1 Fair Work Act 2009 s.394—Unfair dismissal Theresa Redman v Ideal Introductions Pty Ltd (U2024/273) COMMISSIONER SIMPSON BRISBANE, 12 JUNE 2024 Application for an unfair dismissal remedy – Jurisdictional objection – Was dismissal according to Small Business Fair Dismissal Code – Jurisdictional Objection dismissed – Section 387 considered - Dismissal not Unfair [1] On 8 January 2024, Ms Theresa Redman (Ms Redman / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Ideal Introductions Pty Ltd (the Respondent). [2] I listed the matter for a directions hearing on 12 March 2024. The matter was listed for hearing on 29 April and 30 April 2024. [3] Ms Redman appeared at the hearing on her own behalf. The Respondent was represented by its Managing Director, Ms Linda Prescott. [4] At the commencement of proceedings on 29 April 2024 both parties confirmed that they would agree to a proposal from the Commission that the matter proceed as a determinative conference. A further attempt to resolve the matter on the day of the determinative conference was unsuccessful. [5] The Applicant relied on her Form F2 Application and its attachment, written submissions, an initial witness statement filed on 26 March 2024 with attachments A to L1, a witness statement in reply on 18 April 2024 with attachments M to KK.2 [6] The Respondent relied on its Form F3 Response, written submissions, a witness statement filed on 11 April of Ms Prescott,3 and various documents provided with that statement. [7] Both witnesses were affirmed and gave evidence concurrently. [8] The Applicant was dismissed from her employment by the Respondent on 3 January 2024, with four weeks’ notice. The Application was filed on 8 January 2024, within 21 days of [2024] FWC 1515 DECISION [2024] FWC 1515 2 dismissal. There is no dispute that the Respondent is a small business employer having five (5) employees at the time of termination. The Respondent argues the dismissal was consistent with the Small Business Fair Dismissal Code. [9] The last day Ms Redman was required to report for work with the Respondent was 19 December 2023, however as indicated above, both parties agreed that the intention was that the employment would end on 3 January 2024 when the notice period expired. Relevant legislation [10] Section 385 of the Act states: “385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.” [11] The first question is whether the dismissal was consistent with the Small Business Fair Dismissal Code. [12] The Code reads as follows “The Code Summary Dismissal It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report. Other Dismissal [2024] FWC 1515 3 In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations. Procedural Matters In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.” [13] There is no dispute that the Respondent is a small business. In the event that the jurisdictional objection is unsuccessful the question for determination falls to whether Ms Redman’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, which states: “387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and [2024] FWC 1515 4 (e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant.” Evidence and Submissions [14] Ms Redman commenced employment with the Respondent on 13 May 2022 as Matchmaker Support and then from 8 August 2022 as a Matchmaker/Sales Executive. [15] Ms Prescott has been a Matchmaker at the Respondent since 1993 and purchased the business in 1996. Ms Prescott said she is personally responsible for running the business and is also a Fulltime Matchmaker/Sales Executive and Trainer. [16] Ms Prescott said she has been directly responsible for 1300 marriages and thousands of happy couples. Ms Prescott said the Respondent has employed 49 staff and never had a Fair Work case until now. [17] Ms Prescott gave evidence that Ms Redman showed steady improvement in her performance from commencement in 2022 until August 2023. [18] Ms Prescott gave evidence that an advertisement placed on LinkedIn when Ms Redman was on leave, was to replace an administrative assistant position that had become vacant and was not for the purpose of replacing Ms Redman. Ms Redman accepted she knew an administrative staff member was leaving. Ms Prescott said the person leaving was 20 years old and the Respondent was looking for someone who was more mature and was going to work in an administrative role but could have the potential to move into a matchmaker role in the future. Ms Prescott said the person they engaged was 23 and matchmakers are all in their forties or fifties so that was unlikely. [19] Ms Prescott said they used to have three matchmakers when Ms Redman was employed and they now have two. 31 July 2023 [20] The Respondent provided the following email exchanges from 31 July 2023. Firstly from Ms Prescott to certain staff as follows: “Hello Ladies, [2024] FWC 1515 5 I have been brain-storming in my head what is the difference with our turn-up rates right now… I think right now everywhere times are tough, we know that so we need to work smarter... At Ideal - we have the luxury that everyone wants love and that is not going to change… So right now we just need to be more strategic and planned… Every enquiry needs to treated like absolute gold.. Dont feel for a second think I don't feel that you do them well…. I know you do… But we need to go above and beyond... Same with that old lead, or ex member who we manage to get on the phone again. Be absolutely present with them…. We have lovely, happy voices, we are very knowledgeable, especially when we throw some hooks into our conversation... Every call - Always aim for 20 minutes…. Never less as we really haven’t bonded with them…. Remember to rate yourself with that enquiry every time and notice if they are responding to your Appointment Texts? If they are - you know you are nailing it…. If they are not…. What do we need to do differently and let's discuss and brainstorm together.. The COVID HOOK about us being so busy is something I had actually stopped staying, without even realising it….. Please look at your How to take an Enquiry Notes, print out that part if necessary and start saying this again EVERY TIME with every potential appointment whether it is old, new, ex member,…. This will help that turn up rate as we are creating that want…. When you hear or see that a restaurant or club (back in the day), is always so busy or hard to get into - it makes you want to go there…. We are no different. A year ago the money was just coming in regardless of whether we did our 100 calls…. It’s harder now and the fact is, if we don’t make our 100 calls each week we will not have any chance of making targets.. 