Antonakopoulos v State Bank of New South Wales [2006] NSWIRComm 1130 | Case summary

Antonakopoulos v State Bank of New South Wales [2006] NSWIRComm 1130 | Case summary | Zoe

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Applicant: I guess I will just have to take your word then won't I, but this is highly inappropriate if you ask me. 31 The applicant deposed she subsequently proceeded to explain that her calls were often recorded at night or the next night due to the busy nature of the job. She relied on memory to determine what precise time the call was made. 32 It was the applicant's evidence that Mr Seller informed her that it was company policy to record calls as soon as possible after they were made. The applicant deposed that the company's requirement was idealistic. Further, during the meeting Mr Seller referred to particular calls she had recorded in her planner that did not correlate with her phone records. The applicant deposed she told Mr Seller that she had made the calls stated to doctors and pharmacists and, in reply, he said the respondent was not suggesting that the calls were not made, but rather, wanted to know why they did not correlate with her phone records. 33 The applicant said that Mr Seller agreed that Ms Nassar had commenced the investigation and "pulled her phone records" as a direct result of her email to colleagues dated 7 August 2005. Further, Mr Seller advised her that Mr Nassar had become suspicious about the reasons why her phone bill was so high. Mr Seller confirmed to her there had been no similar investigation of the telephone accounts of other sales staff, which the applicant had alleged to him were consistently as high as her own. 34 The applicant deposed that further allegations were made that she continued to work in areas other than her own territory consistent with her planner entries without first obtaining permission from Mr Nassar. She deposed Mr Nassar had documented this grievance on a field visit with her on or about 4 August 2005 stating she had been off territory on numerous occasions. The applicant rebutted his allegation and, in reply to Mr Seller, stated her planner clearly shows exactly where she should be at all times, including being off territory for certain reasons. In any event, Mr Nassar told her at the time that the In-Field performance reviews were not important as they only formed the average for her end of year performance review. She deposed Mr Nassar had subsequently persuaded her to let the concern stand. 35 The applicant deposed that the respondent's allegations were not strongly pressed at the meeting on 26 August 2005. It was her evidence that although a number of references were made to certain phone calls made from her home on a particular morning, her planner was able to satisfactorily demonstrate she had reported accurately the work she had undertaken for the respondent at home. She recalled Mr Seller had nodded in agreement with her statement that Mr Nassar's requirement that she obtain his permission whenever she was required to attend to something work related at home, such as computer and IT problems, was "micromanaging at its worst". 36 It was the applicant's evidence that Mr Seller stated during the meeting words to the effect of "we don't seem to be getting anywhere" and she replied that the only explanation she could give was that she had "gotten the timing wrong as to when I was in the surgery and that the number of calls...is a very small representation of 5 months work". The applicant subsequently left the meeting to allow Mr Seller and Mr Nassar to deliberate and confer with the respondent's Human Resources Department. The applicant was dismissed later that day on the grounds that she had not satisfactorily answered the allegations in their entirety. 37 The applicant deposed her termination was a result of a personality clash with Mr Nassar. In her view, Mr Nassar found it difficult to manage mature women, particularly those who were prepared to speak their minds. He was influenced by his religious and cultural beliefs. 38 It was the applicant's evidence that shortly after her dismissal, Mr Nassar phoned members of her former sales team allegedly inferring that she had been dishonest with her expenses, an issue not raised with her by Mr Seller nor Mr Nassar. 39 The applicant further deposed that shortly after her email to colleagues in August 2005 Mr Nassar approached one of her work colleagues concerning aspects of her temperament and subsequently uttered words to the effect, "I bet if I pulled her phone records I'd find that most of her calls are to private numbers and not work related anyway". Cross Examination

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42 The applicant confirmed she lived at Redhead and her duties were to visit doctors and pharmacists, obtain supplies weekly from the respondent's lock up in Cardiff and arrange and pick up catering for meetings. It was her evidence that she was not aware that "Little Beach" was part of Redhead Beach. This surprised her as she had not been aware of that prior to the hearing. 43 It was the applicant's evidence that each day she was required to convert the intended visit schedule set out in her planner into actual meetings and visits. It was also expected that entries would be updated in the planner each day to the best of a sales representative's ability. 44 The applicant acknowledged that quite often she did not make entries into her planner on a daily basis. She denied she finished her work mid-afternoon and returned home. In her view, Mr Nassar had sought to micro manage sales team members because he wanted control. 45 The applicant denied Annexure "B" to Mr Nassar's affidavit, an In-field Coaching Form dated 26 November 2003, was a one-on-one coaching session on the grounds that there was no discussions concerning areas where her performance needed to improve. Mr Nassar merely made a number of accusations, which were denied. It was signed under duress. With respect to Annexure "C", an In-field Coaching Form completed on 14 February 2004, the applicant denied Mr Nassar coached her concerning those areas he believed an improvement in performance was warranted. She described a contention that Mr Nassar coached her in relation to her negative attitude on the night prior to the Hunter Valley sales meeting as "an absolute lie", as she did not sit with him nor speak to him for most of the evening. It was also a social gathering. 46 The applicant acknowledged that Annexure "A" to her second affidavit, a letter of warning dated 17 March 2004 required her to replicate four days per week and enter all calls daily. However she qualified that acknowledgement by stating she understood the expectation was to replicate four days per week and enter calls daily to the best of a sales representative's ability. 47 The applicant did not know the meaning of the term "off territory" in the context of the respondent's operations as the meaning of the phrase had not been fully explained to her. However, she conceded that in so far as Mr Nassar was concerned, the term was defined strictly to mean anywhere, other than the territory area the representative was supposed to be working in on any given day. She disagreed with his interpretation particularly where her "off territory duties" related to her work requirement to complete expenses, attend the lockup, visit Officeworks for supplies and photocopying or, make calls related to the meetings she arranged from time to time, as distinct to personal matters such as medical or dental appointments. 48 Despite the requirements of the Medical Representative Functions Authority Lines of Reporting policy set out under Exhibit 5, the applicant believed the requirement to ring Mr Nassar for permission to go off territory for work related reasons, other than for medical, dental or perhaps a school appointment "seems pretty unusual". It was the applicant's evidence that she entered all of these activities in her planner so that at all times, her work arrangements were transparent, as it was after all, AstraZeneca's work that she had undertaken. 49 It was the applicant's evidence that the reference to a representative requiring prior approval of the sales manager before requiring "time in the office" set out under Exhibit 5 was a reference to the Sydney office of the respondent and not the "home office" of a regional representative such as herself. 50 The applicant believed the copy of the email set out under Attachment "F" to Mr Nassar's affidavit was different to her recollection of what she herself had drafted on 7 August 2005. It was also the applicant's recollection that the copy of the email relied upon by the respondent was not written in language she would normally use. She denied she normally used the phrase "Hi All" and believed her normal salutation was "Hi Guys" or something like that. Additionally, if she was to send an email to Mr Nassar, she would normally address him as "Hi Waleed" or "Dear Waleed". It was the applicant's evidence that she sent the email to her colleagues and copied it to Mr Nassar as an afterthought, rather than the reverse. That email was set out in the following terms: Hi all, owing (sic) to the recent phone bills that have just come through, I am writing let everyone know that I am no longer able to ring people back please leave a message or ring me back, don't ask me to ring you back. Unless of course it is urgent. I will also not be doing anymore ring arounds prior to meetings as I have done in the past and will get the office to do them all. I will be using the text and email more, with no incentives coming in I certainly won't add insult to injury and pay for phone calls that I don't have to make. Perhaps Waleed, you could look into a phone increase for regional reps as other companies have? Soory (sic) if this sound curt but I am not happy Jan?? Merran 51 The applicant disagreed that 129 of 1436 calls made from her mobile phone between 19 May and 8 August 2005 were from her home in the Redhead, Dudley and Little Beach areas. Rather, it was her evidence that those calls were made between 8.30am and 5.30pm from the Redhead, Dudley and Little Beach areas, all part of her territory and, some may have been made during her lunch break if she had returned home for lunch. 52 The applicant also stated she could drive from her home to Charlestown and, almost to Lambton and, her mobile phone would continue to read Dudley. The applicant reconfirmed that was also unaware of the location "Little Beach" until Mr Nassar had told her on the day of her dismissal that Little Beach was Redhead and she believed him. In her evidence, the applicant stated there was a 12 doctor medical centre and a pharmacy in Redhead. In any event, she believed the 129 calls represented some 9 per cent of her total calls over the period and some were very short.

