Abboud v The State of New South Wales [2006] NSWIRComm 1110 | Case summary

Abboud v The State of New South Wales [2006] NSWIRComm 1110 | Case summary | Zoe

[30]

13 The Applicant claims her dismissal on 4 March 2004 was constructed by the Respondent. The Applicant contends she was denied procedural fairness and her written response to the issues raised by the Respondent on 31 January 2005 were rejected without justification or explanation. 14 The Applicant claims that the Respondent's practice of keeping warnings and file notes active indefinitely is unreasonable. Further, the Applicant also contends that there was little substance to a series of warnings issued to her in 2002 had and those warnings bear no relation to the issues for which she was ostensibly dismissed in March 2005. Accordingly, the Applicant claims her dismissal on 4 March 2005 was unfair pursuant to s 84 of the Act. 15 With regard to the dismissal in May 2002, the Respondent maintains that the Applicant received written warnings in August 2001 and, April and May 2002 regarding her poor work performance and related issues. Further, the behaviour of the Applicant in conjunction with another employee had caused serious disruption at the Morisset office. The Respondent and his then partner subsequently engaged a consultant to conduct an investigation into certain matters and offer counselling to both employees. Neither employee responded positively to the offer of counselling and both received a written warning in respect of their behaviour. The Applicant was subsequently involved in another incident where it was alleged she physically threatened another employee with violence. 16 The Respondent vigorously denied the contention that there was pressure exerted upon him by Mr Armstrong to rescind the May 2002 termination. Rather, the termination was rescinded in response to various representations made by staff at the Toronto office. He contended that no representations were received from Morisset staff to support the Applicant's reinstatement. 17 The Respondent maintains a final warning was given to the Applicant on 3 February 2005 following consideration of her written response to the performance issues raised on 31 January 2005. 18 The Respondent denies "lip service" was paid to procedural fairness issues and that the dismissal was harsh, unreasonable or unjust. EVIDENCE For the applicant Mrs Kleiberg 19 The first thirty paragraphs of the Applicant's affidavit sworn on 28 June 2005 canvass a range of observations, incidents and warnings related to her employment with the Respondent prior to her initial dismissal on 31 May 2002. 20 The Applicant deposed that in June or July 2004, the Respondent approached her to assist a newly employed solicitor, Ms Natalie Renshaw with typing. At that time, the Applicant had asked for an increase in salary and in response, the Respondent indicated he would give this request some consideration pending a trial period of typing for Ms Renshaw. It was the Applicant's evidence that at the time, the Respondent did not mention or give any indication to the Applicant that he had concerns or was dissatisfied with any aspect of her work performance. 21 The Applicant further deposed that on 25 October 2004, Mr Paul Delves, the managing solicitor at the Morisset office issued a memorandum to all staff located at Morisset concerning improvements in work systems to help ensure the Applicant was able to undertake banking, DX mail and post office mail duties on time. The memorandum dated 25 October 2004, Annexure "J" to the Applicant 's affidavit states that Mr Delves had spoken to the Applicant about attending to post and banking duties and, specifically notes that DX mail should be finalised by 3.40pm and banking by 4.00pm. In addition, the memorandum states that post mail needs to be finalised by 4.35pm to enable the Applicant to place the mail over the counter at the post office by 5.00pm. The memorandum identifies the need for staff to cover reception between those times to allow the Applicant to undertake the requested duties. 22 The memorandum also refers to new requirements in respect of the drawing of cheques and states that if any employee requires a cheque to be drawn after 3.00pm for that day's DX mail or post, then the relevant cheque requisition should be given to the Applicant personally, rather than simply placed in her mail tray. This request was made to enable the Applicant to determine and prioritise what is and what is not urgent, the intention being that each cheque requisition placed in the tray after 3.00pm would be treated as "non urgent" and not required to be drawn that day. The memorandum relevantly states the following: Given that everyone will be lending a hand to assist Shirley with the above, I have in turn informed Shirley that there will be times when you will need reciprocal assistance from her, eg, making a phone call to a client to relay a message, some photocopying or such like to aid you through your busy periods. As you will appreciate, such are our staffing levels here (by necessity) it is very much an "all hands on deck" approach. Thanks as always to all for your cooperation and assistance with the above.

[31]

23 The Applicant states that on 31 January 2005, she returned from annual leave, which she commenced on Christmas Eve. At or about 10.00am on 31 January 2005, the Respondent met with Mr Delves at the Morisset office and at approximately 10.30am, the Applicant deposed she was summoned to join that meeting. The Respondent subsequently stated to her that he had "some serious issues regarding her employment". He also informed her that Mr Delves was to be the Respondent's witness at the meeting and invited her to secure her own witness for the meeting. The Respondent subsequently allowed the Applicant time to find an appropriate witness and at approximately 11.30am, the Applicant returned to the Morisset office with Ms Denise Coad, Manager of Wizard Home Loans at Morisset. 24 The Respondent subsequently proceeded to raise a number of issues, which she noted in writing. The Respondent gave her the choice of responding then and there at the time or, in writing by the close of business the following day. The Applicant chose to respond in writing. It was the Applicant's evidence that the Respondent did not provide her with any written confirmation of the issues raised orally at the meeting. In lieu thereof, the Applicant relied on her own notes to form her subsequent response to each issue raised. The Applicant forwarded her written response to the Respondent via email on 1 February 2005. 25 The Applicant stated that on 4 February 2005 she received a warning letter from the Respondent dated 3 February 2005 wherein he rejected her response to the matters raised with her on 31 January 2005. The letter also stated that her performance would to be reviewed in 22 days time. 26 It was the Applicant's evidence that she believed her response to the Respondent's allegations where truthful and accurate and further, she found difficulty in understanding why the Respondent did not find her response satisfactory, particularly when he did not explain his reasoning in the earlier correspondence. 27 On 24 February 2005 the Applicant commenced sick leave due to nausea, headaches and other problems related to the stress of the situation she found herself in. When the Applicant returned to work on 4 March 2005, the Applicant alleges the Respondent called her into Mr Delves office and said to her words to the following effect: Your work performance in unsatisfactory. Although you have been given time to improve you haven't. You are to clear your desk and hand your keys to Paul and you will be paid what you are owed.