100 calls are required every week... Looking at the stats CJ has been doing - we are all different…. I do have the luxury of past people ringing out of the blue for me…. But I also have to work really strategically to find the time to do my 100 calls as I have so much else I am doing… Often I will do the weekend calls to make it up and that works for me.. Theresa doesn’t have the luxury of Ex members who know her, so that can be challenging she has to build the bond over the phone… CJ you don't have the luxury of having 6 months of fresh leads to follow up, so that is challenging too… Regardless 100 calls need to be made every single week with no exceptions and do those weekend calls for people you haven’t been able to reach… If we do this week in, week out, targets will just happen and Ideal will thrive.. MM’s will earn more money, the database grows which in turn, means the Matching opportunities are greater, hence, more happy clients, more referrals…. It is simply a flow on but it starts with the calls and how we do them. From today, lets plan our week every Monday on what calls (other than newbies), you are going to focus on for that week and have them ready whether they are files or [2024] FWC 1515 6 advanced searches for easy access…. The day before put in your calendars for 45/60 minute blocks for the next day and lets stick to them, motivating each other…. If we do the calls, the rest will follow… Let me know your thoughts or if there is anything I can help you with.. See the previous email as these were sent on the same day for the call out figures Warmest Regards, Linda Prescott Relationship Expert” [original text and formatting kept] [21] Ms Redman replied as follows: “From: Theresa Redman (email address redacted) Sent: Monday, 31 July 2023 5:55 PM To: (email address redacted) Subject: Updated in calendar! Enquiries and calls Hello Linda, Thanks for the update and have put in two windows for each day to work around AM/PM depending on appointments in my calendar and have updated the sales meeting to 1pm on Tuesday! My plan will be going back over my leads for April 2023 and Xpps for this week for the 100 calls.. For myself I find the time after 1130 onwards gold to catch people unawares and then in the afternoon, so structure to work towards depending how the appointments unfold. x Warmest Regards, Theresa Redman Matchmaker/Relationship Coach” [original text and formatting kept] 4 August 2023 [22] On 4 August 2023 Ms Prescott sent the following email to Ms Redman: “From: Linda Prescott (email address redacted) Subject: Leads to chase Date: 4 August 2023 at 5:53:50 am AEST To: Theresa Redman (email address redacted) Hello Theresa, I have set up two folders. LP expired girls under 35 LP current leads prior to August 22…. There is 2776 in this one... Just phone any that haven't been contacted in four months…. If they are in my folder it is because I feel they can be matched so you don't have to check so they will be quick to call... The way you leave the message will directly relate to the result…. [2024] FWC 1515 7 Sound super friendly, talk slowly, that conversation with their voice message - the spiel we are updating our records, seeing who’s been married off and who’s perhaps single again.. At the end of VM - I will also send you a little text so you have my details handy and re-subscribe them whilst you are there in v6 if needed. Happy Friday Mary, It’s Theresa from Ideal Introductions… Just checking back in updating our records… Have you met someone special? Warmest Regards, Linda Prescott” [original text and formatting kept] August Annual Leave [23] The Applicant had one week of annual leave in August for her birthday. 4 September 2023 [24] On 4 September 2023 at 3:16pm Ms Prescott sent the following email to Ms Redman: “Hello Theresa, Remember the format of the enquiry… Read your scripts and learn the ‘format' off by heart ... We can generally match everyone unless they are Asian, Indian or a bigger framed female wanting professional... The phone enquiry is not about finding out what they are looking for except for the one line – If you could mention a few characteristics that are really important to you in a new partner what would you say…? It is when we get them in face to face, we find out all that other stuff and at that point we have credibility and have a good chance of them listening… If we have the mindset of maybe we CANNOT match someone they pick it up very quickly even if we don’t notice….. You have to have in your mind we CAN match everyone otherwise it comes across on the phone and thats when they don’t show as they themselves will question it also and that we are probably not their right avenue… From today I want a different mindset. I was positive Polly… When you were first Matchmaking you were doing this and then you flipped it and that is when you got all the big memberships and had amazing closing rates and turn up rates. I want that old Theresa back from tomorrow.. If someone is a good lead get them in at 5.30pm if that is all they can do as you have such a minimal chance Ideal will still be exciting for them in a month.. Every person should book within 10 days of phone enquiry if they are keen…. If they book later they are not keen unless they are away... [2024] FWC 1515 8 Remember your job on the phone is not to evaluate if we can match them, it is for them to understand enough about our process so they are excited that is way is better way than they have been doing.. Warmest Regards, Linda Prescott Relationship Expert” [original text and formatting kept] [25] At 3:34pm on 4 September Ms Redman responded as follows: “Hello Linda, Polly T returns xx Warmest Regards, Theresa Redman Matchmaker/Relationship Coach” [26] At 3:41pm Ms Prescott responded to Ms Redman as follows: “Great - I am looking forward to her… I would ring her back and get her in for a 5.30pm appointment saying you are going to do some lates as we are so busy... … Remember the sale you did with (name redacted)…. She is beyond professional …. You were confident and it showed …. Lets talk about this is the meeting tomorrow as I want to discuss the enquiry again anyway …. Here to support you x Warmest Regards, Linda Prescott Relationship Expert” [original text and formatting kept] 5 September 2023 [27] Ms Prescott said that on 5 September 2023 at the Tuesday Sales/Matchmaker meeting they discussed in detail the importance of the Enquiry, attitude and mindset and making 100 calls every week being vital to making appointments and reaching targets. [28] Ms Prescott said that around 3 pm after the sales meeting just herself and Ms Redman were in the workroom and Ms Prescott claimed she said to Ms Redman “From January I’m changing your wage to the standard structure of 75 base and commission. I need you to think like a salesperson. I need you to make your targets.” Ms Prescott said Ms Redman looked at her and said ok. 26 October 2023 [29] Ms Prescott claimed that on 26 October 2023 Ms Redman was on the phone to an enquiry, and she could hear Ms Redman was being playful on the phone, there was no order, and they didn’t make an appointment. [2024] FWC 1515 9 [30] Ms Prescott claimed that she told Ms Redman many times that she needed to be educational on the phone, not fun, and that she was not their friend, and that she had told Ms Redman that educational they will turn up, fun they will cancel and not book at all. [31] Ms Prescott claimed that when Ms Redman got off the phone she went up and sat behind Ms Redman in the chair next to her desk and said as follows: “Theresa you have to stick to the scripts. You can’t try and book someone in before telling them what is going to happen when they come in.” [32] Ms Prescott claimed that she pointed to the script on her wall in front of her which showed the order of closing an Enquiry and said “You have to stick to the order of the Enquiry”. Ms Prescott claimed Ms Redman replied “he didn’t have any money anyway”. Ms Prescott said she replied sternly, “Theresa each workable lead costs me $230. Your job isn’t to find out whether they have money, your job is to make the appointment. You have targets and if you don’t make targets, you won’t have a job”. [33] Ms Prescott said she walked back to her desk, and it was very obvious that she was angry. 