1 Fair Work Act 2009 s.394—Unfair dismissal Jordan Keller v Podium Australia Pty Ltd (U2025/19785) DEPUTY PRESIDENT MASSON MELBOURNE, 10 JULY 2026 Application for an unfair dismissal remedy – whether Applicant’s prolonged sales target shortfall established a valid reason for dismissal – valid reason for dismissal established – whether procedural shortcomings rendered dismissal unfair – found that procedural shortcomings insufficient to displace weight attributed to valid reason – dismissal not unfair - application dismissed. Introduction [1] This decision concerns an application made by Mr Jordan Keller (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 Cth (the Act). The Applicant was employed by Podium Australia Pty Ltd (the Respondent) and was dismissed on 2 December 2025. The unfair dismissal application was lodged by the Applicant on 15 December 2025. [2] The matter was listed for hearing before me on 17 June 2026 to deal with the merits of the application. Both parties filed material in advance of the hearing in accordance with directions issued. The Applicant appeared and gave evidence while Ms Catherine Pase of Counsel was granted permission to appear on behalf of the Respondent pursuant to s 596 (2) of the Act. Ms Pase called the following persons to give evidence for the Respondent; • Brad Granger – Managing Director - Australia • Mark Nicevski – Former Sales Manager – Australia • Anthony Birkbeck – Vice President of Revenue Background and evidence The business and role of an Account Executive [3] The Respondent markets and sells artificial intelligence based communication platform products, which centralise leads for small, medium and mid-market business, which helps the Respondent’s customers drive return on investment and efficiencies within their respective [2026] FWC 2630 DECISION [2026] FWC 2630 2 businesses.1 It is the Australian subsidiary of a privately owned US company and employs approximately 152 employees in its Melbourne based operations. The Respondent’s business is divided into 5 main ‘verticals’, Home Services, Automotive Service, Automotive, Retail and Health. Of its 152 employees, approximately 21 of these are employed as Account Executives who are responsible for capturing new business, that is, attracting new clients rather than capturing sales from existing clients. Account Executives range from level 1 to level 3, are placed within each ‘vertical’ and are responsible for generating sales of the Respondent’s products in order to achieve the Respondent’s financial performance targets.2 [4] Mr Nicevski outlined that the key measure of performance of Account Executives is that of the Annual Contract Value (ACV) which is the average value of contracts for the first year of new business that customers enter into with the Respondent for its product. For example, if, in a particular month, an Account Executive signed a $100,000 contract with a client to access the Respondent’s product for a period of two years, $50,000 of that deal would be assigned to the Account Executive’s ACV for the month in which the sale was closed.3 He further explained that when he commenced with the Respondent as Sales Manager, a position he held for 12 months, he was responsible for all Account Executives which then sat within the Front Line Sales Teams. The structure of the Respondent’s operations was subsequently verticalized at the start of 2025, resulting in the sales teams being broken into the various verticalized divisions.4 [5] Mr Birkbeck explains that Account Executives can progress from Level 1 to Level 3 based on their sustained performance and achieving relevant targets set for the next level. ACV targets increase depending on the level. He gives the example of the ACV monthly target for a Level 1 Account Executive in the retail vertical, being $65,500 whereas the monthly ACV target for a Level 2 Account Executive in the retail vertical is $85,500 and $115,00 for a Level 3 Account Executive.5 Mr Granger states that Account Executives across all verticals and the three levels regularly achieve and exceed their ACV targets.6 [6] In addition to ACV targets, Account Executives are also measured against other metrics including self-sourced revenue which is the revenue an Account Executive generates from their own leads without assistance from a Sales Development Representative (SDR) and the number of outreach calls they are making. Outreach calls are a key way to increase ACV because the Account Executive reaches out to potential customers from an internally developed directory to book appointments which can result in conversion of new customers and sales revenue derived from that new customer.7 A Level 1 Account Executive is responsible for holding demonstrations of the Respondent’s products with prospective customers, confidently pitching the product, self-generating revenue and managing clients through sales decisions on whether to purchase the Respondent’s products.8 1 Exhibit R1, Witness Statement of Mr Brad Granger, dated 28 April 2026, at [5]. 2 Exhibit R2, Witness Statement of Mr Anthony Birkbeck, dated 28 April 2026, at [11]. 3 Exhibit R3, Witness Statement of Mr Mark Nicevski, dated 28 April 2026, at [12]. 4 Ibid at [3]-[4]. 5 Exhibit R2, at [11]. 6 Exhibit R1, at [12]. 7 Exhibit R2, at [19]. 8 Exhibit R1, at [15]. [2026] FWC 2630 3 The Applicant’s employment [7] The Applicant commenced employment with the Respondent on 12 August 20249 as a Level 1 Account Executive in the Respondent’s Field Sales Team on a salary of $90,000 per annum (excluding superannuation). A position description10 (the PD) set out the duties and responsibilities of an Account Executive. When questioned on his PD, the Applicant agreed that he understood he was responsible for; closing new business, managing the entire sales cycle, working with the SDR to help generate sales, self-sourcing sales revenue, making outbound calls, maintaining a healthy pipeline of opportunities and exceeding the monthly revenue target. At the time of commencing employment, the Applicant’s ACV monthly target was $45,000 but was subsequently increased to $65,000. The relevant Key Performance Indicators (KPI’s) for the Applicant from January 2025 onwards were; • achieving a monthly ACV of $65,500; and • achieving the self-sourced revenue target of $20,000 per month.11 [8] The Applicant’s performance12 against his ACV targets up till the end of October 2025 was as follows; [9] The Applicant agreed that he failed to achieve his monthly ACV target (as set out in the table above) in any monthly period of his employment. He also agreed that he was aware of his monthly ACV target of $65,000 of which the self-sourced sales component target was $20,000. 9 Exhibit R1, Annexure BG-1, Employment Contract, dated 15 July 2024. 10 Exhibit R1, Annexure BG-2. 