[32]

28 The Applicant maintains that she did not receive a letter of termination. A Separation Certificate was sent to the Applicant on or about 31 March 2005 stating she was "unsuitable for this type of work" and additionally, she had received "several warnings for poor performance and excessive errors and despite warnings (there had been no) improvement". Cross Examination 29 The Applicant agreed that the Respondent took sole control of the firm on 1 July 2002 some one month following her initial termination in May 2002. 30 The Applicant agreed that the purpose of the meeting with the Respondent on 31 January 2005 was to raise his dissatisfaction concerning her performance. The Applicant also acknowledged that the Respondent offered her the opportunity to have a support person present at the meeting and that she availed herself of that opportunity. 31 The Applicant stated that the phrase "only lip service was paid to procedural fairness" was included in her application on the advice of her agents. Further, she understood "procedural fairness" to mean: ... he hasn't gone about things in the right way, he hasn't particularised a lot of the grievances he had against me... I didn't have any warnings. When he approached me on 31 January and offered me a witness and said he had some serious issues to discuss, and then there was no warning. 32 The Applicant acknowledged that she understood the purpose of parties' filing and replying to evidence. She acknowledged that she had read the various affidavits filed on behalf of the Respondent and had the opportunity to prepare instructions for her agents to reply. 33 The Applicant subsequently agreed that the Respondent had particularised his grievances orally and acknowledged that the support person and herself were given the opportunity to take notes at the meeting, notes that subsequently formed the basis of the Applicant's email reply on 1 February 2005. She also maintained that in her view the Respondent's grievances were not satisfactorily detailed. 34 The Applicant admitted she carefully reviewed the Respondent's evidence when preparing her affidavit in reply and agreed that she had not specifically replied to the Respondent's Issues 1 and 2. With regard to Issue 3, the Applicant admitted that the Respondent had accepted the word of Ms Renshaw concerning her views of the Applicant's performance over her own. 35 With respect to Issue 4, the Applicant admitted that infrequently, she was "often in a state of heightened anxiety or panic", particularly around mail times. Stamps were used on occasions when there was less than the minimum $10.00 worth of mail stipulated for account mail by Australia Post. The Applicant denied there was ever an occasion where she had missed the mail completely and no one had accused her to her face, until the meeting on 31 January 2005. 36 With respect to Issue 5, the Applicant vigorously denied the allegation that she had been rude to clients and stated that Mr Delves and Ms Hedge had lied to the Respondent concerning her behaviour. The Applicant also denied the general allegations of inefficiency on her part. 37 The Applicant denied she had created the "manual" in February 2005 to "cover her tracks" after the meeting on 31 January 2005. 38 The Applicant admitted that she did not accept the veracity of the allegations put to her by the Respondent. She did not believe the allegations were severe enough for the Respondent to threaten her with dismissal. The Respondent could have "sorted the issues out" when she returned from annual leave rather than threaten her with dismissal. 39 The Applicant admitted she was aware that a number of witnesses were prepared to give evidence that she was on occasions rude, tardy and inefficient at work but could not understand why they would want to state that. 40 The Applicant admitted that when she sought a reference from Ms Hackney, she did not tell her that she proposed to use it in these proceedings. She also agreed with the proposition that at the time, Ms Hackney provided the reference to assist her to obtain employment. She was aware at the time of seeking the reference in June or July 2005 that the Respondent had a significantly different view about her performance than that set out in the reference by Ms Hackney. 41 The Applicant believed the Commission should draw a favourable inference from Ms Hackney's reference and was unaware that her agents had forwarded correspondence to the Respondent stating they did not wish to call Ms Hackney as a witness in these proceedings. 42 The Applicant admitted that since May 2002, seven performance related issues had been raised with her. The August 2002 incident, the October 2004 memo issue and five separate issues on 31 January 2005. 43 The Applicant stated it was totally unwarranted for the Respondent to state at the time of her dismissal that there had been no improvement in her performance. She said she had tried to improve her performance to the best of her ability and was feeling stressed and upset. She denied that "she had given up the ghost". 44 The Applicant agreed that if an employee was behaving in the way alleged by the Respondent, that would be a matter of some substance that would need to be seriously addressed by the employer. She conceded that if the Respondent's allegations against her were true, they needed to be addressed. The Applicant subsequently offered the following comment concerning the allegations: (the issues were)...serious to a point where they should have been dealt with but I don't think they were serious enough to threaten me with dismissal. I think they could have been sorted out very satisfactorily in the office without Mr Churches coming down on me so heavily. 45 The Applicant agreed that the dispute between the Respondent and herself is characterised by divergent views concerning her performance. For the Respondent Mr Churches

[33]

