Byrne & Anor v Australian Airlines

Industrial Relations Commission (NSW)|2000-02-09|Before: Sams DP, Mr P

CITATION : Jackson and Australis Music Group [2002] NSWIRComm 123 APPLICANT PARTIES : Janice Isabel Jackson RESPONDENT Australis Music Group FILE NUMBER: 6338 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - allegations of customer complaints - failure to perform - punctuality - procedural fairness. CATCHWORDS : Held, applicant dismissed without warning - applicant unaware of reasons for dismissal - no opportunity to defend the allegations - unnecessary to make findings on performance - applicant denied procedural fairness - dismissal harsh and unreasonable - reinstatement impractical - compensation ordered. LEGISLATION CITED : Industrial Relations Act 1996 Byrne & Anor v Australian Airlines (1995) 185 CLR 410 Outboard World v Muir (1993) 51 IR 167 Bankstown City Council v Paris, 93 IR 209 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bigg and Anor v New South Wales Police Service, 80 IR 434 Burke v McGirr (1995) 87 IR 54 Oswald v New South Wales Police Service (1999) 90 IR 42 Johnson v Catholic Education Office, Diocese fo Parramatta 87 IR 57 CASES CITED : Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Myers v New South Wales Police Service, 93 IR 123 National Union of Workers, New South Wales Branch, on behalf of Phillip Charles Mumby, and Davids Distribution Pty Ltd (unreported, Sams DP, IRC2056 of 1999, 9 February 2000 Herson and One.Tel Ltd (unreported, Sams DP, IRC5181 of 1998, 18 February 2000 Yopp v Advanx (Gosford) Motor Services Pty Ltd (unreported, Sams DP, IRC4592 of 1998, 7 May 1999) New South Wales Nurses' Association (on behalf of David Harding) and Western Sydney Area Health Service [2002] NSWIRComm 35 Herbert and Warrah Ltd [2001] NSWIRComm 109 Buckman v Burdekin, 85 IR 418 HEARING DATES: 04/15/2002 DATE OF JUDGMENT: 06/21/2002

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Matter No IRC01/6338 JANICE ISABEL JACKSON AND AUSTRALIS MUSIC GROUP Application by Janice Isabel Jackson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 123

1 Janice Isabel Jackson ("the applicant") was dismissed by Australis Music Group ("the respondent") on 10 September 2001 after five months and one week of employment as the respondent's accounts officer.

2 The applicant seeks compensatory relief pursuant to s89(5) of the Industrial Relations Act 1996 ("the Act"), alleging that her dismissal was unfair.

3 The applicant and the respondent were both unrepresented at conciliation proceedings on 8 November 2001. After preliminary submissions, the Commission chaired private conferences with the parties. However, settlement of the claim could not be reached. A finding, pursuant to s87 of the Act was made and directions were issued for the filing and service of affidavit material.

4 The respondent is a family owned company which has operated in Australia for twenty-nine years. It is the largest independent importer and distributor of musical instruments and musical equipment in Australia. It has twenty-seven employees and an annual turnover of $15 million.

5 The applicant was employed for a twelve month period on a salary of $46,000 per annum. Her letter of appointment describes her duties as: 1. Accounts receivable. This includes all aspects of maintaining an accurate and timely collected debtors ledger.

6 The applicant was initially employed to replace another employee, Julie Lorente. Ms Lorente was proceeding on maternity leave. Upon Ms Lorente's return from leave, it was intended that she and the applicant would work part time.

7 The applicant received a written warning on 5 September 2001 concerning her alleged failure to observe the office working hours and for not providing a medical certificate for a sick day. She was asked to acknowledge the warning and sign the warning letter. She refused to do so and instead on 10 September wrote a letter of explanation for her absences. She claimed that she commenced work half an hour early and worked an additional two and a half hours a week without payment. In her response, the applicant expressed surprise that the issues complained about warranted an official warning. Further, the applicant claimed to have been "threatened" by her supervisor, Toni Skiris. She alleged Ms Skiris's behaviour was designed to force her early resignation.