11 Ibid. 12 Exhibit R2, at [20]. Month Target Result % of Target August 2024 Not Applicable First month of employment NA September 2024 $44,000 $13,732 31% October 2024 $60,500 $50,745 83% November 2024 $60,500 $0 0% December 2024 $45,375 $0 0% January 2025 $49,125 $18,778 38% February 2025 $65,500 $21,728 33% March 2025 $65,500 $35,394 54% April 2025 $65,500 $44,290 67% May 2025 $65,500 $0 0% June 2025 $65,500 $30,674 46% July 2025 $65,500 $23,664 36% August 2025 $65,500 $41,557 63% September 2025 $65,500 $15,840 24% October 2025 $65,500 $25,318 38% Total $844,500 $321,360 38% [2026] FWC 2630 4 He further stated that while he understood he was required to make outbound quality calls, the target of 20 calls per day was never set as a KPI prior to the Second PIP, which is discussed at length later in the decision. [10] The Applicant states that his role was structurally designed to be supported by a SDR to generate a ‘lead pipeline’ and $20,000 self-sourced revenue as part of the $65,000 monthly ACV target. The Applicant refers to significant turnover of SDRs in the period of his employment which is supported by a document produced by the Respondent in response to an order of the Commission. The SDR Turnover Records13 document reveals that the Respondent experienced turnover of 15 SDRs during the Applicant’s period of employment. The Respondent clarified that the turnover of 15 SDR’s was across the entire organisation and did not represent turnover that only affected the Applicant. When questioned on the SDR turnover, Mr Birkbeck explained that this level of turnover was normal as the SDR role was a junior role that staff moved though fairly quickly, generally remaining in the role for 6-12 months. He also rejected that the Applicant was particularly affected by the turnover and explained that all other Account Executives experienced the same SDR turnover. [11] Mr Birkbeck was questioned on whether the increased ‘prospecting’ for sales the Applicant claims to have been required to undertake because of reduced SDR support, would have impacted the Applicant’s ACV target achievement. Mr Birkbeck explained that the Applicant had access to a personally curated database of potential customers (as did all Account Executives) which was in the Salesforce database and that he simply needed to work his way through the list of contacts to pursue sales opportunities. He also clarified that the split between self-sourced sales and SDR supported sales was not structurally mandated, contrary to the Applicant’s claim, and that ideally an Account Executive would control his entire ACV sales. [12] The Applicant also states that during his tenure, the Melbourne office also experienced leadership instability. He says he was managed by five different individuals in succession: Mark Nicevski, Luka De Castro, Brad Granger, Todd Schulberg, and finally, Mark Nicevski again. He further claims that these transitions lacked formal handovers, with each new manager inheriting the Applicant’s previous targets without context regarding his history, previous successes, and his challenges.14 To illustrate his point, the Applicant listed his Managers and the period he reported to each of them as follows; • Mark Nicevski: from August to October 2024; • Luka De Castro: from October 2024 to February 2025; • Brad Granger: acted as direct manager for a period of two months immediately following Ms De Castro; • Todd Schulberg: from May to 31 October 2025; and • Mark Nicevski: from 3 November 2025 onwards. [13] Mr Granger accepted that the Applicant’s summary of the Managers he reported to during his employment was accurate save for identification of Mr Granger as the Applicant’s manager for a two-month period. Mr Granger explained that he was not the Applicant’s Manager in that period but provided support during a period of transition between Ms De Castro 13 Exhibit A9, SDR Turnover Records. 14 Exhibit A1, Witness Statement of Jordan Keller, at [1]. [2026] FWC 2630 5 and Mr Schulberg. Mr Granger was also questioned on whether he regarded Mr Schulberg as competent in providing leadership, coaching and support to Account Executives in his team, including the Applicant. He responded by explaining that the Applicant’s line manager was not solely responsible for supporting Account Executives in his team and stated that Account Executives were also supported by a Sales Capability Lead who was responsible for building a framework for salespeople. In any case, he expressed satisfaction that Mr Schulberg was capable of leading, coaching and supporting the Applicant. [14] When questioned on the turnover of managers the Applicant experienced, Mr Birkbeck agreed that such turnover was not necessarily healthy but disagreed that it impacted the Applicant’s performance. He clarified that such turnover would be likely to have a greater impact on new employees in their first few months. This was to be distinguished from the Applicant’s circumstances in that the effect of turnover the Applicant experienced was ameliorated by the level of experience he gained in the role over time. [15] The Applicant further states that when the Respondent ‘verticalized’ the business, he was placed into the Retail team without any choice being offered. He says he observed a significant disparity in the allocation of inbound sales leads with more senior colleagues who were allocated all inbound marketing leads, were sent to premium trade events and were handed high value partnerships. By contrast, the Applicant states he was denied inbound leads and was instructed to ‘manually prospect’ and despite what he describes as a ‘stacked deck’ being set against him, he was held to the same performance standards as his colleagues.15 [16] A further significant barrier to the Applicant achieving his ACV targets was described by him as a ‘revolving door’ of SDRs with over 10 SDR resignations or dismissals in the company that he was aware of during his employment. He says that as a result, he spent the majority of his time performing SDR prospecting duties rather than Account Executive closing duties. He claims to have frequently flagged to management that this structural gap made hitting ACV targets impossible, yet no adjustment was made to his targets.16 When questioned on this evidence, he could not point to any documentary evidence of having raised these concerns. [17] Despite the barriers to achieving his ACV targets, the Applicant says he secured high- value business and partnerships for the Respondent including the following; • BigA+ Partnership (over 200 plumbing stores; generating over 450 million / yr). • The Hubtiger Integration. • Boatdeck Partnership (managing over 300 websites), which also facilitated partnerships with Yatco and the Boating Industry Association (BIA). • Closed sales on premium brands such as Tri House, Bevmarks, and Totenroad. 15 Exhibit A1, at [2]. 16 Exhibit A1, at [3]. [2026] FWC 2630 6 • At the time of his dismissal had generated interest from major brands, including MCM House, King Living, Habitpets, Coco Republic and Flexihire.17 [18] Mr Birkbeck did not agree with the Applicant’s self-assessment of his performance as being strong or ‘exceptional.’ He agreed that he had watched the Applicant do a significant presentation at one point and that he (the Applicant) had done a good job but could not recall describing the Applicant’s presentation as exceptional. In any case, at the time of the Applicant’s dismissal, his pipeline of potential sales was not exceptional according to Mr Birkbeck and again referred to the Applicant’s prolonged period of ACV underperformance. The First PIP [19] Mr Granger states that prior to his promotion to the position of Managing Director of the Respondent in September 2025, he held the position of County Manager. He says that the sales management team, for which he was responsible, held a meeting each Monday to discuss the week ahead including forecasts and any issues concerning individuals in the respective sales teams. In late January 2025 during one such meeting, concerns were raised regarding the Applicant’s performance as he had failed to achieve his ACV targets during any month since commencing employment. This was despite new starters having reduced ACV targets for the first four months of their employment.18 To illustrate the Applicant’s relative shortfall in performance, Mr Granger gave the example of another Account Executive in the retail team who achieved 125% of their ACV target in June 2025. This Account Executive was a level 3 Account Executive, however, the ACV targets for a level 3 Account Executive as explained above is significantly higher than the level 1 and 2 Account Executive’s ACV because Level 3 Account Executives are more senior and have access to inbound warm leads which results in more ACV.19 [20] Sometime following the above-referred meeting, Mr Granger spoke with the Applicant’s then Manager, Ms Luka De Castro, in late January 2025, resulting in their agreement that the Applicant should be placed on a Performance Improvement Plan (PIP). The Applicant was placed on his first PIP20 (the First PIP) which commenced on 3 February 2025. The First PIP set out a number of metrics against which the Applicant was to be measured and relevantly stated; “… If you qualify for a performance improvement plan again in a 12 month period it will result in termination. Failure to meet and sustain improved performance may lead to further disciplinary action, up to and including termination. Corrective action may be taken in conjunction with, during, or after the performance plan. …”21 (my emphasis added) 17 Exhibit A1, at [4]. 