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58 It was the applicant's evidence that when she spoke to Mr Nassar about the proposed meeting with Mr Seller and himself at 2.00pm on 25 August 2005, she confirmed that she said to Mr Nassar "this sounds like a fruitless exercise and deja vu. Why don't you see me up here and save me the hassle of driving to Sydney?" She maintained Mr Nassar did not inform her about the purpose of the meeting. However, she believed from her industry knowledge that sales representatives know that when they are "called in", the issue at hand is serious and against the backdrop of her dealings with Mr Nassar earlier that week, she was not surprised to receive the telephone call. The reference to "deja vu" was a reference to the earlier dismissal of Jo Earley who was called to a meeting one day and dismissed the next. 59 The applicant confirmed that when she met with Mr Nassar and Mr Seller in Sydney at 2.00pm on 25 August 2005, Mr Nassar stated the issues he sought to raise with her were serious and, in response to her email, he had conducted a review of her phone records to establish why they were so high and further, as part of that analysis, he had discovered what seemed to be a serious mismatch between the phone bill and her planner entries. The applicant also confirmed Mr Nassar presented her with a letter setting out some details of the allegations. 60 The applicant recalled her responses were fairly candid during the meeting and she was under stress at the time, having been called three hours earlier to travel from Maitland to Sydney for a meeting she knew nothing about. She admitted stating words to the effect that she was sometimes lazy with her call recording, but despite this she did actually make the calls to each doctor and pharmacist recorded in her planner. The applicant also recalled saying to Mr Seller and Mr Nassar that she sometimes left home late because she had received calls from customers and colleagues. She recalled Mr Seller stating to her that the meeting was not about her making calls, but rather her honesty in recording where she was at certain times was in question. 61 The applicant confirmed that she subsequently said to Mr Seller words to the effect that "I may as well hand in my keys now. You've already made your decision" and Mr Seller replied, "we want to give you an opportunity to clarify our understanding and to shed light on the allegations against you. We will meet tomorrow morning in Newcastle before work". 62 It was the applicant's evidence that she had attempted to analyse the Optus telephone records set out in Mr Nassar's affidavit - but those attempts had been frustrated because much of the call data in question had been highlighted in a dark colour and effectively blacked out and in some circumstances, only the suburb and not the time a call was made, was legible. A "clear" copy had been received by her counsel a day or so before the hearing and she had spent 10 minutes examining those records immediately prior to the commencement of the hearing. 63 It was the applicant's evidence that while she accepted the call data presented by Mr Nassar was accurate, she had no way of testing that accuracy and further, between the meetings on 25 and 26 August 2005, she did not test the material against her planner records at all. 64 The applicant's evidence was not that on occasions she simply converted her indicative planner entry call times rather than the precise time that she actually had made the call: Q. You say that you went to the lock-up between 8.30 and 9am. That's right, isn't it? A. That's what it says there. Q. Well that is your planner entry, isn't it? A. Yes, but this is my whole point. I know there are times that I have inaccurately recorded it, not deceptively but just simply because I've relied on my memory when I put the calls in to where I've been at any particular time. Q. According to your planner you were at the lock-up between 8.30 and 9 weren't you? A. That's what this says, yes. Q. In order to get to the lock-up in Cardiff by 8.30 you'd have to leave home at 8 or 8.15, is that right? A. About 8.20. Q. Ten minutes from Redhead to Cardiff is it? A. Pretty much. Q. And after being at the lock-up, according to your planner, it says you drove to Seaham and spent from 9.30 until 4.30 in the same Raymond Terrace area. That is what it says, doesn't it? A. That's what it says. Q. And they are the entries that you put in your planner, aren't they? A. Mm hm. Q. Can you please look at your Optus mobile phone records for the same date, that is 23 May 2005. Firstly, they show that you made a call from 9.05 at Little Beach. That is correct, isn't it? A. I can't read that. Q. Would you like a copy that you can read? A. That would be helpful. It is completely blacked out. Q. Do you accept that your mobile phone records show that you made a call from 9.05am at Little Beach on 23 May 2005? A. Yes. Q. And according to your planner you were somewhere between the lock-up in Cardiff and Seaham at 9.05, weren't you? A. At 9.05? Q. Yes, at the time you made the call you accept that your planner shows that you were somewhere between the lock-up at Cardiff and Seaham, is that right? A. Well, I had to go to Kotara to pick up catering in that time, so, yes. Q. Yes, you accept that. Now you now concede, don't you, that your planner entry of being at the lock-up from 8.30 to 9.00 is incorrect, isn't it? A. No I don't, actually. Why is it not conceivable I went to the lock-up, went home, collected some things, headed off for morning tea at Seaham, went to Kotara, picked up morning tea, got to Seaham between 10.00 and 10.30 instead of 9.30 and 10.00 and when I converted the call I just converted what was in the planner? Q. I am just asking you now, we are not asking for the reason why it might be inaccurate, but whether you now accept that your planner entry is not accurate for that day? A. Well, no. Q. So you say that you went to the lock-up, or you could have gone to the lock-up between 8.30 and 9, gone back home and then driven to Seaham by 9.30? A. Yep. Seeing as the day starts at 8.30 I could have got to the lock-up at 8 o'clock, I don't know. I don't recall. Q. Do you think that is likely? A. I beg your pardon? Q. Do you think that is likely that's what you did? A. Well, I have done that in the past. I think what's more than likely is I've recorded the morning tea in Seaham between 9.30 and 10.00 instead of between 10.00 and 10.30. Q. So you think that's likely to be inaccurate, do you? A. I think it's likely that when I wrote that call up I didn't change the time. That was to the best of my recollection, the nature of this position that the call was pretty close to right so I left it at that, on that particular occasion. 65 It was the applicant's evidence that between the first and second meeting with Mr Seller and Mr Nassar on 26 August 2005 she spent no time at all preparing her response to the allegations made against her as she had other things to do. Further, she believed it was pointless as they had, in her view, already made up their own minds. 66 The applicant believed that despite a request, it was unfair that the original Optus phone records had not been given to her and accordingly, she had been unable to authenticate them. However, she recalled Mr Seller saying to her, "you have my word that it's accurate". She also recalled that he later said to her: Our concern is not whether you made the calls, we are concerned whether you are being honest with the company and Waleed. There are several discrepancies between where you've told us that you were and where your phone records indicate that you actually were. 67 The applicant further recalled Mr Seller stating to her that the company needed to have trust in an employee and could not tolerate a situation where employees were dishonest. She admitted stating at the end of the meeting words to the effect "I guess I'm just an idiot for using my phone at those times, that's how Jo was caught in the same way". 68 It was the applicant's evidence that Mr Seller confirmed her email to Mr Nassar was the catalyst for the examination of her telephone records and had stated words to the effect that he supervised the process. 69 The applicant confirmed that upon dismissal she was paid four weeks' wages in lieu of notice. She had remained unemployed until 3 January 2006. The only work undertaken whilst unemployed was some short-term carer nursing in November 2005 where approximately $1,900.00 was earned. Her current salary was $62,000 per annum plus superannuation, motor vehicle and a potential 10 per cent bonus. 70 In re-examination the applicant stated that on the night of 25 August 2005, she felt "shell-shocked" and very upset. 71 The applicant confirmed she was given no training or refresher courses in respect of company policies and the Code of Conduct signed by her at the time of her employment. She further understood the Code of Conduct set out under Exhibit 8 was in a different format to the edition she recalled signing at the point of employment. 72 The applicant believed that given the nature of her job, it was impossible to religiously keep to the planner submitted by 8.30am each Monday, due to requests from management and doctors to change those arrangements at the last minute. It was also difficult to replicate, as required by the respondent after completing work each day, due to family commitments and after hours meetings that she was required to conduct. In this regard, she believed she conducted twice as many after hours meetings as the respondent's other sales representatives working in the area. 73 While her hours of work were 8.30am to 5.00pm, with an hour for lunch, she was rarely able to take the break and at night, there was usually one or two hours' work to be completed on the computer or writing up the day's calls. 74 The applicant confirmed Mr Nassar wrote a glowing report on her performance at the end of 2004 and the respondent subsequently promoted her in February 2005. 75 The applicant stated that she signed the 26 November 2003 In-Field Coaching Form under duress, as a result of Mr Nassar's persistence. She disputed what Mr Nassar had written about her performance. 76 The applicant confirmed she would not seek Mr Nassar's permission to be off territory to ring meeting attendees from her home phone or visit Officeworks to copy papers for distribution to doctors and team colleagues. It was also the applicant's evidence that just as on some days she could travel to Lambton and Charlestown from home and her phone would show Dudley, she could also travel from Redhead and be half way up the Charlestown by-pass and the phone would continue to read Redhead. Similarly, on some days while driving in Swansea the phone would also read Dudley or Redhead. 77 The applicant confirmed the email sent to her sales team colleagues and Mr Nassar was a knee jerk reaction to the receipt by email of another high phone bill in excess of her budget and the recognition that she only had six months to rein in her expenditure for the year. She also confirmed stating the central focus of her email was to encourage her colleagues to leave a message that she could respond to, or ring her back, rather than simply state "ring me back" as she herself was making a lot of return calls.

