FEDERAL COURT OF AUSTRALIA

Boyd v Roadworx Surfacing Pty Ltd [2026] FCA 1012

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    INTRODUCTION

1    The appellant, Ms Melissa Boyd was, until her employment was terminated by the respondent (Roadworx), employed by Roadworx as a “WHS & QA Compliance Manager/Officer”.

2    Ms Boyd sought redress in the Federal Circuit and Family Court of Australia (Division 2) in an action in which she alleged, relevantly, that Roadworx contravened various provisions of the Fair Work Act 2009 (Cth).

3    Relevantly, s 340 of the Act prohibits, inter alia, an employer dismissing an employee because the employee has or proposes to exercise a “workplace right”.

4    The primary judge dismissed Ms Boyd’s application, finding in essence that:

(1)    Ms Boyd had exercised a workplace right and had proposed to exercise another workplace right; and

(2)    Roadworx did not dismiss her application because of such exercise or proposed exercise, but for unrelated reasons.

5    His Honour’s reasons for the dismissal of Ms Boyd’s claim were published as Boyd v Roadworx Surfacing Pty Ltd [2026] FedCFamC2G 101 (J, or primary judgment).

6    Ms Boyd appeals to this Court from the order of the primary judge dismissing her application.

7    For the reasons developed below, the appeal must be dismissed.

B.    THE STATUTORY FRAMEWORK

8    Before considering the primary judgment and the grounds of appeal, it is convenient first to set out the salient aspects of the statutory framework in which this dispute arises.

9    Section 340 of the Act provides in so far as is presently relevant:

340     Protection

(1)     A person must not take adverse action against another person:

(a)     because the other person:

(i)     has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

…

(bold emphasis in original)

10    The concepts of “workplace right” and “adverse action” are defined in ss 341 and 342 of the Act, in so far as is presently relevant, as follows:

341    Meaning of workplace right

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

342    Meaning of adverse action

(1)    The following table sets out circumstances in which a person takes adverse action against another person.

(bold and italic emphasis in original)

11    Proof, for the purposes of s 340 of the Act, that adverse action was taken because an employee exercised or proposed to exercise a workplace right etc is facilitated by ss 360 and 361 of the Act which provide in so far as is presently relevant:

360     Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361     Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

...

(bold emphasis in original)

12    Thus, Roadworx bore the onus of proving that any exercise or proposed exercise of a workplace right by Ms Boyd did not factor in any substantial or operative way as a reason for the termination of Ms Boyd’s employment: see, e.g., Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; Qantas Airways Ltd v Transport Workers’ Union of Australia [2023] HCA 27; (2023) 278 CLR 571.

C.    THE PRIMARY JUDGMENT

13    I turn now to the reasons of the primary judge.

C.1    Introductory matters

14    After a brief introduction in which his Honour noted that Roadworx had terminated Ms Boyd’s employment by letters dated 16 January 2025 (with four weeks’ pay in lieu of notice) and on 21 January 2025 (for alleged misconduct), the primary judge identified the claims made by Ms Boyd. In this regard, his Honour recorded that:

(1)    Ms Boyd commenced the proceeding in the Court below by lodging a Form 2 alleging dismissal in contravention of a general protection (J[4]);

(2)    Ms Boyd subsequently lodged a statement of claim but in circumstances where Ms Boyd is not a lawyer, the statement of claim she prepared did not clearly plead her case (J[5]);

(3)    there followed correspondence between Roadworx’s solicitor and Ms Boyd concerning further and better particulars of Ms Boyd’s claim (J[5]);

(4)    from a combination of the Form 2, the statement of claim, the correspondence and discussions between his Honour and the parties at the hearing, his Honour identified the claims advanced by Ms Boyd against Roadworx for determination by the Court below including, relevantly, claims under s 340 of the Act that:

(a)    the termination of her employment on 16 January 2025 was adverse action taken by Roadworx because Ms Boyd had exercised workplace rights on specified dates between August 2024 and 15 January 2025; and

(b)    the further termination of her employment on 21 January 2025 was additional adverse action taken by Roadworx (J[7]).

15    The primary judge noted the metes and bounds of the evidence including identifying the witnesses called by Roadworx as: (1) Mr Stephen Gillies, the Chief Executive Officer of Roadworx; (2) Mr Luke Hulme, an employee of Roadworx to whom Ms Boyd reported at material times; and (3) Mr David Smith, another employee of Roadworx (J[8]).

16    His Honour then stated at J[10]:

At the hearing:

(a)    Mr Meagher cross-examined Ms Boyd.

(b)    Ms Boyd cross-examined Mr Gillies, Mr Hulme and Mr Smith.

Before Ms Boyd cross-examined Mr Gillies and Mr Hulme, I explained to her that if she considered that the witness had stated a matter in their affidavit which was not correct, she should put this to the witness in cross-examination: see for example T33/44-45, T39/31-34, T86/30-46 and T101-104.

C.2    Factual findings

17    The primary judge then discussed the evidence and his findings of fact. The central findings of fact made by the primary judge are discussed below.

C.2.1    The employment contract

18    In February 2024, Ms Boyd commenced employment with Roadworx (J[11]). The written contract of employment included a clause titled “Termination of Employment”, which stated (J[13]):

a)    You may terminate this contract of employment by giving 4 weeks’ notice in writing to the Company.

b)    The Company may terminate this contract of employment by giving you 4 weeks’ notice in writing or by payment of salary in lieu of that notice or by giving part notice and part payment in lieu thereof.

c)    Nothing in subclause (b) shall affect the Company’s right to terminate this contract at any time without notice if you:

i.    Commit any serious breach of your obligations hereunder; or

ii.    Are guilty of misconduct, incompetence or behavior which is, in the reasonable opinion of the Company, prejudicial to the business or interests of the Company.

19    A clause titled “Return of Company Property” stated (J[14]):

On termination you are required to return promptly to the Company all property of the Company under your control or in your possession including all files, correspondence, documents, lists, records, memoranda, computer disks and files, computers, mobile phones, keys, credit cards, membership cards and motor vehicles.

20    A “Position Description” for the position “WHS & QA Compliance Manager/Officer” stated in part under the heading “Primary Objective” (J[15]):

The role of compliance is to support and help develop, maintain and oversee a consistent Work, Health, Safety and Quality Management and Compliance culture across the Roadworx Group of businesses … Responsible for reviewing and maintaining with the support of the Operational Management team appropriate policies and standards.

21    That document also contained, under the heading “Key Working Relationships” and subheading “Federal, State, Local Government and Regulatory Authorities” (J[16]):

Develop and maintain effective professional working relationships with bodies and agencies.

22    Ms Boyd initially reported to Mr Phil Burns (J[12]).

C.2.2    Communications with Smarter Safety

23    On 30 May 2024, Ms Boyd sent an email to Mr Burns stating (J[20]):

Please see attached amendment, and newly created policies for review as per our discussions with Stephen on Wednesday, 22nd May. Please let me know if there are any additional amendments required, wording or phrases, that you wish to see changed.

… The newly developed policies may include a comment that will help identify what has been excluded from the COR policy that was requested by Stephen.

Once approved by Stephen and yourself, I will submit the drafts to SmarterSafety for formalisation and implementation into our system.

(The references to “Stephen” appear to be references to Mr Gillies.)

24    On 14 June 2024, Mr Burns replied (J[20]):

The reviewed policies look good other than some housekeeping which I am sure you will address …

25    On 17 June 2024:

(1)    Ms Boyd forwarded the email chain to Ms Christine Morgan, a Senior System Specialist at Smarter Safety (J[19]). Smarter Safety provide an integrated management system which was used by Roadworx to assist in compiling and storing safety and quality management related documents and data. The Smarter Safety platform was made available to Roadworx managers and supervisors to access documents such as SafeWork NSW statements and risk registers for plant and equipment. Roadworx started using Smarter Safety around 2009 to enhance its existing operational standards in relation to safety and processes. Ms Boyd was involved in Roadworx’s use of Smarter Safety, including recommendations of any modifications required to ensure all standards were compliant with relevant legislation (J[18]);

(2)    Ms Boyd’s email to Ms Morgan (which was copied to Mr Burns) stated (J[20]):

Please update/add the following policies. I have left the tracked changes on so you are aware of the amendments. ; and

(3)    Mr Burns replied to Ms Boyd, copied to Ms Morgan (J[20]):

We will need to get these approved/reviewed by SG before we upload them.

(The reference to “SG” appears to be a reference to Mr Gillies.)

26    On the same day, Ms Boyd forwarded the above email chain to Mr Gillies. Ms Boyd wrote in her email to Mr Gillies (J[21]):

See attached amendments, nil issues from Phil, other than general housekeeping. Please click on tracked changes to view before and after amendments.

