letter made findings about performance issues and did not indicate that a range of potential disciplinary action was being considered. Rather the letter advised that the only disciplinary action that was being considered was dismissal. If Endeavour was genuinely open to considering options other than termination, it could have and should have stated this in the show cause letter, but it did not do so. [124] During the hearing, the following exchange occurred between Ms McManus and myself in relation to the show cause process: DEPUTY PRESIDENT WRIGHT: Were you aware that the show cause letter actually had a line in it where termination was proposed, or is it the case that you – that that bit of the process was looked after by Ms Murison? MS McMANUS: I knew that there would be options for different things at the end, and that termination was not the outcome of the letter. Like, that's not the only outcome of the letter. I definitely knew [2025] FWC 3225 22 that there were opportunities for other things, and that's what I was personally hoping for. DEPUTY PRESIDENT WRIGHT: Is that something you discussed with Ms Murison? MS McMANUS: I'm trying to remember. I think it was – I think the discussion was whether – like, what do we need to do to really push forward this accountability around performance. DEPUTY PRESIDENT WRIGHT: Because I don't know whether you've looked at the show cause letter recently, but it doesn't actually refer to there being any other options. I can take you to it if you want me to but it's – there is some wording which sounds like there's been quite definite decisions made in relation to performance issues, or findings, and then it refers to termination being proposed. So my reading of the letter is that decisions have been made that performance is not satisfactory, and that there's been a preliminary view that termination is appropriate, subject to hearing from Ms Hoang. It doesn't actually have anything about other options. Is that something that comes as a surprise to you, that it doesn't have other options, or are you familiar with the letter and you know what it says? MS McMANUS: I've seen the letter but I read the letter as – and my conversations were there were other options. And then even the Friday before that, I was still approving system access for Ms Hoang to do something to do with our April 1 event. So I wasn't expecting that to be the outcome. DEPUTY PRESIDENT WRIGHT: So once Ms Hoang's response was received, would you have been part of the decision-making process to work out what to do next? MS McMANUS: Yes, because it would've probably been another performance structure that I would have had to manage as her manager.87 [125] I am troubled by Ms McManus’ evidence as she appeared to genuinely believe that Ms Hoang would have remained employed following the show cause process, and possibly subject to a further PIP. It appears that other managers may have represented to Ms McManus that dismissal was an unlikely outcome although this is wholly inconsistent with the terms of the show cause letter. Further, I have difficulty accepting that Endeavour was genuinely considering offering Ms Hoang a further PIP or some other option which involved Ms Hoang’s employment being maintained as these would not have required Ms Hoang to undergo a show cause process. [126] Ms Murison’s evidence was that after receiving a response to a show cause letter, a memo would be prepared for consideration by decision makers at Endeavour for the purpose of making a final decision in relation to the matter. Endeavour submitted that as an experienced human resources professional who had worked in the People and Culture team for a year, Ms Hoang was aware of the show cause process. This may have been the case, however the letter did not set out the process. [2025] FWC 3225 23 [127] During the hearing, it was put to Ms Hoang by Endeavour’s legal representative that one of the options that could have happened, had she not resigned, could have been a further performance improvement plan. Mr Hoang responded as follows: …usually in good practise HR, the performance improvement plan comes before the show cause. The show cause is the end. It's one of the - it's, like, the penultimate, you know, action before termination. And that did not happen in my case. There was no warning. There were no warnings. There was no further performance improvement plan. There's nothing documented in the evidence.88 [128] In my view, a reasonable person in Ms Hoang’s position would have been led to believe, based on the terms of the letter and what was represented to her at the meeting, that Endeavour’s decision