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78 The applicant stated that prior to her dismissal, the respondent had appointed two new staff and one of those staff was frequently calling her regarding work related matters. Further, the applicant stated that following Ms Earley's dismissal, her sales team members had made a pact to talk to each other before talking to Mr Nassar. As the oldest female member of the sales team, team members would ring her and simply leave a message rather than record a precise request for assistance. 79 The applicant stated that following her dismissal, Ms Earley informed her that she had also been dismissed by the respondent in a similar way by resort to phone records. She explained that immediately following Ms Earley's dismissal, the sales team was summoned to a meeting at the Crowne Plaza Hotel where Mr Seller and Mr Waleed stated Ms Earley had been dismissed and there was an inference that she had been dishonest. In experience, wherever there is a personality conflict between a sales representative and a Manager "it is a very handy tool to pull phone records and sack them on the spot". 80 The applicant believed that given that she did not get home until about 5.00 or 5.30pm following her meeting with Mr Seller and Mr Waleed in Sydney on 25 August 2005, it was not reasonable that she should prepare her response to the allegations overnight for a meeting at 8.30am the next day. Further, other than the letter setting out the allegations, she had not receive anything further, including a copy of her phone records from the respondent. 81 The applicant conceded there was a discrepancy of between fifteen minutes and one hour between her planner entries and, the estimated time of her calls on the dates set out in the allegations letter. 82 The applicant denied Mr Nassar's contention that sometimes she was hundreds of kilometres away from where she should be. She stated her phone records do not substantiate this allegation. She also maintained that on occasions she could be in Karuah and her phone would register Bulahdelah or Forster and vice-versa. Mr Robert Ross 83 Mr Ross deposed that he was asked by the applicant to accompany her to the meeting with Mr Seller and Mr Nassar at the Crowne Plaza Hotel on 26 August 2005 and was subsequently granted permission to act as her support person on the grounds that he held no industry connections nor was he legally or medically qualified. 84 It was Mr Ross' evidence that at the outset of the meeting, the applicant sought an opportunity to view her complete phone records which she understood formed the basis of the allegations raised against her. The request was denied by the respondent's representatives. Mr Ross deposed the applicant was concerned about the validity of the excerpts from her call records set out in the respondent's letter of 25 August 2005 which had formed the substance of the meeting with Mr Seller and Mr Nassar. 85 Mr Ross deposed a representative of the respondent had rebutted the applicant's concerns about the validity of the excerpts and stated "I guarantee these excerpts are representative of the file records and you have no option but to take my word on this matter." 86 Mr Ross deposed the applicant sought clarification of what the respondent's representative had said and it was subsequently confirmed that the respondent was not alleging the applicant had "failed to see doctors as was required only that her record of precise times these appointments took place was not accurate". 87 In cross examination, Mr Ross recalled the applicant had asked Mr Seller for a copy of her actual phone records and he had replied with words to the effect that he didn't have the complete records, only an extract and that would be sufficient for her to answer the allegations. It was Mr Ross's evidence that Mr Seller said words to the effect "the extract that he had was sufficient because he'd demonstrated the whole evidence that he had".