6 to 17 November Annual Leave [34] Ms Redman was on annual leave between 6 and 17 November 2023, returning on 20 November 2023. 20 November 2023 [35] On 20 November at 7:20am Ms Prescott sent the following email to Ms Redman: “Happy Monday Ladies, Welcome back Theresa… As always, Theresa there are five extras leads for you… Warmest Regards, Linda Prescott Relationship Expert” [36] On 20 November at 8:50am Ms Prescott sent the following email to Ms Redman: “Hello Lovely, This week I want you to really focus on learning the different parts of “how to take an enquiry” so you know it absolutely off by heart, meaning you don't need to refer to it…. Teamed with that information, the PROCESS of how it is done is vital… Over the last couple of weeks I have got Ella to do up some great reports which I will share which show us what is happening with each individual enquiry…. Ie how many appoint and show etc but actual person by person…. Vision six was never person by person so it really only gave us a guide…. This will be much better... The way we do explain the fee schedule is done in a precise manner to get people to join on the day.. When we deviate we don't get the same result. [2024] FWC 1515 10 The enquiry is done in a precise manner to get people to appoint on the day… When we deviate we don’t get the same result. It's all about the flow and keeping in the right order…. Spend time this morning going through that before you call all your new leads…. Moving forward I want you to spend an hour a day in your room for privacy going through your scripts…… By the end of the week you will have things absolutely perfect… You should then go through your scripts once a week just to make sure you are staying on track.. I still go through my scripts once a month... Theresa this will really help you get your targets consistency every month as you already have the skill, we just need the order…. x PS all your clients are happy and have been out on some dates… You should just be able to walk straight back in and pick up where you left off xx Warmest Regards, Linda Prescott Relationship Expert” [original text and formatting kept] [37] Ms Redman said that she received an email on her return on 20 November, talking about revisiting scripts and she confirmed with Ms Prescott if she had the latest script that Ms Prescott wanted her to learn as they kept changing. Ms Redman also said there was a mention of new reports that were done whilst on leave that Ms Prescott would show her. [38] Ms Prescott said the way the Enquiry was done hadn’t been tweaked for about eight weeks, but changes are always just tweaks, and she did say to Ms Redman she wanted Ms Redman to study the script for one hour each day, so she had them in the right order. Ms Redman said she was singled out and Ms Prescott would speak to her about the scripts all the time. Ms Prescott said that she had been doing this for over 30 years and her closing rates are at approximately 96% for the last three years and when people are off script everything changes. Ms Prescott said the Respondent has scripts for everything and being off script, this shows up in reports each week and if a matchmaker is off script, she will speak to them about it as it affects everything. Ms Prescott said a salesperson has to know the scripts off by heart. 26 November 2023 [39] On 26 November 2023 at 6:46pm Ms Prescott sent the following email to Ms Redman: “Hello Ladies, We have four more weeks before Christmas… We need to be making 20/30 calls every single day to get through the month.. You will have cancellations and you will also have big payers as they are lonely this time of year… Every single person we speak to early on in the call tell them this is time of year is super busy for us as people have holidays…. Everyone do their call out charts and lets all motivate each other with hours of power… Together we can achieve great things..” [2024] FWC 1515 11 [40] Ms Prescott said in her material filed that according to the Respondent’s Optus phone bill in relation to this week, Ms Redman made the following number of calls which included existing clients and sales calls combined: Monday 27 – 5 calls Tuesday 28 – 17 calls Wednesday 29 – 18 calls Thursday 30 – 18 calls Friday 1 – 1 call [41] Ms Prescott gave evidence that all sales staff including Ms Redman, knew Ms Redman’s figures were lower than expected, because all Matchmakers receive weekly and monthly reports. [42] Ms Prescott said she had conversations and emails with Ms Redman, expressing she wanted Ms Redman to study her scripts for an hour every day, wanting a positive attitude and wanting to see the old Theresa back, hoping she was simply tired, needing a holiday, and would come back motivated and they would see the old Theresa again. [43] Ms Prescott said the Respondent’s process is that when a Matchmaker has holidays, the other Matchmakers always look after their Personal Clients with Matching and giving Feedback and Evaluation after their dates, ensuring their service runs seamlessly. [44] Ms Prescott said this also allows the Matchmaker on holidays to come back to work without skipping a beat. Ms Prescott said they are given extra leads to help them still achieve pro-rata of their targets on their return. [45] Ms Prescott said they'll have a few less appointments booked compared to usual for that first week back and the extra leads and making their usual 100 calls KPI per week will get them back on track very quickly. [46] Ms Prescott said Ms Redman’s full Monthly target was $40,000, and with two weeks off work, her target for November was $20,000. Ms Prescott said Ms Redman came back to work showing minimal motivation to make the required Sales Calls which resulted in only six appointments being made and writing only $3909 in Revenue for the month of November. [47] Ms Prescott said they work in an open plan office so she can hear what calls are being made and if they are sales related or to clients. Ms Prescott said she needed to address Ms Redman’s lack of motivation as she seemed even less motivated than before she went on holidays. Ms Prescott said she waited until after the end of month as she was hoping for a strong finish. 