was limited to whether she could be dismissed or not, based upon a determination that it had already made, without Ms Hoang’s input, that Ms Hoang’s performance was not to the standard required by Endeavour. [129] I believe that the show cause meeting was an unfair process which was effectively sprung on Ms Hoang without any forewarning. I also have concerns that arrangements were not made to have Mr Barton, who was Ms Hoang’s support person, attend the meeting in person. There are a number of decisions of the Commission in which the role of a support person in disciplinary meetings has been considered. In considering whether an employee who resigned during a disciplinary meeting was unfairly dismissed, Deputy President Anderson observed in Mr Demesw Wederay v Airline Cleaning Services Pty Ltd T/A Cabin Services Australia:89 In the context of the events of 19 April, the failure to offer Mr Wederay a support person of his choice was a failure of substance. A support person can assist an employee to assert their rights, act consistently with their rights and not act contrary to their interests. In the context of the events of 19 April, a support person would have been entitled to take a role in moderating Mr Wederay’s agitated state, give him confidence to state his objections to the written warning, assert his right not to sign the warning, counsel him against a heat of the moment resignation, ascertain his real intention and counsel him on whether a heat of the moment resignation, once expressed, should be instantaneously withdrawn. The conduct of Cabin Services in not offering Mr Wederay an opportunity to be accompanied by a support person of his choice was a significant and material failure on its part.90 [130] In Ariana Goss v Health Generation Pty Ltd,91 Deputy President Clancy said: Support persons have an important and useful role to play when involved in investigatory and disciplinary matters in the workplace. While a support person is not an advocate per se and should not hijack a lawful and reasonable process or answer for an employee, I do not subscribe to the absolute view that they should only be seen and not heard. This is because there may be circumstances in which an employee might be experiencing difficulty in comprehending aspects of the process or an employer might be misconstruing an explanation and the support person present can help improve the quality of the dialogue.92 [131] I agree with these observations of Deputy President Anderson and Deputy President Clancy that a support person has an important role in a disciplinary process in assisting an employee in a range of ways. In my view, it was difficult for Mr Barton to provide such assistance from a completely different location to Ms Hoang while three managers sat in the [2025] FWC 3225 24 same room as Ms Hoang. Further, the requirement that Ms Hoang sit in the same room as three managers without her support person being physically present while being told for the first time that Endeavour was proposing to terminate her employment created an obvious power imbalance which had the potential to cause unfairness for Ms Hoang. [132] Endeavour submitted that Ms Hoang was given the opportunity to ask questions about the letter at the meeting so she could have used this to obtain further information about the show cause process.93 Ms Hoang was not aware prior to the meeting that Endeavour was proposing to dismiss her. Ms Hoang’s evidence was that she was shocked by the meeting and the contents of the letter so is reasonable to assume that she was not well prepared to ask questions during the meeting. If Mr Barton attended the meeting in person, it is more likely that he would have been able to assist Ms Hoang by asking questions about the process and requesting breaks to have private discussions with her where appropriate. To paraphrase Deputy President Anderson and Deputy President Clancy, Mr Barton could have assisted Ms Hoang to assert her rights and helped improve the quality of the dialogue if he had attended the meeting in person. The decision by Endeavour to proceed with the meeting in circumstances where Mr Barton could only attend the meeting remotely may well have deprived Ms Hoang of an opportunity to be fully informed of the show cause process and that dismissal was not the only outcome being considered by Endeavour. [133] Endeavour relied upon decisions of the Commission in Pacific National (NSW) Limited v Ashley Charles Bell (Bell)94 and Jodie Moore v Woolworths Group Limited T/A Big W (Moore)95 to argue that an employee’s resignation during a disciplinary process is not a forced resignation within the