Antonakopoulos v State Bank

LEGISLATION CITED: Industrial Relations Act 1996

Antonakopoulos v State Bank (1999) 91 IR 385 Bankstown City Council v Paris (unreported) IRC262 of 1999 Bigg & Anor v New South Wales Police Service (1998) 80 IR 434 Burke v McGirr (1998) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne & Anor v Australian Airlines (1995) 61 IR 32 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 CASES CITED: Kanae v Australian Postal and Telecommunications Union (1992) 43 IR 257 Klyne v New South Wales Bar Association (1960) 104 CLR 186 Outboard World v Muir (Cahill VP, Peterson J. and Tabbaa C) (1993) 51 IR 167 at 182 Police Association of New South Wales on behalf of Tregonning v New South Wales Police Service (1999) IRC 2799/99 Rapp v Wauchope RSL Club (1998) 81 IR 116 Sams v Contact Point International Pty Ltd (2001) NSW IRC Comm 18 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454

APPLICANT Mr Day of Counsel Ms Harvey Soicilitor LEGAL REPRESENTATIVES: McCabe Partners

RESPONDENT Mr Wilson Solicitor Wiliams Love & Nicol Lawyers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN THE MATTER of a claim for relief relating to the dismissal of Gail O'Neill by Kevin Mohr and Jane Mohr trading as La Vault Jewellery

1 This is an application by Gail O'Neill against Kevin and Jane Mohr trading as La Vault Jewellery for a remedy pursuant to S.84 of the Industrial Relations Act, 1996. 2 Mrs O'Neill was dismissed from her position of Westpac Teller Operator / Sales Person with the Respondent on 18 February, 2004. She sought monetary compensation in lieu of re-instatement or re-employment. 3 The matter was listed for a preliminary hearing before me in Queanbeyan on the 25 March, 2004 at which time conciliation took place. 4 The Commission was advised that no settlement could be reached and the matter was set down for hearing on the 11 and 12 0ctober, 2004 in Queanbeyan. Directions were issued as to the filing and exchange of witness statements. 5 Prior to the hearing Mr Wilson Solicitor for the Respondent advised the Commission that due to international travel commitments he was no longer able to attend the hearing on the 11 October and sought to have the hearing dates changed. As the Commission was unable to comply with this request due to diary commitments, the hearing proceeded on Tuesday 12 October 2004. Evidence was concluded on that day and Directions were issued as to the filing and exchange of written submissions by the parties. 6 Written submissions on the part of the applicant were filed on 11 November 2004. Submissions on the part of the respondent were filed on the 30 November 2004. Submissions in reply from the applicant were filed on 1 December 2004. All submissions were filed with the Industrial Registry and the Commission by way of facsimile followed by the original copies by post. 7 At the hearing Mr Day, of Counsel, appeared on behalf of the applicant and called as witnesses Gail O'Neill (exhibits 1 and 2) and Marie Josephine Corkery (exhibit 4). 8 Mr Wilson , Solicitor, appeared on behalf of the respondent and called Mr Kevin Mohr, the respondent (exhibit 5) to give evidence. BACKGROUND 9 The Westpac Bank had operated a branch in Boorowa for some years. In March 2000 the Westpac branch closed its operations in Boorowa. At the time it was the only bank operating in Boorowa. Mr and Mrs Mohr bought the Westpac Bank building located at 31 - 33 Marsden Street, Boorowa and also entered into an Agency arrangement to operate an Agency on behalf of the Westpac branch in those premises. 10 Mr and Mrs Mohr also set up a jewellery design manufacturing and retail business in the former bank premises. The business was then known as La Vault Jewellery. 11 Mr and Mrs Mohr engaged four former staff members from the Westpac Bank on a part time basis in their new business. Those persons were Gail O'Neill, the applicant, Marie Corkery, Sally Barton and Judy Ford. Marie Corkery had been the former Manager of the Westpac Bank for some eight years prior to the bank closing down. 12 The Westpac Bank closed for business on Friday 3 March 2000 and on Monday 6 March 2000 Mr and Mrs Mohr commenced operations of the Westpac Agency and their new business in the premises at 31 - 33 Marsden Street. 13 Three of the four employees commenced on Monday 6 March, with Mrs Corkery commencing some three months later having previously arranged to take long service leave from the bank. 14 Mrs O'Neill worked three days per week, Monday, Tuesday and Thursday and on every third Saturday. The Westpac Agency operated by Mr and Mrs Mohr continued to be the only banking facility in Boorowa until such time as the Bendigo Bank opened a branch in mid-2002. 15 Mr and Mrs O'Neill reside at the Frogmore Estate and are neighbours of Mr and Mrs Mohr and have been neighbours for approximately eight years. The O'Neill's and the Mohr's would socialise outside of working hours from time to time. Prior to operating the business known as La Vault Jewellery in Boorowa, Mr Mohr had operated a general store at Frogmore which is some 27 kilometres away from Boorowa. 16 Mr and Mrs Mohr ceased the in-store Westpac Banking Agency in approximately September 2004. The Westpac Agency now operates from the Five Star Supermarket in Boorowa. The Evidence 17 Mrs O'Neill deposed that her understanding of her role when she commenced with the Mohr's was that she was hired to operate the Westpac teller, to serve jewellery customers and to also do general cleaning of the store. She was not ever requested to sign an employment contract and she could not recall ever been given any documentation about the terms and conditions of her employment. She recalled her engagement as arising from a verbal conversation between herself and Mr Mohr. 18 The majority of her shift would be engaged in serving Westpac customers and completing other banking duties. Approximately once a week she would vacuum the store. She was also involved in the cleaning of jewellery cabinets and doors on a daily basis. As there was no cleaner, all employees understood that they were required to assist in the general vacuuming and cleaning. 19 Mr Mohr hired her and he was the person who discussed what her role at the store would be. He advised her as to her responsibilities in looking after the Westpac teller and serving jewellery customers. She could not recall ever being told at the outset of her employment that she would be required to be involved in the making of jewellery. 20 Prior to 5 February 2004, she could not recall receiving any written warnings about her performance or conduct nor could she recall receiving any verbal warning about her conduct or her performance. She could not recall ever participating in any formal or informal counselling session about her conduct or her performance with either Mr or Mrs Mohr. 21 At the end of each year she received some type of Christmas bonus. The bonus for 2003 was $300. 22 On Thursday 5 February 2004 at approximately 5:30pm she was called into Kevin Mohr's office, where he advised her that he was unhappy with her performance. 23 She was then told about a number of issues as follows:- · writing in her personal diary which was not acceptable. · babysitting during working hours. This was not acceptable. · being rude to customers in general. · making a personal phone call for approximately half an hour the previous day. 24 Mr Mohr also mentioned that she had not been willing to assist with jewellery making and referred to her not being able to complete a pearl stringing task, some years previously. This was an issue that was reiterated throughout the meeting in conjunction with Mr Mohr saying she had no interest in the jewellery. 25 Mrs O'Neill was dumbfounded and shocked but attempted to answer each item which had been raised. She advised Mr Mohr that she had been writing in her personal diary, her Saturday shifts. She sought further clarification about the babysitting reference and advised him that this related to her granddaughter and she wasn't babysitting but looking after her granddaughter whilst her daughter went next door. She apologised for it and indicated that it wouldn't happen again. 26 Mrs O'Neill also deposed that her daughter and granddaughter had moved to Canberra in December 2003, therefore that incident would not be happening again. 27 In relation to the pearl stringing incident, that had happened almost four years ago at the commencement of her employment. 28 Mrs O'Neill attempted to answer each point that Mr Mohr raised and thought that she gave adequate reasons and answers and in spite of her apologies, Mr Mohr advised her at the end of the meeting that he would have to put her "on notice". Mrs O'Neill was unsure what he meant by this and asked him what he meant. He simply reiterated that he was putting her "on notice" and that was it. The meeting ended and as it was the end of her shift, she left the store. 29 As Mrs O'Neill had to drive to Young that evening to visit her sister, she was not returning home. On her way to Young she called her husband Ed on her mobile phone and told him that she had had a meeting with Mr Mohr. She told him that she had been placed "on notice". She also asked him not to say anything. 30 The next day, Friday 7 February 2004, she returned to Frogmore to pick up horses to take to Canberra for the Canberra and Gunning Show. She did not return to her home at Frogmore, until the Sunday night. That was the first occasion when she was able to speak to her husband other than that short phone call on the Thursday evening. 31 On that Sunday night her husband informed her that despite her request to him, he had approached Mr Mohr and had had words with him. 32 When Mrs O'Neill arrived to commence work on Monday 9 February 2004, Mr Mohr asked to speak to her before she started. Mr Mohr told her that he had had conversations with her husband over the weekend. Mrs O'Neill told Mr Mohr that she didn't know much about what had happened and also indicated that it had nothing to do with him. Mr Mohr asked her if she told her husband that he had sacked her. Mrs O'Neill said she had told her husband that Mr Mohr had put her "on notice". 33 Mrs O'Neill deposed that they had a general discussion about how difficult if would be for them to continue working and at that stage she indicated words to the effect that she had worked under difficult circumstances before and raised the incident of the occasion when Mrs Mohr had suspected her son of breaking into the store. 34 Mrs O'Neill told Mr Mohr that she wanted to remain in her job and would try and improve any areas that Mr Mohr feel needed improving. Mr Mohr said words to the effect of "you realise if you decide to stay it would be very hard". He then told her that Thursday was her first warning, to consider today her second warning and she would be receiving a letter in the mail. 35 Mrs O'Neill was shaken and shocked and was very upset. The next day (Tuesday) she went to her Doctor and went off on stress / sick leave. 36 On 11 February 2004, she received a letter from Mr and Mrs Mohr which stated as follows: Mrs Gail O'Neill Frogmore Estate FROGMORE 25863 February 11, 2004 Dear Gail,

We refer to the conversation between yourself and Kevin on Monday 9 February 2004.

We are considering terminating your employment on the grounds of unsatisfactory performance and misconduct, together with the fact that issued in your personal life are unreasonably impinging upon your employment.

We have not decided to terminate your employment. Before we do, we wish to provide you with an opportunity to respond as to whey we should not do on the above-mentioned grounds and for the following reasons.

Over the past several months, Kevin has raised a number of issues with you about your conduct and performance at work, These include:

• Baby sitting for your daughter whilst you were supposed to be working. * Failing to complete a pearl stringing task in 6 weeks - a task that you has requested to do. * Failing to assist with routine cleaning of jewellery and cabinets. * Spending an unreasonable amount of time making personal telephone calls during working time. * Using the internet during working for personal matters. * Being choosy about the customers that you will serve. * Your apparent disinterest in the jewellery side of our business.

Kevin reiterated some of these concerns to you during a meeting on 5 February 2004. Some of the things he spoke to you about at that meeting were:

• Being regularly late back from lunch, sometimes up to 20 minutes late. * Organising your personal diary during work time - you has spent around 15 minutes doing so that morning. * Making notes about recreational and sporting activities outside of work - you had spent around 20 minutes doing so that morning. * Reading magazines when you should have been working. * Making and taking lengthy personal telephone calls and SMS messages when you should have been working.

Kevin told you at that meeting he was considering terminating your employment.

We now turn to several incidents involving your husband Ed, on Thursday 5 and Friday 6 February 2004. Sometime after 10:00pm on 5 February 2004, Jane received a message on her answering machine from Ed, stating words to the effect of "I'd like to know that's going on."

At around 5:00pm on 6 February 2004, Ed arrived at our Frogmore shop. Kevin asked him if he wanted a beer, to which he replied with the words to the effect of "No, I have to find my wife and sort things out. Did you sack Gail?". When Kevin informed him that he (Kevin) had not done so, Ed stated that you had told him that Kevin had done so and that you were not coming home because of what Kevin had done.

A couple of hours later Ed rang Kevin and asked him to forget everything he (Ed) had said. This puzzled Kevin and, after reflecting upon things for some time, he went to your house to have a talk to with you. During that conversation, Ed reiterated to Kevin that you has told him that Kevin had sacked you and that this was the reason why you had left him.

Later that evening, Kevin was informed that Ed had tried, unsuccessfully, to call him the previous evening around 10:30pm and that, upon being told that we were probably in bed, stated the words to the effect of "The fucking cunt probably doesn't want to talk to me." Upon hearing that Kevin rang Ed to question him again and indicated that we had had enough of what was going on.

Then, at around midnight, Ed turned up at our home and started to threaten and abuse Kevin.

We accept that, as a general rule, issues between a husband and wife are none of an employer's business. However they are in this instance, because they are impacting upon your employment. We are a small business, in which we are in constant contact with you throughout the working day. We invite you to state whether you did tell Ed that Kevin had sacked you. If you did, then we invite you to explain why you did, and how you envisage, in the face if your false statement about Kevin, restoring and maintaining the relationship of trust and confidence that must exist between the three of us if you are to remain in employment. Alternatively, if you did not make that statement to Ed, then we invite you to state whether you can reasonably assure us that issues within your marriage will not impinge upon your employment in the future, and why you say you can so assure us.