46 The first sixty paragraphs of the Respondent's affidavit filed on 5 August 2005 deal with a response to the Applicant's evidence concerning events prior to her initial termination on 31 May 2002. 47 The Respondent deposed that from 1 June 2002, he became the sole owner of the law practice and from that date, attended to all of the administrative duties associated with managing a busy practice. The Respondent admitted that he did not personally discuss the Applicant's work performance with her until January 2005. 48 It was the Respondent's evidence that he relied upon Mr Delves to manage the Morisset office due to his own time restraints. In late October 2004, Mr Delves informed him that the Applicant's work performance had not improved. The Respondent deposed Mr Delves told him that he was concerned that complaints from other staff concerning the level of assistance they were giving the Applicant was impinging upon their own duties and the efficiency of the office as a whole. He also became aware at the time of a memorandum from Mr Delves to staff dated 24 May 2004, set out as Annexure "J" to the Applicant's first affidavit and subsequently advised Mr Delves that he did not consider the need for other staff to continually assist the Applicant was fair on them. Accordingly, he decided to monitor the situation. 49 The Respondent deposed that when he became aware that Ms Gould, Mr Delves' secretary, would be commencing maternity leave from December 2004, he requested a temporary replacement employee be employed to work with her and receive sufficient training before she proceeded on leave. 50 Ms Hodge subsequently commenced employment early December 2004 and received training from Ms Gould. The Respondent deposed that when he became aware that the Applicant would be on leave between Christmas and the end of January 2005, he discussed with Mr Delves the desirability of Ms Hodge receiving sufficient accounting system training from the Applicant to enable Ms Hodge to act as the "back up" bookkeeper. 51 The Respondent deposed that upon his return to work on 12 January 2005 he was informed that Ms Krystle Hodge had not been provided with sufficient training in accounting functions to enable her to draw a cheque for her own wages during the first week of January. He was further advised that another staff member gave Ms Hodge a personal cheque to cover her wage until one could be drawn on the firm's accounts. 52 It was the Respondent's evidence that as a result of the problem concerning lack of training for Ms Hodge, he conferred with Mr Delves and other staff members at Morisset concerning the Applicant's performance. 53 It was the Respondent's evidence that he believed Ms Hodge had received inadequate accounting system training. It was also his view that despite her relative inexperience, Ms Hodge was able to competently fulfil most of the duties of her own position and those of the Applicant whilst she was on annual leave. 54 The Respondent stated he attended the Morisset office on 31 January 2005 and said to the Applicant in the presence of Mr Delves words to the effect: Shirley I have some serious issues regarding your work performance I wish to discuss with you. Paul will be present but as an observer only. To be fair to you I am giving you the chance to have your own independent observer present if you wish. 55 It was the Respondent's evidence that a further meeting took place approximately an hour later in Mr Delves' office. Present at that meeting was the Applicant, her witness, Ms Coad, Mr Delves and himself. The Respondent deposed the subsequent conversation between the Applicant and himself took place along the following lines: I said Shirley, as I previously advised you, I have some serious issues regarding your work performance. I am going to advise you of those concerns. I will give you a chance to respond. If you need more time than today, I am prepared to give you until 5.00pm tomorrow to respond. If you cannot respond today that is fine, but as I will not be at Morisset tomorrow I would like your response in writing. In reply, the Applicant stated she wanted additional time to prepare a written response and I agreed to that request. The Respondent subsequently said the following to the Applicant: I want you to understand this is an investigation and I have not made any decisions regarding these issues. I want to give you the chance to respond to them before I make any decisions. I may not need to take any action at all, but I want you to know that I regard these issues as serious without an explanation from you and they may affect your employment, do you understand? The Respondent deposed that the Applicant replied: Yes, she understood.

[45]

72 The Respondent stated that following the resignation of a former Partner, Mr John McFadden in February 2002, he and Mr Armstrong decided to reorganise the flow of work between the Toronto and Morisset offices. Simply stated, Mr McFadden conducted a fairly busy litigation practice at Morisset, including personal injury and complex medical negligence cases that required a great deal of back up including photocopying and typing duties. It was the Respondent's evidence that by about April 2002, all litigation work, with the exception of Family Law, had been transferred to the Toronto office and solicitors would attend to client appointments at the Morisset office as required. In the Respondent's view, this change considerably reduced the workload for staff at Morisset and significantly increased the workload for staff at Toronto, including the work requirements of the Receptionist/Bookkeeper located at the Toronto office. 73 The Respondent denied the position of the Receptionist/Bookkeeper at the Morisset office required "further concentration than any other position within the office". The Respondent deposed that with the exception of minor matters, the Applicant was only ever required to draw cheques and receipts in both the Office and Trust accounts. The Applicant's duties were the same duties as those carried out by the Receptionist/Bookkeeper at Toronto. In addition, the Respondent contended that the Toronto office was approximately three times the size of the Morisset office in terms of staff numbers and the volume of work. Accordingly, the number of cheques and receipts drawn at Toronto were approximately three times the number of cheques and receipts drawn at the Morisset office and in this regard, the Receptionist/Bookkeeper at Toronto exercised her duties, including reception work, in a diligent way and with less bookkeeping errors than the Applicant. 74 It was the Respondent's evidence that he had been advised by Mr Delves and Ms Hedge of a number of complaints from clients of the Morisset office concerning the rude manner of the Applicant particularly in terms of her telephone and reception duties. The Respondent deposed that a major client had advised Mr Delves that he was taking his business elsewhere. 75 It was the Respondent's evidence that as a result of his investigation that led to the meeting with the Applicant on 31 January 2005 and after considering her email response dated 1 February 2005, he was not satisfied with nor did he accept her explanation, preferring instead the version of events provided to him by staff located at the Morisset office. Accordingly, he issued the Applicant with the written warning dated 3 February 2005 setting out the five issues of concern in relation to her performance and conduct in the workplace, stating her performance would be reviewed in twenty-two day's time, when he would consider what further action was required, including termination of her employment. 76 The Respondent deposed that with the assistance of Mr Delves, he continued to monitor the Applicant's performance closely throughout February 2005 and formed the view that her work performance had not improved. Specifically, the Respondent maintained that the Applicant did not issue cheques for payment of Morris Hayes & Edgar accounts in a timely manner as required and set out in the warning letter dated 3 February 2005. It was the Respondent's evidence that throughout February 2005, other staff were still required to "drop their own work" to assist the Applicant so as to ensure both banking and mail was undertaken on time. In the Respondent's opinion, this was unfair to other staff.