27    The primary judge observed at J[22] that:

(1)    the email from Ms Boyd to Mr Burns dated 30 May 2024 indicated that she was aware Mr Gillies needed to approve the new policies before she submitted the policies to Smarter Safety “for formalisation and implementation into our system”. Yet, based on the email chain, Ms Boyd neither sought nor obtained Mr Gillies’s approval before sending the email to Ms Morgan on 17 June 2024 asking Ms Morgan to “update/add the following policies”;

(2)    Ms Boyd, in her affidavit evidence, accepted that she had not obtained the approval of Mr Gillies prior to sending the email to Ms Morgan on 17 June 2024. She stated that, upon Mr Burns approving the changes via email, “I reasonably believed this approval extended to Stephen”; and

(3)    it appeared from the email chain that Ms Boyd did not obtain the full approval of Mr Burns before sending the email to Ms Morgan on 17 June 2024 – since Mr Burns wrote in his email to Ms Boyd on 14 June 2024 that there was “some housekeeping [to] address”, and Ms Boyd’s email to Mr Gillies on 17 June 2024 indicated that she had not addressed the “housekeeping” before sending the email to Ms Morgan on 17 June 2024 asking her to “update/add the following policies”.

28    On 24 June 2024, Ms Boyd sent a further email to Ms Morgan (J[23]). The primary judge noted that it appeared that an external auditor was to conduct a “desktop audit” of Roadworx on 16 July 2024, Ms Boyd had recently completed an “internal audit of the system”, and Ms Boyd wanted Ms Morgan to attend to specified tasks before the desktop audit by the external auditor. Ms Boyd commenced her email to Ms Morgan as follows:

In preparation of our upcoming audit can you kindly update the below, as well as recheck all policies, procedures and documents are current and compliant with current legislations …

Moving forward, as this is a service that is meant to be provided, can you ensure that these are consistently checked and updated. This will help alleviate the administrative workload for you moving forward. As well as, give Roadworx reassurance that this system is current and a reliable source for finding information.

29    Ms Boyd then listed about 13 tasks for Ms Morgan’s attention (J[23]).

30    At 11:01am on 26 June 2024, Ms Morgan replied to Ms Boyd’s email (J[23]). Ms Morgan raised questions about four of the tasks assigned by Ms Boyd. As to the remaining tasks, Ms Morgan wrote that “all items below will be actioned as requested by Friday afternoon”. Ms Morgan then wrote:

On another note, you have requested I do an Internal Desktop Audit of the system as I have done annually in the past prior to your Certification Audit. To enable this to be completed can you please upload all Evidence Documents to Document Storage prior to Monday 15th July as I have your desktop Audit Scheduled for Tuesday 16th July.

31    The primary judge noted that this paragraph appeared to respond to Ms Boyd’s request that Ms Morgan, “in preparation of our upcoming audit”, “recheck all policies, procedures and documents are current and compliant with current legislation” (J[23]).

32    At 2:38pm that day, Ms Boyd replied to Ms Morgan. That reply included (J[23]):

In relation to the evidence you requested, all documents within document storage remain current most of the documentation is from November/December. As a result, reviews within a short turn around aren’t required. I submitted an updated audit schedule that will better align with our requirements.

33    The primary judge observed that this appeared to be a partial response by Ms Boyd to Ms Morgan’s request that Ms Boyd “upload all Evidence Documents” to enable Ms Morgan to carry out an “Internal Desktop Audit” (J[23]).

34    Later that day, further emails were exchanged between Ms Boyd and Ms Morgan (J[23]):

(1)    at 3:16pm, Ms Morgan:

There still needs to be a lot of evidence uploaded so that I can do my Internal Audit Report please. ;

(2)    at 4:56pm, Ms Boyd:

Considering your recent audit was conducted in November, conducting another one this soon without previous actions being completed would be a waste of your time. ;

(3)    at 5:23pm, Ms Morgan:

So it is agreed I will NOT do another internal audit before your certification audit? I am not sure the Auditor will agree but it is a Roadworx decision. ; and

(4)    at 5:51pm, Ms Boyd:

Your attention is needed on getting the system up to date and compliant.

We have improvement requests from our audits dating back four years that still haven’t been actioned. That is not a good representation of our organisation to the auditor.

…

Please put your full focus into getting this system up to date and all the necessary documents, risk assessments and so on where they need to be.

35    At 6:15pm that day, Ms Morgan replied to Ms Boyd. Ms Morgan copied the reply to Mr Gillies (who had not been copied into any of the emails earlier in the day) (J[23]). Ms Morgan’s reply included:

Could you please have someone forward the improvement requests going back 4 years that have not been actioned as I have no idea what you are talking about.

I have attached the last Roadworx Improvement Log - November 2023 and all Improvement Requests have been signed off as actions verified since 2018 by the QMS Auditors as you will see attached.

We will not be offering Roadworx a renewal of our Support Services from 30 July 2024 after your Certification Audit …

Melissa, I will not read any further emails from yourself but will action the requests below.

36    The primary judge made the following observations concerning the above email chain (J[24]):

(1)    in the absence of evidence from Ms Morgan, it was not entirely clear what had caused Ms Morgan to write on 26 June 2024 that:

(a)    “we will not be offering Roadworx a renewal of our Support Services from 30 July 2024”;

(b)    she “will not read any further emails from” Ms Boyd;

(2)    it appeared from the email chain that Ms Boyd:

(a)    was demanding;

(b)    changed her instructions to Ms Morgan within a short timeframe (in particular concerning the request by Ms Boyd that Ms Morgan “recheck all policies, procedures, and documents are current and compliant with current legislation”, which Ms Morgan described as an “Internal Desktop Audit”);

(c)    then made a serious accusation against Smarter Safety that it had not actioned improvement requests “dating back four years”;

(3)    the combination of these matters may have caused Ms Morgan to write the statements set out in (1) above; and

(4)    in any event, in considering Ms Boyd’s adverse action claim against Roadworx, and the rebuttable presumption in s 361 of the Act, the relevant issue was Mr Gillies’s state of mind at the time he terminated Ms Boyd’s employment in January 2025 (citing Wong v National Australia Bank Limited [2021] FCA 671 at [78] to [81] (Snaden J); and Qantas 600 [49] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). His Honour observed that from Mr Gillies’s perspective, when he received and read the email sent by Ms Morgan to Ms Boyd at 6:15pm on 26 June 2024, he would have become aware that Ms Boyd had contributed to putting at risk an important relationship between Roadworx and Smarter Safety.

37    Smarter Safety continued to provide services to Roadworx after 30 July 2024. The primary judge noted that neither party adduced evidence concerning communications between Roadworx and Ms Morgan up to 30 July 2024 which would explain why Smarter Safety did not cease providing services to Roadworx, as threatened in the email from Ms Morgan on 26 June 2024 (J[25]).

38    The primary judge then noted the evidence of Mr Gillies that: (1) following receipt of the email at 6:15pm on 26 June 2024, he “asked Mr Burns to direct Ms Boyd to cease engaging with Ms Morgan directly”; (2) Mr Burns subsequently confirmed to Mr Gillies that he told Ms Boyd not to contact Ms Morgan directly; and (3) “on multiple occasions [he] informed Ms Boyd she was not to directly contact Ms Morgan,” (J[26]).

39    The primary judge also noted that Ms Boyd did not challenge these parts of the evidence given by Mr Gillies in her cross-examination of Mr Gillies (J[26]).

40    At 9:08am on 9 August 2024, Ms Boyd sent Ms Morgan an email asking her to undertake a task (J[27]).

41    At 9:26am that day, Ms Morgan forwarded Ms Boyd’s email to Mr Burns, copied to Mr Gillies, and wrote in part (J[27]):

As stated in my email earlier this week, I am not going to answer any emails sent by Melissa because of the past history …

I will not engage with Melissa in any form. If this is not suitable to you and you no longer wish to avail of our services, please let me know.

42    On 12 August 2024, Ms Boyd, having not received a reply from Ms Morgan to her email to Ms Morgan on 9 August 2024, sent an email to the Smarter Safety Support Team which stated in part (J[28]):

I have been having some difficulty reaching our support person Christine in relation to incorrect regulation and legislations noted within our Company SWEMS.

Are you able to kindly assist on the below, this is my third request and I am yet to receive any response.

43    On 12 August 2024, Ms Morgan forwarded Ms Boyd’s email to Mr Gillies and wrote (J[28]):

Currently your Support runs out at the end of August … Smarter Safety will not be continuing support for Roadworx. We are continuing to have issues with your employee and I will not subject my employees to this person.

44    The primary judge then noted the following evidence from Mr Gillies concerning the 12 August 2024 email (J[29] to [30]):

Later that same day, I spoke to Ms Morgan over the telephone in relation to the above email received. I do not recall the exact words said, but my recollection of the conversation was that Ms Morgan apologised and said she had been pushed emotionally by the correspondence with Mrs Boyd. She said that she appreciated Smarter Safety and Roadworx had a long standing relationship, and she took back what she said. We agreed that we would make it work and Smarter Safety would still support Roadworx.

…

Mrs Boyd had put Roadworx in the position where it could have had no operating system and potentially lost their ISO and safety accreditations. Smarter Safety was a critical part of Roadworx’s operations.

45    The primary judge noted further, that Ms Boyd did not challenge this part of Mr Gillies’s evidence in her cross-examination of Mr Gillies (J[30]).

46    The primary judge also noted that in circumstances where a critical issue was Mr Gillies’s state of mind at the time he terminated Ms Boyd’s employment in January 2025, Ms Boyd did not raise with Mr Gillies in cross-examination any of a series of critical or disparaging comments that she had made concerning Ms Morgan in her affidavit evidence (J[31]).

C.2.3    September to December 2024

47    From about early September 2024, Mr Hulme replaced Mr Burns as the person to whom Ms Boyd was required to report (J[32]).