If you wish to respond to what we have said in this letter, then:

(a) to limit the possibility of there being any misunderstanding, we require the response to be in writing: and (b) we require the response to be provided to one of us by 9:00 am on Tuesday 17 February 2004. We will then, on the basis of what is before us from you at that time (if anything), consider whether or not to terminate your employment and advise you of our decision. Yours sincerely

Kevin Mohr Jane Mohr 37 After receiving this formal letter, Mrs O'Neill was concerned about her employment and sought legal advice from Rob Barnett and Associates, Solicitors, in Canberra. Following consultation with her Solicitors, a letter was drafted in response and faxed to Mr and Mrs Mohr on 16 February 2004. 38 The letter from her Solicitor responded to each of the allegations made in relation to work performance issues, as follows: Babysitting 30. Our client concedes that she did some babysitting for her daughter approximately six (6) months ago. However, it was a very limited period of care upon the instructions which we have received. Furthermore, we are given to understand that Mrs O'Neill's daughter left the area approximately 6 weeks ago and, thus, a repetition of any such activity is very remote. Pearl Stringing It seems that this task was required of our client approximately four (4) years ago. It is our instructions that our client had difficulty in carrying out this work and another employee who has a flair for this work now undertakes this task on a regular basis. 31. Cleaning 32. Our client, who also doubles as a teller in the shop, states that she does the cleaning whenever she can but is limited in that task to the extent that she has customers to attend to. Personal Calls Mrs O'Neill denies that this assertion can be substantiated. On the rare occasions that there are telephone calls, our client asserts that she keeps them as short as possible and at no time keeps customers waiting, In view of the fact that there is a regular stream of customers, she has very little opportunity to make personal calls and, indeed, desists from doing so. Use of Internet Our client maintains that she used the internet once and for a very short period of time. Dealing with Customers Our client denies that she has ever been choosy in dealing with customers. Our client asserts that she used to do bar work, and, as such, came in contact with all types and characters in Boorowa. It is Mrs O'Neill's understanding that she is well liked by all of the customers she comes into contact with. Interest in Jewellery Our client denies that she has non interest in jewellery. She is very keen on jewellery but stated that she is not capable of following the craft as this is a personal gift. However, in her view. this has never caused difficulty with regard to servicing customers. Lunch Hours Our client denied the contention that she takes long lunch hours. Sometimes, due to the fact that she has to break into her lunch hour to serve customers, she does admit to taking her full hour but, to that, she is entitled. We would not have thought that this was unreasonable. Personal Diary It seems that you have chosen one isolated occasion when our client was writing in her diary, according to her instructions. It is true that she was writing in her diary but she was writing in her diary but she was entering those dates upon which she had to work on Saturdays. Thus, one might assert that such diary work was necessary for an employee to ensure proper attendance to her duties. 39 The letter went on to indicate that Mrs O'Neill would do everything within her power to ensure there were no causes for complaint in relation to the issues which had been raised and pointed out that she was entitled to receive counselling on at least two occasions prior to dismissal as failure to do so could give rise to a claim for wrongful dismissal. The letter concluded by indicating the following: "that whatever complexion one places on the assertions and counter-assertions, these matters relate more to a question of degree rather than overt disregard by our client for the terms of her employment" 40 There was no response in the letter to the issues raised by Mr and Mrs Mohr in relation to Mrs O'Neill's husband or the matters connected to anything he might have said to Mr Mohr. That was done on the advice of Mrs O'Neill's Solicitors. 41 The next contact Mrs O'Neill had from Mr and Mrs Mohr was on 18 February 2004. She was standing outside the local pool at Boorowa and Mr Mohr came up to her and handed her a letter dated 18 February. The letter read as follows: Mrs Gail O'Neill Frogmore Estate FROGMORE 25863 February 11, 2004 Dear Gail,

We refer to the letter to us from your Solicitor dated 16 February 2004, responding to the letter we gave you on 12 February 2004.

As we read that letter, in some cases you deny examples of your conduct or performance that we referred to in our letter to you and in other cases you say that the examples were isolates incidents. Other examples are not addressed at all.

We do not consider that it is necessary to painstakingly go through each example and detail our version of the facts in reply to what you have said in response to our letter. We gave you what we thought were sufficient particulars of our concerns to enable you to properly respond. We note that your Solicitor did not contend that we had not given you proper opportunity to respond. Among other things, what we sought to do in our letter was: (a) to say that we considered your conduct and performance to be unsatisfactory when looked at as a whole; (b) to say that we considered this to have been the case for sometime; (c) to say that this was putting you job at risk; and (d) to provide some examples of conduct and performance what we were talking about.

It may be that some of the examples were isolated incidents of that particular type of conduct or performance. It may be that some of the examples occurred some time ago. Nonetheless, we consider that you have significantly understated the degree or nature of your conduct or performance in your response to a number of examples. Having considered your response we remain of the view that your conduct and performance has been unsatisfactory. It particularly concerns us that you do not accept that there may be at least something unsatisfactory about your conduct and performance. We note your assurance that you will do everything within your power to ensure that there is no cause for complaint in relation to the issues that we have raised. However, we find it difficult to appreciate how that assurance is going to be in practice when you do not recognize that at least some of our concerns might be valid. We note that your Solicitor did not contend that your present illness is something that we should take into consideration in addressing this matter. We therefore assume that it is not relevant to what we were talking about. We also note, with disappointment, that you did not respond at all to what we invited from you in the third last paragraph of our letter. As we said in our letter, we consider that your marital issues are impinging on your employment. Your Solicitor did not take issue with that. We provided evidence to you that suggested that you has stated something false about us to your husband. We went on to observe that, if that were that case, we were concerned about its effect on the relationship of trust and confidence necessary to our employment relationship. Your Solicitor did not take issue with that either.

As it stands, we do not know whether, on the one hand, we have an employee who is making false statements about us or, on the other hand, we have an employee whose husband is making false statements about us.

We simply have nothing before us from you as to your position on whether a relation of trust and confidence between the three of is can be restored and maintained. Then there is your allegation expressed to Kevin on 9 February 2004 that Kevin has accused your son of breaking into our Frogmore store. We acknowledge that we did not mention this in our earlier letter; however, it is yet another illustration of the degree to which the relationship between us has broken down.

Having carefully considered your response, we have, for the above reasons, resolved to terminate your employment. The termination will take effect immediately. In lieu of notice, having regard to length of service with us, you will be paid three week's payment in lieu of notice. Together with your accrued entitlements, all monies will be paid into your account by 19 February 2004.

We are sorry that our employment relationship has ended in this way, and we wish you the best for the future.