5 December 2023 [48] At 5:56am on 5 December 2023 Ms Prescott sent an email as follows to employees of the Respondent: “Hello Ladies, [2024] FWC 1515 12 Well we are getting close to Christmas and I think we are all feeling a little overwhelmed… With Elsie leaving, finding the ‘Right’ new person to replace her and what that role would look like, and have her fully trained before Emma leaves for overseas on the 11th… We have now decided on another full timer …. All whilst making our Matching and Sales Targets, keeping all those emotional clients happy and waiting in anticipation to learn the new Ideal Platform… Yes - it is a lot!!!! I have sent Tasks to everyone today which I need completed in the time frames set…. Please use your Salesforce to complete tasks so we get used to the system. I have all Administration staff checking and finalising Procedures or making new ones where required for their daily tasks, This will ensure the new person can fit right in and simply follow a procedure where needed, without the stress of hand holding… Kim is finalising with Emma the ‘Tasks' lists for Salesforce and will do a Procedure with all the how to’s… Kim is also finalising the Testing for AirCall, so anything she asks you to do please do straight away… Ella is finalising a list for Bevan today with all changes which Andy from V6 has done in our database fields so that Bevan can Sandbox the changes, then implement into our Salesforce Platform, bringing over the current data.. Very soon we will be using the Salesforce Platform bit by bit, still matching manually for now…. I am going to meet with Bevan again Wednesday and will be discussing the bit by bit starting of use with Salesforce that we will be doing…. Bevan is currently researching what extra programs we will be utilising with Salesforce… There is one called ‘Quill” which will enable our forms “Z+ and profiles, request for contract” etc to be in built into our platform.. Excitingly that will be temporary as we will get to a stage in the near future where the information is automated from our database…. We will be entering new fields for this to work… There is another program we will be getting which is purely for sending contacts and presentations so we will have something that looks amazing for google meet interviews.. MM’s - I need you to simply focus on 20/25 calls every day to ensure targets are made and remember to tell every new lead that this is such a busy time for us.. Matching look under every rock, to find matching for our problem people. They are all matchable we just have to find them.. We have two great girls today for an interview one Lucy who is Salesforce proficient doing a google meet at 11am as she has Covid and then Kim at 2pm in person.. I fully believe we will have our new person chosen after today…. Please I need everyone for the next three weeks to go above and beyond, pull together and if anyone is feeling overwhelmed pull me aside… As a Team there is less stress and we achieve great things together with a sense of unity!!!! Warmest Regards, Linda Prescott Relationship Expert” [2024] FWC 1515 13 [49] Ms Redman said that around 4:15pm on 5 December 2023 Ms Prescott approached her and requested that they have a discussion in Ms Redman’s office. [50] Ms Prescott said the Matchmakers work from home on a Monday so the first convenient day she was able to have a face-to-face Meeting with Ms Redman was on Tuesday, December 5. Ms Prescott said on December 5 she called Ms Redman into her office for a one-on-one meeting. Ms Prescott said the intent of this meeting was to show Ms Redman her Performance Figures were very low. [51] Ms Prescott said she gave Ms Redman her Spreadsheets of her Year-to-Date Performance Figures for both her Sales and Matching. Ms Prescott said the first report showed the number of Matches to her personal clients that had been done month by month for the January to November period. Ms Prescott said Ms Redman is already given this report every month. [52] Ms Prescott said the second report was a more detailed report than Ms Redman normally receives. Ms Prescott said it showed the normal Closing Rates, Sales Revenue and percentage of Leads that become Members month by month which she always received. [53] Ms Prescott said the new part was showing Ms Redman how many Enquiries she was converting to appointments, as she said she had been continually telling Ms Redman to study her scripts. Ms Prescott said she wanted Ms Redman to see the percentage of her Enquiries Completed who were actually appointing compared to not. [54] In her oral evidence Ms Prescott said Ms Redman’s average was $22,000 per month for the year from 1 January 2023 to the end of November 2023 and her targets were meant to be at $40,000 per month from July 2023. [55] Ms Prescott said they discussed all these results and Ms Redman agreed they were very low. Ms Prescott said Ms Redman was asked to go home and study the Reports and come back the following day to continue their performance meeting bringing a solid Plan of Action, showing Ms Prescott in detail how she was going to improve her results for December. [56] Ms Redman said that Ms Prescott asked her (regarding the spreadsheets) what she thought. Ms Redman said she responded to Ms Prescott that it does not look good, but she had just had 2 weeks leave and this is the first time she was seeing these reports. [57] Ms Redman said she also expressed that in the past she gave the majority of her funnel leads to another employee on her return to the business in June 2023 (previously with Ideal for 6+ years before leaving to a competitor) which was over 300 old leads and that employee had also inherited the previous matchmakers leads on her return, plus her ex private clients and that meant Ms Redman had to start rebuilding her funnel again and that takes time. [58] Ms Redman claimed Ms Prescott responded with words to the effect of “So that is your perception”. Ms Redman claimed she responded to Ms Prescott with words to the effect of “Are you implying I am not the right person for the job?” and Ms Redman said Ms Prescott just nodded her head and followed with the words to the effect of “Just take them home and have a look over night and we will have a chat tomorrow and let me know your thoughts.” [2024] FWC 1515 14 [59] Ms Prescott said her intention was to work together with Ms Redman in achieving these results, but she needed Ms Redman to show the dedication by coming up with a solid plan. Ms Prescott said that Ms Redman had said in her material that Ms Prescott had told her at the meeting on December 5 that her performance dropped back in August and Ms Prescott had noticed her heart was just not in it. [60] Ms Prescott said that is how she felt as looking at her early results, and that Ms Redman had showed she was very capable of achieving her targets if her heart was in it. [61] Ms Prescott said that