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97 At the outset, Mr Nassar made a number of minor amendments to his affidavit. He also withdrew the sentence "In some instances, she was hundreds of kilometres from the location she claimed to be" set out in paragraph 45 and the allegation letter given to the applicant on 25 August 2005, as it was inaccurate. In this regard, he informed the Commission: ...although a lot of them were quite large, 60 or 70 kilometres et cetera, there was only one that was over 100 kilometres, and that was what was given to Gary. 98 Mr Nassar deposed he commenced work with the respondent in March 2002 as a sales representative and was promoted to the position of Sales Manager in charge of the Parramatta and Newcastle sales teams in October 2003. He was responsible for seven staff in Newcastle and five in Parramatta. Sales representatives were responsible for the development and maintenance of the respondent's relationship with doctors and the medical profession generally. 99 Mr Nassar deposed it was the respondent's policy that each sales representative should record their daily activities, including calls made in an electronic diary known as the planner. Sales representatives nominate a specific appointment within a time range and write a short narrative about how they spent that time with the doctor or pharmacist. It was Mr Nassar's evidence that planner entries were to be made at the end of each day in accordance with the respondent's policy which had been communicated to all sales representatives on many occasions. 100 Mr Nassar denied the applicant's contention that she had a good performance record. He described his professional relationship with her as "up and down". Shortly after joining the Newcastle sales team, each individual team member approached him on a number of occasions to make complaints about the applicant. 101 Mr Nassar deposed he met with the applicant in Newcastle on 26 November 2003 to raise with her a complaint by some team members that she had been making and sharing appointments with competitor sales representatives, conduct inconsistent with the respondent's protocols and Code of Conduct. The applicant became aggressive and did not deny the allegations put to her. The meeting subsequently concluded, according to Mr Nassar, on a positive note. Both parties subsequently signed the relevant In-Field Coaching Form report dated 26 November 2003. 102 Mr Nassar further alleged the applicant displayed a negative attitude towards her team and she was tardy in recording her calls. These matters were subject to a meeting in February 2004 and an In-Field Coaching Form report dated 14 February 2004. 103 Mr Nassar deposed that as a result of persistent misconduct and poor performance, the applicant was given a formal letter of warning dated 17 March 2004. On or about 24 March 2004 a meeting was convened between Human Resources, Mr Seller, the applicant and himself to discuss the letter of warning and it was agreed to correct a clerical error concerning the date of the warning letter. 104 Mr Nassar stated that between 17 March and August 2005 he counselled the applicant from time to time in relation to performance, primarily in relation to her continuing negative attitude, untimely call entries and in relation to absences from her territory without explanation or prior approval in accordance with the respondent's policies. He acknowledged that over the period her conduct in relation to confidentiality and replicating call entries had improved. 105 Mr Nassar deposed that the respondent issues a mobile phone to sales representatives for business use and pays the first $160 of call charges incurred each month. Where a bill exceeds $160 the representative is required to pay the difference. Mr Nassar deposed the applicant signed the respondent's Mobile Phone Agreement - Terms and Conditions of Use on 26 June 2003. Mr Nassar stated that on occasions during 2005 the applicant's bill had been in excess of $300 per month and on several occasions he advised her that she should limit her phone use to business calls as $160 a month should be sufficient to cover her business use. He also suggested she could buy a cheap pre-paid mobile phone for her private use. 106 On 8 August 2005, Mr Nassar deposed he was in Newcastle with Mr Seller and when he opened his computer to retrieve email messages received over the previous weekend, an email dated 7 August 2005 concerning the applicant's phone usage was received. The email was addressed to Mr Nassar himself and copied to other team members. The gist of the email according to Mr Nassar was that because of her high phone bills the applicant would no longer be returning calls to himself or her team mates. It was Mr Nassar's evidence that putting aside his concern at the applicant's insubordination, as evidenced by the content and tone of the email and, the fact that she had distributed the email to all team members, he decided that he should address her primary issue of high phone bills. He subsequently showed the email to Mr Seller, and he advised Mr Seller that her bills were regularly higher than average. In response, Mr Seller suggested to him that he should check her records to see if this was due to personal or business use. Mr Nassar deposed that on or about 11 August 2005, he requested a copy of the applicant's Optus mobile phone records for the previous months. He received an Excel spreadsheet containing the phone records on or about 18 August 2005. He had added an additional column headed "Planner" where the phone records were correlated with certain entries from the applicant's planner records. Annexure "G" to his affidavit contained an extract from the phone records that he had received and relied upon from Optus. Shortly thereafter Mr Nassar reviewed the applicant's phone records to identify the frequency and nature of her phone usage. Mr Nassar deposed that "almost immediately" , he noticed that a large amount of calls made during working hours were being made from areas of Redhead, Dudley and Little Beach and knew from his own experience in the Newcastle region that these places corresponded with the location of Merran's home. It was Mr Nassar's evidence that because the phone records suggested to him that the applicant may have been home during significant parts of her working hours he decided to compare the applicant's phone records with her planner entries. 107 At the time, it was Mr Nassar's conclusion that "the results of my comparison were alarming". He maintained there were a great number of discrepancies between the applicant's claimed location and her actual location according to her mobile phone records. In some instances, "she was hundreds of kilometres from the location she claimed to be". 108 On or about 19 August 2005, Mr Nassar phoned Mr Seller and explained to him what he had discovered. They then had a conversation to the effect of: Gary said: Are you confident about your conclusion?

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Q. Well-- A. In this instance I'm quite certain from what I heard from Optus that it's quite accurate. 118 Mr Nassar confirmed that as early as March 2004 the applicant considered there were some problems between Mr Nassar and herself. However, by the end of 2004, he had prepared a favourable progress report on the applicant and recommended her for promotion to Medical Representative 2. The applicant's promotion was finalised in February 2005. 119 Mr Nassar confirmed that following her promotion, the applicant was given additional responsibility above her sales colleagues and she was also required to conduct more work-related meetings and presentations. She was also responsible for the training of less experienced staff. 120 Mr Nassar confirmed the respondent had not alleged the applicant did not do her job in terms of physically visiting the doctors and calling on the pharmacists as recorded in her planner. 121 Mr Nassar confirmed that the respondent required the applicant to replicate at least four times per week. There was an expectation that sales representatives would be on the road between 8.30am and 5.00pm and subsequently replicate from home in their own time, pursuant to their respective contracts of employment. 122 Mr Nassar confirmed it was possible for the applicant to get behind time recording calls and replicating due to doctors being busy and running late with patients, the amount of travel the applicant was required to undertake, the requirement to pick up catering for meeting breakfasts and lunches and, family commitments. He subsequently disagreed that it was unrealistic for a representative to replicate for the first 15 minutes of the day rather than be on territory from 8.30 am. Q. So don't you think it unrealistic that a person can't - rather than be on territory at 8.30 in the morning, that they can't do it for the first 15 minutes of their day at home? A. As I say, I was manager at AstraZeneca, I don't write the policy. Those are the requirements of our representatives and those are the - that's what they sign on their contract.