8 After receiving the applicant's response, Mr Peter Hayward, the respondent's Managing Director, discussed the matter with Mr Geoff Gazzard, the General Manager. It was agreed to dismiss the applicant. She was verbally dismissed by Mr Hayward on the same day without warning.

9 Mr Gazzard gave the reasons for the dismissal in paras 79 and 80 of his affidavit:

On reading the Applicant's response as found at annexure "G", I considered that the Applicant was accusing myself and Australis of: (a) being unfair; (b) looking for any opportunity to dismiss her; (c) inducing Toni Skiris to procure her dismissal; and (d) forcing the Applicant out of her employment with Australis. 80. I considered these were serious allegations. It was clear to me on having considered these serious allegations that the employment relationship between Australis and the Applicant had broken down. I did not consider that I, Toni Skiris, or Peter Hayward could continue to work with the Applicant in light of these allegations. It was therefore my determination that based on these allegations, the Applicant's employment with Australis could not continue.

10 The applicant gave evidence that, at no time during her period of employment, was there any complaint about her work performance. Rather, she said that on a number of occasions, Mr Gazzard told her she was "doing a sterling job". The applicant said that while she had received training on the payroll system, she had not been trained on accounts receivable. However, each week she gave reports to Mr Gazzard on the debtors' ledger and each morning prepared a "held order" report for the release of goods. The release of goods was then approved by Mr Gazzard or Mr Hayward. She had no authority to do so.

11 On one occasion, the applicant said Ms Skiris told her Ms Lorente had made a number of mistakes with client accounts. The applicant and Ms Skiris reported this to Mr Gazzard. However, he refused to accept that Ms Lorente was responsible. The applicant believed that Mr Gazzard would "hear no wrong" of Ms Lorente.

12 On 5 September 2001, the applicant received the warning letter referred to in para 7. She prepared a letter dated 10 September in response to the warning and claimed she was given no opportunity to defend her response. The applicant said she showed her letter to the Office Manager, Ms Marie Thomas. The applicant then handed her response to Mr Gazzard who discussed the situation with Mr Hayward. Shortly thereafter, Mr Hayward shouted at her in the presence of other employees telling her "you get in my office now". He then said to her "get out, get out, get your things and get out".

13 The applicant deposed that she felt scared, embarrassed and intimidated by Mr Hayward's conduct in dismissing her. She said the incident had led her to experience anxiety and depression. In oral evidence, the applicant said Mr Hayward was very intimidating - he had clenched his fists and screamed at her.

14 The applicant gave evidence of an incident in which Ms Thomas was told to "fire" another employee. The applicant did not believe it was fair to dismiss someone without a formal warning. Ms Thomas told Mr Gazzard that the employee should be given three warnings. However, Mr Gazzard was derisive and dismissive. The applicant said there was "widespread dismay" with Mr Gazzard's attitude. She said he was uncivil, abrasive, shouted at workers and criticised other staff members. Mr Gazzard had said Ms Skiris was a "schizophrenic". The applicant claimed Ms Thomas had resigned because of the poor treatment both she and the applicant had received from the company.

15 The applicant identified a number of incidents which had annoyed and upset the respondent: 1) She had annoyed Mr Gazzard by objecting to his insistence of paying incorrect overtime rates.

The applicant had complained about paying another person, Marilyn Dolkin, when she didn't even work for the company. The applicant was concerned that this arrangement was designed to illegally defeat a Family Court maintenance order involving Ms Dolkin's partner, who also worked for the respondent.

The applicant was concerned with cash payments given to Mr Hayward by a customer - there was no invoice and no record of the payment. Ms Thomas had told her it was a " sweetheart deal " with the customer. When the applicant complained to Mr Gazzard he had told her it was none of her business.

16 The applicant believed that these were the real reasons she received the warning letter and not because she left work early or had a sick day.