[46]

77 The Respondent conceded that the majority of warnings relied upon related to the Applicant's first dismissal in May 2002. 78 The Respondent believed he practised a consultative management style and did not make decisions without first talking to the relevant manager to obtain their feedback on the issues at hand. 79 The Respondent confirmed the Applicant was employed as a Grade 1 clerk and the reference to Grade 2 appearing on her payslip was an error. 80 The Respondent denied that prior to her resignation, Ms Hedge had exhibited disruptive behaviour. He was aware there was some difficulties between Ms Hedge and the Applicant in the workplace and he had engaged a mediator to investigate a threatening incident involving the Applicant and Ms Hedge and, to provide assistance to both employees. 81 The Respondent confirmed the Applicant's employment was subject to a probationary period in 2001 and despite the fact that he believed her accounting error rate was unsatisfactory, Mr Armstrong believed her employment should survive the probationary period because "she deserved a chance to show she could do the job". He denied his description of the Applicant's performance level had been exaggerated to support the warnings given to her on 31 January 2005. He admitted that some of the correspondence relied upon to support the contention that the Applicant was being given a warning could have been drafted using clear and direct language. 82 It was the Respondent's evidence that in respect of the various warnings contained in general and specific correspondence raised with the Applicant concerning her performance, he acknowledged she had responded in writing whenever an issue of substance was raised with her. 83 The Respondent confirmed that the Applicant was dismissed for the reasons set out in her letter of termination. He believed that he was entitled to take into account the whole history of the Applicant's employment. 84 The Respondent denied the additional workload allocated to Ms Hodge over December 2004 to January 2005 was too onerous. 85 The Respondent believed it was appropriate for him to raise his concerns with the Applicant orally and denied that she had not been afforded procedural fairness. He had also discussed the Applicant's response with Mr Delves. In addition, the Respondent stated he stood by the material contained in his affidavit and that of Mr Delves concerning the Applicant's performance. EVIDENCE Mr Delves 86 Mr Delves deposed he was an employed solicitor of the Respondent and the managing solicitor of the Morisset office. Paragraphs 4 - 20 of Mr Delves' affidavit dealt with issues raised by the Applicant in her affidavit dated 28 June 2005. 87 It was Mr Delves' evidence that there was a degree of friction between Ms Hedge, the then Conveyancing Secretary and the Applicant and, on occasions, there were frank exchanges between them. Ms Hedge, according to Mr Delves, was a very experienced secretary and had worked for the firm for some 12 years. She was responsible for the "paperwork" side of conveyancing and her workload was quite onerous. He admitted that at times, Ms Hedge could be "testy" when matters were not running smoothly. 88 Mr Delves deposed the friction between Ms Hedge and the Applicant concerned the fact that in the opinion of Ms Hedge, the Applicant was not prompt with the banking and/or drawing of cheques, nor the posting mail relating to conveyancing matters. There was an issue concerning inaccurate recording of telephone messages. In that regard, Mr Delves deposed that the mail referred to by Ms Hedge was then delivered to a street mailbox located some 200 metres from the Morisset office. The collection time was 5:00pm and Ms Hedge frequently complained to him that the Applicant was not leaving the office until 5:00pm or shortly thereafter. Moreover, Ms Hedge frequently complained to Mr Delves that the Applicant was not leaving the office to do the afternoon banking until very near 4:00pm. Ms Hedge was concerned that cheques relevant to conveyancing settlements would not be banked on time. 89 It was Mr Delves' evidence that he could recall that on some afternoons, the Applicant was close to running from the office in an effort to get to the bank on time. He deposed that banking and delivery of mail were of critical importance to the process of conveyancing, as any delay in the chain of conveyancing events can result in inconvenience or financial penalty to clients. He denied the exchanges between the Applicant and Ms Hedge could be described as "bullying" and to support this contention, it was his view that the Applicant "gave as good as she got". 90 Mr Delves contended that the Applicant would frequently claim that the mailbox was not emptied by Australia Post until 5:15pm and accordingly, there was no imperative to have the mail put in the mail box by the 5:00pm collection time stipulated on the mailbox by Australia Post.

