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.