17 The applicant rejected claims that she lowered the morale of other staff by complaining about the management. She said she was concerned about illegalities. She did not accept that other staff members had complained about her competency and manner. Rather, employees had complained about Mr Gazzard's abusive manner.

18 The applicant acknowledged making some mistakes with the service fees. After she informed Mr Gazzard, she came into work, in her own time, to fix the mistakes. The mistakes created no problem for the customer. In oral evidence, the applicant said that there was considerable pressure on the accounting staff when customer credit limits were increased. As a result, Ms Lorente had returned to work earlier than planned.

19 The applicant gave evidence of banking a personal cheque for Mr Hayward into the wrong account. She explained that she used a deposit book Mr Hayward had given her.

20 The applicant said she left work at 2.30pm on 31 August 2001 as she had a doctor's appointment. As it was the end of the month the computers had been closed off early. Her leaving early was therefore not a problem. In any event, she received approval to do so from Ms Skiris. The applicant regarded the time off as a balance for working a half hour extra each day.

21 The applicant said on the day she was ill (3 September), she had a doctor's appointment and had left a message at the office. She believed this to be the usual office practice. The applicant didn't think it was necessary to get a medical certificate for one day.

22 The applicant said she left work early on 4 September for acupuncture treatment and had sought approval to do so from Ms Skiris.

23 The applicant explained she started work early (8.00am) because she was able to catch a lift with Ms Thomas. Mr Gazzard knew of, and approved of these arrangements. When Ms Thomas went on annual leave, Mr Gazzard had suggested the applicant leave work early at 4.30pm.

24 The respondent relied on the affidavit and oral evidence of Mr Geoff Gazzard, General Manager and Director of Australis Music Group Pty Ltd.

25 Mr Gazzard described the duties of the applicant in the accounts department. Prior to the applicant's employment, two employees were employed in this department - Ms Julie Lorente, who was in charge, and Ms Toni Skiris.

26 Mr Gazzard deposed that when Ms Lorente went on maternity leave, the respondent advertised for a replacement. He and Ms Lorente interviewed the applicant and outlined the duties of the position. During the interview, the applicant claimed to be familiar with the company's computer system. She also represented herself as someone who was very accurate in accounting, could handle large volumes of work and had previously been employed as an office manager.

27 At the interview, Mr Gazzard said he was concerned that the applicant lived in Newport and the office was at Alexandria. She had told him her living arrangements were only temporary. Mr Gazzard said he was concerned the applicant might experience similar difficulties to a former employee, living on the northern beaches, who had resigned because of the distance between home and work.

28 Mr Gazzard detailed a number of complaints with the applicant's performance: Firstly, for two weeks prior to her taking maternity leave, Ms Lorente had trained the applicant on the office computer systems. Notwithstanding this training, at no time had the applicant informed him that she had not received sufficient training to properly perform her duties.

Secondly, Mr Gazzard made frequent requests for the applicant to provide a regular aged debtor analysis. She frequently failed to do so and even when she did, the reports were incomplete. Because of this, Mr Gazzard was personally required to follow up debts with customers. Mr Gazzard then instituted a weekly debtors meeting so that the applicant, Ms Skiris and Ms Lorente could update him on the debtors' situation. Mr Gazzard denied these meetings were instituted because of increased workload.

Thirdly, from the commencement of her employment, the applicant failed to allocate payments to the correct invoices (account reconciliation). He cited five examples. Mr Gazzard said it was his impression that the applicant failed to understand, or ignored the workings of the company's software.

Fourthly, the applicant failed to properly undertake credit control responsibilities and released goods to customers when they should not have been.

Fifthly, the applicant misallocated personal monies to the accounts of Mr Hayward and provided no explanation for doing so.

29 Mr Gazzard acknowledged that there was no documentary evidence of any of these complaints. The Commission notes that no witness was called to corroborate these, or any other complaints.

30 Mr Gazzard deposed that he didn't take any disciplinary action against the applicant during her probationary period because he was very busy. He was spending significant time in Queensland. He was concerned that if he pushed the applicant too hard, she might resign.