Kevin Mohr Jane Mohr 42 Mrs O'Neill further deposed as to the allegations of her unsatisfactory performance and misconduct and expanded on the explanations given in the letter from her Solicitor dated 16 February. 43 Following Mrs O'Neill's termination, she had actively been seeking employment. She had applied to almost every business in Boorowa and surrounding areas, but had not been successful in securing any permanent full time or permanent casual employment. She had been offered regular casual shifts at the Top Pub in Boorowa as a bar waitress. She works approximately 15 hours per fortnight and earns $12.00 per hour. She had also been able to secure relief work in the Westpac Agency at the Five Star Supermarket. 44 In cross-examination Mrs O'Neill maintained that during the conversation with Mr Mohr on the 5 th, that she was told that she was "put on notice not on first notice", however she understood that to mean that she was put on notice that he considered her work unsatisfactory. She told him that she would improve her performance and think about the options on the weekend. She believed that he was trying to push her to resign. Whilst she was aware that her husband and Mr Mohr had had an altercation on the weekend, she was aware of it mainly through Mr Mohr's witness statements. She only spoke briefly to her husband on the Sunday afternoon. She never got the full story from her husband. However based on Mr Mohr's statements, she could understand why he was upset. 45 Mr Mohr and her husband had had altercations before. She was not aware of any altercations in the past about her employment. 46 On the Monday she tried to put Mr Mohr's mind at ease, that her husband had nothing to do with her work. She didn't deny what she was supposed to have said to her husband because she didn't know exactly what her husband was supposed to have said to Mr Mohr. Her husband had never said anything to her on Sunday about that. She was sure she would have told Mr Mohr that she never said those words to her husband. She couldn't remember but she had told Mr Mohr that she told Ed that she had been "put on notice". 47 Mr Mohr did tell her that he would find it difficult if she decided to stay. She did appreciate the situation that had arisen and she said that she had worked under personal difficulties before with Jane, when she had had suspicions that her Son had broken into the store. She worked through that and never brought personal things into her work place before. She told him that she would like to return to work. 48 She denied swearing at him and using the word "sack". Although she agreed she said that he had to give her three warnings before he could put somebody off. She was simply trying to keep her employment. At the end of the meeting she agreed that Mr Mohr had said that Thursday was her first warning, today was her second warning and that she would be receiving a letter. 49 Mrs O'Neill understood from the letter that they were considering terminating her employment, although a decision had not been made and that they were providing her with an opportunity to respond to the issues that they raised. She also understood that if Mr Mohr's version of events was correct, it would impact on her employment and that they had a legitimate concern, as to whether or not she had told her husband that Mr Mohr had sacked her. 50 Mrs O'Neill took advice from her Solicitor over the phone. She had a conference with him and provided him with a copy of the letter. She was provided with a draft of the letter to be sent back to Mr Mohr in return. She had a further conference with him over the phone about the letter. She did raise the issues that he did not mention anything about the issues with her husband but the Solicitor didn't see that it was necessary to answer those. As she had a deadline of the 17 th to send the letter back, she went by the Solicitor's advice and instructed him to send the letter. 51 Mrs O'Neill accepted that her letter in reply, would not have left Mr and Mrs Mohr any of the wiser as to whether or not she had allegedly told a mistruth about them to her husband. They would only have known by word of mouth, by knowing her and her husband over the years. 52 She accepted that that would have placed them in a difficult position. However, that was only one instance that had happened between Mr Mohr and her husband. She didn't really think that it was part of the employment problems. 53 Mrs O'Neill indicated that prior to commencing work with Mr Mohr, she did have a meeting with him. She denied that it was a one on one meeting. She agreed that the main task was to be the continuing with her duties which she had been doing at Westpac, but she would also be serving jewellery customers, pricing and all the other things that went with that. She was told by Mr Mohr that she would be serving jewellery customers. She was also aware that there would be other things to do, such as cleaning of cabinets and setting up jewellery displays and rotating them. 54 She continued to maintain that Mr Mohr never related any of the duties that they had to do. They took it upon themselves and it was just commonsense that if you had to serve a jewellery customer, you knew you had to serve them. 55 Prior to the business starting up on 6 March, they had gone in there and helped set up the store. 56 Mrs O'Neill had never been involved in the jewellery business in the past. 57 She did not agree that during the course of her employment Mr Mohr held monthly meetings with the staff at the Ex-services Club. She could recall doing it once, but not once a month. They had gone to the club and had a drink, she wasn't sure whether that was a staff meeting. She thought that it was just a casual drink and they spoke about work out of hours. 58 Mrs O'Neill was also taken to various aspects of her financial and family situation and the earnings she had obtained since leaving employment at La Vault Jewellery. 59 Prior to her termination, she considered that she and her husband and the Mohr's were friends, they lived on adjoining properties, they socialised, they would have them over for barbeques from time to time, approximately every six months. 60 In re-examination Mrs O'Neill described the layout of the store and a sketch was prepared reflecting that description, which was tendered as exhibit 3. 61 Mr Mohr worked in the store everyday with the exception of Mondays and he worked at the jewellery counter and Mrs O'Neill indicated on exhibit 3, the location of her work station for the Westpac transactions and the location of where Mr Mohr worked. 62 Marie Josephine Corkery deposed (exhibit 4) that she had been the Branch Manager for the Westpac Bank in Boorowa up until March 2000. She had commenced employment with the Westpac Bank in 1978. In her capacity as the Manager, she was responsible for the day to day running of the branch and staff supervision. She found Mrs O'Neill a very capable person in her job and did not recall having to give her warnings on her work performance during the time they worked together. She had been a member of staff at the bank for approximately two or three years at the time of the bank closing. 63 She was aware that Mr and Mrs Mohr were buying the Westpac Bank building and providing the in-house Agency on those premises. 64 As she understood the situation they were setting up a jewellery design manufacturing and retail business and were to continue to provide the services of the Westpac Bank. The Westpac Bank was the only banking facility in Boorowa at the time of the establishment of the Agency arrangement. 65 Mrs Corkery denied that Mr Mohr ever told the incoming staff at their initiation meeting of their duties. Westpac customers were advised that it was business as usual. At the time of the change over they were still processing between 300 and 400 transactions per day up until 2002. 66 Westpac provided two computers to the new Agency for the purpose of processing customer transactions. Those computers were not linked to the internet and contained only Westpac banking programs, they did not contain any games or other programs. 67 Mrs Corkery deposed that the workload keep two tellers constantly busy during banking hours. When the Bendigo Bank opened in Boorowa their transactions dropped. She estimated that they went down to approximately 250 to 300 per day. 68 She was never given any instructions nor was she witness to anyone being instructed or counselled on customer service skills. She was never told nor did she witness another staff being told that "the customers are our top priority - without the customers we can't see jewellery and if we don't sell jewellery we don't have a business." She could recall being told something about customer service on an occasion when Mr Mohr returned from a conference in Queensland, some time in 2002, but that was about the use of the words cheap or cheaper. She had never seen or heard Mrs O'Neill ever being rude to a customer or abrupt to a customer and it was never her experience that Mrs O'Neill was cranky or short with customers. It was her experience that Mrs O'Neill was a reserved person and not what she would call a "yapper". However she was always pleasant to get along with. 69 Mrs Corkery tried to keep on top of the job of cleaning the display cabinets. It wasn't always easy to do that, considering that they were still processing some 250 - 300 bank transactions. It was always performed in a stop, start fashion, due to having to stop every time a customer came into the store. 70 In relation to Mrs O'Neill spending a lot of time talking to her family during work hours, Mrs O'Neill's daughter Trudy worked at the Post Office and would come in everyday to do the banking from the Post Office. From what she saw and heard, she did not believe these to be social visits, they were primarily work related. She agreed that after Mrs O'Neill's daughter had her baby, she would drop into the store from time to time and she could recall on one occasion that Trudy left her wallet in the car parked across the road at the Post Office and left her baby with Mrs O'Neill whilst she went and got it. She was gone for less than five minutes. She was never witness to any other events involving Mrs O'Neill's daughter. 71 In early January 2004 she had made a note in her diary that she had a conversation with Mr Mohr, that note is; "I asked Kevin what was wrong as he seemed to be in a bad mood, he replied that Jane had said to Gail, Amanda (Jane's daughter) needed a job and that Amanda had to pay $130.00 per week." Amanda More was renting the residence at the back of the Westpac building. 72 She made a further diary entry on Thursday 5 February 2004, which read; "Gail given notice at 5:15pm. NO YELLING. Gail left in tears" She did not hear any swearing on 5 February. 73 In the conversation between Mr Mohr and Gail O'Neill, in a conversation with Mrs Mohr, sometime after this meeting, she was told by Mrs Mohr that Gail had said words to the effect of "get fucked." 74 Her diary entry for the following day read; "I was given notice at 1pm. Sally and I were called behind tellers counter and Kevin said in a cranky tone, I am giving you both notice, I asked if you wanted us to leave, and he said no. He said that so Gail couldn't say that she was discriminated against if we were all given notice." 75 After Mrs O'Neill left, Mrs Mohr's daughter Amanda started working in the store approximately 2 days later. 76 She further noted a dairy entry of 16 March 2004, which read; "Approximately 3pm asked write letter for Court that I had been carrying Gail and that my job depended on it, later request withdrawn by Kevin and Jane." 77 Mrs Corkery and Sally Barton resigned on 31 March 2004. Mrs Corkery had since been able to obtain work in Young, only a matter of days after she left La Vault Jewellery. 78 Mrs Corkery attached the various diary extracts to her witness statements. 79 Mrs Corkery also confirmed the arrangements as far as she was aware concerning the in-store Agency arrangement between the Westpac Bank and Mr and Mrs Mohr. To her knowledge there was no occasion when Mr Mohr came to the Branch and conducted interviews with staff. There was only her office and one other office for the Accountant. She could not recall ever making arrangements with him to speak to staff or organising anything of that nature. 80 Mrs Corkery had worked two weeks without pay after the closure of the Westpac to make sure the transition was smooth with the Agency. She was then off for about 8 to 10 weeks before started with La Vault Jewellery. She then started to learn the jewellery. It was pretty obvious that there was jewellery to be sold. Whilst they didn't know anything about jewellery, they had to learn a bit. It was a case of serving the customer and showing them whatever they wanted to look at. If they didn't understand totally what all of the pieces were, they learnt as they went along. There was informal coaching from Mr Mohr as they went along. It was her understanding that customers knew variety and you had to serve them and if they wanted jewellery and if they wanted the bank, then you did whatever had to be done to serve them. She didn't have to be told commonsense things that she believed. No-one ever told her about cleaning the jewellery cabinets and how often they should be cleaned, they just did it. She agreed that Mr Mohr taught her how to measure for ring size, the names of various stone cuts, settings and engravings. 81 Mrs Corkery denied that on 6 February Mr Mohr approached her and Sally Barton to talk to her about performance issues before the issues with Mrs O'Neill blew up. 82 Mrs Corkery was taken to her various diary entries and conceded that those entries were not written into her diary on a contemporaneous basis. They were written subsequently e.g. on the following weekend. 83 The diary entry however for 16 March was made the afternoon she left work. Mrs Corkery again, reiterated Mr Mohr told her that her job depended on writing a letter for Court in relation to Mrs O'Neill. She denied that he had said words to the effect of "my business depends on it". They were having a discussion about going to Court and stuff like that. She said that she didn't want to make statements because they would end up living in a small town and dealing with all of those things and that was when he said, "well her job did depend on it" and that was when she actually decided to leave work. She didn't like that at all. 84 Mrs Corkery denied that Mr Mohr told her that he was thinking of putting his daughter Amanda on, to train her up to see if she could get a job with a bank. 85 In re-examination Mrs Corkery said that whilst she was at La Vault Jewellery, Amanda did undergo training in the Westpac in-store Agency operations. That was a couple of days after Mrs O'Neill had finished. After she had been given her official notice at the pool, Amanda started the next week. She had a couple of days with them and then she went to the Young branch which was a full Westpac branch. She did training there for about a week or so and then she came back to Boorowa to the in-store. She started back at Boorowa, a couple of days before Mrs Corkery resigned, which was about 28 or 29 March. 86 In relation to the diary entries, the entry for 5 February, she was 99 percent sure that she did that on the weekend following. It was an accurate recollection of what had happened. She wrote the detailed part because it needed to be explained and she had to write it down whilst she remembered it fresh. 87 The entry of 16 March she wrote that on the same afternoon. The entry in January as well as the entries on about 5 or 6 February, she wrote at the same time about 5 weeks later. 88 She had made a statement in these proceedings because she had actually read the things put forward and there were things that were not true. 89 The Commission directed questions at Mrs Corkery about her diary entry for 6 February, where she had related the incident of Mr Mohr giving her notice and whether she understood that to mean that she was being given notice that she was being terminated or she was being put on notice about being warned about her performance. 90 Mrs Corkery indicated that that was why she asked Mr Mohr whether he wanted them to leave then, because she didn't know whether it had meant that they were sacked or there on notice for a couple of weeks or what. 91 He then said "No, no", he didn't want them to go, it was just so that Gail couldn't say that she was being discriminated against. He didn't raise any performance issues with her on that day or any other occasion nor did he say that he was unhappy about her performance until she went to resign. 92 On that day they had the discussion about personal issues as well as the amount of disharmony in the work place. 93 Mrs Corkery also denied that there were regular meetings at the Ex-Services Club in which Mr Mohr would mention various issues to do with customer service skills and draw the staffs attention generally to deficiencies in performance. Mrs Corkery said that it never happened and he never mentioned anything such as that. They might have gone there once or something for a drink, but they didn't go out much at all. 94 Kevin Mohr (exhibit 5) deposed as to the circumstances leading to the setting up of the jewellery business of La Vault Jewellery and also the operation of the Westpac in-store agency. 95 Prior to opening the business he was approached by Mrs O'Neill and 3 other former staff members, Marie Corkery, Sally Barton and Judy Ford for a job. He indicated that the business was not in a position to take on four full time staff and they indicated that they would work out a part-time share arrangement between themselves, whereby two staff would cover the jewellery store during normal business hours. He then agreed to hire the four women on that basis. 96 He confirmed Mrs O'Neill's working hours as being 3 days a week and every third Saturday and that she was engaged on a permanent part-time basis, as a general sales person for the jewellery side of the business. Part of her duties also included operating a teller for the Westpac Agency and cleaning the store on a regular basis. She was primarily engaged in the following duties; (a) serving both jewellery customers and Westpac in-store customers (b) cleaning jewellery cabinets and doors on a daily basis (c) setting up and rotating jewellery displays and cleaning jewellery on a regular basis (d) vacuuming and cleaning the business premises once a week (e) learning minor aspects of the jewellery business relevant to her job of serving customers for example, how to measure ring size, the names of various stones or cuttings, engraving and alike. 97 Mr Mohr deposed that he personally relayed these duties to each of the four women including Mrs O'Neill at the time of offering the job and reiterated each of the duties to Mrs O'Neill on the first day of her employment. 98 On numerous occasions between March 2000 and February 2004, he informally instructed and counselled staff including the applicant about their customer service skills and indicated on numerous occasions various words that he said to them in relation to it being their job to look after customers or how they were to approach customers. 99 From the outset of her commencing employment, Mr Mohr observed that Mrs O'Neill appeared to be disinterested in the jewellery side of the business and her duty of serving customers. Upon arriving at work she would head straight to for the Westpac computers and would remain there most of the day, whether or not there were any Westpac customers conducting in-store banking transactions. 100 In spite of his instructions to her, given between March 2000 and February 2004, he observed that on many occasions, Mrs O'Neill would not approach customers as they came through the door. She would also fail to approach customers who are already in the shop and looking for assistance. There were several occasions when he had to draw this to her attention and ask her to serve the customer. 101 He also maintained that she was choosy as to who she would and would not serve and was more willing to serve customers she knew or were her relatives but would ignore the next customer. 102 Mr Mohr also observed the applicant being rude or abrupt with both the jewellery customers and in-store banking customers. 103 She brought her personal problems to work and on some days she would be short and cranky with customers, she would scowl and refuse to engage in small talk, she would also cut customers off short, if they appeared too talkative. 104 He could not recall precise dates but there were several occasions after observing Mrs O'Neill's negative behaviour towards customers, that he approached her and spoke to her about that. He was aware the applicant was having some difficulties with her husband and at least one occasion observed them having a significant argument at Frogmore restaurant. 105 On several occasions he observed customers approaching Mrs O'Neill for assistance whilst she was sitting at the Westpac computers and Mrs O'Neill ignored the customers. On each occasion, he observed that Mrs O'Neill was not serving any other customers and was not required to be sitting at the computers for any in-store banking service at that time. He was not aware what Mrs O'Neill was doing on the computer on those occasions, apart from the fact that failed to answer the customer, when the customer approached her for assistance. 106 Mr Mohr also gave an example of a regular banking customer approaching Mrs O'Neill at the computer and being ignored. She waited approximately 10 minutes with no acknowledgement from Mrs O'Neill and Mr Mohr finally turned around and spoke to Mrs Barton about that and Mrs Barton left her paperwork to go over and serve the customer, who made a complaint about the incident. 107 Mr Mohr, when he observed occasions when Mrs O'Neill wasn't serving customers, would approach her and ask her why she didn't serve them and she would alway respond haughtily with words to the effect of "I was busy". Mr Mohr would challenged her about this but she would usually walk away from him and the conversation would come to an end. 108 Apart from the comments Mr Mohr regularly made to Mrs O'Neill directly, they were at least a dozen or so occasions when he took the staff aside including Mrs O'Neill and informally counselled them about their customer service skills. He did not want to specifically single Mrs O'Neill out or single out her behaviour because he did not want to cause disharmony or rivalry amongst the staff. However, she was present at those counselling sessions and he made it clear that his instructions were to be followed by all staff. 109 My Mohr also deposed that Mrs O'Neill was constantly making or taking personal phone calls, having family or friends drop in to the store. Whilst he allowed staff to make or receive personal phone calls, he always made it clear that the customers came first. 110 Mr Mohr deposed that up until the end of 2003 Mrs O'Neill's daughter Trudy would regularly visit Mrs O'Neill at work at least twice a week and those visits would last about 10 to 15 minutes. That seemed to him to be a significant amount of time at those times, Mrs O'Neill would stop to talk to her daughter and leave serving other customers to the other staff member on duty. After the birth of Mrs O'Neill's grandchild, Trudy started visiting three times a week on average. This was every day that the applicant worked. She would bring the grandchild into the store with her and the visits would last longer, about 15 - 20 minutes. Mrs O'Neill would pick up and nurse the child preventing her from serving customers appropriately. She would also ignore the customers and if approached would not put the child down to serve them. Mr Mohr also deposed that her daughter left the grandchild with Mrs O'Neill whilst she went off to do errands on several occasions. There was one particular occasion in September 2001, when this occurred. The duration was for about 20 minutes. Mr Mohr spoke to her at that time about it. 111 Mr Mohr also deposed that Mrs O'Neill began to go walking with a friend during her lunch hour break and she would be gone for the full hour and then when he returned she would take a further 20 or 30 minutes to eat her lunch in the back of the store. When he spoke to her about that, she told him she was on her lunch break and she didn't have to serve anyone. 112 Mr Mohr deposed that within months of Mrs O'Neill commencing employment he tried to get all of the staff, including Mrs O'Neill, interesting in the jewellery side of the business, so that they would be more informed when dealing with jewellery customers. However, Mrs O'Neill displayed no interest in learning about the jewellery business. That was a constant concern to him as the jewellery side was the primary income earner for the business and his primary concern. Without the jewellery business, he would not have a store from which to run the in-store banking aspect of the business. 113 Mr Mohr gave an example of an incident in June 2000 concerning the re-stringing of a pearl necklace, that Mrs O'Neill indicated she would do. However, after about 6 weeks and he still had not heard from Mrs O'Neill about the task and approached her, she advised him that she couldn't do it and that she wasn't going to do it. He discovered that the pearls, tools and instruction booklet were in the same place he had left them. They did not appear to have been touched. He was upset about this incident and gave the task to Sally Barton, who completed it the same day. Mr Mohr indicated that jewellery engraving was another task that Mrs O'Neill refused to participate in and unlike other staff members, the only explanation she gave was "I'm just not interested in that stuff." She also repeatedly expressed no interest in setting up a particular displays when asked or learning more about particular displays of jewellery so that she could better advise customers. Mr Mohr deposed that as a result of her complete lack of interest in participating the jewellery side of business, he stopped giving her jewellery related tasks. 114 Mr Mohr deposed that the two computers for the purpose of the Westpac bank were only required to be used when conducting in-store banking transactions for Westpac customers and at the end of the day to finalise the transaction reports to be sent to Westpac. The computers were not to be used for general or personal use. 115 Mr Mohr deposed that with the two staff on the floor at any time, the in-store banking side of the business should have taken up no more than about 2 working hours for each staff member per day. There was an average of 85 in-store banking transactions conducted by each employee, each day and as part of the Westpac quality control procedures, each transaction is required to be conducted within 3 minutes. He did not know what work the applicant could have been occupying herself all of the time, as she would remain seated at the Westpac computers for almost the entire day. When he asked what she was doing, she would simply reply rudely that she was busy. He also noticed that she was using the internet for various personal matters and had staff members point that out to him also. 116 He noted that Mrs O'Neill admitted to using the internet for personal banking during working hours in her witness statement. 117 Six months prior to terminating Mrs O'Neill's employment, he noticed a marked deterioration in her manner towards her work and customers. She began leaving all routine cleaning of cabinets to other staff members and was increasingly preoccupied with her own personal matters within work hours. She spoke to him rudely, ignored his comments and turned and walked away from him, when he made any attempts to discuss his concern about her work performance. 118 Mr Mohr deposed that operating in a small country town, they prided their business on their friendly staff and relied on goodwill to promote and bring in the business in or about 2003, he became increasing concerned about Mrs O'Neill's conduct and the effect that it was having on the business and staff moral and he witnessed a number of negative incidents involving the applicant. The other staff indicated to him that they felt the applicant was not pulling her weight and had to cover for her. Mr Mohr gave everyone a Christmas bonus. That year he gave a greater bonus to Mrs Corkery because of extra effort she had put in. He gave the applicant the same Christmas bonus as other staff because he did not want to single her out or encourage her disinterest or disloyalty to the business. He honestly thought that her attitude might improve after receiving the bonus and having time off. However, when she returned to work her attitude did not seem to improve at all. Her poor performance and attitude to work continued until 5 February 2004. 119 On 5 February 2004 he observed during the day that she spent at least 20 minutes during that morning writing in her diary and further time writing up her sporting schedules, reading a cook book and ignoring customers. He waited until the end of the day to call her into his office to discuss her performance. 