48    In November 2024, Mr Gillies and Mr Hulme had a conversation concerning Ms Boyd’s work performance. The primary judge set out the following evidence from Mr Gillies concerning that conversation (J[33] to [34]):

33.    In or around November 2024, I had a conversation with Mr Hulme in relation to Mrs Boyd’s attendance at Roadworx’s office on West Dapto Road. I do not recall the exact words said, but my recollection of the conversation was that we spoke about how Mr Hulme was having issues enforcing Mrs Boyd’s requirement to work at the office on West Dapto Road. Mr Hulme told me that Mrs Boyd was often working from other locations rather than West Dapto Road, even when specifically asked by Mr Hulme to do so. Mrs Boyd’s place of work was West Dapto Road. Mrs Boyd on occasion would visit Roadworx’s other offices at Ingleburn and Montague Street to undertake audits, but she was not otherwise required to work from the offices at these locations.

34.    In or around November 2024, based on my conversation with Mr Hulme, I understood Mr Hulme was having difficulties managing Mrs Boyd. I asked David Smith, who at that time was an Asphalt Manager for Roadworx, whether he would be willing to manage Mrs Boyd for a short period and his response was no. I was concerned that my senior employees were having difficulties managing Mrs Boyd.

49    The primary judge noted that Ms Boyd did not challenge any part of this evidence during her cross-examination of Mr Gillies (J[34]).

50    The primary judge also noted that Mr Hulme gave detailed evidence in his affidavit of the difficulties he had managing Ms Boyd in November 2024, including an email from Mr Hulme to Mr Abhishek Rao, a human resources officer employed by Roadworx, dated 22 November 2024 in which Mr Hulme documented difficulties managing Ms Boyd and wrote in part (J[35]):

Melissa’s attendance at West Dapto Rd over the last 2 months has not been high. I am asked by Managers at my level and the level below on a daily basis [as] to her whereabouts. I have also had a meeting with our CEO where he stated Melissa attendance at West Dapto is not good and that I haven’t had the capacity to manage attendance effectively due to being busy.

51    The primary judge noted further that: (1) Mr Hulme did not give evidence of the conversation with Mr Gillies in about November 2024 of which Mr Gillies gave evidence ([48] above); and (2) Mr Hulme’s difficulty in managing Ms Boyd in relation to her attendance at work was consistent with Mr Gillies’s recollection of the conversation (J[36]).

52    On or about 25 November 2024, Mr Hulme, Mr Rao and Ms Boyd met (25 November 2024 meeting). At that meeting Mr Hulme and Mr Rao addressed Ms Boyd’s behaviour. Ms Boyd accepted that this meeting occurred. Roadworx did not issue Ms Boyd with a written warning or a performance plan (J[107]).

53    The primary judge noted that a key part of Roadworx’s defence to Ms Boyd’s claims under s 340 of the Act was the evidence of Mr Gillies that he decided to terminate Ms Boyd’s employment in December 2024 on the basis of poor performance (December 2024 decision) but, given the approaching Christmas holidays, he decided to communicate the termination decision to Ms Boyd in January 2025 (J[37]).

54    The primary judge then set out the following evidence from Mr Gillies concerning the December 2024 decision:

36.    I made the decision to terminate Mrs Boyd’s employment in or around December 2024 on the basis of poor performance. However, given the upcoming Christmas holidays, I considered it to be more considerate to wait until the new year to actually terminate Mrs Boyd’s employment.

37.    I confirmed the decision in multiple conversations with Mr Hulme and Mr Smith.

38.    For example, in or around December 2024, I had discussions with Luke Hulme in relation to Mrs Boyd’s performance in her employment. I do not recall the exact words said, but my recollection of these conversations was that we spoke about how I had already made a decision on Mrs Boyd’s long term future, and I had decided to terminate Melissa’s employment because of her performance. I said I would wait until after the Christmas holidays to terminate her because I did not want to terminate her employment just before Christmas.

39.    I made the decision at this point to terminate Mrs Boyd’s employment because of her poor performance and conduct. I did not decide to terminate her employment because she made a workers’ compensation claim, raised any ‘protected WHS concerns’ or took personal/carer’s leave. Mrs Boyd had demonstrated poor performance and conduct:

a.    by refusing to comply with directions, including:

i.    with respect to contacting Ms Morgan;

ii.    not attending to work or at work locations (ie the West Dapto Road Office) as required; and

iii.    not following directions by Mr Hulme;

b.    by failing to manage the relationship with Ms Morgan and Smarter Safety; and

c.    by her engagements with other colleagues where colleagues were finding her very difficult to work with.

, before noting that Ms Boyd did not challenge this evidence in her cross-examination of Mr Gillies (J[38] and [39]).

55    The primary judge then addressed the evidence of Mr Hulme and Mr Smith whom Roadworx had called as witnesses to corroborate Mr Gillies’s evidence that in December 2024 he had: (1) decided to terminate Ms Boyd’s employment; and (2) communicated this decision to Mr Hulme and Mr Smith (J[40]).

56    As to Mr Hulme, the primary judge noted that:

(1)    Mr Hulme recalled attending a meeting with Mr Gillies, and perhaps also Mr Smith, in about mid-December 2024 at the Ingleburn office of Roadworx, as to which he gave the following evidence:

30.     … Ms Boyd’s future employment status was not the sole focus of the meeting but was something that was discussed during the course of the meeting.

31.     During the meeting, I and maybe David Smith, spoke about recent issues I had been experiencing with Ms Boyd in her employment. Mr Gilles said he was already aware of these issues as Mr Rao had been updating him.

32.     We had a conversation in words similar to these, although I do not recall the exact words of this conversation:

Mr Gillies:    “Melissa’s employment won’t be long term. I have made a decision to bring her employment to an end and I will be doing this at the start of the new year. I won’t do it right now because we are too close to Christmas. We have too much going on operationally with the pre-Christmas shutdown to focus on finalising everything, and I don’t want to put her out of a job just before Christmas”.

33.     From the conversation had, it was my understanding that Mr Gillies had made the decision on or before the date of this meeting to terminate Mrs Boyd’s employment but would implement this decision after the Christmas holidays and at the beginning of the new year. ; and

(2)    Ms Boyd cross-examined Mr Hulme but did not challenge Mr Hulme’s recollection of what Mr Gillies had told him (J[41] to [43]).

57    As to Mr Smith, the primary judge noted (J[44] to J[47]) that:

(1)    Mr Smith gave evidence that:

(a)    he recalled attending a meeting with Mr Gillies and Mr Hulme at Roadworx’s office on West Dapto Road in December 2024;

(b)    he made a note of the meeting;

(c)    one topic discussed concerned Ms Boyd, and Mr Smith made a note in relation to this topic:

S.G. to manage M Boyd. ;

(2)    Mr Smith’s recollection of this part of the meeting was as follows:

During the meeting, I recall Mr Hulme raising that he had been experiencing issues with Melissa Boyd. A conversation took place in words similar to these, although I do not recall the exact words of this conversation:

Mr Hulme:    A distracting issue is my continued management of Melissa. She has been disregarding my instructions as her direct manager to only work from the West Dapto Road office unless I approve otherwise.

Mr Gillies:    You don’t have to worry about Melissa much longer. I will be dealing with her in the new year. ;

(3)    Mr Smith added:

From the words said by Mr Gillies, I understood that he had already made a decision to terminate Mrs Boyd’s employment on or around the date of the Meeting but would action the termination in the new year. ; and

(4)    Ms Boyd cross-examined Mr Smith, but she did not challenge Mr Smith’s recollection of what Mr Gillies said, although she challenged Mr Smith’s understanding of Mr Gillies’s words.

C.2.4    Early January 2025 – proposed inspection by SafeWork NSW

58    In early January 2025, Mr Gillies was informed by a manager at Roadworx, Mr Trevor Patrick, that SafeWork NSW intended to inspect Roadworx’s depot at Montague Street, Wollongong. Mr Patrick told Mr Gillies that “one of the complaints was that Roadworx did not have a psychological policy in place” (J[48]).

59    The primary judge noted that the relevance of this complaint to Mr Gillies’s state of mind in January 2025 was that Ms Boyd had previously sent Mr Gillies an email expressing concern that “Roadworx does not have a Psychosocial Management Policy” and “this policy is paramount in ensuring compliance with WHS Legislation, as well as, fulfilling our obligations with the ISO standards” (J[48]).

60    Although Ms Boyd had previously engaged with SafeWork NSW on behalf of Roadworx, Mr Gillies asked Mr Patrick to attend this particular SafeWork NSW inspection on behalf of Roadworx and to inform Ms Boyd that she need not attend (J[49]). Mr Gillies explained in his affidavit that (J[49]):

43.    I made this decision because I believed that Mr Patrick was in a better position to address SafeWork NSW alone on this site inspection. Mr Patrick is based at and familiar with the site that was to be inspected.

44.    I suspected that Mrs Boyd may have been involved in the complaint because she had previously advocated for a psychosocial policy and audiometric testing for all employees (regardless of their duties). If Mrs Boyd had complained to SafeWork NSW, this was fine, but I thought it was appropriate to have Mr Patrick address SafeWork NSW in response to the complaint, because I thought Mr Patrick would properly address any enquiries (which I did not think had any substance) and I was about to terminate Mrs Boyd’s employment for poor performance.