18 Exhibit R1, at [13]-[14]. 19 Exhibit R1, at [15]. 20 Exhibit R1, at [17]-[19], Annexure BG-3, Performance Improvement Plan, dated 4 February 2025. 21 Ibid. [2026] FWC 2630 7 [21] As a consequence of an encouraging improvement in the Applicant’s effort in February 2025 and given the prospect of him closing a significant deal with Bevmarks, which would have resulted in the Applicant achieving his February 2025 ACV, Ms De Castro advised Mr Granger that she believed that it was appropriate to end the First PIP. Mr Granger agreed as at the time the Applicant had improved in areas which would assist in him building a large enough pipeline of deals to achieve his ACV KPI. Despite the decision to end the Applicant’s First PIP during February 2025, the Bevmarks deal did not eventuate in February 2025, resulting in the Applicant not achieving his monthly ACV target for February 2025.22 [22] When cross-examined on the First PIP, the Applicant agreed that the First PIP was closed because of the potential Bevmarks deal, estimated by him to have had a potential value of $100,000. He conceded that the deal was secured at a significantly lower sale of approximately $22,000 in June 2025 which contributed to his ACV in that month. The Second PIP [23] Mr Granger further states that in July 2025 he had separate discussion with both Mr Birkbeck and the Applicant’s then Manager Mr Todd Schulberg about the Applicant’s performance which continued to fall well short of ACV targets. Mr Schulberg advised Mr Granger that he would monitor the situation and raise these concerns with the Applicant and if necessary implement a further PIP if there was no improvement. In August 2025, Mr Granger became aware that the Applicant was absent from work due to the death of his sister. Because of the Applicant’s bereavement and the likelihood that it would significantly impact the Applicant, Mr Granger and Mr Schulberg agreed to delay commencing any performance- related discussions at that time. Mr Schulberg ceased employment with the Respondent in October 2025.23 [24] Following the Applicant’s return to work after the death of his sister, Mr Granger says he noticed when reviewing the performance of various sales teams that the Applicant’s performance remained well below the required standard. In early November 2025 when the October data was available, he and Mr Birkbeck discussed the Applicant’s continued poor performance and Mr Birkbeck suggested the Applicant be put on another PIP. Mr Granger agreed with that approach.24 Following that discussion, Mr Birkbeck had a meeting in early November 2025 with Mr Nicevski who had recently transitioned to the Retail and Health Team and in that role was the Applicant’s manager. Mr Birkbeck states that both he and Mr Nicevski agreed that it was necessary to implement a further PIP to assist the Applicant improve his performance.25 [25] The Applicant confirmed that his sister passed away on 22 August 2025, following which he informed HR and his manager. He says he later learned that this sensitive information was circulated among senior leadership without his consent. The Applicant further claims that 22 Exhibit R1, at [20]-[22]. 23 Exhibit R1, at [23]-[26]. 24 Exhibit R1, at [27]-[29]. 25 Exhibit R2, at [24]-[26]. [2026] FWC 2630 8 the Respondent’s management culture was high-pressure and did not foster an environment where the mental health impacts of such a tragedy could be addressed.26 [26] Mr Nicevski states that he met the Applicant on 10 November 2025 via Zoom to advise him of concerns regarding his performance, and in particular that he had failed to meet his ACV targets since he commenced employment. During their discussion, Mr Nicevski says he informed the Applicant that he intended to implement a further PIP (the Second PIP), to which the Applicant responded by refuting that a Second PIP was required. Mr Nicevski further states that the Applicant went on to provide various excuses for his poor performance including that other Account Executives in the team were assigned better SDRs. Mr Nicevski says he talked through the Second PIP with the Applicant and advised they would have daily catch-ups to discuss his progress and that he (Mr Nicevski) would support the Applicant by discussing deals.27 [27] Mr Nicevski also states that after explaining the Second PIP, he informed the Applicant that a failure to improve his performance may result in disciplinary action including the termination of his employment. A copy of the Second PIP 28 was sent to the Applicant on 11 November 2025 following which the Applicant requested an opportunity to meet and discuss the Second PIP with Mr Birkbeck the following week. In making that meeting request the Applicant assured that he was not refusing to sign the Second PIP. A meeting was subsequently held involving the Applicant, Mr Birkbeck and Mr Nicevski on 18 November 2025. Mr Nicevski states that during the meeting the Applicant again disagreed with the Second PIP and again claimed that other Account Executives had better SDRs. Mr Nicevski says he responded by stating that the Applicant was in fact ‘over resourced’ because he had the benefit of inbound sales leads that were not normally offered to Level 1 Account Executives. The meeting concluded with the Second PIP requirements being confirmed with the Applicant.29 The Second PIP included the following relevant features; • it stated that if the Applicant was unable to meet the requirements of the Second PIP, the Respondent may move forward with termination of his employment; • was stated to commence operation on 10 November 2025 and would end on 10 December 2025; • identified monthly targets of; an ACV of $65,000, a minimum of 20 outreach calls and $20,000 in self-sourced income; • it identified the support to be provided to the Applicant through; the conduct of meetings to be conducted every second day to review performance and discuss progress, meetings with Mr Nicevski could be scheduled by the Applicant to address any barriers to achieving his targets, positive and constructive feedback was to be documented and all coaching and 1:1 conversations to be documented in Lattice which is a HR platform used by the Respondent; and 26 Exhibit A1, at [5]. 27 Exhibit R3, at [15]-[18]. 28 Exhibit R3, Annexure MN-1, Performance Improvement Plan, dated 10 November 2025. 