120 Mr Mohr deposed as to the conversation that took place between them. He raised the incidents that had occurred that day and she indicated that she was writing down her Saturday shifts. He challenged her about that. He told her that he wasn't bringing her in to sack her. Mr Mohr told her that he only wanted to talk to her about her performance and to let her know that he needed to see an improvement. Mrs O'Neill told him that he needed to give her three notices or she would "sue his fucking arse". She maintained that he had given her no warnings or counselling about anything, so told him "just try it" and that he had nothing on her. 121 Mr Mohr told her that the issues have been going on for some time and raised particular things with her. He maintained that she not only used offensive language but raised her voice to the point that Mrs Corkery could hear what she was saying. Her manner was aggressive and despite his attempts to talk to her calmly about the issue she proceeded to hurl abuse at him. She kept repeating that he could not sack her because he had not given her notice and kept threatening to sue. He then told her "alright consider yourself on first notice". She then said fine and she that she was going to take the weekend to consider her options, walking out of his office and the store. 122 Shortly afterwards he spoke to Mrs Corkery who advised him that she had heard Mrs O'Neill raise her voice at him. She also told him and Mrs O'Neill never did any work and she felt it was unfair that Mrs O'Neill never did any work and she felt it was unfair that she and the other staff had to carry her for some time. 123 On Friday 6 February, Mr Mohr deposed that his wife called him at the store to tell him that Mrs O'Neill's husband Eddie had left a message on the answering machine at the Frogmore store at 10pm the night before. She told him that he was very angry about what he had done to Mrs O'Neill and wanted to know what was going on and speak to him face to face. 124 Later that Friday, Mr O'Neill turned up at the Frogmore store and appeared very agitated. Mr Mohr had a conversation with him, during which he said that he had to find his wife and sort some things out. He asked Mr Mohr if he had sacked her and said that she had left him and wasn't coming home because he had sacked her. Mr Mohr denied that he had sacked her and said that he had only called her into his office to discuss a few issues and she kept threatening to sue. Later that evening Mr O'Neill phoned him at the store and told him to forget that he was at the shop that day and everything that he said and not to tell his wife he had said anything to him and that everything was fine. He then hung up. 125 Because he was disturbed by this phone call, Mr Mohr went to see Mr and Mrs O'Neill at their home. However, Mrs O'Neill was not there and when he spoke to the husband he told him that he had been called by her from her sister's place at Young and had been told that she had been sacked and that was why she had left him. She also had made comments about Mrs Corkery being lazy and doing everything in the shop to make her look bad and that Mrs Corkery should be sacked. 126 Later that evening a neighbour advised him that Mr O'Neill had been trying to contact him over the UHF radio after 10 o'clock the Thursday night before looking for him. He had tried more than 20 times and was very angry and swearing. In the end he got fed up with this and the neighbour picked up the radio and advised Mr O'Neill that all of the lights were off at the Mohr's and he was likely to be in bed. He then made a comment and hung up. After midnight that same night, Mr O'Neill arrived at the home in an agitated state. He was screaming and banging on the door and appeared to be drunk. He continued to swear and hurl abuse at Mr Mohr at the front door. He kept saying that everything was his fault because he had sacked Mrs O'Neill. The noise woke his family and two neighbours came to see what all the fuss was about and stayed until Mr O'Neill left. He continued to yell at him for about 10 or 15 minutes and in the end Mr Mohr went inside and closed the door so he could call the police, whilst Mr O'Neill went quiet, he stayed standing on his front door for a few minutes and left. Mr Mohr decided not to call the police. He spoke to the neighbours who were still waiting outside to let them know he was ok. When he returned to the house, his wife was very upset and told him that work should stay at work and that she didn't want Mrs O'Neill's personal problems interfering with their life. 127 On the following Monday, 9 February, when Mrs O'Neill arrived at work, he told her he wanted to speak to her privately. She appeared angry and defiant from the outset and they then had a conversation where he asked her whether she had decided what she was going to do. She told him she was coming back to work. He then questioned her as to why she lied to her husband and told him he sacked her. He asked her what had been going on and told her that her husband had been calling him and coming around his shop and house at all hours of the night and threatening him because he had sacked her and that that was a lie. He asked her what she was going to do about it because it was causing problems. He couldn't have her husband coming around to his house and threatening him. 128 Mrs O'Neill told him that it wasn't any of his business and that her husband had nothing to do with him or her work. Mr Mohr said that they needed to sort things out if she was going to stay on. She then started swearing at him. She told that she was coming back to work, that he couldn't sack her and that he had to give her three warnings before he could do anything and that he should go hard, do his best and she was coming back to work. He then told her to consider that today was her second warning because of her manner, being disrespectful and offensive and her language and he told her that he would send her a letter to confirm that. 129 She then went back to work, cleaning the jewellery cabinets, which was the first time in a long time. Nothing else was said that day. She did not turn up to work the next day or call to advise that she would be late or not coming in to work. He received a copy of the medical certificate by facsimile, that said she would be unfit for work from 10 February through to 17 February inclusive, suffering from a "medical condition". 130 On 11 February Mr Mohr and his wife sent the letter "K1" to the applicant advising her that they were considering terminating her employment on the grounds of unsatisfactory performance and misconduct, together with the issues of her personal life and unreasonably impinging on her employment. They had not decided to terminate her employment as yet and wished to provide her with the opportunity to respond before they made such decision. The issues that he had previously raised with her about her conduct and work performance and the concerns about husbands behaviour were detailed and a response was requested by 17 February. 131 On 16 February, he received a response to that letter from the applicant's Solicitors. In his view the letter failed to provide any reasonable explanation for her behaviour. It also failed to address what he thought was the more important issue, namely what she was prepared to do to address the issues of her performance into the future and what suggestions she had for preventing a re-occurrence of the recent outbursts of her husband. Her response confirmed to him that she was not prepared to concede that her behaviour towards him, the customers and other staff, had been unacceptable. 132 On the afternoon of 16 February, two friends of Mrs O'Neill came to the store and handed him a further medical certificate, indicating that she was suffering from acute stress reaction and would be unfit for work through to 20 February. 133 He considered Mrs O'Neill's response to his letter over the next day or so and whether a proper working relationship could be achieved with her and in the end formed the view that his relationship, with Mrs O'Neill, had broken down to the point of no return. He was initially concerned about how the store would operate with Mrs O'Neill being away on sick leave, but during those 2 weeks, he discovered that the staff managed extremely well without her. Both staff and customers commented to him that the store was a much more pleasant environment without the applicant. Given that the business was managing quite well without Mrs O'Neill, he decided that business needs did not justify keeping her on as an employee. 134 For those reasons and in the light of the long history of inappropriate conduct, he decided to terminate her employment. A letter of termination was drafted on 18 February and he had intended to drop it in to the applicant personally on the way home from work. However as he was driving past the local swimming pool, he noticed her walking from the pool grounds and he walked over and handed her the letter. She then said to him that she acted hastily and was sorry for what had happened. 135 Mr Mohr denied that Mrs O'Neill was employed by him as Westpac Teller / Customer Service Operator or that the majority of her time was taken up with serving Westpac customers. He reiterated that prior to 5 February 2004 he had spoken to Mrs O'Neill about her performance on a number of occasions, sometimes several times a day. He conceded that he never used the word "warning", but in each of those counselling sessions, he made it very clear that Mrs O'Neill was not performing appropriately and counselled her as to what she was required to prove her performance. 136 He denied saying that the applicant hadn't been willing to assist in jewellery making. He recalled saying that she had not been willing to assist with the jewellery side of the business. He acknowledged that he repeatedly mentioned that she showed no interest side of the business and because jewellery was La Vault Jewellerys primary business, that was an issue. 137 Mr Mohr responded to various issues raised by Mrs O'Neill in her witness statement and generally disagreed with those issues. He also indicated that he had not been contacted by any prospective employer seeking to obtain further information about Mrs O'Neill. He had spoken to the bank at Boorowa the Manager of the Five Star Supermarket and the owner of a local chemist and had been told that Mrs O'Neill had not applied for a job with them. She had also not applied to La Vault Jewellery for re-instatement at any time. 138 Mr Mohr no longer operated the Westpac Agency referred to in his statement and proceedings. He handed the letter of termination to Westpac in mid-April. That termination was to take effect within 120 days and the Agency ceased in August. He still operated the business of La Vault Jewellery selling jewellery. However, he did not intend to keep operating that for the foreseeable future, he intended on closing the business and had put the business up for sale. 139 There was also tendered a number of tables setting out monthly transactions per employee in relation to the banking transactions. They showed an average of 85 transactions being conducted per person each day. That was with 83.31 transactions starting from the Year 2000 ranging to about 67 transaction per day in the Year 2003. 140 Prior to taking over the Westpac banking facility in March 2000 Mrs Sally Barton and Mrs Corkery had approached him at the Frogmore Store and told him that the Westpac Bank was going in-store and asked him if he would put in an application and whether he was interested in putting a jewellery workshop into that business. 141 He had a jewellery concern operating at the Frogmore General Store. There was a great deal of paper work involved in setting up the Agency. His main negotiations and dealings were done with the Regional Managers of Westpac. 142 Mr Mohr indicated the nature of the discussions he had with the new staff when they commenced in the jewellery store the types of duties that they were to carry out. He also indicated the type of jewellery that was sold and that jewellery was a combination of jewellery purchased from a Wholesaler. He was also a jewellery manufacturer and he would make jewellery to the specifications and requirements of customers. 143 Mr Mohr could not recall a conversation with Mrs Corkery in January 2004 about his daughter. However, he could recall a conversation in November / December 2003 where he approached her and indicated that he had been talking to his wife and they would like to put their daughter on to train her into a position of a bank teller so she could get a job in the banking industry. Mrs Corkery told them she did not think that was a good idea as nobody really like her and she thought it would cause problems with the staff. He did not tell Mrs Corkery that his wife had said to sack Mrs O'Neill. 144 He agreed that he did put his daughter on and the basis was to train her into that position. As it happened they terminated Mrs O'Neill which made it a little easier on his pocket but they still put her on about 8 April. She worked for them for about six months. She is no longer working for them. 145 After Mrs O'Neill left and Marie Corkery and Sally Barton resigned things were very very difficult for him. His daughter was only just beginning the process of training as a Westpac Teller and he did not really put much emphasis on the jewellery side of the business with her because she wanted to go out and get a job in the industry. Another staff member became pregnant and could only work to a certain point and to put two other staff members on would have meant training them the same as he had with his daughter and it became too much for him so he terminated Westpac in-store operation. 146 That was when his daughter finished up with him. She received the same remuneration as other staff members, $16 an hour. Originally his daughter was living in the residence at the back of the premises on no rent and they decided to help her out with that job and told her that if she did that she could pay them rent. They paid her a wage, they trained her and in return she paid them rent of one hundred dollars per week. However, he said she did not start until about seventeen days after Mrs O'Neill left. 147 In relation to the conversation that he had with Mrs Corkery and Mrs Barton on 6 February he said that he approached them to speak to them about what had happened the previous night with Gail O'Neill and before he could really say much more than that Mrs Corkery told him that they knew what was going on, they understood, that they had all done similar things and he then told them that in that case they could consider them both "on notice". She then asked him if he wanted us then to leave and he said "well no" and Sally Barton turned round and told her that he was only saying it in a jovial manner and that was the long and the short of it. 148 Mrs Corkery had made previous adverse and critical comments to him about Mrs O'Neill's conduct and performance. 149 In cross-examination Mr Mohr was asked at some length about his background in the jewellery business and also his decision to open the in-store agency and the conversations had had with various potential employees. He denied that he had put the application to open the in-store agency because the business prospects suited him and he could open another business. 150 He agreed that in a sense it did suit him because he had started running a jewellery sales and manufacturing business from the Frogmore Store. To that extent, was suitable, he could also see the need for jobs in the rural area. He agreed that it was an opportunity to grow his business. 151 He was not aware of how many employees there were in the bank prior to opening the agency, nor did he look at the staff records before he opened the agency. He was aware of what had happened to the other employees that had been put off by the bank . 152 Mr Mohr agreed that the two Westpac terminals that were in place were not available for any other computing and that they were direct lines to the Westpac System. They did not have any access to any other computer telephony by way of internet or intranet. 153 Mr Mohr agreed that he knew that some of the ladies had worked part-time at the Westpac bank and that they would continue to work part-time. He agreed that he did not give any of the employees, including Mrs O'Neill, a letter of appointment, or a written job description. 154 Mr Mohr agreed that he did not work as a bank service person, he stayed on the jewellery side. The jewellery business had a computer in his work area. Mr Mohr said that if he was working at his workstation the computer was approximately four feet away from him. He was in the shop four days a week. When he was working at his workstation he could mostly see what was going on on the computer although he had his back to them. 155 He trusted Sally Barton with the work on the computer. She did the in-house bookkeeping. 156 As part of the in-store branch arrangement he was paid a management fee on a quarterly basis and also a commissioner per transaction. 157 Mr Mohr agreed that when he took over the in-store agency Westpac was not the only bank operating in Boorowa, there was a Commonwealth Bank agency at the Post Office. He confirmed the Bendigo Bank came to Boorowa in 2002. He also confirmed that the Post Office banked with Westpac and continued to bank with Westpac until he ceased operating the in-store agency. 158 Earlier on in 2004 all the staff, including Mrs O'Neill, had approached him for employment in the in-store agency towards the last week of the closure of the Westpac Branch. They had all asked him for an interview with the job. He was not absolutely certain that that took place in the last week of the operation of the Westpac Branch. It happened in the lead up weeks to the closure, possibly the two or three weeks leading up to the closure. 159 His daughter went to the Young Branch for a period of training of two weeks. She also had some in-house training at La Vault Jewellery doing the Westpac work. That took several weeks and a Louise Cook supervised the training. She is the manager from the Young Branch. That training went on for several weeks. 160 Mr Mohr was taken to the in-store agency agreement with Westpac and agreed that the bank required him, as the operator, to carry out the functions of an in-store branch with all reasonable care and skill and to the best of the in-store operators ability and at all time act as an in-store branch and otherwise conduct itself so as not to damage the reputation of the Bank. He agreed that he needed training to be able to do that. He also agreed that he needed trained staff in order to be able to do that. He agreed that in order for that staff had to have completed in-store branch training and accreditation in accordance with the requirements of the Bank. 161 It was his position that he did have staff who were available to fill the requirements of the Bank as Westpac had taken on the position to train them on the new teller equipment which was different to the old teller equipment. 162 Whilst he needed Mrs Corkery and Sally Barton to work in La Vault Jewellery he did not believe that he needed Gail O'Neill to work for him in La Vault Jewellery in 2000. He did not employ Marie Corkery and Sally Barton full-time because he considered he was doing justice to the community. 163 There was considerable cross-examination of Mr Mohr about issues to do with the transactions in the in-store agency and he indicated that it was never his intention to hire people off the street and that he could not have done that. 164 He indicated that he was under the impression that Mrs O'Neill was an experienced Westpac customer service person and he conceded that her abilities in discharging her duties as the in-store banking person did not change. There was no problem with her in-store banking duties. All the observations he made in his statement about her performance related to the jewellery side of the business and to her customer approach. 165 Mr Mohr also conceded that when Mrs O'Neill's daughter came into the store it was to do Post Office banking business. 166 Mr Mohr agreed that he did not suggest that there was any way that the Westpac computers were used for computer games or internet activities. If anything was being done on the internet by Mrs O'Neill it was on the other computer near his workstation. For the first couple of years the computer had not been on the internet. The computer was used for the bookkeeping for the business. 167 Sally Barton had access to his computer on a regular basis to do the book work in relation to the in-store banking procedures Mr Mohr agreed that there were some transactions that took longer than three minutes. For example, if a customer wanted to buy travellers cheques. The three minutes was a guideline set by Westpac, not himself. 168 Mr Mohr was not aware that Mrs O'Neill was conducting Westpac business by way of certain reports that had been made up on 5 February, 2004. He believed those reports were generally done over a period of weeks not one day. However, he did not disagree that she may have been making a report for group security and a report for financial transactions and that the financial transaction report was in compliance with Federal Legislation. He was not aware that it would take an hour and a half for the in-store at Boorowa to complete that report. 169 Mr Mohr agreed that until Sally Barton left she was a valued employee of La Vault Jewellery and until Marie Corkery left she was also a valued member of staff. 170 Mr Mohr believed it was not coincidental that after Mrs O'Neill left his daughter started working at La Vault Jewellery and started doing Westpac work. She did training at Young from the first two weeks in March, there was no training in advance. 171 Mr Mohr agreed that he had known Eddie O'Neill and had a number of yarns with him over the years. He was not a hot head and he considered him pretty harmless. He liked him. 172 Mr Mohr indicated that he provided the training for the jewellery side of the business and Westpac provided the training for the in-store. He did not show Mrs O'Neill how to change batteries in watches. He did show her how to mount new watch bands and jewellery cleaning technics. He did not teach her how to engrave. He was not aware of whether she had refused to clean jewellery when a customer came in. 173 He agreed that it was fair to say that on those days when he was working at the store and Mrs O'Neill was there he was the primary jewellery person when it came to technical issues concerning the mounts of stones and rings and he was the person who changed batteries in watches. 174 It was Mr Mohr's evidence that he spoke to Mrs O'Neill about failing to approach customers who appeared to being looking for assistance on many occasions. That meant at least somewhere between a dozen and three dozen over the three year period. Mr Mohr reiterated throughout cross-examination that he had in fact given Mrs O'Neill counselling and informal warnings about her approach to customers, her rudeness and a range of other issues and had spoken to her about her daughter coming in and leaving her grandchild with her. 175 It never reached the stage where he thought Mrs O'Neill was not a person who should be working in his business. He did form the view gradually over the years that she was not pulling her weight in the jewellery side of the business. She was quite good with transactions. He was surprised on the occasion of the discussion with her on 5 February that she used the language that she did. 176 It also became apparent at this particular stage of cross-examination that Mr Mohr was having some difficulty hearing the questions and he was asked a number of questions concerned with his hearing and conceded that he was hard of hearing in his left ear. He did not lip read. If he was having a conversation with a person he would miss some sounds if they were speaking in a low soft voice. It also meant that he would miss what they might be saying to a customer on the other side of the store or a few feet away and agreed that customers got frustrated with him too. He agreed that he missed out on sounds and on some conversations that could not be heard. 177 Mr Mohr was asked considerable questions about the exchanges he had with Mr O'Neill on the nights of the Friday and Saturday, the sixth and seventh of February. He agreed that he did not feel threatened by him on the night of the sixth but he was concerned because he was not sure about what was going on. He did not discuss the phone calls with the police, nor did he discuss them with Mr O'Neill after 6 February. He made the assumption that he was probably affected by alcohol. She contacted him on the fifth to tell him that she was "on notice". He did not know what she told him on the sixth and he only knew that because Mr O'Neill told him. He did not believe on Thursday the fifth that he was affected by alcohol. 178 When he received the letter from Mrs O'Neill's solicitors, in response to his letter of the eleventh, he only considered that to be a part answer to his letter. They did not determine then to dismiss Mrs O'Neill. He phoned his solicitor at that point to find out what he should do about it. He did obtain legal advice prior to sending the letter. 179 He did not agree that when he wrote the letter of 11 February the involvement of Mr O'Neill in the matter was of no significance in his determination to keep Mrs O'Neill employed or to terminate her. It did shed light on his decision to write the letter to ask Mrs O'Neill how this went back on her work. 180 He did not consider that there was some great matrimonial conflict going on between them. He agreed that Mr O'Neill was often "on the grog" and could be a bit of a hot head on occasions and say silly things. When asked what it was about the relationship between Mrs O'Neill and her husband which he decided made the continuing employment of Gail O'Neill difficult Mr Mohr responded as follows, "the apparent lies involved in the situation between them and the threats to my family at my home, at my place of work that Eddie O'Neill brought upon me from what I was led to believe to be lies". Mr Mohr agreed that he did not make any complaint to New South Wales Police about any of those threats. He did not agree that they were just nonsense and it was because they were neighbours and friends and at that point in time he was unsure what was going to transpire. 181 Mr Mohr did not agree that he and his wife had decided that they would employ Amanda in the business and that one of the staff they were employing had to go. Mr Mohr was also asked questions about the statement he had made in which he had indicated that he had spoken to a number of persons that the applicant had applied to jobs for. 182 Mr Mohr concluded by indicating that the issues that he raised and matters that he complained about were examples of what had happened over the period of her employment and that he had warned and counselled her over that time. SUBMISSIONS 183 The applicant sought relief by way of monetary compensation and relied on the particulars of her application, the respondent's reply and employment particulars in the respondent's statement of evidence. 184 The applicant had been employed three years prior to March 2000 by the Westpac Banking Corporation. Her employment commenced with the respondent on 6 March, 2000 and she was terminated on 18 February, 2004. 185 Mrs O'Neill obtained part-time work at the Boorowa Hotel increasing to fifteen hours a fortnight and since September 2004 relief work in the Westpac in-store in the Five Star Supermarket, this was casual work. 186 The considerations to be made by the Commission in relation to an unfair dismissal are contained in s.88 of the Act. 187 The reasons for dismissal were contained in the letter of Mr Mohr of 11 February to Mrs O'Neill, wherein it was indicated that they were "considering terminating" Mrs O'Neill's employment. Those reasons included; a) In the past several months: · babysitting, · failing to string pearls, · failing to routine clean jewellery and cabinets, · unreasonable time on private phone calls, · personal use of internet, · choosy serving customers, · apparent disinterest in jewellery side of business b) Matters specifically raised on 5 February 2004: · late from lunch, · organising personal diary, · making notes etc, · reading magazines, · lengthy telephone calls / SMS messages c) Incidents involving her husband. 188 The evidence concerning the issues was summarised as follows: · "Babysitting" - that occurred in September 2001 and there was only one instance on the applicants evidence and probably three times on the respondents evidence. · "Pearl stringing" - there was one instance in 2000 or 2002. · "Cleaning jewellery" - Mrs O'Neill never refused to do this and there was no evidence from the respondent that she did not clean jewellery cabinets. · "Phone calls" - Mr Mohr's statement did not specify when those phone calls took place and the evidence from Marie Corkery was that the rule was flexible at best. · "Personal internet use" - the computer used for internet access was not a Westpac terminal. The computer on the internet was four feet from Kevin Mohr's work desk. He gave no evidence of telling Gail O'Neill not to use this computer or to go back to your work. Therefore, it was open to conclude that internet use was with his tacit consent. Further there was evidence of only one incident of computer use. · "Choosy" - Mr Mohr gave examples in relation to relatives and friends. However, he could not name any of those persons. Mrs O'Neill acknowledged that she had one relative in Frogmore. It was open to find that any apparent familiarity with customers arose from her three years as a Westpac teller. · "Disinterest in jewellery side" - the evidence was that Mr Mohr gave only limited training for Mrs O'Neill. The other consideration to be taken into account in assessing this issue is the amount of time that had to be taken by Mrs O'Neill on Westpac business. 