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Q. Well, you considered it insubordination. Why didn't you call Merran in and tell her that you considered it insubordination? A. I felt that I needed to investigate prior to calling her in, because the email was basically looking at - saying something along the lines of not returning calls, and that's detrimental to our business. 127 Mr Nassar agreed that both the applicant and Ms Earley were outspoken and mature persons. 128 Mr Nassar agreed that there was an exchange of words between the applicant and himself concerning the prospect of the sales team achieving budget but denied his demeanour was aggressive or confrontational. Mr Nassar's evidence was that he expected the applicant to answer his questions honestly, but not give an answer that would affect the team - as it appeared to do from his reading of their faces. 129 With regard to the wine label incident, Mr Nassar denied the statements attributed to him by the applicant but confirmed that the applicant had challenged his alleged comments and branded them inappropriate. Mr Nassar confirmed that he subsequently accused the applicant of "snapping at everyone". He did not recall ignoring her as alleged, for the balance of the team building exercise. 130 Mr Nassar denied that following the email on 7 August 2005 and the Hunter Valley incidents "he had made the decision to get rid of the applicant". 131 Mr Nassar agreed that using the introduction "Hi all" in the email dated 7 August 2005 was confirmation that the email was sent to a collective, rather than an individual. He also agreed that because of her higher bills, the applicant was proposing to use text messaging and email more often and there was nothing unreasonable about that proposition. He agreed the applicant wanted her callers to leave a message so that she could email or text a reply. He agreed that the email contained the rider that if the matter was said to be urgent, the applicant would still ring back. 132 Mr Nassar denied that his evidence "the gist of Merran's email was that as a result of her high phone bills, Merran would no longer be returning calls to me or her team mates" was not an oversimplification of the email's contents. Mr Nassar subsequently confirmed that he regarded the whole of the applicant's email as insubordination. 133 Mr Nassar confirmed that he received the phone records on 19 August 2005 and believed that he had ample time to review them and, if necessary, to talk to the applicant. Mr Nassar confirmed that his initial investigation focused on the determination of business versus private phone calls and that is when he became concerned that a lot of the calls seemed to fall where the applicant lived. He confirmed that Mr Seller had directed him to examine the applicant's business versus private usage, but could not recall his comment that the respondent may have to reassess the $160 monthly cap. 134 Mr Nassar conceded that ultimately a sales call was more important to the respondent than the requirement to complete call details in the planner. Mr Nassar said that mobile phone records were used as the basis for terminating both the applicant and Ms Jo Earley. In both instances, Mr Nassar conceded it was his idea to examine the relevant employee's phone records. 135 Mr Nassar admitted that he contacted Mr Seller on 19 August 2005, the same day that Optus provided the applicant's phone records. He also admitted that he had already drawn certain conclusions - but did not recall saying to Mr Seller, "on some days it seems she doesn't leave Redhead all day" and, in any event, believed the observation to be untruthful. He also confirmed that the observation was not something that was raised by the respondent in the applicant's allegations letter dated 25 August 2005. 136 Mr Nassar agreed that the applicant's phone records did not support the allegation that on some days "she did not leave Redhead at all". He also agreed that the records may demonstrate that there might only be a single instance where the applicant may have been a hundred, rather than hundreds of kilometres from where her phone stated the call was made. 137 Mr Nassar conceded that Mr Seller had acted on the misleading or false contention that his investigation revealed that there were numerous occasions where it appeared the applicant "did not leave Redhead at all" and she "appeared to be hundreds of kilometres" from the place set out in her planner. He denied that on or about 22 August 2005, he deliberately gave Mr Seller false information to paint a very bleak picture of the applicant's conduct. 138 Mr Nassar admitted he gave the applicant only three hours' notice to travel from Maitland to Sydney for the meeting on 25 August 2005. He also agreed the applicant was not informed of the meeting's purpose and she was not offered a support person. 139 Mr Nassar agreed the allegations were set out in correspondence handed to the applicant on 25 August 2005 requiring her to meet and respond at 8.30am the following day. Notwithstanding the applicant was stood down with pay from approximately 2.30pm on 25 August 2005, he deemed that it was unreasonable for the respondent to expect the applicant to drive back to Newcastle, attend to family responsibilities and prepare a response to the allegations in her own time. Mr Nassar confirmed the applicant had requested a copy of her phone records at the meeting on 25 August 2005 and neither Mr Seller nor himself provided a copy at the meeting on the following day. 140 Mr Nassar did not believe it would have been reasonable for the respondent to have stood the applicant down with pay for a few days, provide her with the relevant phone records so as to allow a considered response to be made. He was also unsure whether Mr Seller or Ms Price had seen the original Optus records. 141 In re-examination Mr Nassar confirmed the applicant was dismissed because she was dishonest. He did not recall whether the applicant had made a further request to see the original Optus phone records during the meetings held on 26 August 2005. Mr Nassar also confirmed that in his view, all the applicant was required to do to answer the allegations put to her was to compare them to her planner and diary. In addition, he neither put nor relied upon the allegation that she was sometimes hundreds of kilometres away from where her phone records showed or, that on some days, she never left Redhead all day. 142 In Mr Nassar's experience, a sales representative always has time to enter a call and it is quite rare not to be able to do so. He also confirmed that on the basis of what Optus had told him concerning call location variance, it was unlikely that the variance would be 30 kilometres in respect of calls made from Dudley. 143 Mr Nassar identified three In-Field coaching forms set out under Exhibit 13 dated 25 March 2004, 25 August 2004 and 4 August 2005 signed by the applicant, all stating that she needed to improve replication of her calls. Similarly, an AstraZeneca Coaching Contract concerning the requirement to replicate daily and to accurately enter call details, dated 25 March 2004 signed by the applicant was also tendered. Mr Gary Seller 144 With specific reference to the applicant's email of 7 August 2005 addressed to Mr Nassar and the Newcastle sales team, Mr Seller deposed that he believed it was unusual for a sales representative to send such an email to both her manager and sales team. Accordingly, both he and Mr Nassar had a conversation in words to the effect of: Waleed said: What do you make of this?

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155 In cross examination, Mr Seller said he could not recall whether Mr Nassar had informed him that as part of his investigation, he had had some discussions with representatives of Optus. 156 Mr Seller confirmed he was aware there could be a small discrepancy between the call locations revealed by Optus and the actual locations from where the call was made and, the respondent had allowed some variance, but he could not recall the exact percentage or number of kilometres. 157 It was Mr Seller's recollection that when Mr Nassar received the applicant's email, he was more surprised than upset. He did not recall Mr Nassar saying to him that he considered the email insubordination. He agreed that it could be assumed from the applicant's use of the greeting "Hi all", that it was a group email rather than one individually addressed to Mr Nassar. 158 Mr Seller conceded that the applicant had wanted her callers to actually leave a message and the use of text and email was one way of trying to rein in her phone costs. He agreed that the applicant had the right to seek to reduce call costs in excess of the $160 a month cap. He believed most sales representatives would, in the first instance, seek to reduce their personal calls. 159 Mr Seller was unsure the percentage of private calls that comprised the applicant's phone bills - but believed a large percentage were personal calls. He could not confirm an exact figure and conceded he did not know how many calls were in fact of a personal nature. 160 Mr Seller confirmed he said to Mr Nassar that the applicant's phone bill might be high because of the incidence of personal calls and accordingly, suggested to Mr Nassar that he might look at the usage to ascertain the number of calls made, who they were made to and, attempt to assess what percentage would be business related. 161 Mr Seller believed the appropriate way for Mr Nassar to determine personal and business usage would have been: To actually request a copy of Merran's phone accounts that are available from AstraZeneca and to actually conduct a break down and analysis of the calls over a period of time to assess why the usage is so high. I think the other thing that I suggested is that if we found that there was a very high percentage of business calls, maybe we did need to revisit and look at some of the caps, meaning the cap that we place on representatives' use of phones. 162 Mr Seller agreed that one part of the investigation comprised Mr Nassar "pulling" the applicant's phone records and checking those records against her planner without her knowledge. In Mr Seller's view, it would have been appropriate for Mr Nassar to examine the accounts, identify calls to territory team members, territory local calls and long-distance calls. 163 Mr Seller agreed with the proposition put to him that in the event that a sales representative had been held up during the day in say, a doctor's surgery, or had been required to drive long distances, the representatives would be required to replicate that evening in their own time. 164 Mr Seller stated that in asking Mr Nassar "to conduct a more detailed investigation", it was his understanding based upon the documentation he saw that: Waleed, to my understanding, and based upon the documentation that I saw, conducted a thorough investigation of having a close look at Merran's call activity in her planner and he cross-referenced that with her telephone records, and it was then that he identified a number of discrepancies that he had major concerns about. And that's when he came to me and presented those. 165 Mr Seller confirmed that Mr Nassar stated to him "on some days it seems she doesn't leave Redhead all day". Mr Seller said he was concerned at this statement because it was his expectation that sales representatives were actually working in the field. He believed Mr Nassar's statement suggested the applicant was spending long periods of time throughout that (sic) day in Redhead. 166 It was Mr Seller's evidence that when Mr Nassar told him that on occasions "she is hundreds of kilometres away", he was concerned and remembered arranging for Mr Nassar to show him the case activity plan and the phone records - and both he and Mr Nassar examined those records "line by line". 167 Mr Seller confirmed that the document shown to him by Mr Nassar was an electronic document provided by Optus and not the Excel spreadsheet document set out under Annexure "G" of his affidavit. 168 Mr Seller did not agree that upon requesting the applicant to attend the meeting on 25 August 2005, Mr Nassar should have informed her that the meeting was the beginning of a disciplinary process. He did not believe it was harsh to expect someone to be given three hours' notice to drive from Maitland to Sydney for such a meeting. 169 It was Mr Seller's evidence that neither he nor Mr Nassar instructed the applicant to either respond verbally or in writing. He had also consulted the Human Resources Department about the process to be followed. Mr Seller could not recall whether the Human Resources Department suggested the applicant should be invited to bring a support person, or should be warned that the meeting was the first step in the disciplinary process. Mr Seller also stated that the Human Resources Department did not suggest to him that at the meeting on 25 August 2005, it would be appropriate to provide the applicant with a copy of the Optus phone records, evidence upon which the allegations against her were based. 170 It was Mr Seller's evidence that he simply wanted the applicant to examine the records, compare them with her planner and diary, and explain where she was on those days. He agreed that the respondent could have given the applicant a few days to prepare her response but on this occasion, it was decided not to do so. Mr Seller could not recall whether the applicant was invited to bring a support person to the meetings on 25 and 26 August 2006 and agreed that the applicant had stated she had not been offered a support person. 171 Mr Seller confirmed that at the commencement of the meeting at 9.30 am on 26 August 2006, the applicant requested additional time to prepare her response. He also confirmed that he did not agree with the complaint set out in the correspondence tabled by the applicant at the commencement of the meeting that he had not been given sufficient time to respond, but accepted that she did not feel capable of responding due to her heightened levels of anxiety and apprehension. Mr Seller conceded there is an obligation upon an employer to treat employees fairly. 172 Mr Seller agreed that on occasions the respondent had investigated sales representatives' phone records to establish whether they matched planner records - but could not recall any recent investigation taking place. However, it was not something undertaken routinely. He admitted there could be a culture of tardy replications and call reporting within the respondent's organisation, but denied this was due to the measures and guidelines in place. 173 It was Mr Seller's evidence that he had been in constant contact with Ms Price and the Human Resources Department and, a joint decision was made to talk to the applicant, based on the belief that the evidence was complete and accurate. He did not make any inquiries in relation to the applicant's concerns about the thoroughness or otherwise of Mr Nassar's investigation. Mr Seller agreed that if a person had access to his or her complete phone records, it could help jog their memory about where they may or may not have been. 174 Mr Seller confirmed he did not carry out any investigation into the relationship between the applicant and Mr Nassar because the issue did not concern that relationship, but rather, concerned the accuracy of her call records. Mr Seller could not refer to any documentary evidence in existence to demonstrate that Mr Nassar had carried out his directions to investigate the applicant's phone records and determine her personal versus business use. 175 With respect to the applicant's letter of termination, Mr Seller provided the following explanation: COMMISSIONER: Q. Mr Seller, I've only got one question. I take you to Attachment "F" to your affidavit. Ms Trotter's termination of employment letter, was that prepared in Newcastle?