29 Exhibit R3, at [19]-[23]. [2026] FWC 2630 9 • the Applicant was to be notified of the outcome of the Second PIP within a week of the Second PIP end date.30 [28] The Applicant confirmed that he was placed on the Second PIP on 10 November 2025 by Mr Nicevski and during a requested follow-up meeting with Mr Birkbeck, he says he was told by Mr Birkbeck that he (the Applicant) needed to get the target ‘kicking and screaming, whatever it takes’. He says Mr Birkbeck further noted that being dismissed in December 2025 would be a ‘difficult period’ for the Applicant which the Applicant states reveals that the outcome of his dismissal was pre-determined. Mr Birkbeck when cross-examined could not recall making the latter comment but agreed that he had used words to the effect of ‘get to the target, kicking and screaming if necessary’ as a means of encouraging the Applicant to lift his performance. The Applicant felt that language was less than encouraging. [29] When cross-examined on the Second PIP, the Applicant agreed that it contained specific ACV targets that applied to the month of November and which were the same as the monthly ACV and self-sourced targets for preceding months. He also agreed there was a daily calls target of 20 outreach calls, which he understood to be a measure of ‘quality’ outbound calls. He clarified that the target of 20 calls per day was only established for the purpose of the Second PIP. [30] The Applicant further states that despite the Second PIP explicitly requiring bi-daily meetings and that coaching be documented in Lattice, this did not occur. He claims that none of these meetings took place and that despite reaching out to Mr Nicevski for feedback on four ‘demo’ recordings he had uploaded, these requests were ignored. He further claims that he was denied access to the Lattice platform during the Second PIP’s period of operation, making it impossible to track progress or view the coaching the Respondent claimed to have been providing.31 When cross-examined on this evidence, he agreed he sat next to Mr Nicevski in the office, that Mr Nicevski checked in with him on a daily basis, including via ‘slack’ and through their direct conversations, about deals and prospects. The Applicant disagreed that he was provided any coaching support and referred to the lack of response from Mr Nicevski on the four ‘demos’ sent to him for feedback. He also opined that had Mr Nicevski provided feedback on the ‘demos’ it might have assisted the Applicant close the deals and meet his monthly ACV target. [31] Mr Nicevski states that following the commencement of the Second PIP, he had daily discussions with the Applicant who sat next to him in the Respondent’s office. He says the discussions went for approximately 15-30 minutes and were intended to provide support and check how the Applicant was progressing various deals on which he was working. He says that despite his attempts, the discussions with the Applicant were very much one-way and that the Applicant did not take Mr Nicevski up on his offers to assist the Applicant. Mr Nicevski also refers to various slack messages as examples of the times he reached out to the Applicant to provide support. Slack messages referred to were sent on 12, 13, 19, 24 and 26 November 2025.32 30 Exhibit R3, Annexure MN-2. 31 Exhibit A1, at [6]. 32 Exhibit R3, at [24]-[26], Annexure MN-4, Slack Messages, dated 19 November 2025. [2026] FWC 2630 10 [32] Mr Nicevski takes issue with the Applicant’s evidence that he did not meet with the Applicant every second day during November 2025 to discuss his progress and that the Applicant reached out to Mr Nicevski for feedback. Mr Nicevski states this did not accurately describe the level of support he provided to the Applicant. He says he initiated discussion with the Applicant every day regarding work he had in the pipeline or deals he was struggling to close so that he (Mr Nicevski) could offer assistance.33 [33] Mr Nicevski when cross-examined on the Second PIP gave the following evidence; • rejected that his sales team never met its sales targets; • confirmed that he met with the Applicant regularly to discuss his progress and to provide support, although, he accepted that the requirement in the Second PIP that coaching discussions be recorded in Lattice was not met; • maintained constant dialogue with the Applicant throughout the period of the Second PIP’s operation; • states that he logged on to some of the Applicant’s ‘demos’ when he was available and recalls attending three scheduled ‘demos’ but they did not proceed as the customers did not turn up; • reaffirmed his belief that he regularly discussed the Applicant’s sales prospects and ‘demos’ during the period of the Second PIP’s operation; • confirmed that his coaching was undertaken in an informal and ad hoc manner rather than in a structured manner; • claimed to have provided feedback on the Applicant’s ‘demos’ but could not recall whether he provided feedback on the four specific demos sent to him on ‘slack’ on 24 November 202534; and • agreed that the Second PIP had been cut short of the specified 30 day period and agreed that had it continued until 10 December 2026, it would have been possible to source updated ACV data for each day in that early December period. [34] Mr Nicevski states that the ACV results against targets were finalised on 1 December 2025 and revealed that the Applicant had not recorded any new ACV since commencement of the Second PIP on 10 November 2025. His ACV for November was $23,314, being approximately 36% of the target outlined in the Second PIP. Mr Nicevski also determined that the Applicant had only completed 25 outreach calls for the entire month against the KPI of 20 outreach calls per day and had only generated $16,126 of self-sourced revenue against the $20,000 target.35 Mr Birkbeck states that he and Mr Nicevski discussed the Applicant’s 33 Exhibit R3, at [27]-[28]. 34 Exhibit A7, Slack Messages. 35 Exhibit R3, at [29]-[32]. [2026] FWC 2630 11 November performance against his Second PIP targets on 1 December 2025. At the end of the discussion, Mr Birkbeck advised Mr Nicevski that he (Mr Birkbeck) would address the Applicant’s continued poor performance with the Applicant. Termination of employment [35] While Mr Birkbeck states he wanted to meet the Applicant in person regarding his Second PIP performance, he (the Applicant) was not in the office on 1 and 2 December 2025. He consequently called the Applicant on his mobile telephone. He says he started the call by telling the Applicant the purpose was to discuss his Second PIP performance, advised that he was not on track to meet the Second PIP requirements and went thought the three key metrics. Significantly, no ACV or self-sourced revenue was generated by the Applicant after the Second PIP commenced.36 [36] After discussing the Applicant’s performance results, Mr Birkbeck states he informed the Applicant that the Respondent was considering the termination of his employment. Mr Birkbeck states the Applicant responded by providing a number of reasons why he had failed to improve his performance and sought to blame other factors outside of his control. The Applicant also raised that he felt he was being treated unjustly because the retail vertical was a difficult vertical and it was not possible for him to meet his targets. Mr Birkbeck rejects this complaint and explains that the Respondent’s business is broken into five verticals so that employees can build up their expertise in dealing with clients from a particular sector and that the Respondent sets its targets including ACV depending on the particular vertical. He further explains that a vertical with more expensive products has higher ACV targets.37 [37] Mr Birkbeck further states that he explained to the Applicant that other employees in the team often exceeded their ACV targets and he used the example of Mr George Vlahogiannis. He also responded to the Applicant that he (Mr Birkbeck) gave him additional support by way of access to inbound sales leads which are ‘warm’ enquiries from clients and potential clients. These inbound sales leads are usually reserved for Level 2 & 3 Account Executives because of their greater experience and higher sales conversion rates. Despite being a Level 1 Account Executive, Mr Birkbeck states the Applicant was on occasion provided with access to inbound sales leads including where more senior Account Executives were not available but he (the Applicant) had not taken advantage of those leads to secure greater business.38 [38] Mr Birkbeck states that nothing the Applicant said during their phone call gave him any confidence that he would be able to improve his performance to the required level, particularly given his attempt to shift blame to other factors rather than his own performance. He then informed the Applicant that his employment would be terminated due to poor performance in response to which the Applicant became defensive and repeatedly disputed the decision by saying the decision was unfair because of the difficult vertical he was in. Mr Birkbeck states the discussion went around in circles for some time and the Applicant then requested to speak with Mr Granger.39 36 Exhibit R2, at [45]-[50]. 