before Ms Redman left that meeting on December 5, Ms Redman looked at Ms Prescott with an almost ‘I have given up look’ and said “Perhaps I’m not the right person for the job”. Ms Prescott claimed that she paused and then replied “well maybe you’re not”. Ms Prescott said Ms Redman had a full opportunity to show her dedication and want to achieve her targets, simply by showing up the next day and presenting to her a solid plan of action for December. [62] Ms Prescott said in her oral evidence that because it was an open plan office it was obvious to her Ms Redman was not making the number of calls required. Ms Prescott said it was agreed with Ms Redman that Ms Redman would come back the following day with a plan of action. [63] Ms Redman identified the reports provided to her at this meeting at attachment A on page 70 of the digital court book. Ms Prescott said the material showed the average was $22,530 for the year, and year to date averages for all staff have holidays taken out. Ms Prescott said the average of monthly sales and percentages of leads converted to members was low for Ms Redman compared to herself and the other matchmaker. Ms Redman said the Respondent pays $230 for every lead that comes in on average, and if a matchmaker is not making the most of the leads it must be addressed. [64] Ms Redman gave oral evidence that she hadn’t seen the reporting style before this one, and she noted the other matchmaker had 6 years’ experience and another matchmaker had been fired in May 2023 and there were no figures for her. Ms Redman said she was confused by the reports, and she had been disadvantaged as the other matchmaker was given more leads. [65] Referring to the reports, Ms Prescott said for example the August 2023 report showed that Ms Redman had 23 enquiries and only 11 appointments, however Ms Prescott said she had 28 enquiries and 23 that made appointments, and the other matchmaker had 32 enquires and 29 made appointments so it was very apparent Ms Redman needed to start studying her scripts. [66] Ms Prescott said the other report for August was with new enquiries. Ms Prescott said of the $40,000 target, $12,500 was directed to following up old leads, and a matchmaker’s role is to make 100 calls a week because there are so many people who have enquired years ago. Ms Prescott said the Respondent had 18,000 enquiries and thousands of files to ring and see if they are happy or are single. Ms Prescott said she told Ms Redman to ring any of her old clients, and an August email showed she had been allocated 2,700 leads to ring. [2024] FWC 1515 15 [67] Ms Redman said that Ms Prescott would constantly change the script and then tell her that she was using the wrong script. Ms Redman also claimed that Ms Prescott allowed another more experienced matchmaker to go off script. Ms Redman said she found it stressful as Ms Prescott was listening in and criticising her for not following the script. [68] Ms Redman maintained the scripts were not just tinkered with but there were major changes, including the way it was structured. Ms Prescott said there are scripts for how to take an enquiry, and she would only change a script if she felt it was working for her. Ms Prescott said Ms Redman’s ratio of lead to member was very low however once they were in, Ms Redman was very good. Ms Prescott said the scripts were only changed every six to eight weeks. Ms Redman appeared to accept that as an average. [69] Ms Prescott said Ms Redman’s matching report percentages were better earlier in her time employed with the Respondent but there was an obvious decline over time. Ms Redman said Ms Prescott said to her on the afternoon of 5 December to have a look at the reports overnight and they would have a chat tomorrow, and there was no pre planned specific meeting time. 6 December 2023 [70] On 6 December 2023 a further meeting was held between Ms Redman and Ms Prescott, the formality of which is in dispute. During this meeting, there is no dispute that Ms Prescott informed Ms Redman that her employment was being terminated with 4 weeks’ notice to end on 3 January 2024. There is a significant difference between Ms Redman and Ms Prescott’s versions of this meeting. [71] Ms Prescott said the meeting on 6 December was intended to be a review of her performance including matching and sales, closing rates, enquiry rates, appointment rates, average dollar values and year to date averages and matching. Ms Redman said in her oral evidence she thought there would be a performance improvement plan discussed. 11am discussion [72] Ms Redman said at approximately 11am Ms Prescott approached her to have a chat in her office. Ms Redman claimed that Ms Prescott asked what her thoughts were. Ms Redman said firstly she brought up her funnel being disadvantaged again to Ms Prescott, and Ms Prescott responded with ‘I gave you my old leads.’ [73] Ms Redman said she agreed that Ms Prescott did that but said that was a couple of months after Ms Prescott kept bringing up her low call options and it was not fair. Ms Redman claimed she then said to Ms Prescott that she gave her some leads that were very old cold leads and that would take time to see results. [74] Ms Redman said she also expressed that she didn’t think the reports/ratios were accurate given her recent 2 weeks leave in mid-November and 1 week leave in late August 2023. [2024] FWC 1515 16 [75] Ms Redman claimed Ms Prescott said words to the effect of “Any great salesperson knows that you can’t take more than 1 weeks leave without it affecting your sales and you did not even try when you got back to get sales.” [76] Ms Redman claimed that she responded with words to the effect of “Why did you approve my leave and as my manager and not have the discussion with me on your expectations and how I would be disadvantaged by taking my 2 weeks leave?” Ms Redman said Ms Prescott responded with words to the effect that it was not her job to tell Ms Redman that and she should know as any great salesperson does, that’s why her and CJ never take more than one week at a time. [77] Ms Redman said Ms Prescott again asked her “What do you think of your figures?” Ms Redman claimed she replied, “That the average is not good, however I do not believe this is accurate or fair given my return back from leave.” Ms Redman said Ms Prescott then went on to tell her that her performance dropped back in August and noticed Ms Redman’s heart was just not in it. Ms Redman said she quickly responded with “That is an interesting perception, however it is not true.” [78] Ms Redman said Ms Prescott then pointed out Ms Redman’s matching report was also low, and Ms Redman said she referred to her recent leave.4 [79] Ms Redman said she asked Ms Prescott if she had a plan. Ms Redman claimed that Ms Prescott responded quite agitated and responded to the effect of that of course she had a plan and Ms Redman was being fired with 4 weeks’ notice. [80] Ms Redman said she responded with words to the effect of “You’re firing me, that’s not right