[64]

113 Mr Delves confirmed he exercised a non-combative style of management and believed that he had a reasonable relationship with the Applicant although he did disclose that he held some reservations concerning her performance. 114 In response to the friction that developed between the Applicant and Ms Hedge concerning her concern on occasions that the Applicant would miss the post and bank, Mr Delves contended he would regularly urge the Applicant to be "mindful of the clock". Mr Delves could not recall whether he had ever asked the Applicant if she had missed post and confirmed "a couple of occasions" where the Applicant had told him that she had missed the bank. In summary, Mr Delves stated he would prompt the applicant on an informal basis as follows: If I came out and saw the clock getting near 4.00pm for the banking or if it was getting near to 5.00pm for the postage....it might be as simple as a casual comment - it's getting near the time - or something like that. 115 Mr Delves agreed that his meeting with the Applicant that resulted in the subsequent October 2004 memorandum was conducted on a more formal basis. He believed the Applicant's performance with respect to her post and banking responsibilities would improve through gentle encouragement and reminders rather than more formal procedures. 116 Mr Delves confirmed the office worked under a directive from the Respondent that stamps were not to be used for mail, as the accounting system could not readily capture the cost of stamped mail as a disbursement. 117 Mr Delves denied he had discouraged the Applicant from responding formally to the issues raised in October 2004 and confirmed that he told the Applicant that in the event she chose to respond in writing, he would have to refer the matters to the Respondent and disclose those concerns he held concerning her performance. 118 Mr Delves acknowledged the Applicant was a senior employee who he did not wish to belittle in either a formal or informal way and hence, from time to time, he sought to encourage the Applicant by prompting her to leave the office in time to undertake the post and banking. 119 Mr Delves confirmed the office procedure that Sydney agents' bills should be promptly posted to the appropriate ledger to ensure their inclusion within the applicable client invoice. 120 Mr Delves confirmed that following the Respondent's final warning on 31 January 2005, the Applicant became despondent and seemed to have "given up the ghost almost". Her performance was found to be wanting. He also stated that whenever issues related to her demeanour or performance was raised with the Applicant, she would become introverted, despondent and defensive.

[66]

122 Ms Ashby submitted the Applicant sought reinstatement to her former position at the Morisset office of the Respondent with the appropriate back pay to March 2005 and commensurate accrual of all other entitlements. 123 The Respondent was a serial offender for dismissing the Applicant unfairly. Ms Ashby submitted that the Respondent admitted in evidence he did not want the Applicant on staff and made it clear that she was appointed by Mr Armstrong, a previous Partner in the firm. She further submitted that the Applicant was reinstated in 2002 by Mr Armstrong and that decision was not supported by the Respondent. The Respondent has constructed the Applicant's termination and relied upon "distortions of facts, exaggerations and misdemeanours, secret file notes and secretly held grudges" to support his long held desire to terminate the Applicant. 124 Ms Ashby noted that Mr Delves, the Applicant's direct supervisor had admitted that he did not formerly reprimand the Applicant during the years of her employment with him. She submitted the Applicant was not formerly reprimanded by Mr Delves because she did not do anything wrong that would per attract formal sanction. Alternatively, Ms Ashby stated that if in fact the Applicant did do something wrong that should have attracted a formal sanction, then Mr Delves had failed her by not extending procedural fairness. Notwithstanding that submission, Ms Ashby maintained the Applicant did not do anything that would have warranted dismissal nor the intervention of formal disciplinary procedures. 125 Ms Ashby submitted that the Respondent's memorandum to staff dated 26 October 2004 was not a written warning despite the Respondent's evidence. Simply put, she submitted the Respondent's file notes cannot be taken, as anything more than a verbal warning and their veracity is questionable, given the confusion concerning dates and the subsequent strong denial by the Applicant of much of the content. The Applicant was not given an adequate opportunity to reply to any of the issues raised if indeed they were raised at all. Mr Delves did not commit anything to paper in order to protect the Applicant. 126 Ms Ashby submitted that the Applicant had been made a scapegoat for the poor management decision to leave a junior employee to act in two important office positions during January 2005. Ms Ashby submitted that when the Applicant returned from leave on 31 January 2005 she faced an angry Respondent who accused her of a number of failings. The Applicant was understandably very surprised and taken aback as a result of the accusations made against her and particularly as this was a first time such issues had been raised with her in such a context since her reinstatement in 2002. The Applicant subsequently replied in writing to all of the issues raised by the Respondent. However, her response was simply dismissed without further analysis. 127 The Respondent gave the Applicant no specific targets for improvement nor was she given any guidance or help. Mr Delves admitted evidence that he did nothing to help the Applicant in the three weeks prior to her termination. There was no further investigation of the issues subject to the warning on 31 January 2005. Accordingly, the Applicant was dismissed as warned by the Respondent twenty-two after days she received the written warning of 3 February 2005 to improve her performance. 128 Ms Ashby addressed the five issues raised in the Respondent's warning of 3 February 2005 as follows: Issue 1 Morris Hayes & Edgar accounts.

[73]

135 Ms Ashby submitted that the allegations set out under Issue 5 are general, vague, non-specific and unanswerable. Accordingly, the Applicant relies upon its case refuting Issues 1 to 4 that were specifically set out in the response to the Respondent dated 3 February 2005. 136 Ms Ashby submitted that the Respondent had relied upon a range of issues "some old, some new and some petty" in addition to those raised with the Applicant on 31 January 2005 and subsequently replied to in detail by her email to the Respondent. 137 Ms Ashby submitted the allegations that the Applicant missed banking and the post were baseless. It simply did not happen and further, the Applicant was never asked by the Respondent to respond to those accusations. 138 The staff memorandum to Morisset staff from Mr Delves dated 25 October 2004 concerning the timely dispatch and delivery of post, DX mail and banking is not a warning specific to the Applicant, despite Mr Delves evidence. The Applicant did not receive any serious admonishment during the three years following her re-instatement in 2002. 139 In terms of procedural fairness afforded to the Applicant it was Ms Ashby's submission that the Respondent only paid lip service to the Applicant and ignored that fact "that she had worked without incident" for three years under Mr Delves following her reinstatement in 2002. 140 Mr Delves' memorandum of 25 October 2004 simply amends certain office procedures so as to make the Applicant's employment less stressful and specifically requires all staff to co-operate with the Applicant to meet afternoon deadlines in terms of the timely dispatch of post and DX mail and banking. 141 According to Ms Ashby, Mr Delves admitted in evidence that there was some improvement in the Applicant's work performance subsequent to the memorandum. She also submitted that the Applicant worked well with her superiors with exception of the Respondent. In support of that submission, she referred to the reference supplied to the Applicant by Ms Hackney.