37 Exhibit R2, at [51]-[53]. 38 Exhibit R2, at 54]-[55]. 39 Exhibit R2, at [61]-[62]. [2026] FWC 2630 12 [39] When questioned on the telephone call to the Applicant on 2 December 2025, Mr Birkbeck rejected that he had already made the decision to dismiss the Applicant nor had he discussed and agreed that outcome with Mr Granger on 1 December 2026. He also confirmed that he was aware of and had taken the Applicant’s personal circumstances into consideration, specifically the loss of his sister in August 2025. [40] After contacting Mr Granger, who agreed to join the telephone call, Mr Granger spoke with the Applicant and listened to what he had to say, responded that he appreciated that he had raised these issues with Mr Granger however the issues raised did not excuse the Applicant’s sustained poor performance. Mr Granger then confirmed that the decision to terminate the Applicant’s employment would stand. Mr Birkbeck recalls the Applicant continuing to challenge the decision, going over the same matters previously discussed at which point Mr Granger stated he was going to end the call. Mr Birkbeck then informed the Respondent’s HR team that the Applicant’s employment had been terminated so that they could process his final pay including pay in lieu of notice and confirm the decision in writing.40 [41] Mr Granger was cross-examined in relation to the Applicant’s Second PIP and on the dismissal process and gave the following relevant evidence; • he accepted that the use of Lattice to record coaching conversations was referred into the Applicant’s Second PIP and accepted that the Respondent was unable to provide any records from Lattice of such coaching during the period of the Second PIP’s operations; • he described Lattice as a HR platform that could be used to record and monitor conversations between managers and their staff, and that it was just one tool that could be used to record these interactions; • he was aware of the potential termination of the Applicant’s employment prior to the telephone meeting that took place on 2 December 2025; • while accepting that the Applicant’s performance consistently fell short of ACV targets throughout 2025, he rejected that the Respondent had failed to address the Applicant’s poor performance after the withdrawal of the First PIP and pointed to signs of performance improvement by the Applicant after the First PIP, coaching of the Applicant throughout 2025, the Applicant’s bereavement in August 2025 and the Respondent’s genuine desire to support the Applicant succeed; • agreed that during the telephone meeting on 2 December 2025, the Applicant requested a further meeting on 3 December 2025 to review and challenge the self-sourced sales figure relied on by the Respondent, but the request was declined; and • rejected that the Applicant’s Second PIP process was unreasonably truncated and pointed to the prolonged period of underperformance of the Applicant and the extended opportunity he had been provided to improve. 40 Exhibit R2, at [63]-[65]. [2026] FWC 2630 13 [42] An email was sent to the Applicant on 8 December 2025 by the Respondent’s Head of People and Culture Ashley Duke, and set out the reasons for the Applicant’s dismissal as follows; “… You were placed on a Performance Improvement Plan due to ongoing underperformance. Expectations, targets, and required outcomes were clearly outlined in the PIP, which I have attached for you. This was sent to you on 10 November 2025, however we did not receive a signed copy of acknowledgement back from you. The quota requirements set in the PIP were not met. This was consistent with your performance across your tenure as monthly quota expectations were not achieved at any point during your employment. I have attached 2025 from Salesforce for your reference. We absolutely acknowledge the personal circumstances you faced following the passing of your sister. You were provided paid leave and support during this period and this was taken into account. The decision made was based solely on your performance results before and after that period, the PIP outcome, and your performance across your time with Podium. You asked for documentation and I have attached your PIP and quota numbers attached. The PIP outlined the following expectations • meet monthly ACV quota of 65,500 • complete a minimum of 20 outreach calls per day in addition to inbound and SDR sets • attain 20,000 in self sourced revenue Your results were • ACV of $23,314 • outreach calls as per the attached call report - 25 for the month (Before is "before midday" & After is "After midday") • self source results of $16,126 To provide further context regarding support during the structural changes. AE1s are ordinarily supported by one SDR. During your time at Podium, there were periods where you had two SDRs assigned to you, and you were also provided additional opportunities such as attendance at trade shows. These measures exceeded the standard resourcing for the AE1 role and were intended to support your performance. While we genuinely hoped this would result in improvement, the required performance outcomes were not met. The final decision followed Podium’s performance management framework and was based solely on documented performance and the PIP outcome. …”41 41 Exhibit A2, Termination of Employment Email. [2026] FWC 2630 14 [43] The Applicant states that he was dismissed via an unplanned telephone conversation, was not offered a support person for the discussion with Mr Birkbeck and nor was he given a show cause opportunity to contest the inaccurate self-sourced sales revenue figures relied on by the Respondent. He claims he achieved self-sourced revenue of $23,314 in November 2025 rather than the figure of $16,126 stated by the Respondent.42 The Applicant also challenges the claim that he only made 25 calls in the month of November 2025 and provided his own call log calculations for these proceedings which he says shows he made 190 outbound calls averaging 11.88 calls per day43 over the 16 operational days of the Second PIP. [44] Mr Birkbeck rejects the Applicant’s calculation of his daily calls in November 2025 and provided the following clarification; • He had now reviewed the ‘Salesforce’ Activity logs which show various types of call logs, for example “Call: No Pickup,” “Call completed” and “[Gong Outbound]: Call.”44 • The 25 calls which were recorded for the Applicant in the month of November 2025 against his 20 outreach calls per day target in the Second PIP are what the Respondent commonly refers to internally as ‘qualified calls’ or ‘quality calls.’45 • For a call to be considered a qualified call or quality call, the call must be an outbound call made by an employee via ‘Salesloft’ or another prescribed tool which provides the relevant tracking. The call must be made to a unique prospective customer who has not previously been contacted by the Respondent on that day and must be of a duration of at least 60 seconds. This requirement is intended to ensure that calls which go unanswered and divert to a prospective customer’s voicemail, calls that are answered but conclude shortly thereafter because the prospective customer is unable to speak, and multiple calls made to the same prospective customer within a single day, are not counted towards an outreach call target.46 • Mr Birkbeck also accessed the Respondent’s Sigma system which is a data visualisation tool (dashboard system) and viewed a report47 which confirmed the Applicant had only completed 25 qualified/quality outreach calls for the month of November 2025.48 [45] When questioned on his call log calculations, the Applicant confirmed his understanding that the 20 calls per day metric was for ‘quality’ outbound calls. He also conceded that his own calculation of total outbound calls in November 2025 of 190 calls included unanswered calls and may have included calls that went to voicemail. He was also taken to Mr Birkbeck’s Sigma system report on the Applicant’s calls during the month of November 2025. The Applicant 42 Exhibit A1, at [7]. 