and please show me the evidence of when we have had any underperformance discussions in verbal or writing?” Ms Redman said that Ms Prescott responded with words to the effect of “I have trained you enough and we have performance chats weekly, and I should have known by my figures from the reports.” [81] Ms Redman said she responded with “the weekly meeting is our standard team Sales Meeting and I have never had performance management discussions with you.” Ms Redman said that Ms Prescott did not respond. [82] Ms Redman said she then mentioned to Ms Prescott that this was not right, and she would be going to find out more from Fair Work. Ms Redman claimed that Ms Prescott shut her down, with words to the effect of “Mr Fortune (business partner) knows I am firing you today and has checked with his lawyer who is all over the Small Business rules and they have changed.” [83] Ms Redman said that Ms Prescott then said words to the effect “You did not even try to come in with a plan today and you should have been begging for your job which shows me your heart is just not in it.” Ms Redman said she responded with words to the effect that “Up until yesterday I did not even know there was an issue with my performance, let alone you were planning to fire me.” [2024] FWC 1515 17 [84] Ms Redman said she also mentioned being past 12 months in the role and they did not even have a performance review for that and that there was no response from Ms Prescott. [85] Ms Redman claimed she then asked Ms Prescott “Do you want me to pack my things and leave now as I am terminated?” Ms Redman said Ms Prescott quickly responded with words to the effect of “No, you are going to do your 4 weeks’ notice.” Ms Redman claimed that Ms Prescott said “I can’t trust you with any new leads so I will not be giving you any. You are to ring your old leads and make appointments from them.” [86] Ms Redman said she responded with “Okay I have an appointment this afternoon at 2pm, are you going to do it?” Ms Redman claimed Ms Prescott responded that she was happy for Ms Redman to still do appointments. [87] Ms Redman said she also mentioned the email the morning before about employing a full-time person and mentioned the advertisement in late November, saying a possible future opportunity to grow into a Trainee Matchmaker and the timing with her termination. Ms Redman said Ms Prescott said quickly words to the effect “She is not here to take your job, I just need someone full time for administration.” Ms Redman said the discussion ended between Ms Prescott and herself and she kept working. [88] Ms Prescott said that on 6 December when they sat down to continue their Performance Meeting, she immediately asked Ms Redman where her notes were as she came in empty handed. Ms Prescott said Ms Redman’s reply was hostile saying “You’re running this meeting, so Tell ME, how’s it going to play out”. [89] Ms Prescott said Ms Redman’s intentional disregard for the importance of that Performance Review Meeting showed a gross disregard for the business and lack of respect to herself, which she felt was not consistent with someone who wanted to continue their employment. [90] Ms Prescott claimed Ms Redman came in with a hostile/aggressive attitude, completely refusing to participate at all. Ms Prescott said Ms Redman brought no notes or plan of action into that meeting, which had been requested the day before and had zero interest in discussing how she was going to improve her results. [91] Ms Prescott said that she had expected that Ms Redman would have come into that meeting with a Detailed Plan of Action for December, explaining how she was going to change her results for the better, teamed with a positive, friendly, can-do attitude. [92] Ms Prescott said she eventually said the words “well it looks like you leave me no other option but to let you go’, and Ms Redman said in a continued hostile tone, “Ever heard the words FAIR WORK?” which Ms Prescott said completely threw her. [93] Ms Prescott claimed that Ms Redman then said, “so if you are terminating my employment, I will just finish up now and you can pay me out my four weeks’ notice”, and Ms Prescott said that she said to Ms Redman “no, you will need to work out your time.” [2024] FWC 1515 18 [94] Ms Prescott said it felt to her like a stand-off, and Ms Redman was waiting for her to say the words to dismiss her instead of her resigning. Ms Prescott said that with Ms Redman’s hostile and aggressive behaviour, Ms Prescott wanted her to leave immediately, but she claimed she was completely blindsided and didn’t have a plan for Ms Redman’s Personal Clients. [95] Ms Prescott said she needed Ms Redman to continue to look after all her personal clients as usual until Ms Prescott knew how her departure was going to play out. Ms Prescott said they had 30 personal clients to worry about, on top of the huge workload of December, and all those clients would have to have conversations as to why Ms Redman was leaving, be re-interviewed by another Matchmaker, all whilst keeping them happy enough to not ask for refunds and their service continue smoothly. [96] Ms Prescott said Ms Redman had seen this same scenario play out when she took over another employee’s clients in August 2022, and it is a big process and one that needs to be carefully planned out. [97] Ms Prescott said had she intended on firing Ms Redman she would have had a plan of action with all her Personal Clients prior to giving her notice. Ms Prescott said Ms Redman’s role of a Third Matchmaker has not been replaced or advertised, and if she had the intent of wanting to fire Ms Redman, they would have simply told her after the finish of November that her role of a Third Matchmaker has been made redundant. [98] Ms Prescott said that would have saved the Respondent so much effort, emotion and expense. If the Respondent had the intention of firing Ms Redman to replace her with another Matchmaker, they also would have had her replacement ready to take over all of her personal clients, rather than the Respondent being left in a panic without a plan, like they were. [99] Ms Prescott said the intent was not to fire Ms Redman, but rather work with her to achieve her targets. Ms Prescott said her dismissal was a direct result of her refusal to come to the meeting prepared and her aggressive and hostile behaviour, which Ms Prescott said she believed was misconduct. [100] Ms Prescott said in her oral evidence Ms Redman did not bring these reports back to the meeting the next day to discuss them. Ms Redman said in her oral evidence she did have the reports with her, and on 5 December there was no pre planned time for a meeting and she did not understand the meeting on 6 December was a disciplinary meeting. Ms Redman again denied Ms Prescott’s version of the conversation. [101] Ms Prescott said that Ms Redman stated herself in her reply statement that Ms Prescott had said to her on 6 December “You did not even try to come in with a plan today and you should have been begging for