The email was copied to Mr Gerhardy at the time it was sent to Mr Giffin.
50 Fifthly, Mr Gerhardy had not responded to any of the issues raised by the Applicant in regard to Mr Hosie, except to describe them as "petty". Those issues included heavy lifting - which, considered objectively, is not petty. The evidence disclosed that the lifting involved 20 kg bags of dog and cat food and 20 litre chemical drums, as well as 40 kg bags and 110 litre drums to be manipulated onto a forklift and/or across the back of a utility truck.
51 As a result of considering the issues outlined above, I cannot accept that Mr Gerhardy was a totally truthful witness. I am satisfied on the evidence that he was strongly motivated by the loss of the Hargreaves account and that he used the differences the Applicant had with Mr Hosie and the Applicant's responses during the meeting on 22 March as an excuse to terminate her employment in order to win back that account.
52 Emails exchanged between Mr Giffin and Mr Gunn on 16 March set out a plan of action appropriate to the circumstances. The options set out by Mr Giffin were further discussion, fire, warning where needed, to be determined after the scheduled meeting. It was at the meeting of 22 March, however, that a strong bias against the Applicant became evident, with an unwillingness to consider her side of the story or to follow upon suggestions for further information which may have clarified the situation for both parties.
53 The evidence revealed that the Respondent took a one-sided approach to the complaints against the Applicant. It further revealed that, for her part, the Applicant showed no serious offer to come to terms with the possibility that she should work on developing a more positive relationship with her work colleague.
54 As to her relationship with Mr Hargreaves, the Applicant made two fundamental errors. Firstly, she offered him a food basket as a joke while she was working at GrainCorp. That idea was initiated by a fellow employee at GrainCorp but was carried out by the Applicant, who should have known better than to do that. Secondly, she photocopied mail addressed to him and/or his family. That is an intrusion into his privacy, to say the least. However, the first of those occurred away from her workplace with the Respondent and, on its face, did not relate to her primary employment. The second could have been dealt with by instructing her not to do it. Certainly, she did not deny it when it was raised with her. It is surprising that the matter of photocopying envelopes was not raised with her immediately with a view to ceasing that practice, instead of it being reported to Australia Post. I am satisfied that this issue was a one-off matter and did not have a substantial influence on the decision to dismiss the Applicant from her position.
55 Mr Gerhardy, on the other hand, was motivated by the loss of an account (potentially in the vicinity of $100,000 per annum) as well as the loss of a friendship with Mr Hargreaves of twenty-three years standing.
56 It has been well established that, as the termination of the Applicant's employment was by way of summary dismissal, the onus is on the Respondent to prove the misconduct: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71; Franklins Limited v Webb (1997) 72 IR 257. In particular, in Wang v Crestell Industries Pty Ltd and Anor (1997) 73 IR 454 it was said at 463:
The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299 .
57 In the present proceedings, the termination was described by Mr Harmer as being summary in fashion, although one month's pay in lieu of notice was given. The Employment Separation Certificate issued by the Respondent offered no reason for the dismissal.
58 The Full Bench in Franklins Ltd v Webb cited with approval the decision of the former Industrial Commission in Court Session in Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 at 2 as follows:
Some argument took place about the admission of character evidence relating to previous good character. We consider that in this class of case, such evidence should be received as tending to prove that the employee should be believed on her oath and that an inference of dishonesty should less readily be inferred against her. Of course, the weight given to any such evidence may vary widely and its effect is always a matter falling within the discretion of the tribunal.
59 Mr Harmer submitted that the Applicant had not been provided with procedural fairness in that she had neither been warned about, nor provided with given an opportunity to improve, her performance (Kleiberg & Churches trading as Armstrongs Solicitors [2006] NSWIRComm 1110.) Reliance was had on the decision in Buckman v Burdekin (1998) 85 IR 415 wherein the Full Bench said:
Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter, which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness.
60 The failure to issue proper warnings and provide an opportunity for performance to improve were matters which added to the unfairness in these proceedings, albeit they were relatively incidental to the substantive issues.
61 Other matters affecting these proceedings generally included the fact that only one witness was called for the Respondent. The failure to call other relevant witnesses is significant. The Respondent was obliged to substantiate its claims that complaints were indeed made against the Applicant. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 wherein the principle established in Browne and Dunn was cited with approval, Hunt J said:
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.
62 The decision of the High Court in Jones v Dunkel and Others (1958-59) 101 CLR 298 made it clear that if there is a witness who could support a particular case who is not called, the presumption must be drawn that they would not have assisted that case.
63 Much of the Respondent's case centred on complaints allegedly made by staff members who were not called to give evidence. Mr Gerhardy was unable to shed any light as to why the alleged complainants were not called to give evidence, "I can't answer that, I don't know why." Accordingly, the presumption may be drawn that their evidence would not have assisted the Respondent's case. The same may be said in regard to alleged complaints by customers.
64 In most instances, the Applicant was not provided with the names of those who had lodged complaints against her. She was therefore precluded from calling evidence for the purpose of refuting the alleged complaints.
65 The Applicant's evidence relating to Mr Gunn, the Boree Creek Store Manager, was not effectively refuted by the Respondent. It is insufficient to merely state that the Applicant changed from "an excellent employee" to "a totally different person" when she returned from holidays, as suggested by Mr Gerhardy in his oral testimony.
66 The Applicant, on the other hand, provided written references from a number of customers in support of her case. Those references were not challenged by the Respondent.
67 No serious response was given by the Respondent to issues raised by the Applicant. In addition, in determining the outcome of the difficulties experienced by the Respondent in terms of the loss or potential loss of business, the Respondent appears to have not taken into account the Applicant's employment history including her very recent nomination as Employee of the Year. It appears that other alternatives to dismissal from employment, were not considered. For example, the option of transferring her to another of the Respondent's stores was not considered.
Conclusion
68 On the evidence, it is clear that the primary focus of the Respondent's management team was on the loss of a substantial amount of business as a result of the loss of the Hargreaves account. In an attempt to avoid a potential claim for unfair dismissal, a decision was made to focus on the relationship between the Applicant and Mr Hosie. Yet, at the meeting on 22 March, Mr Gerhardy failed to deal appropriately with the in-store relationship between those two employees. He had ignored the grievances raised by the Applicant and chose, instead, to use the differences between them as an excuse to dismiss the Applicant, an otherwise excellent employee.
69 I am satisfied that the dismissal of the Applicant was unjust and unreasonable.
70 Following her dismissal, the Applicant was diagnosed with depression. She commenced counselling two weeks after the termination of her employment by the Respondent. She remained unemployed at the time of the hearing.
71 The Applicant gave evidence that her annual salary was $36000. That was expressed as $692.31 per week in her section 84 claim.
72 On the basis of the findings set out above, and having observed the demeanours of the witnesses in the above matter, I make the following orders.