43 Exhibit A15, Call Log Calculations. 44 Exhibit R4, Second Witness Statement of Anthony Birkbeck, dated 29 May 2026, at [3]. 45 Exhibit R4, at [4]. 46 Exhibit R4, at [5]. 47 Exhibit R4, Annexure AB-1, Screenshot of Sigma Report, dated 1 December 2025. 48 Exhibit A4, at [6]. [2026] FWC 2630 15 confirmed that he understood that Sigma was a back-end reporting tool which interfaced with call log data including from Salesloft. He was unable to dispute the Sigma report. [46] The Applicant also contends that by 26 November 2025, he had built an active pipeline of potential sales to the value of $55,600 across seven deals and because of the truncation of the Second PIP process, had been denied the opportunity to meet the ACV target for November 2025 set in the Second PIP. When questioned on this pipeline of deals, he agreed that the figure he relied on was the estimated value of the potential sales that he recorded in the system and accepted that not all deals entered in the system translated to actual sales. He also agreed that he had never met his ACV target despite the ‘high value’ deals he claims to have generated for the Respondent. [47] Mr Birkbeck challenges the Applicant’s claim on the value of the ‘pipeline’ and detailed the timing that each of the seven deals had been recorded in the Salesforce database as well as the closure of the opportunity which means the sale was lost. Mr Birkbeck states that each of the seven deals quoted by the Applicant were ‘closed lost’ by the end of December 2025 with the exception of one prospective deal that was ‘closed lost’ in March 2026.49 None of the potential sales identified by the Applicant as being in his sales pipeline at the end of November 2025 translated to actual sales. [48] The Applicant was also cross-examined on the 2 December 2025 telephone conversation with Mr Birkbeck and then Mr Granger. He accepted the following propositions put to him; • Mr Birkbeck told him that he had not met his Second PIP targets for the month of November 2025; • Mr Birkbeck also told him that the Respondent was considering the termination of his employment; • he was given an opportunity to respond by Mr Birkbeck and did in fact respond to the proposed termination of his employment and the reasons for it; • Mr Granger was included in the call at which point the Applicant continued to press his position that he should not be dismissed; • Mr Granger and Mr Birkbeck did not accept his explanations for his underperformance; and • Mr Granger confirmed the decision to proceed with his dismissal at the conclusion of the telephone conversation. Has the Applicant been dismissed? 49 Exhibit R4, at [7]-[9]. [2026] FWC 2630 16 [49] A threshold issue to be determined in this matter is whether the Applicant has been dismissed from his employment. The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows: (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. [50] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute, and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent. Initial matters [51] Having found that the Applicant was dismissed with the meaning of s 386(1) of the Act, I am now obliged under section 396 of the Act, to decide the following matters before considering the merits of the application: (a) whether the application was made within the period required in subsection 394(2); (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and (d) whether the dismissal was a case of genuine redundancy. [52] Relevant to the determination of the preliminary matters I am satisfied that; • the Applicant was dismissed on 2 December 2025 and filed his unfair dismissal application on 15 December 2025, that latter date being within 21 days of the date of his dismissal; • at the time of the Applicant’s dismissal, the Respondent employed 152 staff and is therefore not a small business employer within the meaning of s 23 of the Act; • the Applicant commenced employment with the Respondent on 12 August 2024 and at the time of his dismissal, had been employed for fifteen months, that period being more than the minimum employment period of six months; • the Applicant received an annual base salary of $90,000; and [2026] FWC 2630 17 • the Applicant was not dismissed due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. [53] Having considered each of the initial matters, I am satisfied that the application was made within the required period in s 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application, and it is to that I now turn. Was the dismissal harsh, unjust, or unreasonable? [54] Section 387 of the Act provides that, considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission 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 (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. Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)? [55] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”50 and should not be “capricious, fanciful, spiteful or prejudiced.”51 However, 50 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 51 Ibid. [2026] FWC 2630 18 the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the employer’s position.52 [56] It is plainly apparent that the Applicant failed to meet his single most important performance metric over the entire period of his employment, that being his monthly ACV target of $65,000. The balance of his performance targets were clearly subordinate to and supportive of achievement of the ACV sales performance targets for the simple reason that Account Executive generated sales are critical to the Respondent achieving its organisational financial objectives. While the Applicant sought to variously describe his performance as strong or exceptional at times, it was not. His overall sales performance for the period from August 2024 to end October 2025, which immediately preceded the Second PIP, was 38%. There can be simply no dispute that the Applicant’s performance fell a long way short of his targets. The Applicant advances a number of reasons for his sales target performance shortfall. The reasons include SDR turnover, manager turnover, and the loss of his sister in August 2025. I deal with each of these in turn below. [57] Firstly, with respect to the turnover of SDRs, the evidence reveals that there was a turnover of 15 SDRs across the organisation during the period of the Applicant’s employment, which Mr Birkbeck described as normal for the organisation given the SDR role was a more junior role that staff transitioned through over a 6-12 month period. Mr Birkbeck also explained that the Applicant was not uniquely affected by SDR turnover and that other Account Executives were similarly affected but achieved better