meaning of s.386(1)(b) of the FW Act. [134] In Bell, the applicant, Mr Bell, had been employed by Pacific National (and its predecessors) as a train driver for approximately 30 years. Mr Bell was accused of contacting another train driver, Mr Presland, and advising him not to come into work and that Mr Bell would write on Mr Presland’s timesheet that Mr Presland had worked the shift. Mr Bell attended an initial investigation meeting with his employer then attended a subsequent investigation meeting during which he tendered his resignation. At first instance, the Commission found that Pacific National’s course of conduct forced Mr Bell to resign for reasons which included that Pacific National’s management informed Mr Bell’s union delegate that Pacific National intended to terminate Mr Bell’s employment, knowing that the union delegate would pass this on to Mr Bell. On appeal, the Full Bench found that there was no evidence to support such a finding and determined that no-one from Pacific National, either directly or indirectly, told Mr Bell that Pacific National intended to terminate his employment. The Full Bench concluded that Mr Bell resigned voluntarily. [135] In Moore, the applicant, Ms Moore, was accused of using machinery in the course of her duties without the correct safety equipment. Ms Moore was subsequently suspended pending an investigation of the incident, attended an investigation meeting, and admitted to the alleged safety breaches when using the machinery. At a second meeting, the employer read out a show cause letter to Ms Moore which advised that it was considering terminating her employment, however she had an opportunity to tell the employer why it should not do so by 5:00 pm the following day. Ms Moore responded to the show cause letter by email and was invited to attend a further meeting. Ms Moore claimed that a senior manager (who was not involved in the dismissal) called her to advise that her employment would be terminated during [2025] FWC 3225 25 the meeting that was scheduled for 1:00 pm that day based upon his observation of a draft letter of termination on the store manager’s computer. Ms Moore then tendered her resignation prior to the meeting. [136] In Moore, Deputy President Lake referred to Bell and observed that a statement that an employee may be terminated as a result of an investigative process is not, on its own, determinative of whether a constructive dismissal has occurred.96 The Deputy President concluded that there was no reliable evidence before the Commission that the employer engaged in any conduct that satisfied the requisite element of compulsion.97 The Deputy President found that it would be a perverse outcome to consider an objectively fair investigation and show cause process as imposing forcibly upon Ms Moore that she must resign.98 [137] Ms Hoang’s situation can be distinguished from the cases of Moore and Bell in a number of respects. Firstly, the allegations in Moore and Bell were subject to an initial investigation by the employer which the employee was involved in, before the show cause process commenced. Secondly, there was no dispute by Mr Bell and Ms Moore that the alleged conduct occurred. Thirdly, Mr Bell and Ms Moore did not resign because the relevant employer had informed each of them directly that it was proposing to terminate their employment. Mr Bell resigned because he believed that the employer intended to terminate his employment, based on a conversation he had with his union delegate. Ms Moore resigned because a senior manager (who was not involved in the dismissal) advised her that her employment would be terminated based upon his observation of a draft letter of termination on the store manager’s computer. Fourthly, there was no suggestion that the investigation and show cause process in Moore and Bell was unfair. In Ms Hoang’s case: • there was no initial investigation involving Ms Hoang to establish the veracity of the concerns in the show cause letter; • Ms Hoang disputed the alleged performance concerns; • Ms Hoang resigned after being informed directly by her employer, in writing that it was proposing to terminate her employment; and • the resignation followed an unfair process because there was no investigation, and Ms Hoang was deprived of the opportunity of having her support person attend in person. [138] The facts in Ms Susan Carter v Metro Trains Sydney Pty Ltd99 are more analogous to Ms Hoang’s circumstances than those in Moore and Bell. In this case, the applicant, Ms Carter was accused of inappropriate conduct during her probationary period, sent home from work ‘due to the seriousness of the