C.2.5    15 January 2025

61    On 15 January 2025, the following events occurred.

62    The SafeWork NSW inspection at Roadworx’s depot occurred in the morning (and prior to 11:25am) (J[50] and [52]).

63    At 11:25am, a SafeWork NSW inspector sent an email to Mr Patrick, copying Ms Boyd (J[52]):

Following on from our meeting, can you please send through the following by this afternoon:

•    Psychosocial risk management documentation including policies, procedures that are currently implemented throughout the business

•    Qualifications of the workers undertaking repair work at the North Wollongong Depot.

64    At 12:16pm, Ms Boyd responded by email to the inspector (but not Mr Patrick) (12:16pm email), stating that “Roadworx does not have a psychosocial policy or procedure in place”(J[53]).

65    The primary judge noted that Ms Boyd stated in cross-examination that by the morning of 16 January 2025 she “had a feeling that [Mr Gillies] was going to retaliate” against her because she sent this email. His Honour inferred from Ms Boyd’s evidence that, at the time she sent the 12:16pm email, she was aware that the sending of the email was potentially inconsistent with Mr Gillies’s direction, communicated to Ms Boyd by Mr Patrick, not to attend the SafeWork NSW inspection (J[54]).

66    At 12:20pm, Mr Rao sent an email to Ms Boyd, copied to Mr Gillies, which stated (J[56]):

As per our phone conversation, can you please call Stephen Gillies.

Also, if you can please complete a leave form for today as salaries are being processed.

67    The primary judge noted that:

(1)    it appeared from this email that Ms Boyd was on leave on 15 January 2025, but had not submitted a leave form;

(2)    Mr Rao’s email refers to an earlier telephone conversation between Mr Rao and Ms Boyd, to which Ms Boyd referred in a later email;

(3)    the evidence before the Court did not address why Mr Rao asked Ms Boyd to call Mr Gillies; and

(4)    it is unlikely that Mr Gillies wanted to speak with Ms Boyd about the 12:16pm email, as there was no evidence before the Court, and it was highly unlikely, that within the four minutes between 12:16pm and 12:20pm, the 12:16pm email came to Mr Gillies’s attention and he then asked Mr Rao to ask Ms Boyd to call him to discuss that email (J[56]).

68    At 12:32pm, the SafeWork NSW inspector responded to the 12:16pm email stating (J[57]):

Thanks for confirming.

Can you please confirm the ABN and registered business address for Roadworx? I will be issuing an improvement notice to develop policies and procedures to minimise risk in reducing psychological harms to workers.

I will explain the requirements and what I expect in the notice in the upcoming email.

Could you also send through workers qualifications. Thanks.

69    At 1:26pm, Ms Boyd sent an email to Mr Gillies (J[58]):

I hope you are well. Apologies for missing your call earlier. I wanted to follow up on some concerns that I previously raised with Abhi and discuss them further. My intention in bringing these matters to HR has always been to follow proper company procedures, not to cause any offense or disrupt the workplace.

As you are aware, I have raised several concerns regarding internal practices, specifically around the lack of formal policies and procedures, which I believe are essential for the smooth operation of the organization. Despite my repeated efforts to assist the company in addressing these issues, I have yet to see any meaningful action taken. I have also sought professional advice on work health and safety (WHS) matters, which seems to have been overlooked.

Additionally, I have been regularly excluded from key discussions, and I was even instructed not to attend the Safework Inspector’s visit today. As the WHS & QA Manager, I have legal obligations to ensure compliance with relevant safety legislation, and I must act in the best interests of both the company and my professional standing. Being excluded from the inspection puts both my career and the company at risk, as I am unable to fulfil my duties or defend the organization in the event of a WHS issue.

I have also raised the matter of my faulty laptop, which continues to cause significant health issues, including migraines due to blurry screens. Despite months of communication and requests for a replacement, I have not received a resolution. This issue is further compounded by the inability to engage with our Safety System provider, which directly impacts my ability to implement necessary changes to the WHS system and ensure compliance.

Since Mr. Phil Burn’s departure, I have found myself with significantly reduced work, excluded from decision-making around safety issues, and without the support I need to fulfil my role effectively. This ongoing lack of support, combined with the non-compliance issues, has caused considerable distress, affecting both my professional and personal well-being.

As a result, I must express my concern that my current health condition, exacerbated by these ongoing issues, may require me to seek Worker’s Compensation, as I am unable to perform my duties without significant impairment to my health. The uncertainty surrounding my role and the lack of stability within my employment are untenable, and I feel that my situation is no longer sustainable under the current circumstances.

Given these concerns, if my position is to be made redundant, I would appreciate an open and constructive discussion regarding a fair and reasonable payout. I would request that the payout be based on my entire salary package and reflective of competitive market standards in line with NSW employment laws.

I kindly request that you provide me with a decision on this matter by tomorrow morning, so we can address this situation promptly and move forward in the best possible way for both parties. I believe that resolving these issues in a fair manner will avoid the need for further escalation, including potential Worker’s Compensation claims.

Thank you for your attention to this matter. I look forward to your response.

Please note today will be required to be paid as a normal working day due to work related discussions, work-related Dr visits, and work-related stress. No personal leave entitlements are to be utilised.

To ensure clarity and record of conversations help please discuss all matters via email. This protects both you and I.

70    The primary judge observed that:

(1)    it appeared from the content of the 1:26pm email that Ms Boyd was concerned that Roadworx may be about to terminate her employment by making her position redundant, and in cross-examination, Ms Boyd accepted that a concern about redundancy was on her mind;

(2)    Ms Boyd made a number of assertions and complaints about Roadworx’s conduct as an employer, in respect of which Ms Boyd did not put before the Court supporting or corroborating affidavit or documentary evidence; and

(3)    Ms Boyd threatened that she may be “require[d] to seek worker’s compensation”, but also offered to not make a workers compensation claim if she was paid “a fair and reasonable payout … based on my entire salary package” (J[59]).

71    At 1:34pm, Ms Boyd sent an email to the SafeWork NSW inspector, to Mr Rao, and to Mr Patrick, which:

(1)    responded to a question asked by the SafeWork NSW inspector; and

(2)    forwarded the email chain earlier in the day, including the 12:16pm email, to Mr Rao and Mr Patrick (J[60]).

72    The primary judge noted that:

(1)    Mr Gillies’s oral evidence appeared to be that he became aware of the 12:16pm email when Mr Patrick forwarded a copy to him, and he was aware of that email by the afternoon of 16 January 2025; and

(2)    it appeared that Mr Gillies could not have become aware of the 12:16pm email before 1:34pm on 15 January 2025 (J[61]).

73    Also, on 15 January 2025, Ms Boyd saw a medical practitioner who completed a “Certificate of capacity/certificate of fitness” for the purpose of Ms Boyd lodging a workers compensation claim (J[62]).

C.2.6    16 January 2025

74    On 16 January 2025 the following events occurred.

75    At 12:33pm, Ms Boyd sent an email to Mr Rao, copied to Mr Gillies. Ms Boyd wrote in part (J[63]):

I will submit my Workers Compensation certificate shortly, please note the first date of injury is 27th November 2024. All personal leave taken from that date to now will need to be reinstated as these entitlements were taken due to stress. Compassion leave will not be required to be reinstated.

76    The primary judge noted that: (1) Ms Boyd asserted in her affidavit evidence that at 12:22pm on 16 January 2025 she “emailed the workers compensation notice to Stephen Gillies”; (2) this email was not in evidence before the Court; (3) Ms Boyd’s assertion was inconsistent with the statement in her email sent at 12:33pm on 16 January 2025 that she “will submit my Workers Compensation certificate shortly”; and (4) thus, his Honour was not satisfied that Ms Boyd emailed a workers compensation notice to Mr Gillies at 12:22pm on 16 January 2025 (J[64]).

77    Prior to 4:40pm, Mr Gillies made a telephone call to Ms Boyd and left a message for her to call him. Mr Gillies stated in that message (J[65]):

Hi Melissa, this is Stephen Gillies from Roadworx. I am wondering if you could give me a call back as soon as possible. It’s in relation to a number of emails and your behaviour in the last 48 hours. I’d appreciate it if you could ring me on the mobile number XXX. Thank you.

78    At 4:40pm, Ms Boyd sent an email to Mr Gillies (J[66]):

Thank you for your call and voicemail. Unfortunately, due to the message that was left I personally do not feel comfortable calling you back. I also requested all correspondence to come through via email to ensure both you and I are protected.

If you wish to discuss further feel free to send me an email or discuss with my case worker once they have been assigned.

79    At 5:57pm, Mr Gillies sent an email to Ms Boyd attaching a letter (16 January letter), which stated (J[67]):

I refer to your letter of employment dated 5/2/24.

I have endeavoured to make contact with you in regard to your absence from work on Wednesday 15th and Thursday, 16 January. You have chosen not to return my phone call but have sent me an email implying some form of commercial constraint or obligation.

Roadworx wishes to terminate your employment. Roadworx wishes to advise that in accordance with your employment contract and in accordance with the termination provisions (paragraph b) by way of payment of 4 weeks notice in writing and in lieu payable on return or collection of all company property.

Roadworx will arrange the collection of the company motor vehicle at 9am Friday 17th January. Would you please ensure that any company property you wish to return along with the vehicle is made available to our staff member.