ACV outcomes. He pointed to the example of a Level 3 Account Executive who had higher ACV targets than the Applicant and routinely met or exceeded those targets. I also note Mr Granger’s unchallenged evidence that the Respondent employs approximately 21 Account Executives that are supported by SDRs. This puts SDR turnover and the impact of that turnover on the Applicant in some perspective. While he claimed to have been affected, the Applicant failed to identify the timing and number of SDRs he claims to have been supported by. As to the Applicant’s claim that he had repeatedly raised his concern about SDR turnover, there was no documentary evidence to verify this claim. I also note the unchallenged evidence of Mr Nicevski that the Applicant had the additional benefit not normally afforded to Level 1 Account Executives which he did not take advantage of, that of access to inbound sales leads normally only made available to Level 2 and 3 Account Executives due to their higher sales conversion rates. I am not satisfied on the evidence that the organisational turnover of SDR’s impacted on the Applicant to the extent that it explains the significant shortfall in his ACV target performance. [58] Turning to management turnover, the Applicant contends that this factor adversely impacted his performance in that the management handovers did not allow the passing on of information about the Applicant’s achievements, difficulties and challenges. It appears from the evidence that the Applicant had three distinct managers in the period while Mr Granger may have also provided support during a transitional period between Ms De Castro and Mr Shulberg. Mr Nicevski appears to have bookended the Applicant’s employment period as his manager with Ms De Castro and Mr Schulberg occupying the role in between. It is not clear how that pattern of leadership directly affected the Applicant’s performance in circumstances where his strongest month in terms of his ACV performance (83%) was in October 2024 when he had only been in the Account Executive role for three months. It also cannot be reconciled with the 52 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. [2026] FWC 2630 19 Applicant’s own evidence that he generated a strong pipeline of sales opportunities for the Respondent. See for example his evidence at [17] above where he states that despite the barriers to achieving his targets, he generated high value business and partnerships for the Respondent. This evidence suggests that the Applicant understood his role and believed he was performing well. He was not, and the opportunities he may have identified did not translate to enough sales to meet his ACV target. I am not satisfied that the manager turnover adequately explains the ACV performance shortfall. [59] As to the tragic passing of his sister in August 2025, I accept this would have adversely impacted on the Applicant’s performance in the following period. The Respondent understood this and correctly, decided to hold off on any performance management in the immediate wake of the Applicant’s loss of his sister. On one view, the Respondent showed a degree of restraint after it withdrew the First PIP due to the then encouraging signs of improved performance of the Applicant in February 2025. Despite the Applicant failing to meet the First PIP targets, the Respondent did not immediately reinstate a PIP despite the Applicant consistently failing to meet his ACV target in subsequent months even prior to his sister’s passing. At the point of the Respondent again considering raising the Applicant’s below par performance in mid-2025, the Applicant’s sister passed away and the Respondent, quite appropriately, deferred raising the Applicant’s performance with him at that time. It clearly recognised the profound impact the loss of his sister would have had on the Applicant. While the loss of his sister would clearly have impacted the Applicant, I do not accept that the Respondent was required to make allowance for the loss and ignore the Applicant’s performance shortcomings indefinitely. It did not do so and again raised the performance issue with the Applicant in early November 2025. That it raised the Applicant’s poor sales performance with him some three months after the passing of his sister is not in my view deserving of criticism, particularly when that level of poor performance had been sustained for over 12 months. I do not accept that the loss of his sister can be used to explain the Applicant’s sustained poor ACV performance over a period of some 15 months. [60] While the Applicant’s dismissal was based largely on sustained underperformance over a 15 month period against required ACV sales targets, it also appropriate to briefly deal with the specific Second PIP targets that were required to be met in November 2025. The Applicant achieved ACV sales of $23,314 against the target of $65,000. Significantly, no sales were generated after the Second PIP was implemented on 10 November 2025. The Applicant offered no explanation of that sales inactivity. As to the dispute over the self-sourced revenue sales generated, even if it were accepted that the Applicant’s figure of $23,314 was correct versus the $16,126 figure relied on by the Respondent, that still does not explain the almost $40,000 shortfall in ACV. Finally, the Applicant’s ‘quality’ outbound call metric was also significantly below the Second PIP target. While the Applicant claimed to have made an average of 11.88 outbound calls over the 16 operational days of the Second PIP, that figure does not withstand scrutiny. The Applicant accepted his calculation included calls that were not answered or went to voice message and he was unable to challenge the Sigma summary which identified he only made 25 ‘quality’ outbound calls in the entire month. At a time when the Applicant knew his performance was being closely scrutinised, the outbound call metric was the metric the Applicant had most direct control over and yet he still fell well short of that target. [61] Finally, the Applicant points to the pipeline of potential sales worth approximately $55,000 that he had recorded in Salesforce at the time of his dismissal. He readily accepted that [2026] FWC 2630 20 not all potential sales recorded would actually be realised. That proved to be the case with the identified sales opportunities, as Mr Birkbeck gave unchallenged evidence that none of the identified sales opportunities in the Applicant’s pipeline translated to actual sales and all the opportunities were ‘closed lost’ shortly after the Applicant’s dismissal. [62] It follows from the foregoing that I am satisfied that the Applicant’s failure to meet his Second PIP targets and his failure to meet his monthly ACV sales targets at any time during his 15 months of employment establishes a valid reason for the Applicant’s dismissal in that he failed to demonstrate the capacity to perform the role in which he was employed. The matters raised in mitigation by the Applicant do not adequately explain the performance shortfall. The existence of a valid reason for dismissal weighs in favour of a finding that the dismissal was not unfair. Notification of the valid reason – s.387(b) [63] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,53 and in explicit, plain and clear terms.54 [64] It is apparent from the evidence that the Applicant was notified by Mr Birkbeck in their telephone conversation on 2 December 2025 of his failure to meet the Second PIP targets of ACV, self-sourced revenue and outbound calls per day. The Applicant accepted that he was also advised that because of those performance shortfalls, the Respondent was considering the termination of his employment. While the Applicant contends the decision was pre-determined based on comments made by Mr Birkbeck during their meeting on 19 November 2025, I am not satisfied those comments disclosed that the decision had already been made. Rather, Mr Birkbeck made clear in an unsophisticated manner that the consequences for the Applicant’s employment would be unfavourable if he failed to meet his Second PIP targets. I am satisfied that the Applicant was notified of the valid reason for his dismissal prior to the decision being made to dismiss him. This weighs in favour of a finding that the dismissal was not unfair. Opportunity to respond to any reason related to capacity or conduct – s 387(c) [65] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.55 [66] While the Respondent contends the Applicant was afforded an opportunity to respond to the reason for his dismissal, I do not accept that the abbreviated and what I regard as an unsatisfactory process followed by the Respondent on 2 December 2025 can overcome other deficiencies in the process followed by the Respondent. Those deficiencies are as follows. 