Followes v Knight Frank

Followes v Knight Frank - [2003] NSWIRComm 41 - NSWIRComm 1990 case summary — Zoe

[18]

7 The trial judge then referred to the witnesses called by the respondent and the circumstances which led to the termination of the applicant's employment. Her Honour analysed the evidence in the proceedings in detail under the headings "The substance of the complaints" and "Relevant considerations" concluding, inter alia: 62 Ms Followes argued, not without some merit, that she should have been given the opportunity to mend her ways rather than being dismissed so soon after commencing with the respondent. In other words she said she should have been given time to mend her behaviour because she said there was nothing that would suggest that her competence was in question. The opportunity to mend her behaviour was not given to her and, that in itself, she said, was unfair. 63 As I have said, that argument, prima facie, is not without some weight. The concepts of procedural and substantive fairness may also be pertinent to unfair contracts. In the context of dismissals, procedural fairness requires that the employee be warned if job performance is unsatisfactory; the employee is also entitled to an opportunity to respond to allegations of improper conduct prior to dismissal: Law of Employment, Macken et al: 5th Edn at 503. Such an approach has also been cited with approval in relation to unfair contract allegations by the New South Wales Court of Appeal in Walker v Industrial Court of New South Wales (1994) 53 IR 121 and also in this Court in Helprin v Westfield Ltd (1996) 68 IR 25 at 51. 64 However, where I believe Ms Followes falls down in that submission is her behaviour on 11 February 2002 in her interview with Ms Mackenzie and Ms Wilton. It was this interview that was critical to her being able to convince her employer that, while her behaviour may have been somewhat aberrant and not as expected in her first week of employment, it was something she would address in a positive way and that, given time, she would turn that performance around. That such an opportunity was there before her was evidenced as much by the letter she received on 7 February 2002 when she was asked to attend the meeting because of complaints about her behaviour in the first week. That letter said, amongst other things, that having these discussions ' may result in your termination of employment within your probationary period' (my emphasis). ... 68 On all of the evidence before me, I conclude that the respondent came to the view that Ms Followes' behaviour during her first week of employment was such that she was incompatible as far as their expectations of her as an employee were concerned. ... 69 All in all, Ms Followes was never going to fit into the respondent's business at Customs House and one can understand that the respondent came to that view fairly quickly given the matters that arose. While the matters raised may individually of themselves seem relatively minor, collectively over a period of one week they were somewhat alarming as an indicator of Ms Followes' future behaviour. It was not surprising that the respondent took the steps that it did to terminate Ms Followes' employment within the probationary period.

[19]

8 Her Honour had earlier, at paras [57] to [59], referred to the judgment of Glynn J in Burks v Zanmarl Pty Limited (2001) 107 IR 187 at [108] and [109] as to the significance to the employment relationship of a period of probationary employment and the relevance of such matters to the differing approaches adopted by the respondent and the applicant as to her short period of employment. Her Honour returned to that judgment, at least inferentially in part as to that issue, when she held at para [70]: 70 Ms Followes also claimed that one of the circumstances that rendered her contract unfair was that she had forgone two other job opportunities to take the position with the respondent. I do not see how that situation can give rise to any orders in favour of Ms Followes. If anything the position is on all fours with the views expressed by Glynn J in Burks v Zanmarl at para [166] where her Honour stated in relation to Mr Burks: "He had travelled to Bourke and had talked extensively with the second respondent. He had visited the supermarket. He had been offered the position and after consideration over some days had accepted it. He had later sought and received the offer in writing. There were no misrepresentations on the part of the respondents to induce the applicant, in the first place, to apply for the position, and in the second, to accept it. It was up to him as to which position he would pursue and for him to make his decision after balancing the perceived advantages/disadvantages to him of the two offers." and concluded: 71 In the matter before me, Ms Follows discussed the offer of employment fairly extensively with Ms Mackenzie. She confidently negotiated with her on some issues. All such matters were reduced to writing and concluded over a period of days. In concluding such negotiations, Ms Followes clearly weighed up the respective merits of the positions under offer. She ultimately accepted the respondent's offer and, absent any misrepresentation, did so freely and without duress. I see no basis for any orders in favour of Ms Followes on this issue. 72 For the reasons detailed, I come to view that the applicant has not demonstrated any relevant unfairness on the part of the respondent such as to warrant the relief sought under s 106 of the Act. ORDERS 73 In this matter I make the following orders:

[50]

28 The difficulty raised by the observations made by the trial judge is that, where a judicial officer makes comments of a personal nature in respect to a party before the court, there may be a very fine line between, first, comments which are material and necessary for the disposition of the case; second, those which it may have been preferable for the judicial officer to avoid using; and third, comments which reasonably show or lead to a reasonable apprehension of bias. This area has been the subject of authoritative consideration both judicially and extrajudicially. In the latter category reference may be made to the paper given by the Chief Justice of Australia at the National Judicial Orientation Program on 16 August 1998 entitled "The Role of the Judge and Becoming a Judge" (published as "Performing the Role of the Judge" (1998) 10 Judicial Officers' Bulletin 57). In the section of the paper dealing with the topic "Fairness", Chief Justice Gleeson dealt with a number of practical aspects of the requirements of fairness which he observed might be easily overlooked. Although his Honour's observations emphasised the risk of persons who are not party to proceedings being unfairly dealt with "by an incautious manner of expressing reasons for judgment" it seems clear that they were not intended to be limited only to third parties. The paper included the following: The judge only addresses such issues as the parties invite the judge to address, and learns only so much of the facts of the case as will appear from the evidence that is tendered in the course of the proceedings. Fairness, to the parties, and perhaps to third parties, requires that the ultimate judgment be expressed in the light of an understanding of the limitations inherent in the process . Judges in the course of delivering reasons for judgment, sometimes make findings or comments which reflect a lack of appreciation of those limitations. There may, for example, be a background to litigation, of which the judge will get only a partial glimpse, it may be quite unfair for the judge, in those circumstances, to express unnecessary value judgments, or opinions, or general conclusions of fact, without knowing the whole of the background in question . ... The absolute privilege which attaches to fair reports of court proceedings should lead judges to be conscious of the harm that may be done, unfairly, to third parties by an incautious manner of expressing reasons for judgment . It is not only fairness to the parties that should be operating as part of a judge's concern . Non-parties can often be seriously damaged by a judge's manner of expressing reasons for judgment. Sometimes this may be the result of mere thoughtlessness. A judge should never cause unnecessary hurt . (emphasis added)

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