matter’, and told to wait for someone to call her to advise her of the next steps. After commencing to leave the workplace, Ms Carter returned to speak to her manager, advised that she was shocked and disgusted by the allegations and resigned. Ms Carter subsequently commenced proceedings pursuant to s.365 of the FW Act, claiming that bullying and adverse actions of the employer made her resign under duress while being emotionally upset and that her verbal heat of the moment resignation came after continued hurtful defamatory accusations and unfair treatment. During a hearing to consider the employer’s jurisdictional objection that Ms Carter did not resign, CCTV footage of the relevant incident was played which showed that at least some of the alleged inappropriate conduct did not occur. In determining the matter, Deputy President Cross described the relevant test as follows: What must be shown is that the conduct of the employer was “intended to bring the employment to an end”. The usual purpose of an investigation is not to bring about termination of [2025] FWC 3225 26 employment. The intention is to ascertain, with a degree of certainty, what event or series of events transpired. Once that information is gathered, then the employer may decide what action is appropriate.100 [139] The Deputy President concluded that Ms Carter’s apparent concern as to the fairness of the proposed investigation of her actions was soundly based. The Deputy President noted that extremely serious allegations were being put against Ms Carter and at least part of the factual outline put in substance was demonstrably false. The Deputy President considered that the factual misstatements were put with the intention of bringing Ms Carter’s employment to an end, either pursuant to the probationary period or by resignation.101 [140] Ms Hoang’s situation is somewhat different to Ms Carter’s as there is disagreement between the parties about whether there was substance to Endeavour’s concerns about Ms Hoang’s performance. In my view, Ms McManus presented as a genuine and credible witness and I accept that she had concerns about Ms Hoang’s performance, however given the lack of documentary evidence before me, I am unable to make findings about whether these concerns were well founded, particularly as Ms Hoang was not afforded with a proper opportunity to respond to these concerns prior to the commencement of the show cause process. Further, I do not accept that Ms Manus raised any concerns formally with Ms Hoang about her performance during the period from the conclusion of the PIP to immediately before the meeting between Ms McManus and Ms Hoang on 18 February 2025 as there is no documentary evidence to support such a finding. Further, I note that Ms McManus’ evidence that she expected Ms Hoang to continue in employment following the show cause process potentially indicates that Ms McManus did not regard the alleged performance issues as sufficiently serious to warrant dismissal. [141] Just as I cannot make findings that Ms Hoang’s performance was poor, there is insufficient evidence for me to find that Endeavour’s concerns about Ms Hoang’s performance were ‘demonstrably false’. However, in my view, the show cause process was unfair and in that sense, it cannot be regarded as an ‘an objectively fair investigation and show cause process’ as described by Deputy President Lake in Moore and as therefore militating against a finding of a forced resignation. [142] In my view, there is insufficient evidence to support a finding that Endeavour engaged in the show cause process with the intention of bringing Ms Hoangs’s employment to an end. However, I find that the termination of Ms Hoang’s employment was the probable result of Endeavour’s conduct such that Ms Hoang had no effective or real choice but to resign based on the following course of conduct by Endeavour: • Endeavour failed to communicate to Ms Hoang that it had concerns about her performance during the period from 18 October 2024 to 18 February 2025 although it claimed it continued to have such concerns; • Endeavour failed to provide Ms Hoang with an opportunity to respond to its concerns about the WGEA report and the IWD event before making adverse findings about her with respect to these matters; • Endeavour did not communicate to Ms Hoang that options other than dismissal were being considered as an outcome of the show cause process; and [2025] FWC 3225 27 • Endeavour did not facilitate the in person attendance of Mr Barton at the show cause meeting which may have deprived Ms Hoang of the opportunity to clarify the potential outcomes of the process. [143] As such, I