189 Mrs O'Neill dealt with the issues in her affidavit in reply that were raised concerning 5 February. In relation to her husband the evidence was that Mrs O'Neill was told on 5 February, 2004 that she was "on notice". She told her husband she was "on notice". What her husband made of that and what he said to Mr Mohr thereafter, ought not to be a ground for dismissal when put in the context of the evidence as to the relationship between Mr Mohr and Mr O'Neill. 190 Mr Mohr had said that "he's harmless". He is harmless, "is" the present tense it was submitted. He was harmless then and he was harmless as at the date of the hearing, 12 October, 2004. The conduct of Mr O'Neill over 6 - 7 February, 2004 was at best grounds to warn Mrs O'Neill and a more appropriate course would have been to counsel her to speak to her husband and have him not involve himself in her employment. The conduct of Mr O'Neill as described by Mr Mohr over that period was consistent with him being affected by alcohol and no more. This was a condition well known to Mr Mohr. 191 In relation to any warning of unsatisfactory performance, an oral warning was given on 5 February, 2004. A written warning was given in a letter of 11 February, 2004. Termination was effected on 18 February, 2004. The evidence as a whole was that Mrs O'Neill had no opportunity to "improve" her work performance from 5 February, 2004. 192 As to prior counselling, there was no reliable evidence of any warnings or counsellings prior to 5 February, 2004. The reliability of Mr Mohr's evidence could be challenged as Mr Mohr did not keep a diary until 2004 and the accuracy of his recollection of alleged work performance must be weighed in the light of the lack of records. 193 The example of Mrs O'Neill minding the grandchild was cited by Mr Mohr based on reading of Mrs O'Neill's statement. 194 Mr Mohr's credit could also be challenged particularly in relation to his attempt to suggest that he only spoke to staff in the weeks leading up to the commencement of the in-store branch. The agreement for the in-store branch was made on 13 December, 1999. That agreement required trained staff with effect from 6 March, 2000. The evidence could indicate incompetence on the part of Mr Mohr in leaving recruitment of proper staff so late. The evidence could also indicate an assumption by him that the existing Westpac staff would come over to the in-store automatically. The evidence more likely supported what Mrs O'Neill and Mrs Corkery said happened, that organising the staff for the in-store was effectively left to the remaining Westpac staff. 195 The evidence also indicated that the duties of the staff on the jewellery side of the business were also self evident and left to the Westpac staff. The evidence also demonstrated that it was only with respect to some aspects of the jewellery business that there was any training. This was clear from the cross-examination of Mr Mohr. This contrasted with his statement where he set out the circumstances leading up to the commencement of the in-store branch and the extent of the training he alleged was given. 196 The evidence of staff counselling in Mr Mohr's statement could also be challenged. What Mr Mohr wanted the Commission to believe from his statement was that structured staff appraisal was ongoing. Nothing could be further from the truth. It was for a few months over social drinks at the club. It was submitted that the assertion in his statement was an attempt to mislead the Commission. 197 It was also submitted that Mr Mohr was an unreliable witness and the Commission should prefer Mrs O'Neill's evidence to that of Mr Mohr where there was a conflict in all matters including the allegations by Mr Mohr that Mrs O'Neill was writing up her diary, reading a cookbook and ignoring customers on 5 February. 198 It was also submitted that the issue of Mr Mohr being obviously very hard of hearing was relevant. The Commission should find that he may not have heard responses to some things he said to Mrs O'Neill and this was interpreted by him as a bluntness or rudeness to him on her part. 199 Mr Mohr conceded he had not worked the Westpac terminals and was not familiar with the system and the requirements of the system. It follows that any allegations that Mrs O'Neill was just sitting at a Westpac terminal and not serving customers is not a poor performance allegation because Mr Mohr did not appreciate what was being done on those terminals. 200 That issue also puts the matters of 5 February, 2004 into context. Mrs O'Neill, in her affidavit in reply, said she was tied up on that day doing the Shire pay, one hundred other transactions and necessary Westpac online training, taking one to one and a half hours each. Using Mr Mohr's own evidence the transactions should take three minutes or less on average. One hundred transactions is three hundred minutes or five hours plus the Shire pay plus the training assignments and she was doing the balance for the day when called into the office. The only conclusion that can be formed is that Gail O'Neill was working most of the day on Westpac in-store business. 201 Mr Mohr conceded in cross-examination that before Christmas 2003, he and his wife discussed getting a banking job for their daughter, Amanda, who occupied a residence at the rear of La Vault Jewellery. After Mrs O'Neill was dismissed, Amanda was sent for training, two weeks in Young and several weeks in-store. Approximately six weeks altogether. It was submitted that the dismissal had a temporal connection with the daughter Amanda, it was not just coincidental. 202 The coincidence was made more interesting by the arrangements that Amanda was paid the same as other staff but paid the respondents $100 rent when she started working. 203 The evidence of Marie Corkery as to credit could not be challenged. She was not a vindictive former employee, she resigned and went into a position at Young a day or two later. She was asked in cross-examination as to why she had involved herself but it was not suggested that she was providing assistance to the applicant for any other reason than for telling the truth. It was submitted that having regard to her demeanour and candour the Commission should prefer Mrs Corkery's evidence on any matter over that of the respondent. 204 In relation to rudeness and poor performance it was submitted that Mrs O'Neill was recruited and trained by Westpac, it was therefore difficult to accept that this rudeness and poor performance went unnoticed for three years. Mrs Corkery made observations about her performance, none of those observations were negative. Mr Mohr's observations were that she was an experienced Westpac Customer Service person and conceded that there was no problem with her in-store banking duties. Add to those circumstances the three dozen instances of alleged rudeness / abruptness over nearly four years and those instances could be considered in the circumstances of Mr Mohr's deafness. 205 Procedural fairness. The poor performance by Mrs O'Neill on the 5th February was a fabrication. She had worked that day for the banking side of the business. The past counselling of Mrs O'Neill, at most, was the odd word here and there about selling jewellery. There was no chance for Mrs O'Neill to improve her performance, although poor performance is denied, or speak to her husband about "notice" not amounting to being dismissed and the tension at work he had caused. 206 Mrs O'Neill was offered only the scantest opportunity to reply in defence. She did reply, she did explain herself, but certainly not her husband's conduct and was dismissed on a pretext of her husband's involvement. 207 It was submitted that on the evidence Mrs O'Neill was dismissed to make way for the daughter Amanda, which involved a net saving in wages through rent. 208 It was submitted that the dismissal was harsh, unreasonable or unjust for the following reasons: · It was harsh because there were no performance reviews to enable an improved performance, there was limited training on the jewellery side of the business, there was limited chance of obtaining work in Boorowa if she was dismissed. · It was unreasonable because the respondents knew Mr O'Neill, his drinking and his harmlessness. To rely on him involving himself gratuitously in the dispute made it impossible for the applicant to explain her behaviour. Section 88b does not require a person to explain the behaviour of others. · The dismissal was unjust because the reasons given by the respondent were fabricated, embroidered and exaggerated. The real reason for the dismissal was to employ their daughter at an effectively lower wage through the rent she paid to the respondents. 209 The remedy sought . The respondents have ceased or are to cease their business. Therefore reinstatement is not possible. Mrs O'Neill was working three days a week and every third Sunday. Her employment at the hotel was not incompatible with that employment. That is she was always free to work in a second part-time position. The relief work at the Five Star in-store bank is casual. The banking business closed around 17 August, 2004. Had Mrs O'Neill continued at the respondents' business she could expect to work to that date and receive her entitlements on termination. In the circumstances the full weekly amount of $348.75 per week should be considered as proper by the Commission because Mrs O'Neill was working part-time for the respondents. 210 Other part-time or relieving work should not be considered to be a set-off or a cessation of the period of entitlement to an award. It was submitted that the aggravating circumstances of this dismissal, including the respondents relying on old trivial matters from the year before, the fabricated instance, no appraisals allowing for work improvement, scanty training on the jewellery side and then the respondents relying on the jewellery side performances as a ground of dismissal and also relying on the (alleged and conceded harmless) conduct of a person not involved in the employer-employee relationship, the husband, all allowed the Commission to make a full award of compensation from 18 February, 2004 to 17 August, 2004, a full six months of the weekly rate. 211 It was submitted that the reasons for dismissal were harsh, unreasonable and unjust. They were trivial, fabricated and an excuse to start the daughter in the in-store branch. In those circumstances the Commissioner should determine that Mrs O'Neill should be awarded her costs. 212 Mr Wilson for the respondent submitted that the only relevant question for the Commission was whether it was harsh, unjust or unreasonable for the respondent to terminate the applicant's employment on the basis of her response, or more accurately, her lack of response, to the issues raised in the respondent's letter of 11 February. 213 It was further submitted that what transpired between the applicant and the respondent prior to the 5 February and which prompted the letter of 11 February were essentially irrelevant to this application. 214 The letter of termination had cited the applicant's lack of response to the 11 February letter as the reason for dismissal. In particular, the following issues were of concern: · the applicant's refusal to accept there was at least something unsatisfactory in her conduct and performance, · difficulties in accepting assurances from the applicant when she did not recognise that some of the respondent's concerns were valid, · the applicant did not respond at all to concerns about her husband's recent behaviour, nor to specific requests as to whether she had told her husband that Mr Mohr had sacked her, · the applicant did not explain why she did so (if she did) and how the relationship between the parties could be restored and maintained, nor did she give any assurances that issues within her marriage would not impinge on her employment and why she could give such assurances. The failure to respond meant the respondent did not know whether it had an employee making false statements about them or an employee whose husband was making false statements about them. 215 The allegations expressed by the applicant to Mr Mohr on the 9 February were also a further illustration of the degree to which the relationship between the parties had broken down. The s.88 considerations were addressed and it was submitted that the evidence confirmed that: · a meeting was held to discuss the applicant's performance, · it was not intention of Mr Mohr to issue either a final warning or to terminate the applicant at that time, · it was the applicant's response that resulted in a formal warning being issued. The applicant advised she would consider her options on the weekend, including resignation. 216 The evidence was summarised as to the various exchanges and confrontation between the applicant's husband and Mr Mohr between the 5 th and the 8 February. Further detail was given about the evidence as to the exchanges between the applicant and Mr Mohr on 9 February in the meeting to discuss her decision as to her options and her husband's behaviour. 217 The key area of concern was that she admitted that she could not remember that she denied that she lied about telling her husband she had been sacked and simply responded that he had nothing to do with her work. It was submitted that this response missed the point, mainly that clearly an employee lying about something an employer said or did is relevant to the duty of mutual trust and confidence implied into every contract of employment. 218 The applicant accepted that the respondent was entitled to have concerns and that these related to her husband's behaviour and the difficulties of working together in the future. 219 The applicant failed to return to work after 9 February and the respondent conveyed his concerns in the letter of the 11 February and indicated she had the opportunity of responding by 17 February to those concerns and that no decision to terminate had been made. 220 It was submitted that the concerns raised were legitimate and would be so regardless of the context of the employment. The applicant was made well aware of those concerns and that they were putting her employment at risk. The applicant was provided with procedural fairness in relation to those concerns. The applicant sought legal advice and the letter of 16 February was sent "on her instructions" and after she had seen a draft of the letter. 221 While some issues were admitted it was put that they were isolated instances and there was a refusal to accept that there was anything unsatisfactory about her performance and conduct. There was a failure to address the concerns expressed about the issues concerning her husband and the failure of the working relationship between the parties. 222 It was submitted that it was irrelevant whether the applicant instructed her solicitors to send the letter on their advice or otherwise. It was submitted that what was relevant was what the respondent had before it as to the applicant's position in response to their letter. 223 The applicant accepted in evidence that the respondent on receiving her response would have been none the wiser as to whether she had lied to her husband and whether issues within the marriage would affect the employment relationship in the future. The applicant also accepted that the respondent had nothing to go on and was placed in a difficult position. The applicant did not attend work or further contact the respondent to provide any further or supplementary response to their concerns. The decision to terminate was only made after considering the applicant's response of 16 February. 224 The respondents rejected the contention that the conduct of the applicant's husband over the relevant period was only grounds to, at best, warn her and that she should have been counselled to speak to her husband and have him not involve himself in her employment. This was rejected on three grounds, namely that the applicant had already confirmed that she had spoken to her husband and not to say anything or get involved and he had refused to do so. 225 The respondents did try and counsel her on 9 February but she refused to discuss the matter or provide the assurances that were subsequently sought in the letter of 11 February. However, the applicant failed to respond leaving the respondents in a difficult position. 226 It was further submitted that the decision to hire Amanda Mohr had nothing to do with the decision to terminate the applicant. The decision had first been considered in November / December 2003 for the sole purpose of providing bank teller training for her so as to enable her to get a job in the banking industry. Amanda Mohr was not engaged until 8 April, 2004, almost two months after the applicant's termination. Other staff had to work extra shifts to cover the applicant's work after her termination and also whilst Amanda Mohr trained at Young. The issue of rent and the premises at the back of La Vault Jewellery meant the respondent was no better off financially when the daughter was employed. Another employee Adele Piper was pregnant and was not going to remain at La Vault Jewellery much longer, the respondents could have waited until she left to hire the daughter. 227 Finally the respondents had no intention of terminating the applicant until she failed to properly respond to the concerns raised in the letter of 11 February. 228 The respondents also challenged the credibility of the applicant on the basis that she had admitted to falsifying the income tax returns and not declaring taxable income. She had also admitted she understood when placed on first notice that her performance was unsatisfactory. The applicant understood the significance to the employer of her telling her husband she had been sacked rather than been put on notice, yet she did not deny doing so when asked. Nor did she specifically respond when asked to that issue in the letter of 16 February. 229 The Commission was taken to a number of issues where it was alleged that Mrs O'Neill gave conflicting evidence viz. duties requested to be performed, training given, whether there was an initial interview etc. That evidence was contradicted by Marie Corkery, who confirmed there was an initial initiation meeting and also that training was given. Further the applicant would have the Commission believe that she did not really think the issues concerning her husband were part of the employment problems in spite of the discussion of 9 February and the letter of 11 February. 230 It was also challenged whether Mrs O'Neill had sought alternative employment as she maintained. Her only evidence in support was a letter dated after the application was filed. It was submitted that the evidence of Mr Mohr was to be preferred to that of the applicant. 231 The credibility of the evidence of Marie Corkery was also challenged. She also gave conflicting evidence about her commencement date and when she took the three months leave. Her evidence concerning the duties given by Mr Mohr was also contradictory. Also challenged was the credibility of Mrs Corkery's diary entries as they had been clearly "doctored up" to suit the applicant's version of events. There were issues that could be raised concerning when the notes were written, what pen was used, the absence of other entries about what transpired in the work place etc etc. Whilst it was Mrs Corkery's evidence that she had never seen the applicant being rude or abrupt with a customer she only worked with the applicant on Thursdays. It was submitted that the evidence of Mr Mohr was to be preferred of that of Mrs Corkery. 232 The respondents submitted that the submissions by the applicant concerning procedural fairness were incorrect. An oral warning was given on 5 February, 2004, a further oral warning was give on 9 February, 2004 and a written warning was give on 11 February, 2004 inviting the applicant to provide a response and noting that her response would be taken into account in making a decision as to her future employment. 233 As the reason for the applicant's termination was her failure to provide any response to particular concerns raised in the letter of the 11 February, as referred to previously, the applicant's submissions on procedural fairness were irrelevant to this application. 234 It was further submitted that Mr Mohr's limited deafness in his left ear did not prevent him from hearing any response to his concerns made by the applicant on 5 February or 9 February. Apart from the references to swearing the applicant accepted the respondent's recollection of those conversations. Nor did Mr Mohr's limited deafness prevent him from reading or understanding the contents of the applicant's response to the letter of 11 February. 235 It was submitted that the termination Mrs O'Neill was not harsh as the respondent gave her an opportunity to respond to his concerns and she responded. In her response she did not contend that she had not been given sufficient opportunity to formulate a response. Mrs O'Neill left no evidence as to lack of employment opportunities. The evidence confirmed that previous Westpac bank staff obtained alternate employment immediately after leaving the bank and Marie Corkery and Sally Barton obtained employment immediately after resigning from La Vault Jewellery. Performance reviews and limited training as issues were irrelevant, the applicant's employment was not terminated for those reasons. 236 It was submitted that the termination was not unreasonable as the husband's behaviour was self-explanatory. The respondent did not ask the applicant to explain her behaviour. The respondent relied on the applicant's failure to address the issues in the letter of 11 February. The applicant was asked to explain her own behaviour, namely to confirm or deny whether she told her husband that she had been sacked (in other words lied) and if so why and if not how she could assure the respondent this situation would not impact on her employment in the future. 237 It was submitted that it had to be remembered that Mr Mohr operated a small business where he worked alongside the applicant day in day out. It was not the same situation as David Jones or BHP where an employee could be moved away from the supervisor who had lost confidence in him or her. The respondent was aware that the applicant's husband had a drinking problem prior to the 5 February 2004 and did consider him harmless. however, that was not the point, after 5 February the respondent knew that Mr O'Neill did not listen to his instructions from his wife, intended to interfere with her employment, harass the respondents at their home and places of business and in front of their neighbours and children. 238 It was submitted that the termination was not unjust as the respondent had never cited the applicant's performance issues as the basis of the termination. The reasons for termination as set out above and had nothing to do with performance. There was also no connection between the dismissal of the applicant and the employment of Mr Mohr's daughter two months later. It was submitted that the various provisions of section 88 had been satisfied by the respondent. 239 Remedy . It was submitted that the application should be dismissed. However, the respondent noted, in relation to remedy, should the Commission find for the applicant that the applicant had been employed at the Boorowa Hotel from February 2004. The applicant had received cash in hand and had not paid tax on this income. Therefore, the income paid to the applicant could not verified other than to note the applicant had submitted that it was "not incompatible" with her job with Mr Mohr. 240 In addition to the work at Boorowa Hotel the applicant also confirmed she had casual employment with the Five Star in-store banking facility. The applicant had not declared her income from the hotel to Centre Link and had received extra family payment benefits since February 2004. 241 The respondent accepted the applicant's submissions that assuming all other issues were resolved the applicant could have expected to have employment with the respondent up until the 17 August, 2004 only. It was submitted that in the light of the income received by the applicant from the various sources indicated that the applicant had not been out of pocket since termination and ought not to be compensated in the event that the Commission found the termination to unfair, unjust or unreasonable. 242 It was submitted that the Commission should find that the application was instituted without reasonable cause and as a consequence should award costs. Reliance was placed on a decision in Kanae v Australian Postal and Telecommunications Union (1992) 43 IR 257 per Wilcox CJ at 264, "one way of testing whether a proceeding is instituted without reasonable cause is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceedings, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being 'without reasonable cause' but where on the applicant's own version of the facts it is clear that the proceeding must fail it may properly be said that the proceeding lacks reasonable cause". It was submitted on the applicant's own version of the facts, the application must fail. 243 In reply it was submitted on behalf of the applicant that she was not cross-examined as to her hotel income nor was it put to her that she was falsifying income tax returns. A serious allegation as this must be on instructions and arise from provable facts or facts expected to be proved. Reliance was placed on Klyne v New South Wales Bar Association (1960) 104 CLR 186. 244 Taking the evidence as a whole the applicant had told her husband she was "on notice", what her husband made of that or the state of his sobriety at the relevant times over that weekend was not in evidence. 245 It was also submitted generally in relation to Mr Mohr that his deafness seriously affected the reliability of his accounts of conversations. This also must be considered in relation to his perceptions of the applicant's behaviour and her apparent rudeness and abruptness. 246 In relation to the credibility of Marie Corkery, it was submitted that she had been the Westpac Branch Manager and that the Commission was therefore entitled to find that in her previous employment in that bank she was trustworthy. She had left Mr Mohr's employment to work in Young. It was submitted that she had no dispute nor animosity towards the respondent. It was never put to Mrs Corkery that she had "doctored up" her diary, the highest that allegation reached in cross-examination was the use of the term "reconstruction". Mrs Corkery's observations of the work performance of the applicant were based on many years working with her, including years as her Manager. That evidence was both credible and reliable. 247 It was submitted, in relation to the employment of Amanda Mohr, the reason that she did not start at the branch until two months after Gail O'Neill was as a consequence of the need for training. This did not avoid the inference being drawn from the employment of the daughter at the expense of Mrs O'Neill. 248 The Commission was entitled to take into account all of Mr Mohr's evidence about the Westpac side of the business and his lack of knowledge of it. The fact that he had not taken any new staff into employment since the in-store commenced meant the Commission could infer he simply did not appreciate the need for Westpac training. The daughter started training a couple of days after Mrs O'Neill left, the coincidence was such as to allow the Commission to infer that a member of staff was to be dismissed to make way for the daughter. 249 In relation to procedural fairness it was submitted that the respondent kept no employment records other than a wages book. They had no documented instances of unsatisfactory performance and on the evidence it was open to find that there had been no prior warnings before the 5 February, 2004. Those allegations should not be accepted, if they were accepted they were so old as to be irrelevant. There was also no prior counselling and the respondent simply ought not to be believed in this respect. It was laughable, the evidence as to the staff meetings at the club on a few occasions in 2000, was "laughable". 250 Even if it was accepted that the oral warnings of the 5 and 9 February, 2004 were a first and second warning they left so little time for any improvement in work performance as to be simply an example of an employer taking advice as to the procedure to dismiss an employee and omitting the requirement to allow the employee reasonable time to improve and respond as required. 251 Requiring the employee's husband to do something (when it was acknowledged that he was a friendly neighbour and "harmless") placed the employee in an impossible position. The letter of the 11 February, 2004 was self-serving in that it put Mrs O'Neill in a difficult, if not impossible, position to regulate her husband's conduct. Her husband's conduct was outside the place of employment. In any event, the final paragraph of the letter left open the possibility of termination even if all the matters raised in the letter were fully and satisfactorily addressed by Mrs O'Neill. Mrs O'Neill's letter of the 18 February answered the alleged poor performance. 252 Mrs O'Neill was dismissed because of something her husband had said at Frogmore or on the phone when the respondents knew him and knew that he was harmless. It was open for the Commission to find that prior to the 5 February, 2004 there were no formal warnings or counselling relating to work performance. 253 In reply to the respondents submissions as to costs it was submitted that whether the applicant had reasonable cause to complain to the Commission under section 84 of the Act required an assessment of the respondents conduct between the 5 and 18 February, 2004. In relation to that the applicant relied on the submissions made in this matter. CONSIDERATION 254 I have carefully considered the evidence and submissions of the parties in this matter.