your job which shows me your heart is just not in it.” Ms Prescott said that this is Ms Redman admitting that she didn’t try. [102] Ms Redman claimed she said to Ms Prescott about there having been no performance discussions and claimed Ms Prescott then referred to her business partner and that they had consulted a lawyer. [103] Ms Prescott said she was continually reviewing Ms Redman’s performance. [2024] FWC 1515 19 1.40pm discussion [104] Ms Redman said that Ms Prescott asked to have a quick chat with her again at approximately 1.40pm. Ms Redman claimed that Ms Prescott said that she just wanted to re- iterate again that the new employee is not coming to take her job and that she is a good salesperson. Ms Redman said Ms Prescott said words to the effect of Ms Redman being the only Matchmaker that has gotten so many top Matchmaker packages and Ms Prescott really liked Ms Redman, and it was hard for her doing this. [105] Ms Redman said Ms Prescott said she wouldn’t make Ms Redman work her whole notice, and she would look at finishing Ms Redman the following week. Ms Redman said that Ms Prescott then commented on the earlier meeting and Ms Redman came across tough and it took her by surprise. Ms Redman said she replied “I was not meaning to come across tough, I just needed to understand and speak up when if don’t think something right”. [106] Ms Redman said the conversation ended and she went into her 2pm appointment. [107] Ms Prescott said that Ms Redman said in her outline of argument that Ms Prescott had said she was tough. Ms Prescott said Ms Redman was more than tough, and that she was hostile and aggressive, and her behaviour was completely unexpected and unacceptable. [108] Ms Prescott said she believed Ms Redman’s deliberate behaviour was to force her hand and leave her with no other possible option but to fire her so that she was paid to leave rather than resigning. [109] Ms Prescott said that because Ms Redman had to work in the office for another period of time it would be uncomfortable, and she wanted to advise that Ms Redman was a good salesperson, but she couldn’t make her pick up the phone. Ms Prescott said that Ms Redman had been hostile in the earlier meeting that day. [110] It was common ground that Ms Redman was not required to work from 19 December however she remained employed until 3 January 2024 in accordance with the notice period. [111] Ms Redman referred to a section in the Respondent’s outline of argument where it was said that two staff had seen that Ms Prescott was shaken after meeting with Ms Redman. Ms Prescott accepted that one of those staff saw her in person and other staff was spoken to over the phone so did not actually see her. CONSIDERATION The Small Business Fair Dismissal Code [112] There is no dispute that this case involves a termination of employment with notice and therefore the section of the Code concerning summary dismissal is not relevant. The relevant part of the Code is under the headings Other Dismissal and Procedural Matters. [2024] FWC 1515 20 [113] I am not satisfied the Code was complied with because whilst it could have been inferred from the steps that Ms Prescott took in the lead up to 6 December that Ms Redman’s employment was at risk if her performance did not improve, she was not warned explicitly and therefore Ms Redman did not have the opportunity to respond to a clear warning she faced dismissal. [114] Given that conclusion it is necessary to consider whether the dismissal was unfair taking into account each of the matters in section 387. Section 387(a) Valid Reason [115] I am satisfied on the evidence that Ms Prescott’s training of Ms Redman included a specific period of shadowing of Ms Prescott and ongoing support to assist Ms Redman. Ms Prescott said this was ongoing. [116] There is no dispute that a conversation occurred on the afternoon of 5 December between Ms Redman and Ms Prescott where the reports were handed over to Ms Redman by Ms Prescott, and there is no dispute that Ms Redman’s underperformance was discussed. Further, there is no dispute that it was agreed Ms Redman was to look at the reports overnight and they would have a further discussion the following day. On Ms Redman’s own evidence, she said she raised herself with Ms Prescott the question of whether Ms Prescott saying she was not good at her job. [117] There is a dispute over whether Ms Redman had agreed that she was to come back the following day with a plan as to how she was going to improve. I am inclined to the view that it was communicated to Ms Redman that Ms Prescott expected Ms Redman to come back the following day with a response to the concerns arising from the reports provided to her on the afternoon of 5 December. I am not inclined to accept the evidence of Ms Redman that there was no expectation of her other than that they would discuss the reports the next day as it seems less plausible than Ms Prescott’s evidence on this point given the chronology of events leading up to the discussion of the afternoon of 5 December, and the reports themselves pointing to Ms Redman’s performance being inferior by comparison, and being in decline. [118] The evidence also tends to support Ms Prescott’s claim that Ms Redman had opportunities to meet the set KPI’s such as making 100 calls per week and failed to do so, and the evidence also supports the conclusion that Ms Prescott had been attempting on a number of occasions to make clear to Ms Redman that she was underperforming and how to address that underperformance by making the number of calls as directed and following the prepared scripts as directed. On 20 November Ms Prescott made clear to Ms Redman she wanted Ms Redman to spend an hour a day studying the scripts to prefect them on paid time. [119] Ms Redman said it was not her but Ms Prescott who was becoming agitated at the meeting on 6 December. I am inclined to prefer the evidence of Ms Prescott over Ms Redman that it was Ms Redman that became somewhat agitated at the meeting on 6 December indicating it was up to Ms Prescott as to how the meeting was going to proceed, and that Ms Redman did not provide proposals to Ms Prescott as to how she intended to address the underperformance because she still did not accept that the concerns were fairly raised given her circumstances [2024] FWC 1515 21 including having been on leave and not having an equitable amount of leads to follow up, and also having less experience than the matchmakers she was being benchmarked against. [120] Ms Prescott gave compelling evidence that there were a range of reasons why she did not intend to terminate the employment of Ms Redman prior to the meeting with Ms Redman on 6 December because such a decision was not in the financial interests of the Respondent at that time, and contingencies had not been put in place for that outcome. There was no plan in place for who would look after Ms Redman’s clients running into a busy period in the run up to Christmas. [121] Despite Ms Redman denying that Ms Prescott