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181 Mr Wormington submitted that the fact that the respondent allowed staff to replicate up to three days after a call was made is recognition that for a variety of reasons, an employee may not be able to execute replication immediately. Mr Wormington referred to the applicant's evidence that there were reasons why she was tardy, including the requirement for her to organise meetings, drive long distances, race to the next appointment if she had been kept waiting at a previous appointment, pick up catering or attend to a doctor's urgent request for pharmaceutical samples. 182 It was the applicant's uncontested evidence that while at times her recorded call times may not have been perfectly correct, she definitely made all calls set out in her planner. She also conceded that if she was being dishonest about her call making, referred to in the industry as "brass plating", then that conduct would, in her view, amount to misconduct. 183 Mr Wormington submitted that the applicant had not been provided with a copy of her Optus phone records nor had the respondent put a copy into evidence. In cross-examination, Mr Wormington submitted, the applicant had been taken through a list of alleged instances where her telephone records did not match her call recording records, where she had admitted that if the phone records were correct, she may have mistakenly recorded the time of her calls by a variance somewhere between 15 minutes and one hour. 184 Mr Wormington submitted that given the nature of her job, the fact that the applicant was working from memory and, was expected to record calls and, replicate in her own time if there was insufficient time during the day, there was nothing dishonest or deceitful in her tardiness. Further, no written warning had been given to the applicant previously because the respondent did not regard the matter serious enough to warrant a warning. 185 The applicant was terminated because of a personality clash with her immediate supervisor, Mr Nassar. The applicant had sent an email to Mr Nassar and the sales team stating she would only return calls if they were urgent and, would use text and email more often, because she was tired of receiving messages stating "ring me back". She had also asked Mr Nassar to consider increasing her phone allowance. Mr Wormington referred to paragraph 40 of Mr Nassar's affidavit where he described the applicant's actions as "insubordination". 186 Mr Wormington submitted that the "straw that broke the camel's back" took place at a Hunter Valley team building exercise conducted a few weeks prior to her termination when Mr Nassar became extremely upset when she expressed an opinion that the team would not make budget that year, an opinion sought by Mr Nassar. Despite another employee expressing the same opinion, she was the only employee castigated by Mr Nassar. 187 The second incident relied upon by Mr Wormington concerned the applicant's suggestion to Mr Nassar that his behaviour was inappropriate when he commented on the wine label designed by the team. It was the applicant's evidence, according to Mr Wormington, that she "knew something was up" when Mr Nassar would not make eye contact with her for the following two days of the team building exercise. 188 Mr Wormington submitted the respondent's witnesses had conceded that some three months before the applicant's termination, an employee was terminated for breach of trust and dishonesty following an examination of her expenses, phone and planner records. He further submitted that the respondent had an established modus operandi for dismissing sales employees. 189 Mr Nassar's evidence that there were ongoing performance issues with the applicant were not supported by the evidence. A written warning in March 2004 had been strongly disputed by the applicant and, in any event, she received a favorable performance review in November 2004 and promotion in February 2005. Neither the email nor a Hunter Valley team building exercise "incident" individually or collectively justified the applicant's dismissal. 190 It was Mr Wormington's submission that Mr Nassar could not determine personal versus business use for the phone records without the assistance of the applicant. There was no evidence before the Commission that Mr Nassar conducted such an investigation nor, whether at any time, he consulted with the applicant. 191 Mr Wormington submitted that evidence in support of the proposition that the applicant's phone records were pulled for the purpose of terminating her employment can be found in Mr Seller's affidavit where he refers to two statements made by Mr Nassar and, not supported by the evidence: i) that on some days the applicant does not leave Redhead at all; and

[147]

Did the misconduct justify dismissal? 205 Mr Saunders submitted whether or not misconduct on the part of an employee warrants dismissal is a question of whether the employee's conduct has been so inconsistent with his or her duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued into the future: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers' Union (NSW) v Gartrel White No 3 (1990) 35 IR 70 at p74. Further, in North v Television Corporation Limited (1976) 11 ALR 599, Franki J held at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct... 206 Moreover, in Concut Pty Ltd v Worral and Anor (2000) 103 IR 160, Justice McHugh (sic) dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.