53 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151. 54 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). 55 Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]. [2026] FWC 2630 21 Firstly, the Second PIP identified that it would operate for a period of 30 days but was cut short after 20 days. The Second PIP also identified the measures that would be taken to support the Applicant during the period of the Second PIP. Beyond Mr Nicevski having a daily verbal check-in with the Applicant, it does not appear that there was any real coaching or support provided. Certainly, there was no record in Lattice, which was the platform in which coaching records were to be placed. I further note Mr Nicevski’s unconvincing evidence on whether he provided any feedback to the Applicant on the four ‘demos’ the Applicant sent to him for feedback. [67] I was referred to Etienne v FMG Personnel Services Pty Ltd56 (Ettienne) by the Applicant as authority for the proposition for the authority that termination of employment within the period of the Second would render a dismissal unfair. Contrary to the Applicant’s submission, Ettienne does not stand for that proposition as the Full Bench made clear when then they said the following; “Finally, we would note that our decision should not be understood as suggesting that employers are always required to conclude a performance improvement process once it has begun. There may be a valid reason not to do so. Each case will turn on its own facts.”57 [68] Despite the Respondent documenting in the Second PIP that it would operate for a 30- day period and that the Applicant would be provided certain support during the period of the Second PIP’s operation, the Respondent proceeded to terminate the Applicant’s employment despite failing to comply with the stated elements of the Second PIP. The Respondent argues that is of little or no consequence given the sustained period of the Applicant’s underperformance, that the monthly ACV outcome was available for review on 1 December 2025 and that the Applicant showed no sign of meeting the Second PIP targets within the 20 day period it had operated. There is force to that argument, but there is also the theoretical possibility that the Applicant may have turned his performance around in early December 2025. The failure of the Respondent to allow the full Second PIP period to elapse prior to terminating the Applicant’s employment introduced an element of unjustness which weighs in favour of a finding that the dismissal was unjust and therefore unfair. Support person – s 387(d) [69] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. The Applicant did not request to be accompanied by a support person during the telephone meeting on 2 December 2025. This factor is therefore a neutral consideration. Warnings regarding unsatisfactory performance – s 387(e) [70] The dismissal related to unsatisfactory performance. The Applicant was placed on the First PIP in February 2025 and although it was closed soon thereafter, the First PIP made clear 56 [2017] FWCFB 3864. 57 Ibid at [51]. [2026] FWC 2630 22 that if the Applicant’s performance gave rise to a further PIP within the following 12 months, he would be subject to dismissal. While it could have, the Respondent did not immediately act on that warning contained in the First PIP and the Applicant was placed onto the Second PIP on 10 November 2025. Both PIPs made clear that a failure to meet targets set in the PIPs would expose the Applicant to the risk of dismissal. The fact that the Applicant was subject to two PIPs in relation to unsatisfactory performance and was warned of the potential consequences of not meeting PIP requirements, weighs in favour of a finding that the dismissal was not unfair. Impact of the size of the Respondent on procedures followed – s 387(f) [71] At the time of the Applicant’s dismissal, the Respondent employed 152 employees. The Respondent does not contend that its size adversely impacted the processes it followed in dismissing the Applicant. This factor weighs neutrally in my consideration. Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g) [72] The evidence in this matter indicates that the Respondent did have access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration. Other relevant matters – s 387(h) [73] No party raised and nor am I aware of any other relevant matter. This is a neutral consideration. Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable? [74] I have made findings in relation to each matter specified in s 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.58 [75] As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to his capacity has been established. I am also satisfied that the Applicant was not notified of a valid reason for his dismissal prior to a decision being made to terminate his employment. He was, however, denied a reasonable opportunity to respond to the reason for his dismissal because of the truncated Second PIP process. I attribute that failure limited weight, however, in circumstances where the Applicant had underperformed for 15 months and the claimed high value pipeline of potential sales he had generated did not materialize either before or after his dismissal. In these circumstances, I find that, even had the Respondent deferred consideration of the Applicant’s employment until the end of the 30-day period of the Second PIP’s stated period of operation, it would not have altered the outcome of dismissal. Significantly, the dismissal was related to the Applicant’s performance for which he was on notice of the risk of 58 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]– [7]. [2026] FWC 2630 23 dismissal, the size and capacity of the Respondent did not impact on the procedures that it followed, and no other matters weigh in favour of a finding that the dismissal was unfair. [76] It follows from the above that having considered each of the matters specified in s 387 of the Act, I am satisfied that while the dismissal of the Applicant was attended by some procedural unfairness, the weight of other matters considered, including the valid reason for the dismissal, means that the dismissal was not unfair. Conclusion [77] I am satisfied that the Applicant was dismissed at the initiative of the Respondent. Having been satisfied in respect of the other initial matters, I have considered and determined that the Applicant’s dismissal was not unfair. The application must consequently be dismissed. An order giving effect to this decision will be issued separately in conjunction with this decision. DEPUTY PRESIDENT Appearances: J Keller, Applicant. C Pase for the Respondent. Hearing details: 2026. Melbourne. June 17. Printed by authority of the Commonwealth Government Printer <PR811993>