255 I tend to agree in part with the submissions of the respondent that the events between the parties prior to the 5 February 2004 were irrelevant to this application. However, that agreement is not for the reasons inherent in the respondent's submissions. It is unfortunate that if the respondent considered that all that happened prior to 5 February was irrelevant that so much time was devoted in witness statements and the proceedings in dealing with those irrelevant issues.

256 The Commission considers that substantially those issues raised formally for the first time on 5 February as set out in the respondents letter of 11 February, to be essentially petty and trivial. If there had been a real substance to those issues then I would have expected that Mrs O'Neill would have been called into Mr Mohr's office long before 5 February. I do not consider that there was any real counselling of any kind in relation to those issues prior to them being raised on 5 February. Mr Mohr may have spoken "in passing", as it were, in relation to the various categories of issues complained of but none of the issues at the time of their occurrence were taken to any higher level than that and in my view did not warrant being saved up and thrown into the discussion of 5 February.

257 Indeed, even at the hearing Mr Mohr in his evidence could do no more than give examples of the type of incidents that had happened, no firm dates or times or records are given. The only specifics were given about events on 4 February and the pearl stringing exercise. That the pearl stringing exercise was ventilated at all after over three years when nothing seems to have been made of it at the time, I find it incredible and almost beyond belief. It seems to indicate that indeed Mr Mohr was frankly scratching around to find sufficient reasons to embark on a process of getting rid of Mrs O'Neill.