find that Ms Hoang was forced to resign within the meaning of s.386(1)(b) of the FW Act. It follows that I do not need to consider whether Ms Hoang was dismissed within the meaning of s.386(1)(a). [144] Ms Hoang submitted that while the Commission is not being asked to determine the merits of her discrimination or safety allegations at this stage, these matters form the relevant context for assessing whether Ms Hoang’s resignation was truly voluntary. Ms Hoang submitted that allegations of racial exclusion, reprisal for protected disclosures and systemic undermining of the DEI function are central to that assessment. Given the decision I have reached in this matter, I do not need to consider this submission or make findings in relation to any of these matters which I have not already dealt with, and I decline to do so. Conclusion [145] Taking into account the parties’ submissions and the evidence before me, I find that Ms Hoang resigned from her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by Endeavour. [146] There is no evidence that establishes, and the parties have not submitted, that the exemptions in s.386(2)(a)-(c) apply. Accordingly, I find that Ms Hoang has been dismissed within the meaning of s.365 of the FW Act. [147] The jurisdictional objection raised by Endeavour is dismissed and I order accordingly. [148] The matter will shortly be listed for Conference so that the Commission can deal with the matter as required by s.368 of the FW Act. DEPUTY PRESIDENT Appearances: Ms L. Hoang, the Applicant for herself Ms S. Thirukumar, Solicitor for the Respondent Hearing details: [2025] FWC 3225 28 2025 26 June, 8 and 18 July In person, Sydney Final submissions: 25 July 2025, for the Respondent 1 August 2025, for the Applicant Printed by authority of the Commonwealth Government Printer <PR793065> 1 Witness Statement of Leigh Hoang dated 26 May 2025 (Hoang Statement) [10], Digital Hearing Book (DHB) 52 2 Ibid [8], DHB 51-52 3 Ibid [11]-[19], DHB 52-53 4 Ibid [21], DHB 53-54 5 Ibid [22]; [24], DHB 54 6 Ibid [25]-[26], DHB 54 7 Statement of Jan Roden dated 10 June 2025 (Roden Statement) [16]-[17], DHB 230 8 Hoang Statement [28]-[35], DHB 54-55 9 Statement of Joanne McManus dated 10 June 2925 (McManus Statement) [34], DHB 236 10 Hoang Statement [36]-[39], DHB 55 11 Ibid [40]-[41], DHB 56 12 Ibid [43]-[44], DHB 56 13 Ibid [45]-[49] DHB 56 14 Ibid [50]-[52], DHB 57 15 Ibid [53]-[57], DHB 57 16 Roden Statement [19], DHB 230 17 Hoang Statement, [59] DHB 58 18 Ibid [61], DHB 58 19 McManus Statement [39]-[40], DHB 237 20 Ibid [41] 21 Hoang Statement [64]-[66], DHB 58 22 Ibid [67]-[69], DHB 58 23 Roden Statement [20], DHB 230 24 Witness Statement of Diane Samaroo (Samaroo Statement) [7]-[10], DHB 77 25 Roden Statement [24], DHB 231 26 Ibid [23], DHB 231 27 Ibid [27], DHB 231 28 Transcript PN 1505 29 Statement of Emma Murison (Murison Statement) [48], DHB 195 30 Ibid [49], DHB 195 31 Transcript PN 412 [2025] FWC 3225 29 32 Hoang Statement [78]-[79], DHB 60 33 Ibid [80], DHB 60 34 Ibid [83], DHB 60 35 Ibid [84], DHB 61 36 Ibid [85], DHB 61 37 Ibid [86], DHB 61 38 McManus Statement [7], DHB 232 39 Ibid [9], DHB 233 40 Ibid [10], DHB 233 41 Ibid [11], DHB 233 42 Ibid [13], DHB 233 43 Ibid [14], DHB 233 44 Ibid [16], DHB 234 45 Roden Statement [8], DHB 228 46 Ibid [9], DHB 228-229 47 Ibid [10], DHB 229 48 Ibid [92]-[93], DHB 62 49 Murison Statement [24] DHB 190-192 50 Ibid [26], DHB 192 51 Ibid 52 Ibid [28], DHB 192 53 Ibid [29], DHB 193 54 Ibid [103], DHB 63 55 Ibid [106]-[112], DHB 63-64 56 Murison Statement [30], DHB 193 57 Ibid [30]-[31], DHB 193 58 Ibid [35], DHB 193-194 59 Ibid [32]-[34], DHB 193 60 Hoang Statement [112]-[116], DHB 64-65 61 Ibid [119]-[127], DHB 65-66 62 Ibid [128]-[133], DHB 66-67 63 Ibid [134]-[135], DHB 67 64 Ibid [137], DHB 67 65 Ibid [138], DHB 67 66 Ibid [143]-[147], DHB 68 67 Ibid [149]-[151], DHB 68-69 68 Statement of Mark Barton dated 20 May 2025 (Barton Statement) [11]-[12], DHB 76 69 Murison Statement [55], DHB 196 70 McManus Statement [20], DHB 234 71 Ibid [21]-[23], DHB 234 72 Hoang Statement [155]-[157], DHB 70 73 [2020] FCAFC 152 74 Ibid, [67] 75 [2023] FWCFB 101 [2025] FWC 3225 30 76 Ibid, [23] 77 [2017] FWCFB 3941 78 Ibid 79 DHB 122 80 Murison Statement [28], DHB 192 81 Barton Statement [4], DHB 76 82 Ibid [6], DHB 76 83 Transcript PN 1061 84 Transcript PN 609-610 85 Transcript PN 632 86 Transcript PN 683 87 Transcript PN 1066-1069 88 Transcript PN 1012 89 [2017] FWC 4603 90 Ibid [84] 91 [2021] FWC 1751 92 Ibid [48] 93 Transcript PN 1714 94 [2008] AIRCFB 555 95 [2020] FWC 963 96 Ibid [26] 97 Ibid [29] 98 Ibid 99 [2023] FWC 379 100 Ibid [70] 101 Ibid [78]