[161]

viii) the applicant was given prior written warnings about entering information into her planner on a daily basis of replicating four times per week. Was the dismissal harsh, unreasonable or unjust? 211 Mr Saunders referred to Byrne & Anor v Australian Airlines Ltd (1995) 61 IR 32, where the High Court considered a federal award provision that prohibited "harsh, unreasonable or unjust dismissal". In their joint judgment, McHugh and Gummow JJ observed at 72: ... 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 inferences which could 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 the employer acted. 212 He also referred to Bankstown City Council v Paris (1999) 93 IR 209 at 212: 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 may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. 213 Mr Saunders submitted the applicant's dismissal was not harsh because it is clear from cases such as Concut Pty Ltd v Worrell that dishonesty on the part of an employee is sufficiently serious as to warrant termination. That is, the applicant's dismissal is not disproportionate to the gravity of her misconduct and although termination of employment is detrimental to the personal and economic situation of almost every employee, these consequences must be assessed in light of the gravity of the applicant's misconduct and the relatively short tenure of her employment with the respondent (14 months) (sic). 214 Mr Saunders argued the dismissal was not unjust because it has been established that the applicant engaged in the misconduct on which the respondent relied to terminate her employment. Similarly, the dismissal was not unreasonable because the respondent's decision to terminate the applicant was made on the basis of inferences reasonably drawn from the material before it. Remedy 215 Mr Saunders submitted the respondent's case was that it was justified in dismissing the employee on the ground of her dishonesty. However, in the event that contrary to the respondent's submissions, the Commission finds that the applicant was unfairly dismissed, any compensation awarded should be at the lower end of the range, in light of the applicant's short period of employment with the respondent some 14 months (sic), the four weeks' payment in lieu of notice already made and her poor performance during her employment with the respondent, as evidenced by the written letter of warning, In-Field Coaching forms and the applicant's own email to her manager, Mr Nassar, in which she said she would not use the mobile phone provided to her by the respondent to return business calls unless the matter was "urgent". 216 With respect to the value of the motor vehicle for the purposes of determining the applicant's remuneration, Mr Saunders submitted that the average private use component of 9 per cent submitted for fringe benefit tax purposes should be adopted and accordingly, the amount of $1813.05 should be added to the applicant's gross salary of $64,938.64 at the time of her dismissal. CONSIDERATION

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217 The applicant's employment was terminated on 26 August 2005 by the payment of four weeks' salary in lieu of notice for misconduct on the grounds of dishonesty. In such circumstances, it is open to an employer to dismiss an employee summarily where dishonesty has been proven on the grounds that the conduct is incompatible with the continuation of the contract of employment and destructive of the confidence between them. 218 Given the perceived gravity of the misconduct by the respondent at the time, the election to pay the applicant four week's salary in lieu of notice has a similar effect to the respondent summarily dismissing the applicant for serious misconduct on the various grounds set out in the applicant's letter of appointment and, the Call Validity section of the Lines of Reporting document. 219 The applicant's letter of appointment dated 30 May 2003 clearly states that employment is terminated by the giving or payment in lieu of notice and, in the event of a serious breach of a matter contained therein or for misconduct, without notice. A condition of accepting employment with the respondent was the applicant's agreement to abide by all policies and procedures of the respondent as modified from time to time. 220 The respondent also relies upon its Medical Representative Functions, Authority, Responsibilities and Lines of Reporting policy signed by the applicant on 25 June 2003. Briefly stated, that policy establishes lines of reporting and deals with a range of territory specific matters. Territory time and travel matters are defined under the heading, "Representative Support" and states that the relevant Sales Manager shall spend a minimum of one day per month with each representative in the field. In-Field performance assessments/appraisals are to be completed monthly to identify the representative's strengths and weaknesses. The mobile phone allowance of $160 per month with an annual cap of $1,760 is clearly explained. The fact the allowance excludes personal calls is clearly stated. 221 The policy also stipulates that it is the representative's responsibility to ensure that the Sales Manager is able to make contact by telephone without delay and in this regard, it was a requirement to submit the weekly planner each Monday morning. 222 With reference to call validity, the policy states the respondent operates in an environment of "openness, trust and honesty" and any breach of these principles is unacceptable. The policy also states that regular surveys of doctors will take place to validate sales calls. Importantly, the policy further states: Any situation involving an employee in the breach of trust due to dishonesty in any area will result in disciplinary action and may lead to the immediate termination of employment. 223 On 26 August the applicant was handed the following letter of termination:

[174]

232 The Full Bench decision in Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 is authority for the proposition that it is open to the Commission to determine whether the sanction of dismissal was in all the circumstances of the case too severe. At 302-303, the Full Bench stated: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to bee too harsh a consequence. (Our italics) 233 Despite the gravity of the applicant's conduct in the eyes of the respondent and, its categorisation of that conduct resulting in the charge of dishonesty, the applicant was not summarily dismissed and was instead paid 4 week's salary in lieu of notice. Moreover, the termination letter dated 26 August 2005 does not mention serious misconduct or dishonesty. Instead, it relies upon an inference of the applicant's guilt: ...inconsistencies between your call reporting and call recording and your mobile phone records...as a result of a thorough investigation that took place following your assertion that you were not going to use your phone to contact your team members or Waleed as your mobile phone bills were too high.

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241 In cases of dismissal with or without notice for misconduct, the conduct alleged by the employer must be such that it constitutes a repudiation of the contract of employment by the employee. The onus rests with the employer to show a wilful and deliberate intention on the part of the employee. In New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440, Sams DP stated at paragraph 225: The allegations against the applicant were described as misconduct - the additional adjectives " wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the very core of the employment relationship. 242 Misconduct justifying summary dismissal has been variously described. Whether the conduct of the employee justifies summary dismissal was considered in North v Television Corporation Limited (1976) 11 ALR 599. In the judgment of Smithers and Evatt JJ, their Honours set out their conclusions on the kind of conduct that would justify dismissal at common law at 608-609: It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. ...

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For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289, are in point. He said:- To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. ... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is `wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions .(Italics added) 243 The decisions in North v Television Corporation Limited and Laws v London Chronicle (Indicator Newspapers) Ltd establish that the conduct must be serious, in that it can be said to be inconsistent with the fulfilment of the express or implied conditions of the contract of employment and, it must be wilful, in that it involves a deliberate or intentional flouting of the essential contractual conditions. The duty of mutual trust, like the duty of good faith extends to an employee performing the job competently and honestly. The relationship of trust between an employer and employee was considered by Kirby J in Concut Pty Ltd v Worrell and Anor . The circumstances of Concut involved alleged significant misconduct by an employee using, for his own private purposes, the employer's property and the services of its employees. At 172-174, his Honour refers to the circumstances within the ordinary relationship of employer and employee at common law that ground the sanction of summary dismissal: 3. The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." ... 4. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.

[193]

f) such other matters as the Commission considers relevant. 247 Procedural fairness entitles the employee to be given an opportunity to respond to allegations of improper conduct prior to dismissal. In this regard, in The Law of Employment by Macken, McCarry and Sappideen, 3rd Edition, states at pages 277-278: Procedural fairness requires that where an employee has been warned that her or his work performance is unsatisfactory or the employee is asked to give an explanation regarding an allegation of misconduct, the employee must first be given sufficiently detailed information about the nature of the allegations and then given adequate opportunity to refute those allegations. 248 Where the misconduct alleged by the employer is grounded, the Commission must consider whether termination is too severe a penalty. 249 Mr Saunders directed the Commission to Byrne & Anor v Australian Airlines Ltd where the High Court dealt with an award provision that prohibited "harsh, unreasonable or unjust dismissal". The joint judgment of McHugh and Gummow JJ observed at 72: ... one termination of employment 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 the employer acted. Their Honours continued at 74: Procedures adopted in carrying out the termination might properley be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. 250 The above extract is authority for the proposition that a termination may be unreasonable because it was decided on inferences which could not reasonably have been drawn from the material before the employer. Additionally, where the findings of an employer's inquiry are reasonable, the Commission may conclude that a termination of employment on the basis of those findings was harsh because the penalty was disproportionate to the gravity of the misconduct. 251 The relevant test is not whether the employer believed, on reasonable grounds and after sufficient inquiry, that that employee was guilty of the conduct alleged. The employer's findings will be relevant to the Commission's determination provided it is established that the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances and the employer gave the employee every reasonable opportunity to respond to allegations. 252 In Antonakopoulos v State Bank, the Full Bench considered the basis upon which procedural issues might be considered in the context of an alleged unfair dismissal. The Full Bench said at 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 a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable 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 determination 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 or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