The company reserves its right in regard to paragraph (c) (i) and (ii) you are reminded that you need to perform your obligations under your employment contract.

80    The primary judge noted the evidence of Mr Gilles that at the time he sent the letter, although he was aware Ms Boyd intended to make a workers compensation claim, he “did not know at this time whether Ms Boyd had in fact made a claim for workers compensation” (J[68]).

81    At 6:05pm, Ms Boyd replied to Mr Gillies (J[69]):

Just to be clear you have terminated my employment due to me exercising my right to workers compensation and raising concerns in relation to my working environment.

82    At 9:25pm, Ms Boyd sent an email to Roadworx, copied to Mr Gillies, informing Roadworx of her workers compensation claim number (J[71]).

C.2.7    Events subsequent to 16 January 2025

83    The primary judge then turned to the issue of the state of Ms Boyd’s laptop computer upon its return to Roadworx.

84    His Honour noted:

(1)    the evidence of Mr Gillies that he had a conversation with Mr Hulme in which Mr Hulme told Mr Gillies that on 17 January 2025 Ms Boyd delivered the laptop to the Montague Street premises and that “the laptop was wet and appeared to have been deliberately damaged”; and

(2)    that Ms Boyd did not challenge this evidence, and to the contrary, Ms Boyd appeared to accept that Mr Gillies genuinely “assumed [Ms Boyd] had damaged that laptop” (J[72]).

85    As to Mr Hulme’s evidence concerning the laptop, the primary judge noted:

(1)    Mr Hulme’s evidence that:

(a)    Ms Boyd handed the laptop to him at the Montague Street office of Roadworx;

(b)    Mr Hulme then drove with the laptop to the West Dapto office, left the laptop on Ms Boyd’s desk, and instructed Mr Daniel Collins (whom the primary judge presumed was an Information Technology officer at Roadworx), to inspect the laptop. While the laptop was in Mr Hulme’s possession, it did not come into contact with water;

(c)    after Mr Collins inspected the laptop, he reported to Mr Hulme that the laptop did not work and the keyboard was wet;

(d)    Mr Hulme then inspected the laptop in the presence of Mr Collins. Mr Hulme gave the following description in his affidavit:

I walked back to Mrs Boyd’s desk with Mr Collins and saw that the laptop was now open, and the keyboard was wet. Mr Collins and I then flipped the laptop onto its back and removed the back cover. We observed that the laptop was evidently wet. The amount of water indicated that the laptop had been more than just splashed because the circuitry was wet. I did not notice any water on the outside of the laptop while it was closed because it was the inside of the laptop that was wet. ; and

(2)    that Ms Boyd cross-examined Mr Hulme and challenged Mr Hulme’s evidence and observations concerning the laptop (J[73] to [74]).

86    The primary judge noted Mr Gillies’s evidence that, following his conversation with Mr Hulme, he believed that Ms Boyd “had damaged her laptop” and he “considered she should have her employment terminated immediately for misconduct” (J[75]).

87    On 21 January 2025, Mr Gillies, on behalf of Roadworx, terminated Ms Boyd’s employment immediately for misconduct (J[76]). His letter, sent by email on that date (21 January letter), stated:

I refer to my letter of 16 January 2025 and your email of 21st January.

Roadworx has terminated your contract for employment in accordance with Clause (c) ii.

You were required to return property belonging to Roadworx and while substantively this has occurred, the company believes you have deliberately damaged a laptop and this is further evidence of misconduct.

As a result of your actions Roadworx is within its rights to reclaim monies paid in error being salary paid to 31 January (approximately two weeks). I have considered your email sent to me today and will not seek repayment of the salary paid in advance

Notwithstanding this Roadworx will pay the accrued leave up until your termination, amounting to 14.68 hours. This will be paid 22nd January 2025.

We have also been advised that you have made a claim for unfair dismissal and Roadworx will vigorously defend your application.

88    The primary judge noted that:

(1)    Mr Gillies added in his affidavit evidence:

Again, I did not terminate Ms Boyd’s employment because she made a workers’ compensation claim, raised any ‘protected WHS concerns’ or took personal/carer’s leave. ;

(2)    Ms Boyd, in cross-examining Mr Gillies, did not challenge this evidence (J[78]); and

(3)    the practical effect of terminating Ms Boyd’s employment on 21 January 2025 immediately was that she lost her entitlement to further pay in lieu of notice. (J[79]).

89    On 7 February 2025, Mr Gillies sent a letter to the Fair Work Commission (7 February letter) in response to an unfair dismissal claim by Ms Boyd. His letter included (J[80]):

Melissa has raised various concerns regarding her involvement in dealing with a complaint around the operation of our workshops in Montague Street North Wollongong.

Melissa was excluded from discussions with Safework NSW as an instruction from me as it pertained to a complaint about working in the rain, non-compliance with a policy on psychological management and not supervising apprentices. The anonymous complaint made to WorkSafe NSW was specific regarding to a draft policy that had been discussed by my operations Manager, myself, and herself as the author. I did not agree to the adoption of the policy and kept it for review. This policy was not known to members of the Roadworx Team. I gave instructions to Roadworx staff on how to manage the interaction with Safework NSW.

Generally, the matter was resolved but not before Melissa ignored instructions to refrain from being involved and wrote to Safework conveying a statement that Roadworx did not keep appropriate policies in place. We subsequently produced our policies and the matter was satisfactorily managed for the second time. Since then, additional anonymous accusations have been made which would be consistent with threats and blackmail type allegations contained in her application for financial recompense beyond that contained in my letter of termination. Safework NSW are now investigating the sources of these complaints given the impact it has on their resources.

…

Melissa Boyd has made several threats to fellow employees and management. In August Melissa resigned as our QA and OHS Officer [citing] “bullying” as a reason for resigning. Melissa was talked out of resigning and attended a number of meetings where her behaviour was raised, these being:

•    Ongoing and repeated disregard for following instructions by her senior manager

•    Ongoing and repeated non-attendance at work (evidenced in her own email requesting that she “work from home” and I was not to be informed, effectively falsification of her timesheet for work attendance

•    Ongoing use of language not in keeping with her role

…

Melissa Boyd’s behaviour continued to be unsettling to the team and consequently my staff openly complained to me about her behaviour. This culminated in her termination particularly regarding contact with Safework NSW.

This behaviour was also evident in an altercation when she upset the owner and manager of our working safety policy platform which was temporarily withdrawn from use due to the abuse by Melissa towards the owner and manager of the Smarter Safety Software. Roadworx was placed in a situation where the Smarter Safety System would have been inoperable and we would have had to rewrite our system and recruit a company to operate a system that meet its ISO and NSW Government obligations. Irreparable harm could have resulted from this event which I averted whilst travelling to the USA in November 2024.

C.3    Consideration of Ms Boyd’s claims

90    After setting out the relevant statutory framework (J[82]), the primary judge turned to consider the claims advanced by Ms Boyd.

91    His Honour noted that Ms Boyd alleged that:

(1)    she had exercised a workplace right:

(a)    on 21 August 2024, 11 October 2024 and 12 December 2024 when she raised “WHS concerns”;

(b)    on 14 January 2025, when she “raised WHS concerns with SafeWork NSW”;

(c)    on 15 January 2025, when she:

(i)    lodged a workers compensation claim;

(ii)    exercised a right to paid personal leave;

(2)    she was the subject of adverse action when she was dismissed on 16 January 2025; and

(3)    that dismissal occurred because she had exercised her workplace rights (J[83]).

92    As to the alleged exercise of a workplace right, the primary judge was satisfied that:

(1)    Ms Boyd had a right to lodge a claim for workers compensation (which was a workplace right) and that she communicated to Roadworx that she may exercise that right (J[94] to [98]); and

(2)    on 15 January 2025, Ms Boyd exercised an entitlement to paid personal/carer leave, which involved the exercise of a workplace right (J[99] to [100]).

93    I will refer to: (1) the proposed exercise of the right to lodge a claim for workers compensation; and (2) the exercise of the entitlement to take leave as Ms Boyd’s exercise of workplace rights.

94    However, his Honour was not satisfied that Ms Boyd:

(1)    exercised (or proposed to exercise) a workplace right on 21 August 2024, 11 October 2024 or 12 December 2024 (J[83] to [85]); or

(2)    “raised WHS concerns with SafeWork NSW” on 14 January 2025 (J[86] to [88]).

95    The primary judge also decided that the 12:16pm email – being an email which Ms Boyd had not relied upon as involving the exercise or proposed exercise of a workplace right, but which his Honour nevertheless treated as part of her case (J[55], [89] and [90]) – did not involve the exercise of a workplace right (J[89] to [93]).

96    The primary judge then considered whether the termination of Ms Boyd’s employment on 16 January 2025 occurred because of Ms Boyd’s exercise of workplace rights (J[101] to [102]).