258 Mr Mohr may have been justified in drawing to Mrs O'Neill's attention dissatisfaction with what was perceived as too much time spent on personal matters on 4 February, however, it is not surprising that Mrs O'Neill reacted somewhat negatively in the meeting when all these other issues where dredged up from the past.

259 I also consider that to a large extent all the issues raised about who contacted who prior to the opening of La Vault Jewellery and whether there was any interview of either a formal or informal nature to be largely irrelevant. It really does not matter one bit who initiated the contact and it does not go to any issue of credibility of any witness, in my view. It simply reflects imperfect human memory, and perceptions and the nature of circumstances arising from the closing of the Westpac Bank.

260 Quite clearly Mrs Corkery had a role in suggesting to Mr Mohr that he consider taking on the in-store Banking Agency after Westpac closed. This conversation apparently took place in December 1999 and at a stage when only Mrs Corkery was aware that the Branch was closing down. Staff had not yet been given official notice.

261 What is absolutely abundantly clear to me is that there is no way known that Mr Mohr could have embarked on, let alone contemplated, such a venture without properly trained Westpac staff, that is without some of the staff staying on with him. It was of mutual advantage to both the staff who were to lose their jobs and Mr Mohr who wanted to start up a jewellery business in Boorowa.

262 It is not clear whether the mere fact that the in-store agency was a possibility was the precipitating factor that prompted Mr Mohr to expand his retail operation from just the General Store plus jewellery at Frogmore to something more substantial and specialised at Boorowa. One would have thought however that given that Boorowa is not a particularly large country town that a jewellery business on its own would not have been a necessarily sound commercial proposition.

263 There is also no doubt that the closing of the only bank in Boorowa would have generated considerable discussion and agitation in the local community and there would have been numerous comments and discussion by all manner of persons about what was going to happen, alternatives and who might be involved.

264 I accept however that nothing fearsomely formal took place between the parties, just as I accept that nothing fearsomely formal or structured took place about duties or training. I accept the evidence of Mrs Corkery and Mrs O'Neill on those issues. As they both said, especially Mrs Corkery, it was pretty much a matter of commonsense as to the selling of jewellery and what was involved in displaying jewellery and associated cleaning duties.

265 I do accept that there would have been specific (albeit informal and on the job) training about issues to do with engraving, ring sizes, stone types, settings and types of cuts etc. Mr Mohr's evidence was that Mrs O'Neill was not given training in engraving however.

266 Nevertheless, notwithstanding any training given or duties allocated in relation to the jewellery side of the business, there is no doubt whatsoever in my mind on the evidence that the principal reason for engaging Mrs O'Neill and the other women who had previously worked for Westpac was just that - they had detailed training and specific experience at working on a Westpac Teller machine as a Customer Service Assistant. Their engagement was essential to getting the in-store agency up and running.

267 Also there is no doubt in my mind that certainly until the Bendigo Bank opened in 2002 the in-store banking operation would have formed the overwhelming majority of the work and business involved at La Vault Jewellery. It was the main banking operation left in the town. Even after the Bendigo Bank opened I doubt that the number of banking customers coming into La Vault Jewellery (on the evidence) would have come in to La Vault Jewellery just to look at or purchase jewellery.

268 I also doubt that it is merely coincidental that Mr and Mrs Mohr relinquished the in-store agency within apparently a couple of months of their remaining experienced banking employees leaving after Mrs O'Neill's termination.

269 I also reject any suggestion that there were any formal staff meetings at the local RSL conducted during the year 2000. There may have been a couple of after hours meetings, social gathering of staff at which work issues were discussed. But they cannot possibly be relied on by the respondent, given that they ceased at the end of that year, to suggest that there was any regularity in any sort of staff meetings with employees and issues raised in that context.

270 On the whole issue of the banking it is also abundantly clear that Mr Mohr had little appreciation of just what was involved in the operation including the mere fact that the Westpac Teller computer could be used for nothing else. I also find the criticism of Mrs O'Neill for doing her personal banking on an occasion to be petty in the extreme. How else was she to do her banking unless it was simply that she should have done it in her lunch hour. That is not explicitly spelt out.

271 There are further examples of criticism of Mrs O'Neill by Mr Mohr that I also find petty, such as talking to her daughter, and holding her baby granddaughter for periods of time when she came in. Apart from the fact that this could only have happened over a relatively short period of time (in relation to the baby granddaughter) it was the evidence, which was not challenged, that Mrs O'Neill's daughter had to come into La Vault Jewellery regularly as she did the banking for the Post Office where she worked. I do not consider it unusual that she might stop and talk to her.

272 Some of the criticisms of Mrs O'Neill may have been warranted. She may, due to her banking background have preferred and concentrated on banking tasks rather than being as diligent on the jewellery side. However, there is no way of knowing that as criticisms were of such generality and so lacking in detail that I consider the responses of Mrs O'Neill in her letter of 16 February more than adequate and should have been acceptable.

273 Indeed the termination letter of 18 February still refers to "examples of your conduct or performance" and complains that some of those "examples" were not responded to. Given the lack of specific detail given one wonders how any employee could respond to such issues satisfactorily or even be in a position to be able to recall whether such "examples" even took place and any explanation be given in reply.

274 The main problem obviously was the exchanges which took place between Mr O'Neill and Mr Mohr after Mr Mohr had told Mrs O'Neill that she was "on notice". In my view this was exactly what was said, nothing about "first notice". That was not put until the meeting of 9 February. Mrs O'Neill told her husband just what she had been told. That Mr O'Neill interpreted that or inferred that that meant she had been sacked is hardly surprising and in any event not Mrs O'Neill's fault.

275 The term "notice" has certain connotations. Most people, including myself, generally use it in an employment context as in "giving notice" - that is by one side or another as either termination or resignation. Indeed, Mrs O'Neill seems to have viewed the whole process as more than just a warning as she was going to take the weekend to think about whether she would stay and considered Mr Mohr was pushing her to resign. He was certainly considering terminating her and obviously made that clear. That is acknowledged in the Mohrs' letter of 11 February where it is said "Kevin told you at that meeting he was considering terminating your employment".

276 Mrs Corkery also was told by Mr Mohr that she was put "on notice" the next day, the 6 th of February. She also understood that to mean that she was sacked and queried Mr Mohr as to whether that was his intention, to which he indicated that, no, he was simply telling her and Mrs Barton they were "on notice" in the same way as he had told Mrs O'Neill so that she wouldn't think she was being discriminated against. Clearly Mr Mohr used the term "on notice" and clearly all those people to whom he used that term or who indeed heard that term thought termination or sacking was being suggested, that's not an unreasonable view to have taken.

277 The call to her husband was brief and on a mobile as she was on the way to Young to a function. I accept her evidence that she told her husband not to get involved and had no knowledge of what subsequently transpired between the husband and Mr Mohr, with only a brief discussion with her husband on the Sunday but with no detail given as to what had happened.

278 Just as Mr O'Neill clearly misunderstood the implications of what was said so Mr Mohr misunderstood Mr O'Neill (or else Mr O'Neill exaggerated) when he said his wife had left him. She obviously had not, she had told him she would be staying in Young for the night. She returned home on the Friday to collect horses to go to a local show - clearly not something out of the blue. So there were misunderstandings all round. That does not excuse Mr O'Neill's behaviour, however. It was wrong. But I fail to see that Mrs O'Neill was either responsible for that behaviour or could be held responsible in the future or could be possibly be expected or required to give guarantees about such behaviour in the future.

279 Mr O'Neill was a grown man, so was Mr Mohr. They were neighbours. They socialised. They had occasion to have the odd beer together. On Mrs O'Neill's evidence they had had altercations in the past. Whatever Mr Mohr thought of Mr O'Neill's drinking habits he also clearly thought he was harmless, he said so. That he was considerably embarrassed and stressed by the whole incident in front of the neighbours I have no doubt but on the evidence there was nothing threatening, or violent about the encounters. I stress that that does not excuse Mr O'Neill's behaviour but it must be seen in the context in which it took place.

280 This was not a worker, whether male or female, factory worker or professional, going home and complaining about the boss and a spouse ringing up to abuse the boss out of the blue in the absence of any previous contact between them of any kind. Mr O'Neill and Mr Mohr had a social relationship outside of Mrs O'Neill's work by virtue of being neighbours and adjoining property owners. That was quite separate from and totally unconnected to any relationship of an employment nature between Mrs O'Neill and Mr Mohr.

281 I accept that Mrs O'Neill did not lie to her husband. I accept that she attempted to explain to Mr Mohr on 9 February what she said but that was difficult in the absence of her husband telling her precisely what he had said or done, possibly because if he was drunk at the time he probably had a fairly hazy memory at best of what did occur. She only had what Mr Mohr was telling her. I do not consider that she specifically denied telling Mr Mohr that she told her husband he had sacked her - she said just what had been said to her, that is she was put "on notice".

282 The reality is that there is no evidence that there were any real issues in the relationship between Mr and Mrs O'Neill that were impinging on her employment. What did impinge on her employment, and quite unjustifiably so, was Mr O'Neill and Mr Mohr's relationship and Mr Mohr being upset, offended and embarrassed by Mr O'Neill's behaviour since 5 February. That was nothing to do with Mrs O'Neill's actual employment and should have been nothing to do with it. Mr Mohr surely could have spoken to Mr O'Neill as his neighbour and told him his behaviour was unacceptable, creating problems for his wife, in his view, regardless of the subject-matter discussed and dealt with it accordingly. Mrs O'Neill said she told her husband he shouldn't have interfered. In the absence of her knowing just what had happened and what had been said I don't know what more she could have done.

283 I am afraid I have real difficulty understanding this whole sorry business and what I regard as Mr Mohr's total overreaction as outlined in the letter of 11 February. I agree with the advice Mrs O'Neill's solicitors gave her on that issue. However, given Mr Mohr's clear (if unreasonable) concern and expectation, Mrs O'Neill's letter in reply should have said precisely why that issue was not being responded to. That being said, in the absence of specifically responding to that issue, I still do not consider termination was warranted.

284 All other work issues capable of being answered were responded to appropriately. If the failure to respond to the issues concerning Mr O'Neill was of such importance then given the length of employment, the absence of previous warnings, the fact that they were neighbours that should have resulted in a further opportunity and request for Mrs O'Neill to specifically address those issues or indicate why she did not consider it relevant to address those issues. Though again, I stress that any response along the lines of those issues being nothing to do with the employment relationship would in my view have been totally appropriate.

285 It is also not a true representation of Mrs O'Neill's position in her letter to say "your solicitor did not take issue with" etc and therefore the issue is thereby established. All in all I find both letters from the Mohr's quite unfair and unreasonable in many respects.

286 Mrs O'Neill responded to the issues raised with her in the meeting of 5 February. She was given no further opportunity of addressing those concerns before they are repeated in the letter of 11 February. If there were problems with performance etc. no opportunity whatsoever was given to her to correct any deficiencies.

287 I accept the evidence of Mrs Corkery, who was in a position to be able to give a reasonable opinion about the issue of Mrs O'Neill's performance based on her previous dealings with her in the Westpac Bank, that Mrs O'Neill had no problems with her manner and dealing with customers and the way in which she carried out such duties. True it is that Mrs Corkery only witnessed her on one day per week when their work coincided, but if, as Mr Mohr was trying to make out, the problem with Mrs O'Neill in relation to how she dealt with customers was so ongoing, I find it hard to believe that it wouldn't have manifested itself at some stage when Mrs Corkery was also working with her.

288 Here I consider the issue of Mr Mohr's hearing difficulty to be particularly relevant. Exhibit 3 set out the layout of La Vault Jewellery and showed the distance at which Mr Mohr was customarily to be found in his work area from the Westpac tellers where Mrs O'Neill generally conducted her duties, particularly in relation obviously to the banking side of the business. It became quite apparent during the proceedings in Queanbeyan Court House that Mr Mohr was having difficulty, not only in hearing the questions coming from the Advocates at the bar table, but hearing the questions that I directed at him from the bench. That bench would have been less than 10 feet, maybe 7 feet only from Mr Mohr, the acoustics in the court room are very good and yet he could not always hear what I was saying. He acknowledged that difficulty in cross examination and also acknowledged that there were times when he did not always hear what was being said at a distance from him, yet could hear what was being said when a person was directly in front of him.