[195]

254 The respondent has a duty to carry out a "full and thorough investigation" before terminating an employee for misconduct. That was said not to have been done on this occasion and accordingly, the applicant contends there were insufficient grounds for the respondent to form a reasonable belief that the applicant committed the gravity of the misconduct alleged. 255 In the present case I have no doubt that the respondent's decision makers, principally Mr Seller and Ms Price honestly and genuinely believed that the applicant was guilty of the dishonest conduct as alleged and identified by Mr Nassar's investigation. 256 If an employer wishes to make out a case of dishonesty, it has to nail its colours to that mast. There is no question that the applicant's actions in breaching the respondent's protocols and policies amounted to conduct that warranted censure by the respondent. In many circumstances, an employee's dishonesty will justify summary dismissal or the lesser sanction of dismissal by payment in lieu of notice. The facts of this matter are that although the applicant's dismissal was of a summary nature, it was by the conduct of the employer, converted into a dismissal with payment in lieu of notice. There is, of course, no legal precedent to support the proposition that any dishonesty, irrespective of the employee's motive, its effect or mitigating circumstances, justifies summary dismissal. Indeed there is much authority to the contrary. 257 While dishonesty within the employment relationship is a serious matter, the applicant's conduct here is at the lower end of the scale when considered in the context of what normally constitutes serious and wilful misconduct, the overall nature of her employment and the consequences of her dismissal. The respondent has not been able to point to any instance or occasion where the applicant has not acted in an honest and trustworthy capacity during the course of her employment, save for this matter. The applicant's conduct has been put into the same category, in effect, as theft of money or property, a breach of conduct under the Lines of Reporting policy also deemed sufficiently serious to warrant summary dismissal. Nevertheless, it does not automatically follow that every single case of dishonesty will necessarily justify dismissal.

[199]

263 In my view, the respondent's investigation was flawed in a number of respects. There is no evidence that Mr Nassar completed Mr Seller's request to compare the applicant's business versus private usage to reach a conclusion supporting the applicant's dismissal. It is also clear from the allegations letter dated 25 August 2005 that the applicant's job was in jeopardy and her livelihood could be grossly affected by the outcome of the meeting the following morning, first proposed for 9.00am and later rescheduled at her request at approximately 1.30pm between Mr Seller and Mr Nassar. 264 Faced with the drive back to Newcastle and family responsibilities, the prospect of a 9.00am meeting the next day left the applicant with little time or opportunity to obtain and receive legal advice. She was however able to receive some assistance to prepare the short letter tabled at the 9.00am meeting with Mr Seller and Mr Nassar seeking further time to prepare a response. In my view, the more serious the allegation against an employee, the more detailed the employer's investigation should be, and should include a search for exculpatory evidence. 265 In circumstances where an employee was obviously quite stressed and upset at the prospect of dismissal and, given her travel requirements and family requirements, it would have been reasonable for the respondent to extend her suspension "with full pay" as stated in the Employer's Reply for a few days to allow her to get advice and, afford her a proper opportunity to be heard and to put the best case available to defend the allegations. There would have been little prejudice to the employee. 266 The purpose of s 88(b) of the Act is to enable an applicant to rebut the specific allegations or persuade the employer that notwithstanding the substance of the allegations raised, there are extenuating circumstances surrounding the conduct objected to. Moreover, there may be mitigating circumstances or an undertaking in respect of future conduct that should be considered. By denying the applicant access to her complete Optus phone records prior to the meeting on 26 August 2005, the respondent has denied her an opportunity to robustly defend the allegations set out in the letter of 25 August 2005 that she, "...had made many calls from the Redhead and other areas that were very inconsistent with what you had entered and recorded in your insight planner" and retrace her movements in an attempt to mitigate some of the respondent's concerns and allegations.

[201]

268 Mr Nassar's investigation is based on the premise that if the applicant's call records show that she made a call from say Lambton, then notwithstanding a possible variance of up to 30 kilometres, he together with Mr Seller assumed that the applicant was in fact in Lambton at that time. Mr Nassar backed up his assumption concerning call location by stating in cross examination, "In this instance I'm quite certain from what I heard from Optus that it's quite accurate". Indeed, this assumption was accepted by the respondent to substantially ground the allegation of the applicant's dishonesty. No evidence, contemporaneous or otherwise was brought by the respondent to support what Mr Nassar purports to have been told by Optus concerning mobile phone call location variances. 269 On the evidence before the Commission, including the applicant's own admission, it is clear that her general approach to call recording was casual and for a variety of work and family related issues, fell short of the standard requirements clearly set down in the respondent's policy documents. It is also clear that on balance, the applicant's tardiness with her call entry amounted to her being culpably careless. While the applicant made some frank admissions concerning her call entry tardiness, she also sought to defend a number of the respondent's allegations that she was "off territory" at certain times or in the alternative, she was not making a visit at the precise location and time set out in her planner according to her phone records. It is clear that some of the applicant's call discrepancies are slightly more than an hour out of kilter with her planner. 270 In the respondent's view, the applicant's planner entries clearly stated she was "off territory" and that conduct equates to dishonesty within the meaning of its policies and protocols. The applicant claims that for the majority of that time, she was undertaking productive work for the respondent from her home office, completing her expenses, arranging and following up meeting invitees and, assisting other members of the team. However, the test of dishonesty is not simply objective. Conduct that one person believes to be dishonest may in some circumstances not be deemed dishonest by others. The applicant's carelessness amounts to minor dishonesty or dishonesty at the lower end of the scale when say, compared to theft.

[207]

278 In this matter, I have dealt with the evidence actually led in the proceedings. Mr Saunders pressed upon me a Jones v Dunkel inference that meeting notes the applicant asserts she made after she returned home would not have assisted her case. In this instance, the principle in Jones v Dunkel is that the unexplained failure by the applicant to tender certain documents may in appropriate circumstances lead to an inference that the evidence not tendered would not have assisted her case. However, as Cross on Evidence (5th Aust ed (1996) at [1215] states: ...as a general principle, there are circumstances in which it has been recognised that such an inference is not available, or if available, is of little significance. The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. 279 In summary, the respondent's erroneous conclusions were in many respects, an anticipated consequence of a hasty process conducted in a state of excitement that arose from Mr Nassar's discovery, subsequently withdrawn from his evidence, that "in some instances, she was hundreds of kilometres from the location she claimed to be". 280 Having considered all the evidence and submissions of the parties put before the Commission, I find the applicant's dismissal was procedurally unfair and in all the circumstances harsh and unreasonable. Notwithstanding that the applicant withdrew her claim for reinstatement during the hearing of this matter, I have formed the view that on the material before the Commission, reinstatement would have been impracticable as there was much evidence that the employment relationship post dismissal was not capable of being restored. As reinstatement is not practical and having regard to monies earned post dismissal and prior to commencing alternative employment. I am satisfied that it is appropriate to order the respondent to pay to Ms Trotter an amount of $10,500 as compensation, payable within 21 days.

Antonakopoulos v State Bank of New South Wales

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