97    His Honour answered this question in the negative (J[113]). He reached that conclusion for the following reasons:

(1)    his Honour accepted the evidence of Mr Gillies concerning the December 2024 decision. His Honour’s reasons for accepting that evidence included that Mr Gillies’s evidence of his state of mind as at December 2024 was:

(a)    supported by information he had received up to December 2024 concerning various problems in relation to Ms Boyd’s work performance;

(b)    corroborated by the evidence of Mr Hulme and Mr Smith (J[105]);

(2)    Ms Boyd, in cross-examining Mr Gillies, did not challenge Mr Gillies’s evidence as to his state of mind in December 2024 (J[105]);

(3)    his Honour did not accept Ms Boyd’s submission that he should not accept Mr Gillies’s evidence concerning his state of mind in December 2024 because, as Ms Boyd submitted: (a) “no concerns were raised, nor was I issued a warning or performance plan”; (b) “if the alleged misconduct was severe enough to warrant immediate termination, then why not act immediately”; and (c) Mr Gillies’s “stated reasons for termination were not included in my termination letter” (J[106]). The primary judge acknowledged that Ms Boyd raised these matters with Mr Gillies during his cross-examination, but his Honour:

(a)    found that Roadworx had raised concerns about Ms Boyd’s work performance prior to January 2025. His Honour gave as examples:

(i)    the direction from Mr Gillies to Ms Boyd in about July 2024 to cease communicating directly with Ms Morgan which implicitly conveyed to Ms Boyd a concern about her performance ([38] above); and

(ii)    the 25 November 2024 meeting between Mr Hulme, Mr Rao and Ms Boyd in which they had addressed Ms Boyd’s behaviour ([52] above);

(b)    found that the fact that Roadworx did not issue Ms Boyd with a written warning or performance plan following the 25 November 2024 meeting did not undermine Mr Gillies’s evidence concerning his state of mind in December 2024;

(c)    accepted Mr Gillies’s evidence as to why, having decided in December 2024 to terminate Ms Boyd’s employment, he decided to wait until after the Christmas break to communicate the decision to Ms Boyd;

(d)    found that, as the employment contract permitted Roadworx to terminate Ms Boyd’s employment on a no fault basis with four weeks’ notice or pay in lieu of notice, and Roadworx terminated Ms Boyd’s employment on a no fault basis on 16 January 2025, it was not necessary for Roadworx to include reasons for termination in the 16 January Letter (J[107]);

(4)    his Honour accepted Mr Gillies’s evidence that the 12:16pm email to SafeWork NSW was sent after Mr Gillies had given instructions for Ms Boyd not to be involved with the SafeWork NSW investigation, was part of the reason for terminating Ms Boyd’s employment (J[108]); and

(5)    when Ms Boyd cross-examined Mr Gillies concerning his state of mind when he sent the 16 January letter, she did not suggest to Mr Gillies that a reason he terminated her employment on 16 January 2025 was her exercise of workplace rights (J[109]).

98    The primary judge then stated (J[110]):

… I consider that Roadworx has rebutted the presumption to which s 361 of the FW Act gives effect, and I accept that the proscribed reasons alleged by Ms Boyd concerning:

(a)    her proposal on 15 January 2025 to lodge a workers compensation claim; and

(b)    her taking of paid personal/carer leave on 15 January 2025;

did not factor in any substantial or operative way as a reason for Roadworx’s termination of Ms Boyd’s employment on 16 January 2025.

99    His Honour then considered (at J[111] and [112]) the position if, contrary to his earlier finding (at J[93]), the 12:16pm email did involve the exercise of a workplace right.

100    His Honour noted that: (1) Mr Gillies accepted in cross-examination that the 12:16pm email was part of the reason for the termination of Ms Boyd’s employment; but that (2) his evidence was that the aspect of Ms Boyd’s conduct associated with the 12:16pm email which upset him was not the content of that email, and instead the fact that Ms Boyd communicated directly with SafeWork NSW after Mr Gillies believed he had directed Ms Boyd, through Mr Patrick, not to communicate with SafeWork NSW concerning its investigation (J[112]).

101    His Honour found that (J[112]):

From the perspective of Mr Gillies’ state of mind, it was Ms Boyd’s refusal to comply with an instruction, and not the content of the 12:16 pm Email, which was a contributing factor to the termination decision.

102    The primary judge then considered Ms Boyd’s claim that the termination of her employment on 21 January 2025 constituted a contravention of s 340 of the Act. His Honour reasoned as follows:

(1)    by sending the 21 January letter, Roadworx terminated Ms Boyd’s employment without notice, as a result of which Ms Boyd lost her entitlement to further pay in lieu of notice;

(2)    for the purpose of considering this claim by Ms Boyd, his Honour assumed that an employer, after terminating an employee’s employment on terms of four weeks’ pay in lieu of notice, remained able within the four week period to terminate the employee’s employment without notice so that they are no longer entitled to further pay in lieu of notice. His Honour noted that Ms Boyd’s causes of action against Roadworx did not include an action that Roadworx was not permitted to take this step;

(3)    by sending the 21 January letter, Roadworx took adverse action against Ms Boyd, within the meaning of item 1 in s 342(1) of the Act, which provides that an employer takes adverse action against an employee if the employer “alters the position of the employee to the employee’s prejudice”;

(4)    his Honour was not satisfied that Roadworx took such action because Ms Boyd had a workplace right, exercised a workplace right, or proposed to exercise a workplace right because:

(a)    he accepted Mr Gillies’s evidence that the reason he terminated Ms Boyd’s employment on 21 January 2025 without notice was because he believed that:

(i)    on 16 or 17 January 2025, Ms Boyd wilfully damaged a laptop computer owned by Roadworx; and

(ii)    this conduct by Ms Boyd entitled him to terminate her employment under the term of the employment contract which gave Roadworx “a right to terminate this contract at any time without notice” if the employee is “guilty of misconduct” ([18] above);

(b)    when Ms Boyd cross-examined Mr Gillies concerning his state of mind when he sent the 21 January letter, she did not challenge Mr Gillies’s evidence as to his state of mind or suggest to Mr Gillies that a reason he sent that letter was because Ms Boyd had exercised a workplace right;

(c)    Ms Boyd did not:

(i)    identify a workplace right that she may have exercised between 16 and 21 January 2025; or

(ii)    suggest that Mr Gillies sent the 21 January letter because of a workplace right exercised by Ms Boyd prior to 16 January 2025; and

(5)    thus, Ms Boyd’s claim concerning a contravention of s 340 of the Act by reason of the 21 January letter must be dismissed (J[114] to [123]).

D.    THE APPEAL

103    I turn now to Ms Boyd’s appeal against the orders made by the primary judge.

D.1    Relevant principles of appellate review

104    I respectfully adopt the summary of principles of appellate review relevant to an appeal such as the present set out by Justice Shariff in Laing O’Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323; (2024) 335 IR 197 at 218 to 219 ([63] to [66]):

63    The principles of appellate review relevant to the disposition of this appeal are well established. This Court’s appellate jurisdiction involves an appeal by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20] (Allsop J, Drummond and Mansfield JJ agreeing). The task of the Court on appeal is to correct error: Branir at [22]. Where, as here, there are challenges to findings of fact, the appeal is governed by a correctness standard as set out in well-established authorities such as Warren v Coombes (1979) 142 CLR 531. In such cases, the appellate Court is generally in as good a position to determine those facts: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [41] (Gageler J); Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ); Warren v Coombes at 552 (Gibbs ACJ, Jacobs and Murphy JJ). However, in order for such an appeal to be successful, it is well-established that a finding of error is indispensable, and that a mere disagreement on a finding of fact is ordinarily insufficient: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 at [45] (Perram J, with whom Allsop CJ and Markovic J agreed).

64    In respect of such an appeal, this Court must do a “real review” of the evidence that was before the primary judge: Fox v Percy at [25]; SZVFW at [32]. The appeal court must make up its own mind about the facts. However, it does not deal with the case as if trying it at first instance and has regard for the advantages enjoyed by the trial judge: Branir [28]; Aldi Foods at [47]. The proper approach is not to ask the court to survey all the evidence and to arrive at its own conclusions, or to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. The views and conclusions of the trial judge ultimately have to be shown to be wrong, and they should not be ignored and the case re-argued: Branir at [30].

65    In assessing the evidence and the findings of fact, the appellate Court does so noting that the primary judge had all the advantages of making an assessment of the witnesses’ evidence at trial, noting that findings of fact based on the credibility of witnesses can only be reversed by an appellate court “in exceptional cases”: Fox v Percy at [94] (McHugh J). The “advantages of the trial judge” are not simply observation of cross-examination. They include “the advantages, subtle but real, of a trial judge hearing a long case and being able to assess and place all the evidence in its context as it unfolds and as witnesses (truthful, reliable, or not) deal with it”: Frigger v Trenfield (No 3) [2023] FCAFC 49 at [142] (Allsop CJ, Anderson and Feutrill JJ); State Rail Authority of (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at [89]-[91] (Kirby J). They include that the trial judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments; the trial judge hears and sees all of the evidence in a reasonably logical context; the evidence unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form; and during the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind: Frigger at [142]; Earthline at [90].

66    Where findings are “based on a combination of impressions about the credibility or reliability of witnesses and other inferences from primary facts”, they are liable to be reversed only if “shown to be contrary to ‘incontrovertible facts or uncontested testimony’ or be shown to be ‘glaringly improbable’ or ‘contrary to compelling inferences’”: Frigger at [141] and cases there cited including Fox v Percy at [28]-[29] and Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).

(italic emphasis in original)

D.2    Grounds of appeal

105    It is convenient to deal with the grounds of appeal in the following groups.

D.2.1    Ground 6

106    The sixth ground of appeal is:

Ground 6 — Procedural unfairness arising from curtailment of cross-examination

14.    The primary judge erred by making findings that aspects of the respondent’s evidence were not challenged in circumstances where the appellant, a self-represented litigant, was constrained in cross-examination.