31 On 6 August 2001, Mr Gazzard met with the applicant and raised a number of complaints from customers about her performance. He was concerned with her competence and the prospect of Ms Skiris resigning as a result. The applicant acknowledged making some mistakes - but blamed Ms Lorente. Mr Gazzard accepted that one or two errors may have been made by Ms Lorente. However, he told the applicant the vast majority of mistakes were her fault.

32 Mr Gazzard demoted the applicant by switching her role with Ms Skiris. He said the applicant did not object and there was no change in her employment conditions. Following the demotion, Mr Gazzard said he received numerous complaints from Ms Skiris concerning the applicant's performance. Mr Gazzard had instructed Ms Skiris to inform him of any incident involving the applicant because he wished to closely monitor the situation.

33 Ms Skiris advised Mr Gazzard that the applicant left work, without permission, at 2.30pm on 31 August 2001, and again on 4 September at 4.30pm. Mr Gazzard said the applicant was away from work on Monday, 3 September. She claimed to be sick. She provided no explanation or doctor's certificate. She had been away for more than one day as she had left work early on the Friday before (31 August).

34 After receiving this information, Mr Gazzard prepared a letter of official warning concerning these absences and handed it to the applicant on 5 September.

35 Mr Gazzard said the applicant responded by explaining she was allowed to leave early, as per the earlier approved arrangements when Marie Thomas was on leave and couldn't give her a lift to work. However, Mr Gazzard said this was not to be a permanent arrangement. After the meeting, Mr Gazzard overheard the applicant say she was not going to let him (Mr Gazzard) bully her.

36 Mr Gazzard responded to the applicant's letter of response by saying it was consistent with the general tone of her conversation with him on 5 September. He denied telling her that "I will be watching everything you do and will find any reason to give you another warning".

37 Mr Gazzard believed the applicant's response contained serious allegations which constituted a breakdown in the employment relationship. He decided the applicant's employment could not continue and discussed the matter with Mr Hayward. Mr Hayward then held a meeting with the applicant in which she was dismissed with two weeks' pay in lieu of notice.

38 Mr Gazzard denied all of the allegations made against him by the applicant. He said he was not abusive or unpleasant; he had not instructed the applicant to pay incorrect overtime; no one at Australis had engaged in "unlawful activity"; and he had not labelled Ms Skiris as "schizophrenic".

39 For the applicant, Mr Fraser referred to the applicant's evidence in which she freely admitted to making some mistakes. However, she had corrected the mistakes in her own time. The applicant was never questioned about her overall performance. She was not provided with training on every facet of the accounting software.

40 As to complaints about the aged debtors reports, the applicant had said she made file notes and contacted customers. The reports were given to Mr Gazzard, who authorised warehouse staff to release goods. Mr Fraser pointed to the failure of the respondent to bring documentary evidence about this complaint and submitted it should be rejected.

41 Mr Fraser said in respect to the misallocation of Mr Hayward's personal monies, it was Mr Hayward who had given the applicant the wrong deposit book. It was obviously not her fault.

42 Mr Fraser submitted that the applicant was dismissed for querying certain irregularities in business practices and for allegedly being uncooperative. He submitted that Mr Hayward and Mr Gazzard had not appreciated their authority being questioned.

43 Mr Fraser said that the manner of the applicant's dismissal was unfair. She was summarily dismissed for providing an innocuous response to a written warning. In any event, the warning was about punctuality and not about performance issues. She was given no opportunity to respond to any of the respondent's complaints as to her performance.

44 The dismissal was unfair in that the applicant lost her job, was humiliated, hurt and her reputation was damaged.

45 For the respondent, Mr Gazzard submitted that there was an ongoing breakdown in the employment relationship with the applicant. The fact the applicant had been demoted, and had not objected, was an acknowledgement of her poor performance. Mr Gazzard said he received a "lot of complaints" from customers about the applicant.