asked her where her notes were, I am inclined to prefer Ms Prescott’s evidence that she did ask Ms Redman where her notes for the meeting were. I am also inclined to prefer Ms Prescott’s evidence that Ms Redman did not have the notes with her from the meeting the previous afternoon as she claimed. It appears more likely than not that Ms Prescott was surprised by Ms Redman not being prepared to have a detailed discussion about the matters of concern raised with her the previous afternoon. [122] The evidence is that Ms Prescott had been raising with Ms Redman that she wanted “the old Theresa back”, and that she was counselling her to study her scripts for an hour each day, and to follow them in advance of the discussion on 5 December 2023. Ms Prescott had already prior to this discussion advised Ms Redman that she was taking her off the higher rate of the salary from standard retainer of $95,000 down to the $75,000 because of her performance. [123] It was Ms Redman’s failure to engage proactively with the concerns raised with her about her underperformance that led to Ms Prescott expressing the position that in the circumstances she had no choice but to terminate Ms Redman with notice. From this point the discussion degenerated. [124] I am satisfied on the basis of all of the evidence that by the time of the meeting of 6 December the period of time of Ms Redman’s under performance was a valid reason for her dismissal at the relevant time. Section 387(b) Notification of the Reason [125] The termination letter was prepared on the day of the termination, and it advised that the termination was because Ms Redman was unable to meet the required key performance indicators in her contract, and was therefore based on performance. The termination letter did not discuss the alleged hostility of Ms Redman in the course of the meeting on 6 December. Section 387(c) Opportunity to Respond [126] It is clear from the evidence the conversation between Ms Redman and Ms Prescott on 5 December did not include any direct reference to potential termination of Ms Redman’s employment. [127] Ms Prescott maintained that her opportunity to respond was at the meeting on 6 December and that would have involved her committing to know her scripts and to commit to making the phone calls as required. [2024] FWC 1515 22 [128] Because Ms Redman was not clearly notified that the Respondent was considering terminating her employment she did not have a proper opportunity to respond to the reason for termination. Ms Redman anticipated that she would be placed on a performance improvement plan, not that she was going to be dismissed on 6 December. Section 387(d) Unreasonable refusal of a support person [129] The notion of dismissal had not been contemplated prior to the discussion on 6 December, so in that sense there was not a proper opportunity for Ms Redman to request a support person, however Ms Redman accepted that at no point did she ask for a support person. Section 387(e) Whether Ms Redman was warned before the termination [130] Ms Prescott gave a series of examples to support her claim that Ms Redman was on notice. Ms Prescott referred to the email of 31 July 2023 in her timeline document where she said 100 calls were required each week without exception and Ms Redman responded to the calls confirming she would do that. Ms Prescott said in August she provided the extra approximately 2,700 contacts for Ms Redman, and on 4 September she directed Ms Redman to read the scripts and learn them and from then she wanted a positive mindset and she wanted the “old Theresa back.” Ms Prescott said the next day she had a conversation with Ms Redman after the sales meeting on 5 September and told her she was changing her wage structure and she needed to meet her targets. [131] Ms Prescott said on 26 October Ms Redman was not following the correct format and she spoke to Ms Redman about not following the script. Ms Prescott claimed to have said to Ms Redman on 26 October among other things “You have targets and if you don’t make targets, you won’t have a job”. Ms Prescott said she was very stern with Ms Redman in this conversation. [132] Ms Redman claimed that alleged conversation is fabricated by Ms Prescott and did not occur. Ms Redman referred to the text message on 30 October saying positive things about her performance. Ms Prescott accepted that she did send the text as she had a good month in October. I am inclined to prefer Ms Prescott’s evidence that this conversation did occur as claimed as it is apparent to me Ms Prescott was becoming frustrated that Ms Redman was not following the prepared scripts as directed. [133] I am inclined to prefer Ms Prescott’s evidence that the above events did unfold as set out above, and whilst it is true Ms Prescott did not explicitly warn Ms Redman that she faced termination if her performance did not improve, a common sense assessment of the evidence supports the conclusion that it could reasonably have been inferred by Ms Redman that her future employment was in jeopardy considering the sequence of events. Section 387(f) and (g) The degree to which the size of the employer and the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed [2024] FWC 1515 23 [134] The Respondent is a small business and I am satisfied the considerations in section 387(f) and (g) did impact on the procedures followed by the Respondent. Section 387(h) Any other matters [135] Ms Redman’s length of employment with the Respondent was not particularly lengthy. There were no other specific matters arising from the evidence in relation to this matter. Was the Dismissal Unfair [136] It is apparent that Ms Redman’s figures had been declining and she was not making the number of calls required or using the scripts as directed. I am satisfied the Respondent had a valid reason for dismissal based on Ms Redman’s declining level of performance and the impact this was having on the Respondent’s profitability. I am also satisfied that while there were clearly procedural flaws in the manner in which the termination was effected, particularly the denial of an opportunity for Ms Redman to be on notice that she was facing termination of employment, on the other hand Ms Prescott took a range of steps over a period of time to draw her concerns about Ms Redman’s performance to Ms Redman’s attention over a period of time. [137] In all of the circumstances having weighed each of the matters under section 387, the particular facts of this case lead me to a conclusion that the dismissal was not unfair. On the basis of that conclusion the application is dismissed. An order to that effect will be issued separately and concurrently with this decision. COMMISSIONER Appearances: Ms Theresa Redman on her own behalf. Ms Linda Prescott on behalf of the Respondent. Hearing details: 2024 Brisbane 29 April. Printed by authority of the Commonwealth Government Printer <PR775872> [2024] FWC 1515 24 1 Exhibit 1. 2 Exhibit 2. 3 Exhibit 3. 4 Attachment G Matching Report email Sept 23.