[76]

147 Mr Austin submitted it was the Respondent's evidence that during the meeting with the Applicant on 31 January 2005, he informed the Applicant that he had undertaken a check of the accounting records that revealed she had not drawn any cheques to Morris Hayes and Edgar during the two week period prior proceeding on annual leave in December 2004. It was also Mr Austin's submission that the Respondent had stressed to the Applicant the critical nature of ensuring cheques to Morris Hayes and Edgar were drawn promptly otherwise disbursements will not be billed because the relevant billing slip is not recorded in the LEAP accounting system. It was also the Respondent's evidence that the Applicant's inaction had caused some loss of revenue to the firm because a number of accounts had been forwarded to client's without Morris Hayes and Edgar disbursements being included. 148 Mr Austin submitted that it was clearly the Applicant's responsibility to ensure that the appropriate billing slips were posted into LEAP. It was also the Respondent's evidence that it was not the responsibility of the relevant secretary to check that billing slips were posted before raising an invoice. In any event, the Respondent's memorandum to staff in April 2003 plainly stated it was the Applicant's responsibility to ensure that a billing slip was posted into LEAP, except in certain stated circumstances. 149 Mr Austin submitted that despite the Respondent clearly setting out his concerns with respect to the Morris Hayes and Edgar accounts, the Applicant failed to supply any rejoinder in her affidavit in Reply dated 7 October 2005. 150 In cross examination, Mr Austin submitted it was adduced that the first thirty paragraphs of the Applicant's primary affidavit dated 28 June 2005 dealt wholly and solely with issues related to events in 2002. Mr Austin noted that only the final fifteen paragraphs of the Applicant's affidavit dealt with her dismissal in 2005. Further, the Applicant's second affidavit filed on 10 October 2005 only sets out a rebuttal in general terms. 151 Referring specifically to the Respondent's complaint concerning the Morris Hayes and Edgar accounts, Mr Austin noted there was no rejoinder addressing this issue in the Applicant's second affidavit. Mr Austin submitted that as the Morris Hayes and Edgar accounts was one of the five critical issues that lead to her dismissal, there would have been some consideration of a rebuttal particularly in relation to the Respondent's evidence. There was none. 152 Mr Austin submitted that Exhibits 3, 4 and 5 tendered in proceedings in support of the Applicant's case categorically demonstrate the alleged failure on the part of the Applicant to properly post the Morris Hayes and Edgar accounts to the individual client ledgers

[82]