15.    To the extent necessary, the appellant relies on the hearing transcript and/or audio recording to demonstrate that the conduct of the hearing contributed to erroneous findings and denied the appellant a fair opportunity to test the respondent’s evidence.

107    It is appropriate to deal with this ground first, because if it is made out, it would strike at the validity of the trial and require that the matter be remitted for retrial: see Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530 at 537 to 538 [18] (Greenwood and Rangiah JJ) and the authorities there cited.

108    Ms Boyd did not address this ground in her written submissions. In her oral submissions, she suggested that she had been denied procedural fairness because of repeated interruptions by the primary judge during her cross-examination of Roadworx’s witnesses.

109    The transcript of the hearing before the primary judge was before the Court on this appeal. Although Ms Boyd asserted that the transcript was incomplete, there is no evidence, either on the face of the transcript or otherwise, to support this assertion. Counsel for Roadworx did not accept Ms Boyd’s assertion. I proceed on the basis that the transcript is complete.

110    I have reviewed the transcript. It is true that the primary judge did interrupt Ms Boyd during her questioning of Roadworx’s witnesses. However, his Honour did not do so in a way that was procedurally unfair. Indeed, his Honour’s interruptions cannot be faulted. For example, some interruptions addressed the form of questions asked by Ms Boyd (e.g., questions which comprised multiple questions, were vague, or were unable to be understood). His Honour’s guidance that questions in that form should not be asked was appropriate – such questions are unfair to the witness and answers to such questions are typically of little utility to the Court (and the cross-examining party). Similarly, his Honour’s interruptions when Ms Boyd had started to ask another question before the witness had finished his answer.

111    Ms Boyd also submitted that she was discouraged from using legal terminology because she was not a lawyer. I cannot accept that submission – it is clear from the transcript that the primary judge asked Ms Boyd not to use the expression “exercising a workplace right” (which his Honour described as “legal terminology”) within a question Ms Boyd put to Mr Gillies, out of fairness to Mr Gillies who may not have been familiar with that expression.

112    Ms Boyd also submitted that she was denied the opportunity to make full opening and closing submissions, but this is not borne out by the transcript.

113    For the reasons set out above, I am not satisfied that there was excessive judicial intervention of the kind that would result in a miscarriage of justice: cf. Gambaro at 538 to 540 ([19] to [26]).

D.2.2    Grounds 1, 4 and 5

114    I turn next to the first, fourth and fifth grounds of appeal.

115    Those grounds all concern the primary judge’s conclusion that Roadworx had discharged its onus of proving that Ms Boyd’s exercise of workplace rights did not factor in any substantial or operative way as a reason for the termination of Ms Boyd’s employment.

116    Those grounds are in the following terms:

Ground 1 — Mischaracterisation of performance evidence as unchallenged

1.    The primary judge erred in finding, or proceeding on the basis, that the respondent’s evidence that a decision had been made in December 2024 to terminate the appellant’s employment for poor performance was not challenged.

2.    The primary judge failed to consider or engage with material evidence elicited in cross-examination, including the absence of any performance management plan or formal warnings and the existence of a recent audit tendered by the respondent identifying no adverse findings.

3.    That error materially affected the finding that the respondent had discharged its onus as to the reason for termination.

…

Ground 4 — Misapplication of s 361 (reverse onus)

10.    The primary judge erred in law by misapplying s 361 of the Fair Work Act 2009 (Cth).

11.    The primary judge relied on the respondent’s asserted reasons for termination and findings that evidence was “unchallenged”, rather than requiring the respondent to positively prove that the exercise of workplace rights played no part in the adverse action, contrary to ss 360 and 361 and established authority.

…

Ground 5 — Failure to deal with material admissions

12.    The primary judge erred by failing to engage with material admissions made by the decision-maker in contemporaneous correspondence to the Fair Work Commission acknowledging a causal link between the appellant’s engagement with SafeWork NSW and the termination of her employment.

13.    Those admissions were capable of establishing that a prohibited reason was an operative factor in the adverse action and required direct consideration.

117    The primary judge’s reasoning to the conclusion that Roadworx had discharged its onus is described at J[101] to [113] ([96] to [101] above). It involved the following premises:

(1)    Mr Gillies was the relevant decision-maker;

(2)    Mr Gillies gave evidence that Ms Boyd’s employment was terminated not because she had exercised her workplace rights but instead because of:

(a)    the December 2024 decision;

(b)    Ms Boyd’s action in sending the 12:16pm email despite a direction that she not communicate with SafeWork NSW; and

(3)    Mr Gillies’s evidence should be believed.

118    Ms Boyd’s central argument on the appeal is that the primary judge:

(1)    decided that Roadworx had discharged its onus by reason of the evidence concerning the December 2024 decision;

(2)    erred in doing so because, taken as a whole, the evidence did not establish that Ms Boyd’s exercise of her workplace rights did not factor in a substantial or operative way as a reason for the termination of her employment. As to the evidence as a whole, Ms Boyd relied upon the following matters:

(a)    the lack of contemporaneous records consistent with the making of the December 2024 decision including that: (i) the note made by Mr Smith during the meeting “S.G. to manage M Boyd” made no mention of termination; (ii) there was no written warning or performance plan for Ms Boyd as part of or following the 25 November 2024 meeting; (iii) the 7 February letter did not refer to the December 2024 decision;

(b)    Mr Hulme’s inability to confirm precisely who attended the December 2024 meeting or the exact words spoken because he could not remember;

(c)    the voicemail message left by Mr Gillies for Ms Boyd at 4:40pm on 16 January 2025 which referred to “your behaviour in the last 48 hours”; and

(d)    the 21 January letter, which provided a different reason for the termination of her employment.

119    I do not accept Ms Boyd’s submission that the primary judge’s finding – that Ms Boyd’s exercise of her workplace rights did not factor in any substantial or operative way as a reason for the termination of Ms Boyd’s employment – was based solely upon the December 2024 decision. His Honour’s reasons also indicate that he accepted that Mr Gillies’s perception that Ms Boyd’s sending of the 12:16pm email amounted to a refusal to comply with an instruction was part of the reason for termination of Ms Boyd’s employment: J[108] and [112] ([97(4)] and [101] above).

120    I deal with the evidentiary matters raised in [118(2)(a) to (d)] below.

121    First, it is well settled that contemporaneous documents are the most reliable form of evidence and that human memory is fallible: see, e.g., the authorities collected in Top Energy Pty Ltd v Liu [2026] FCA 689 at [52] to [58]. Thus, a contemporaneous record of the December 2024 decision would have been powerful evidence that such a decision was made.

122    Conversely, the absence of a contemporaneous record (and the non-inclusion of pertinent information in a contemporaneous record of a meeting where that decision was discussed), may weigh (perhaps heavily) against a finding that the December 2024 decision was made. Similarly, the absence of a reference to this decision (or to the conduct of Ms Boyd said to have been the catalyst for that decision) in the 21 January letter or the 7 February letter.

123    Secondly, Mr Hulme’s acknowledgement that he could not remember precisely who was at the December 2024 meeting is relevant to an evaluation of his evidence concerning that meeting. However, it is of little moment given the evidence of others who were present.

124    Thirdly, Mr Gillies’s 4:40pm 16 January 2025 voicemail message to Ms Boyd which referred to her behaviour in the previous 48 hours is also relevant to a determination of Mr Gillies’s state of mind. However, it is not particularly strong evidence that Ms Boyd’s exercise of workplace rights factored in a substantial and operative way in the decision to terminate her employment, as: (1) within the previous 48 hours Mr Gillies had formed the view that Ms Boyd had refused to comply with an instruction that he had given (J[61]); and (2) the mere fact that Ms Boyd exercised her workplace rights within the previous 48 hours is not of itself evidence of causation.

125    Fourthly, although the 21 January letter did not refer to the December 2024 decision, it was written after the 16 January letter and did state the reason for Ms Boyd’s dismissal for misconduct (i.e., the damage caused to Roadworx’s laptop computer).

126    Thus, the above matters weigh, in varying degrees of strength, against the acceptance of the evidence of Mr Gillies that he made the alleged December 2024 decision.

127    These matters, however, must be weighed against the following countervailing matters:

(1)    the evidence of Mr Hulme and Mr Smith, which corroborated the evidence of Mr Gillies that he made the December 2024 decision;

(2)    the absence of a challenge in cross-examination to critical evidence concerning the alleged December 2024 decision, with the result that the witnesses did not have the opportunity to explain the matters now put by Ms Boyd, such as the extent of contemporaneous records;

(3)    the documentary evidence of the conduct of Ms Boyd with respect to Smarter Safety in August 2024 which Mr Gillies says he took into account in making the December 2024 decision;

(4)    the contemporaneous evidence as to other concerns about Ms Boyd’s performance during the period leading up to December 2024 including:

(a)    the endangering of a critical business relationship with Smarter Safety;

(b)    Mr Hulme’s 22 November 2024 email concerning Ms Boyd’s low attendance rate at Roadworx’s West Dapto Road premises;

(c)    the 25 November 2024 meeting between Mr Rao, Mr Hulme and Ms Boyd, which addressed Ms Boyd’s behaviour; and

(5)    the advantages enjoyed by the primary judge in having sat through the hearing and having seen the witnesses give their evidence.