46 Mr Gazzard said that the applicant's response to the warning letter demonstrated that she was compromising the activities of the staff. Dismissal was necessary in these circumstances.

47 A dismissal from employment may be found to be unfair if, in the words of s84(1) of the Act, such dismissal is "harsh, unreasonable or unjust".

48 It is now well established that a dismissal may be harsh, but not unreasonable or unjust, unreasonable but not harsh or unjust, or unjust but not unreasonable or harsh. It follows that one, two or all three adjectives might be able to be applied to a particular termination of employment.

49 This principle has its origins in the seminal case Byrne & Anor v Australian Airlines (1995) 185 CLR 410 and the oft quoted passage of McHugh and Gummow, JJ at p465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon 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.

50 In Outboard World v Muir (1993) 51 IR 167, the Full Commission cautioned against too broad a finding of unfairness, where the specific expression in the statute of "harsh, unreasonable or unjust" requires a particularity of finding based on one, or more, of the express and discrete meaning of the words. The Full Commission said at p182: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

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

51 The Full Bench in Bankstown City Council v Paris, 93 IR 209, emphasized the importance of making "a positive and specific finding" on each of the words in the expression "harsh, unreasonable and unjust": 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. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. It is trite to observe that a dismissal can be found to be unfair if the employee is denied procedural fairness. I cite in this regard the following passages in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 where the Full Bench said at p389: 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. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust .

52 See also Bigg and Anor v New South Wales Police Service, 80 IR 434; Burke v McGirr (1995) 87 IR 54 at 55-56; Oswald v New South Wales Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta, 87 IR 57 at 64; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 and my discussion of the principle in Myers v New South Wales Police Service, 93 IR 123; National Union of Workers, New South Wales Branch, on behalf of Phillip Charles Mumby, and Davids Distribution Pty Ltd (unreported IRC2056 of 1999, 9 February 2000); Herson and One.Tel Ltd (unreported IRC5181 of 1998, 18 February 2000) and Yopp v Advanx (Gosford) Motor Services Pty Ltd (unreported IRC4592 of 1998, 7 May 1999)

53 On the other hand, the authorities make plain that procedural deficiencies might not be of sufficient weight or seriousness to invalidate a dismissal which is justified on its merits.

54 On this principle, I refer to my comments in New South Wales Nurses' Association (on behalf of David Harding) and Western Sydney Area Health Service [2002] NSWIRComm 35, in paras 227 to 229: I have no doubt, with the benefit of hindsight, that the dismissal of the applicant might well have been better handled by the respondent. However, the faults in the process need to be balanced against the gravity of the allegations in the event they are proven. On this point, I refer to my comments in Foster and Woolworths Limited (unreported, Matter IRC6385 of 1999, 27 October 2000): … it is now well settled law that proven deficiencies in the process are not necessarily fatal to an employer's decision to summarily dismiss an employee. It is the seriousness of the allegations, if proven, which, in my view, will be decisive in establishing whether the employer's decision to dismiss the employee was reasonably open to it.

This passage relied on a number of Full Bench decisions including Wang v Crestell Industries Pty Ltd ; Rapp v Wauchope RSL Club , 81 IR 116; Bigg & Anor v New South Wales Police Service , 80 IR 434, Burke v McGirr, Busways v Johnson and Antonakopoulos v State Bank of New South Wales. See also my comments in Herbert and Warrah Ltd [2001] NSWIRComm 109.

55 Of particular relevance to considerations of procedural fairness are the express provisions of s88 of the Act: 88 In determining the applicant's claim, the Commission may, if appropriate take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether a warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant.

56 Providing an employee with appropriate warnings of poor performance, s88(c), was referred to in Buckman v Burdekin, 85 IR 418, and I cite the relevant passage: Buckman Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness.

57 As will be evident later, the Commission will make findings on the unfairness of the procedure leading up to, and including, the dismissal of the applicant; the most significant of which was the respondent's failure to give the applicant any warning of her dismissal.