158 Mr Austin submitted that the Applicant's failure concerning outgoing post, DX mail and banking together with her inability to perform her allocated duties in an efficient and timely manner were largely interconnected. 159 Mr Austin referred to the cross examination of the Applicant where she believed she was conducting herself in a quite timely and efficient manner and noted she was sensible enough to concede that her perception did not accord to the perception held by the Respondent, Mr Delves and a variety of other staff members located at the Morisset office. Mr Austin further submitted that the Applicant failed to call evidence corroborative of her position and accordingly, she is unable to successfully rebut the genuineness and reasonableness of those complaints raised against. It was quite reasonable for the Respondent to accept the word of other employees including Mr Delves whose evidence mirrored the Respondent's concern in respect to the Applicant's panicked disposition at times critical to the operation of the office, particularly in respect to mail, banking and the posting of accounts. 160 Mr Austin also referred the Commission to the evidence of Mr Delves, who characterised the Applicant's apparent rush to meet post and banking deadlines as "afternoon frenzies". 161 Mr Austin submitted the Respondent's case was that the general flavour of the evidence produced on the part of the Respondent himself and Mr Delves should leave the Commission in no doubt that however honest and genuine the Applicant thinks she was in conducting herself as an employee of the Respondent, everybody else at the time had a contrary view. Accordingly, the Respondent had good grounds for raising the issues with her on 31 January 2005. 162 Mr Austin proposed that in the event the Commission accepts the Respondent's evidence, evidence which has been corroborated by Mr Delves, then those issues of concern identified in the warning letter dated 3 February 2005 were individually and collectively issues of substance. Accordingly, in the Respondent's view the description set out in the Form 7A Application that the matters raised by the Respondent "were not substantial and were answered adequately" is not sustainable. 163 Referring to the Case Outline for the Applicant filed on 4 July 2005, Mr Austin submitted the Applicant's contention that her dismissal was based on "spurious grounds without due regard to procedure" and, the problems identified by the Respondent were "trivial or unreasonable and all adequately addressed by Mrs Kleiberg" cannot be made out on a fair evaluation of the evidence. Simply put, it was Mr Austin's submission that the Respondent had corroboration from Mr Delves and the Applicant had none apart from Ms Hackney's reference. In this latter regard, Mr Austin submitted that the Applicant did not actually work for Ms Hackney at the Morisset office and at the time of her termination, Ms Hackney was absent on maternity leave. The reference was sought by the Applicant in July 2005 after the proceedings in this matter had commenced and most curiously, the reference is set out on the letterhead of the Respondent's firm, despite the fact that Ms Hackney was not a Principal of that firm nor was she working for the firm at the time of termination. As Ms Hackney was not called to give evidence by the Applicant, it was Mr Austin's submission that the Commission should give negligible weight to Ms Hackney's reference. 164 Mr Austin submitted that the Respondent relies upon the five issues raised with the Applicant at the meeting on 31 January 2005 and the Applicant's failure to demonstrate an improvement in her performance over the twenty two days identified in the letter of warning dated 3 February 2005. 165 Mr Austin submitted that the past behaviour of the Applicant is not entirely irrelevant to the Commission's determination in this matter and referred the Commission to the decision of Deputy President Sams in the case of Youssef and the Western Sydney Area Health Service [2002] NSWIRComm 8. 166 While the decision in Youssef was subject to appeal where the Full Bench found that the Applicant should be reinstated, Mr Austin submitted that nothing in the appeal undermined the veracity and probity of the line of authority identified by His Honour in relation to the potential reliance upon past history of an employee's conduct. In essence, Mr Austin submitted the authorities indicate that evidence of prior or past acts cannot be subsequently used for the purposes of dismissal once a decision has been made in the past not to rely upon them. However, those past acts of misconduct do not disappear or become irrelevant when further misconduct occurs. Rather, they remain and comprise a continuous history and record of the employee's service. In other words, the employer is entitled to have regard to the employee's past performance and other factors even if such matters did not at the time warrant formal warnings when they occurred. 167 In support of the submission that particular instances of misconduct cannot be viewed in isolation from the employee's overall performance, Mr Austin referred to Paragraph 74 (4) of His Honour's decision: Was the respondent entitled to take account of the applicant's long history of non-cooperation and overall employment record? In cases where misconduct is admitted, or proven to have occurred, a dismissal might still be characterised as "harsh" having regard for the severity of the misconduct and other mitigating factors. Put in common parlance - "did the penalty fit the crime?" This principle was expressed in Electricity Commission of New South Wales t/as Pacific Power v Crump, (1993) 48 IR 296 at p302: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal . The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. See also Busways v Johnson (1994) 55 IR 255 and Byrne & Anor v Australian Airlines. 168 Mr Austin contended that the decision at first instance in Youssef provides foundation for the Commission to take into account the Applicant's conduct in 2001, 2002 and 2003, and puts into context the decision of the Respondent to terminate the Applicant consequent upon her insufficient turnaround in performance in relation to the five issues raised with her on 31 January 2005. 169 At paragraph 75 of Youssef, His Honour stated: Just as the employer is entitled to have regard to, and take account of an employee's otherwise exemplary record of employment when considering whether dismissal is warranted, the reverse must equally apply. In John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972) his Honour said: The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that here is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice. In Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16, Cook J said at p27: … In my view, when an employer is considering whether or not he will exercise his undoubted rights in relation to the selection and retention of employees, subject to the observance of any award requirements, he is entitled to have regard to the previous conduct of an employee. For example, an employee might be late for duty on one occasion and his employer may overlook this. The employee may, likewise, be late on a number of subsequent occasions and the employer may decide not to take any action. If, however, the employee's punctuality does not improve, I would think it clear that an employer would be entitled on the latest instance of unpunctuality to review the record of that employee and if he decided that his record was unsatisfactory and that he no longer wished to retain him in his employment he would have a right to dismiss him by giving the requisite notice of dismissal. In such a case, I think that the employer's action could not ordinarily be said to be such a harsh and unjust exercise of his legal right as to justify an order of reinstatement … In other words, when dismissing an employee, an employer is entitled to have regard to the employee's past performance and other factors, even if such matters did not warrant formal warnings at the time they occurred. Put another way, the particular incidence of misconduct cannot be viewed in isolation from the employee's overall performance. Indeed, the actual misconduct might have as its genesis, a series of incidents, or a change in attitude of the employee over a period of time. So much so is evident in this case.

[85]