128    Importantly and related to [127(5)], the primary judge’s findings that the reasons for the termination of Ms Boyd’s employment on 16 January 2025 were:

(1)    the December 2024 decision; and

(2)    the view taken by Mr Gillies that Ms Boyd had refused to comply with an instruction that he had given on 15 January 2025,

were each findings likely to have been affected by the primary judge’s impressions about the credibility and reliability of the witnesses formed as a result of seeing and hearing them give their evidence – Mr Gillies, Mr Hulme and Mr Smith with respect to the December 2024 decision and Mr Gillies with respect to his view that Ms Boyd had refused to comply with his direction.

129    As Justice Shariff noted in Laing O’Rourke at 219 [66], by reference to well-established authority, such findings are liable to be reversed only if “shown to be contrary to ‘incontrovertible facts or uncontested testimony’ or be shown to be ‘glaringly improbable’ or ‘contrary to compelling inferences’”.

130    Ms Boyd submitted that the primary judge’s finding with respect to the December 2024 decision was contrary to compelling inferences to be drawn from the objective record. As noted above, some of the evidence weighs against the likelihood that the December 2024 decision was made. Other evidence suggests that it was made – in particular the contemporaneous evidence of concerns as to Ms Boyd’s conduct in the period prior to December 2024; and unchallenged evidence of each of Mr Gillies, Mr Hulme and Mr Smith. In these circumstances, I am not satisfied that the primary judge’s finding with respect to the December 2024 decision was contrary to compelling inferences, or otherwise was the product of error by the primary judge.

131    Ms Boyd also contends that the primary judge did not require Roadworx to positively prove that the exercise of workplace rights played no part in the termination of her employment. I cannot accept that contention. It is plain on the face of the primary judge’s reasons that: (1) the primary judge was cognisant of the onus upon Roadworx (J[103] and [110]); and (2) his Honour assessed, in some detail, the evidence adduced by each of Roadworx and Ms Boyd and concluded that Roadworx had discharged that onus.

132    None of this is gainsaid by the primary judge’s statement that certain evidence was not challenged in cross-examination.

133    Ms Boyd’s next contention (ground 5) is that the primary judge failed to engage with an admission she contends was made in the 7 February letter ([89] above) that: “Melissa Boyd’s behaviour continued to be unsettling to the team and consequently my staff openly complained to me about her behaviour. This culminated in her termination particularly regarding contact with Safework NSW”. Ms Boyd also relied upon the absence of a reference in that letter to the cause of the termination being the delayed implementation of the December 2024 decision.

134    It is plain that the primary judge had regard to the 7 February letter. It was not necessary for the primary judge specifically to refer to the matters now raised by Ms Boyd particularly when there is no inconsistency between the trial judge’s acceptance of Mr Gillies’s evidence and the contents of the 7 February letter.

135    It follows that the appeal cannot succeed in so far as it is based upon grounds 1, 4 and 5.

D.2.3    Grounds 2 and 3

136    The second and third grounds of appeal are:

Ground 2 — Error in characterising the appellant’s SafeWork NSW communication

4.    The primary judge erred in concluding, or proceeding on the basis, that the appellant’s communication with SafeWork NSW did not constitute the exercise of a workplace right within the meaning of s 341 of the Fair Work Act 2009 (Cth).

5.    On the evidence accepted by the Court, the communication was in response to regulator-initiated contact, was factually accurate, and occurred in the course of the appellant’s role which included engagement with regulatory authorities.

6.    The primary judge failed to apply ss 360 and 361 of the Fair Work Act to that conduct.

Ground 3 — Procedural unfairness in the treatment of the 15 January 2025 SafeWork email

7.    The primary judge erred in the use made of the appellant’s email to SafeWork NSW sent at approximately 12:16 pm on 15 January 2025.

8.    The primary judge acknowledged that the email was central to the adverse action claim and was produced during the hearing yet relied upon it without engaging with its legal character as a response to a statutory regulator’s request or the appellant’s legal obligation to respond.

9.    That approach constituted procedural unfairness and materially affected the reasoning as to motive and causation.

137    Those grounds of appeal relate to the 12:16pm email which, as noted above, stated:

Roadworx does not have a psychosocial policy or procedure in place.

138    As also noted above:

(1)    this email was not relied upon by Ms Boyd as part of her case before the primary judge and she did not assert that it involved the exercise of a workplace right; and

(2)    the primary judge nevertheless considered whether it did constitute the exercise of a workplace right and concluded that: (a) it did not; and (b) in any event, Ms Boyd’s employment was not terminated because of the exercise of such a right.

139    The primary judge’s reasoning to the conclusion that the 12:16pm email did not involve the exercise of a workplace right included:

92    In relation to whether the 12:16 pm Email involved the exercise of a workplace right:

(a)    Ms Boyd did not make any written or oral submission, with reference to the meaning of “workplace right” in s 341 of the FW Act, as to how the 12:16 pm Email involved the exercise of a workplace right.

(b)    Section 341(1)(a): I consider that Ms Boyd, by sending the 12:16 pm Email, did not exercise a workplace right as defined in s 341(1)(a). For example, the sending of the 12:16 pm Email was not associated with a workplace law of which Ms Boyd was “entitled to the benefit” or under which Ms Boyd “has a role or responsibility”.

(c)    Section 341(1)(b): I consider that Ms Boyd, by sending the 12:16 pm Email, did not exercise a workplace right as defined in s 341(1)(b). For example, by sending the 12:16 pm Email Ms Boyd did not “initiate or participate in a process or proceedings under a workplace law”.

(d)    Section 341(1)(c): I consider that Ms Boyd, by sending the 12:16 pm Email, did not exercise a workplace right as defined in s 341(1)(c). One reason is that the 12:16 Email did not involve the making of “a complaint”. As stated in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 314 ALR 346 at [29] (and adopted in Messenger v Commonwealth of Australia [2022] FCA 677 (Messenger) at [139] and Howard v Chevron Australia Pty Ltd [2025] FCA 650 (Howard) at [33]), “a complaint is a communication which, whether expressly or implicitly, as matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation” for the purpose “that it may be … received and, where appropriate, investigated or redressed”. The 12:16 Email conveyed none of “a grievance, a finding of fault or accusation”. Ms Boyd merely provided information in response to a request for information. A second reason is that the 12:16 Email did not involve the making of “an inquiry”, noting that “an inquiry is the act of seeking information about something”: Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923; 252 IR 26 at [44]. A third reason is that “in order that the making of a complaint or inquiry might amount to the exercise of a workplace right of the sort to which s 341(1)(c)(ii) of the Act refers, it must pertain, as a matter of substance, to its maker’s employment”: Messenger at [139]; Howard at [33]. Even if the 12:16 Email involved the making of a complaint or inquiry, it did not pertain to Ms Boyd’s employment.

93    For the above reasons, I am satisfied that the sending of the 12:16 Email did not involve the exercise of a workplace right by Ms Boyd.

(bold, underline and italic emphasis in original)

140    I discern no error in his Honour’s reasoning. His Honour clearly engaged with the question of the legal characterisation of that email and did so in a manner that did not involve a want of procedural fairness.

141    At J[111] to [113], the primary judge addressed whether – if, contrary to his earlier finding, the 12:16pm email did involve the exercise of a workplace right – the termination of Ms Boyd’s employment occurred because of such an exercise of a workplace right.

142    His Honour explained:

111    As stated in paragraph 93 above, I consider that the sending of the 12:16 Email by Ms Boyd did not involve the exercise of a workplace right.

112    In circumstances where Mr Gillies accepted in cross-examination that Ms Boyd’s email to SafeWork NSW on 15 January 2025 was part of the reason for terminating Ms Boyd’s employment (T158/32-43), it is appropriate to add the following point. Even if my finding in paragraph 93 above is wrong, and the sending of the 12:16 pm Email by Ms Boyd involved the exercise of a workplace right, Mr Gillies’ evidence in cross-examination was that the aspect of Ms Boyd’s conduct associated with the 12:16 pm Email which upset him was, not the content of the 12:16 pm Email, but that Ms Boyd communicated directly with SafeWork NSW after Mr Gillies believed he had directed Ms Boyd, through Mr Patrick, not to communicate with SafeWork NSW concerning its investigation: see T138/40-42, T139/15-19, T146/29-34, T158/32-43. This is consistent with Mr Gillies’ evidence in the Gillies Affidavit at [44] that “if Mrs Boyd had complained to SafeWork NSW, this was fine.” I accept this evidence of Mr Gillies. From the perspective of Mr Gillies’ state of mind, it was Ms Boyd’s refusal to comply with an instruction, and not the content of the 12:16 pm Email, which was a contributing factor to the termination decision.

113    It follows that, in respect of the termination of Ms Boyd’s employment on 16 January 2025 with four weeks’ pay in lieu of notice, Ms Boyd’s claim concerning a contravention of s 340 of the FW Act must be dismissed.

143    Again, I discern no error in his Honour’s reasoning.

144    Thus, in so far as the appeal depends upon grounds 2 and 3, it must be dismissed.

E.    CONCLUSION

145    For the foregoing reasons, the appeal must be dismissed.

Associate:

Dated:    30 July 2026