289 That may well be the case in relation to the conversations he had directly with Mrs O'Neill, but I have some doubt as to whether he was always accurately able to either hear the conversations that Mrs O'Neill had with various customers or indeed know the content or even hear the tone that they were being discussed in. I find it somewhat unreliable to consider any of his evidence in relation to dissatisfaction with the way Mrs O'Neill carried out her duties in dealing with customers on a face to face basis because of this hearing difficulty that he had.

290 It is also appropriate at this stage to indicate that all in all I accept the credibility of Mrs Corkery as a witness. I agree that the diary entries she made were not always made on a contemporaneous basis, however, I am satisfied that, not withstanding that, what she wrote in her diary and the evidence she gave was a truthful recollection of what took place.

291 The main issues that arise from Mrs Corkery's evidence are the history prior to the opening of La Vault Jewellery as the Westpac in-store agency, her knowledge of Mrs O'Neill as a former employee and a current employee, her conversation with Mr Mohr the following day, Friday the 6 th particularly in regard to notice, the subsequent conversation she had with him about the giving of evidence where he indicated that his business was at stake and finally the issues concerning the employment of Amanda Mohr possibly to replace Mrs O'Neill.

292 Certainly the employment of Amanda Mohr does come very soon after Mrs O'Neill leaves. It may not have been the intention to have commenced her so quickly, there is insufficient evidence to clearly establish that Mrs O'Neill was terminated purely so that Amanda Mohr could commence, however, it does rather too neatly fit in.

293 The main reason it is difficult to make the connection totally is that I don't believe on the 5 th of February, Mr Mohr necessarily had plans to terminate Mrs O'Neill as speedily as subsequently events transpired.

294 I have no doubt that he was starting to embark on a process whereby I believe he was intending to get rid of Mrs O'Neill. I can see no other reason for suddenly starting to raise issues in the way in which he did on the 5 th of February and the absence of such issues being raised formally prior to that.

295 Returning to the letters from the Mohrs. I have earlier referred to the fact that I found those letters to be quite unfair and unreasonable in many respects. I do so firstly because of the very general issues that were raised without specific detail as to when events occurred and I have already referred to the use of the language "examples of your conduct or performance".

296 Secondly, the lack of opportunity for Mrs O'Neill to address those issues is quite clear when one looks at the two letters together. The only event that has intervened between those two letters has been the exchange between Mr O'Neill and Mr Mohr. No opportunity was given to Mrs O'Neill to correct any perceived deficiencies.

297 I consider it unreasonable for the Mohrs in the letter of termination to have taken the view that Mrs O'Neill had not accepted that there was something unsatisfactory about her conduct and performance even though she gave an assurance that she would do everything in her power to ensure that there was no cause for complaint in relation to those issues in the future. It is no wonder that it was difficult for her to accept that some of those concerns may have been valid given the generality of the concerns that were raised and the lack of any specific detail being given to her. She tried to respond to those issues that were raised even in the absence of specific times and dates and instances being given. Having been put on notice by the employer that he considered her conduct generally to be unsatisfactory, she was giving him assurances that she would try and address those issues in the future notwithstanding that she was not aware really of having done anything wrong. It's hard to see what more an employee in that situation could have done.

298 It also concerns me that there is an issue raised in the letter of termination concerning an allegation supposedly expressed to Mr Mohr on the 9 th of February that he had accused Mrs O'Neill's son of breaking into the Frogmore store. That was not what the evidence was. The evidence was that Mrs O'Neill during the course of the conversation with Mr Mohr on the Monday had indicated to him the reason why she was sure that she could essentially work with him in the future, notwithstanding what had occurred over the weekend, was the example, of the fact that Mrs Mohr had in the past made some allegation about Mrs O'Neill's son breaking into the store and notwithstanding what Mrs Mohr had said, Mrs O'Neill had still been able to carry on in her employment.

299 If that allegation had been made to Mrs O'Neill at some stage in the past, I consider that to be a far more serious allegation to have been raised than simply the one that Mr Mohr seems to have got all upset about and that is, that Mrs O'Neill had told her husband that she had been sacked. When one compares the two situations, I find it not unreasonable for Mrs O'Neill to have been able to give Mr Mohr an assurance that she could continue in the employment relationship in the future.

300 What I do consider unreasonable is that the Mohrs raised the issue of that allegation at all given that it had not been mentioned in the earlier letter, yet they rely on it as being "yet another illustration of the degree to which the relationship between us has broken down". I do not consider that that was any evidence at all of any breakdown in the relationship, in fact, it was the contrary, it was an example of how the relationship between Mrs O'Neill and the Mohrs had in fact survived an issue outside the workplace and therefore should have been an indication to Mr Mohr of how Mrs O'Neill and Mr Mohr would be able to work together in the future.

301 Having carefully considered all of the evidence and the written submissions in this matter I consider overall that the termination of Mrs O'Neill was too harsh, it was unjust and it was unreasonable.

302 A dismissal can be both substantively and procedurally unfair. The case usually quoted in this regard is the High Court judgement in Byrne & Anor v Australian Airlines (1995) 61 IR 32 at p72 . It is appropriate in this matter to repeat that passage:

"The distinction between procedure and substance is elusive. This is so, even in those fields of private international law, the statue law dealing with limitations of actions and the effect of repeal upon accrued rights and the Statue of Frauds, where it has an entrenched operations (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce in into cl.11(a) That is not to say that the steps taken, or not taken before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable. 92. But the question under (cl.11a) is whether, in all the circumstances the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second". 93. Brennan CJ, Dawson and Toohey JJ concluded at p43 94. "Save for the prescription of periods of notice cl11 does not require the adoption of any particular procedure for the dismissal of any employee. However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in dismissal of the employee being in breach of cl11(a)". 95. Byrne & Anor v Australian Airlines has often been relied on in Full Bench Decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Rapp v Wauchope RSL Club (1998) 81 IR 116; Bigg & Anor v New South Wales Police Service (1998) 80 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255 and Antanakopoulos v State Bank (1999) 91 IR 385. 96. In Antonakopoulos v State Bank (1999) 91 IR 385 the Full Bench said at page.389

"We agree with the conclusion of Hill J. that procedural issues, that is failure to deal with the matter in a procedurally fair way, may in certain cases of themselves, constitute the basis for a determination that dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or involve limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a deterioration that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust."

"While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However a failure by an employer to adopt appropriate procedure when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s.84"

303 As mentioned in the above passage, the Commission's statutory basis for considering procedural issues in unfair dismissal proceedings is found in s.88 of the Act.

304 Both sides made submissions as to whether the requirements of s.88 had been met. The respondent generally submitted that the procedural fairness provisions were satisfactorily complied with. The applicant challenged that position and submitted that procedural fairness was not properly afforded to her.

305 I consider the termination of Mrs O'Neill to have been procedurally unfair in that I consider that there were no warnings or counselling of poor performance or conduct prior to 5 February 2004.

306 The issues raised and relied on were of such generality and lacking specificity as to place Mrs O'Neill in an almost impossible position to more than also respond in a general way.

307 If there was dissatisfaction with the performance and conduct of Mrs O'Neill then she gave, in my view, sufficient assurance that she would do everything in her power to ensure there would be no cause for complaint in relation to those issues raised in the future.

308 Even if the warning issued as a result of 5 February meeting and letter of 9 February could be considered as a first warning no time whatsoever was afforded to the applicant to establish that she could work satisfactorily.

309 I appreciate that following the meeting of 9 February, Mrs O'Neill essentially went off on sick leave and did not return to work prior to being dismissed by the letter of 18 February. However, I consider that notwithstanding the unfortunate meeting between Mrs O'Neill and Mr Mohr on 9 February, Mrs O'Neill should have been given the opportunity of returning to work and demonstrating to the employer that she could work as required.

310 I also consider that as the issue of failing to respond to the concerns raised in the letter of 11 February about Mr O'Neill etc. was clearly the substantial reason for considering termination then Mrs O'Neill should have been advised that that was the case and a further opportunity to respond have been given. I say this on the basis of the service of Mrs O'Neill, her previous good employment record and the fact that that issue really arose out of the social relationship between the parties.

311 Therefore I find that the termination of Mrs O'Neill was procedurally unfair.

312 Turning to the expressing "harsh, unjust or unreasonable', that expression was also considered in Byrne & Anor v Australian Airlines, albeit in the context of an award provision. In their joint judgment McHugh and Gummow J.J said at p72:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust, In many cases the concepts will overlap. Thus the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon interferences which would not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which then employer acted"

The principle was further discussed in Outboard World v Muir (Cahill VP, Peterson J. and Tabbaa C) (1993) 51 IR 167 at 182 where a Full Commission said:

"First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair") to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that s dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase "harsh, unreasonable or unjust", we detect scope for variation of meaning which may be critical to the determination of a particular matter as may be obscured by the use if the substitute term "unfair". Different but not wholly dissimilar words. "Unfair, "harsh" and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon, Cahill and Dey JJ ) in A & M Thompson Pty Ltd v Total Australia Ltd (1980) AR (NSW) 399 at 431 (Cahill J delivering a different judgement) said: "The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is "unfair", "harsh" or "unconscionable"

It has been said that those words are a "tautological trinity" (Davis v General Transport Development Pty Ltd) (1967) AR371) but we prefer to take the view that there is a perceptible difference between the meaning of the term "unfair" and that of the terms "harsh" and unconscionable". What is unfair may not be so unfair as to be "harsh". But whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power".

In much the same way, we consider that, while strict definitions of "harsh", "unreasonable" and "unjust" may produce a degree of circularity of meaning, turning in the notion of "fairness", it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the to others. To avoid the possibility of misunderstanding or error, the tribunal when making the primary finding should state explicitly the basis on which it is made".

In Bankstown City Council v Paris (Wright P, Peterson J and Bishop C, IRC262 of 1999, 23 August, 1999) the Full Bench said at p20:

"The Commissioner found that the dismissal by the Council of Mr Paris was "harsh, unreasonable or unjust." This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal maybe capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems ti us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the employer might satisfy one but not all of those heads, a positive and specific finding should be made."

Sams DP has cited the abovementioned cases with approval in both Sams v Contact Point International Pty Ltd (2001) NSW IRC Comm 18 and also Police Association of New South Wales on behalf of Tregonning v New South Wales Police Service (1999) IRC 2799/99 wherein he also considered the meanings of "harsh unreasonable and unjust" as set out in Tregonning's case at P.32.

313 I adopt his Honour's consideration of those terms as being of relevance in this matter.

314 Therefore applying the above authorities the Commission is satisfied that the termination of Mrs O'Neill was too harsh, it was unjust and it was unreasonable and as such merits the intervention of the Commission.

315 Mrs O'Neill sought monetary compensation in lieu of reinstatement or re-employment, and has found some alternative employment since termination.

316 The Commission also considers it would now be impracticable to restore the employer/employee relationship due to the souring of the personal relationship between the parties. This would probably not be the case and the Commission would not necessarily take the same view if the parties were not neighbours in a country location. However, there was also an indication in the hearing that the Mohrs intended closing La Vault Jewellery.

317 There are no provisions in the Act as to what is the appropriate amount to be awarded in compensation, where a termination is found to be harsh, unjust or unreasonable and reinstatement or reemployment is considered impracticable.

318 In terms of Section 89 (5) the upper limit for monetary compensation is set at "an amount of compensation not exceeding six months remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed". Section 89.5 is concerned essentially with the loss of earnings. Section 89.6 provides as follows:

"When assessing any compensation hurdle, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant has succeeded in obtaining alternate employment"

319 However in D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 the Full Bench of the Commission (Wright J President, Walton J Vice President and Tabba C) commented at page 363 that:

"The power in the Commission to make a money order subject to the limitation on the quantum of compensation and the matters required to be taken into account by Section 89.6, is nevertheless within the Commission's discretion whilst the Commission is required to take into the matters identified in Section 89.6 those matters are not necessarily to be reflected in any particular arithmetic or definitive way in the money order for compensation made." 320 As is my usual practice I list the factors I have taken into account in arriving at the Orders the Commission proposes to make in this matter. · Mrs O'Neill was employed by Mr and Mrs Mohr for almost 4 years.

· Mrs O'Neill worked part-time and earnt $348.75 per week gross.

· Mrs O'Neill was paid three weeks' pay in lieu of notice on termination.

· I have found that there were no warnings or counselling of poor performance or conduct prior to 5 February.

· I have found that the termination of Mrs O'Neill was both substantively and procedurally unfair.

· Whilst Mrs O'Neill has found some alternate work since her termination it has been of a casual or relief work nature. However, I have taken into account the 15 hours per fortnight casual bar work.

· Mrs O'Neill could have reasonably expected to continue to work at La Vault Jewellery whilstever the in-store Westpac agency continued.

· That does not mean that such employment would have only continued until approximately August 2004. I am not satisfied that the ceasing of the in-store banking arrangement would necessarily have taken place and was not solely due to the departure of the majority of Westpac trained and experienced staff commencing with the termination of Mrs O'Neill.

· Alternative employment options are undoubtedly restricted in the country area in which Mrs O'Neill resides or can practicably travel to.

· I am satisfied Mrs O'Neill has tried to mitigate her loss per s.89(6).

321 I propose to make no Order as to costs at this stage. 322 Both parties sought costs in this matter. However, the grounds upon which the respondent sought costs are not available under the provisions of s.181 of the Act. 323 Under s.181 the only grounds upon which a party may seek costs against another party in s.84 proceedings are where the Commission is of the opinion that a party unreasonably failed to agree to a settlement of the claim or where the application was frivolous or vexatious. 324 The leading authorities on whether the requisite "jurisdictional gateway" had been opened to enable the awarding of costs are Bankstown City Council v Paris (1999) 93 IR 209 and Four Sons Pty Limited v Sakchai Limsiripothong (No 2) (2000) 100 IR 400 and Youssef v Western Sydney Area Health Service (No 3) [2004] NSWIRComm 124. 325 There is no evidence or material before the Commission that would enable a decision on costs to be made. 326 Leave is therefore reserved to the applicant to have that issue set down for hearing for further consideration and determination. 327 I therefore make the following Orders in this matter. ORDERS 1. Kevin Mohr and Jane Mohr trading as La Vault Jewellery Jewellery shall pay to Gail O'Neill the sum of $5,500.

2. The said amount shall be paid within 28 days of the date these Orders take effect. 3. The Orders take effect on and from 20 April 2005.

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