58 After reviewing all of the circumstances, the Commission is satisfied that the respondent may well have had legitimate grounds for dismissing the applicant from employment. In my opinion, the applicant was interfering in management matters which were not of her concern. This would have been a cause of annoyance to the respondent.

59 However, while there is no doubt the applicant was demoted when Ms Skiris assumed her duties, I am not satisfied that the allegations of poor work performance have been properly made out. The Commission has not been helped by the lack of corroborative evidence, either by documentation or witness evidence as to these allegations.

60 On the other hand, there is no corroborative evidence of Mr Gazzard's or Ms Skiris's abusive and threatening behaviour as alleged by the applicant.

61 Notwithstanding the evidentiary deficiencies, the Commission is able to determine this matter without making findings of witness credit. This arises from the serious procedural faults identified in the process leading to dismissal. On any view of it, the execution of the dismissal left a lot to be desired. It was crude, capricious and perfunctory. It raises a real question of whether the applicant was afforded fair and due process. On this issue, the evidence is clear.

62 The respondent did not refute the evidence, that Mr Hayward angrily dismissed the applicant without warning after he received her written response to an official warning. The respondent's own evidence was that the applicant was dismissed, inter alia, because she failed to accept, or acknowledge, this warning (see Employer's Reply to Application, filed 8 October 2001).

63 It firstly must be said that there is no obligation on an employee to sign, or acknowledge, a warning letter. It is sufficient (for the employer's purposes) that a warning was given. It would be a rare admission indeed for an employee to acknowledge that a warning was justified.

64 Further, Mr Gazzard deposed that the matters contained in the applicant's response to the warning letter constituted "serious allegations" (see para 9). I have my doubts as to whether these issues could be characterised as "serious allegations". However, it is clear that the respondent believed them to be so. The instant reaction of dismissal without warning could only be described as harsh and unreasonable.

65 I am fortified in this conclusion by the following matters.

66 The applicant was never made aware that the respondent regarded her 10 September response as containing "serious allegations". Secondly, the respondent did not give the applicant any opportunity to respond to the so called "allegations". Thirdly, the applicant was hastily dismissed, without warning.

67 The poor handling of the applicant's dismissal sits in curious contrast to the detailed written warning concerning punctuality and Mr Gazzard's evidence that he was closely monitoring the situation (the applicant's performance). When it came to the crunch of dismissing the applicant, this careful attention to process and detail seems to have been well and truly overlooked.

68 Moreover, I am troubled by the obvious fact that the warning letter makes not a single observation - let alone a complaint - as to the applicant's work performance. Whereas, throughout these proceedings the thrust of the respondent's evidence was that the employer had frequent complaints from customers and other employees about the applicant's errors and conduct. 69 There is only one conclusion to be drawn from this observation. That is, there is no correlation at all between the alleged reasons for dismissal and the warning letter which the respondent claimed was the catalyst for the dismissal. Viewed in this way can only lead to one result. The process leading to dismissal was seriously flawed. In my view, it constituted unfairness as defined by s84(1) of the Act. I find accordingly.

70 What then should be the remedy? Reinstatement or re-employment was not sought by the applicant. In view of the breakdown in the employment relationship, and my earlier prima facie observations of the applicant's conduct, I am satisfied that reinstatement is not a realistic or practical remedy in this case.

71 I believe an order of compensation is appropriate in the circumstances here disclosed. In deciding the appropriate level of compensation I have had regard to the applicant's relatively short service and age and that at the time of the hearing she has not obtained alternative employment.

72 I consider an order of compensation in the amount of eight weeks' pay is appropriate in all the circumstances.

73 Pursuant to s89(5) of the Industrial Relations Act 1996, the Commission orders that: 1. The respondent, Australis Music Group, shall pay to the applicant, Janice Isabel Jackson, an amount equivalent to eight (8) weeks' pay, based on an annual salary of $46,000.

The amount in Order (1) shall be payable within twenty-one (21) days of today.

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At a glance

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Before

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Judgment (88 paragraphs)

Parties

Cases Cited (8)