172 Mr Austin submitted that the Respondent's suggestion that termination of the Applicant had been constructed by the Respondent is simply not made out on the evidence. The Applicant has sought to mount a case that the Respondent acted in a biased fashion against the Applicant. She has also suggested in her evidence that she thought the former partner, Mr Armstrong protected her position and trumped the wishes of the Respondent. That submission is denied by the Respondent. Further the uncontested evidence in this matter shows that Mr Armstrong retired from the firm on 30 June 2002 and in that regard, the uncontested evidence was that the Applicant continued to work for the Respondent with a "single boss" for a further two years and eight months until her dismissal on 4 March 2005. 173 In the Respondent's submission, the opportunity for the Applicant to continue working for the Respondent at the Morisset office is clearly grounded in the evidence of Mr Delves, the managing solicitor at Morisset. It was Mr Delves evidence that his style of management was non confrontational. He preferred a "softly softly approach" to a more confrontational approach when involved in staff matters. It was also Mr Delves evidence he wished to minimise embarrassment for the Applicant. Under Mr Delves stewardship, the employment of the Applicant could have continued despite evident misgivings on the part of the firm's Principal. The evidence supports the view that the Respondent proceeded to warn and subsequently dismiss the Applicant because he was no longer able to tolerate her behaviour. 174 Mr Austin submitted that the Commission should conclude that the dismissal of the Applicant was not unfair in the circumstances. In the alternative he submitted that the employment relationship was incapable of reconciliation and reinstatement was not practicable. 175 In terms of remedy, Mr Austin submitted there is not "a skerrick of evidence" in this case about any mitigation on the part of the Applicant. Mr Austin submitted that nowhere in the Applicant's affidavit nor in the evidence brought in these proceedings is there any reference to steps taken by the Applicant to mitigate her position. Accordingly, in the absence of any evidence as to mitigation, Mr Austin referred to the common law authorities where the quantum of loss is remedied in nominal damages. 176 Notwithstanding the submission concerning mitigation and the state of the employment relationship between the Applicant and Respondent, Mr Austin submitted that the Applicant had not proven her case that on the balance on probabilities her dismissal was unfair. Reply Ms Ashby 177 Ms Ashby submitted that the Applicant had been denied the opportunity to cross examine other employees who may be involved in the posting of Morris Hayes and Edgar accounts and in particular the Rolsch invoice that was in her view raised prematurely. That submission was grounded in the fact that Mr Austin had closed the Respondent's case following the evidence of the Respondent and Mr Delves. 178 Ms Ashby submitted that the Respondent did not solely rely upon the five issues set out in the warning letter dated 3 February 2005. She directed the Commission to the Employer's response filed on 5 April 2005 where the Respondent seeks to rely upon issues prior to the 2002 dismissal and subsequent reinstatement of the Applicant. 179 Ms Ashby submitted that the Applicant's first affidavit was drafted in response to the issues contained in the Employer's reply to put to bed those "ancient history issues". 180 It was Ms Ashby's submission that the Respondent could not rely upon the decision of Deputy President Sams in Youssef to support the proposition that matters related to misconduct can be subsequently raised years later in the context of an employee's dismissal. She maintained that there was no misconduct in the Applicant's dismissal in 2005. 181 In respect of the training given to Ms Hodge, Ms Ashby submitted the Applicant was denied the opportunity to cross examine Ms Hodge concerning the level of training given and the level of interaction between herself and the Applicant. Similarly, the early closing of the Respondent's case prevented the Applicant from cross examining other staff members in respect of their perceptions of the Applicant's "inefficiency and afternoon frenzies". Ms Ashby further submitted that whether these issues were substantive or not and may have gone toward justifying her dismissal, the Respondent cannot deny that a single warning was produced over three years and the Applicant was given twenty two days to improve poor performance with no target set and no assistance to do so. 182 In terms of mitigation it was Ms Ashby's submission that when the Applicant was cross examined in respect of the reference from Ms Hackney, she was asked for what purposes she had sought the reference. Subject to checking the transcript, it was Ms Ashby's submission that the Applicant indicated in cross examination that she sought the reference in order to gain work as she had had some difficulty obtaining work because of her age and experience. 183 In conclusion, Ms Ashby submitted that the Applicant was dismissed unfairly and was not afforded procedural fairness and she could certainly expect to be reinstated to her previous position. In that regard, Ms Ashby referred to the evidence of Mr Delves who admitted that he personally and professionally got on well with the Applicant, with some reservations.

[97]

192 On the evidence, it is reasonably clear the Applicant did not heed the gravity of the allegations and concerns put to her on 31 January 2005 and on balance, her response dated 3 February 2005 is largely dismissive of the serious matters raised with her. Simply put, the Applicant's case consistently denies any serious reason exists to question the performance of her duties with the Respondent and accordingly, she has failed to embrace the various warnings given to her. 193 In evidence, the Applicant admitted that the dispute between the Respondent and herself was characterised by divergent views concerning her performance. She simply did not believe the allegations were serious enough to warrant a warning and threat of dismissal. On the other hand, she was not persuaded the Respondent was justified to conclude at the point of termination there had been no improvement in her performance. She earnestly believed that she had attempted to improve the level of performance amidst her stressed state at the time. However, she did concede that if there was any truth in the Respondent's allegations, they would need to be addressed by him. 194 There is no evidence that the Applicant took any action herself to placate the Respondent's cause for concern from time to time regarding basic tasks such as the prompt entry of disbursements into the LEAP accounting system, the despatch and delivery of post and DX mail and, the daily banking. The Applicant knew the Respondent's requirements in these areas and even if she disagreed, she clearly knew what the Respondent required of her in order to bring about a satisfactory level of performance in her role. 195 Given the number of occassions where the Applicant's performance was raised with her over the course of her employment and the fact that she had been warned by the Respondent that termination may result if there was no significant improvement, I have formed the view that the Applicant was given a sufficient opportunity to improve her performance and atleast show some positive turn around. 196 The final paragraph of the Applicant's warning letter dated 3 February 2005 clearly states that a significant improvement in performance was required and in the absence of that improvement, the Respondent suggests: ...I would need to consider what further action is required, including termination of employment. No evidence was brought by the Applicant that during the 22 days following this warning, she approached Mr Delves or the Respondent himself personally or in accordance with past practice, corresponded with either of them, seeking an extension of time to improve her performance on the grounds that she was stressed as a result of the warning given to her or, raise any other matter relevant to the improvement of her performance. 197 On the evidence, senior management of the Respondent have given the Applicant guidance, assistance to perform to the required standard, simple explanations as to the appropriate standard and a number of opportunities to improve her work, including the offer of assistance from other employees. The Applicant's apparent lack of reaction to the gravity of the situation clearly before her is symptomatic of the general attitude she held concerning her own performance and in general, any problem associated with that performance was not of her making. In the end her performance was below the standard to that required by the Respondent. 198 In Franklins Ltd v Webb (1996) 72 IR 257, a case that dealt with summary dismissal for serious misconduct, the Full Bench at 262 observed that employers: ...need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. The Full Bench observation in Franklins Ltd v Webb confirm the onus upon an employer to ensure that allegations concerning an employee's performance are investigated in a proper and procedurally fair manner. Against the backdrop of the evidence before the Commission in this matter, and the size and nature of the Respondent's business, I believe that onus was discharged by the Respondent.

Abboud v The State of New South Wales

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Cases Cited (12)

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