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.