Judie Janine Followes v Knight Frank

JUDGMENT: - 27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Staunton J 31 October 2002

JUDIE JANINE FOLLOWES v KNIGHT FRANK (NSW) PTY LIMITED

Application under section 106 of the Industrial Relations Act 1996 JUDGMENT [2002] NSWIRComm 288

1 The applicant, Judie Janine Followes, commenced employment with the respondent on 4 February 2002 as a Secretary/Receptionist in the offices of the respondent at Customs House, Sydney.

2 The respondent is in the business of property sales and management. One of the properties currently managed by the respondent is Customs House at Circular Quay. As part of that agreement, the respondent has a small office based at Circular Quay, although its main business office is located elsewhere in the Sydney business district. The office of the respondent at Customs House comprises some two to three people, as well as daily liaison with security officers for the building.

3 Ms Followes had originally submitted a resume on or about 20 January 2002 for the position of Property Manager with the respondent. That position had previously been advertised in the Sydney Morning Herald. She was not considered qualified for that position but her resume was retained for any other receptionist or secretary roles that may arise. 4 As it turned out, such a role eventuated quite quickly because, on 29 January 2002 Ms Mackenzie, National Human Resources Coordinator for the respondent, interviewed Ms Followes for the Secretary/Receptionist position at Customs House. A verbal offer of employment was made on 1 February 2002 and verbally accepted on the basis that Ms Followes would commence work on 4 February 2002, which was the following Monday.

5 The initial offer of employment to Ms Followes was formally confirmed in writing to her with a copy of the draft contract being emailed to Ms Followes by Ms Mackenzie on the same day, that is 1 February 2002.

6 Part of the initial discussions between Ms Mackenzie and Ms Followes concerned the salary to be paid. Ms Mackenzie initially offered Ms Followes the position for - ' … a 1 year fixed term contract with a probationary period of 3 months … and … $38,000 per annum inclusive of superannuation.' 7 Negotiations at that point between Ms Mackenzie and Ms Followes resulted in an increase in the salary package, inclusive of superannuation, to $40,000 per annum. On that issue Ms Mackenzie stated: 'The applicant … had been offered a position as a Property Manager with a higher salary and she could not accept a package of under $40,000.'

8 There was undisputed evidence that, at the same time Ms Followes was considering the job offer from the respondent, she was also considering job opportunities with two other employers. The evidence was that those positions were within the same salary range as the job with the respondent and both had probationary periods as a term of employment.

9 At Ms Followes' request, and after the initial draft was sent, there were additional negotiations between her and Ms Mackenzie that saw a minor addition to one of the clauses of the contract of employment but not such as to significantly alter the terms of the contract as initially sent to Ms Followes on 1 February. A second letter setting out the amended terms of the contract of employment was sent to Ms Followes on 6 February 2002. This was followed by an email from Ms Followes to Ms Mackenzie requesting a number of minor changes and those negotiations were completed on 7 February 2002.

10 In the meantime Ms Followes commenced work as agreed on 4 February 2002.

11 Of the terms of the contract as between Ms Followes and the respondent, the one that became critical for the purposes of the proceedings before me was clause 4, Probationary Period, expressed in the following terms: 4. Your appointment is subject to a standard probationary period of three months, during which termination may be on one weeks notice given by either party.

12 It should be noted at this point that, in the negotiations between Ms Followes and Ms Mackenzie giving rise to minor variations to the contract of employment, no issue was ever made as to the terms or construction of that clause.

13 As circumstances developed in the workplace, that clause became operative at the instigation of the respondent within a week of Ms Followes commencing work on 4 February. It is those circumstances and the utilisation by the respondent of the provisions of the Probationary Period clause that brings the applicant before the Court seeking relief in the following terms: B An order declaring void in whole or in part or varying in whole or in part either from its commencement or from some other time the contract of employment between the applicant and respondent under which the applicant was employed.

C Further, in addition, an order that the operation of the contract of employment between the applicant and respondent under which the applicant was employed, created a contract which was unfair, harsh and unconscionable in that: (a) It permitted the respondent to terminate the contract of employment without sufficient performance warnings.

(b) It permitted the respondent to terminate the contract of employment without giving clear guidelines of what is expected.

(c) As the applicant had foregone two other opportunities, it discriminated on economic grounds against and to the detriment of the application (sic).

(d) It failed to provide for adequate payment to be made to the applicant upon the termination of employment having regard to the length of service and point (c) above.

(e) It invested the respondent with significant discretionary powers which may have been used in the operation of the contract to the substantial disadvantage of the applicant particularly in the circumstances relating to the termination of the contract and its understanding of probationary period.

(f) The applicant was at all times in a position of unequal and inferior bargaining power in respect of dealings with the respondent and was specifically in such a position at the time of termination.

(g) It permitted the respondent to deprive the applicant of the significant benefit of long term secure career employment.

(h) It failed to provide for any reasonable payment to the applicant by the respondent upon termination of employment for any reason. D Further in addition, an order varying the contract of employment between the applicant and the respondent from its commencement so as to include the following terms: Upon termination of employment within the probationary term, the respondent shall give to the applicant notice of termination or payment in lieu of notice of termination taking into consideration that - (i) Termination due to performance is to be properly communicated so that there is no misunderstanding and that every opportunity is given to improve before such action is taken.

(ii) Notice of termination or payment in lieu of notice of termination shall be subject to the length of probationary period worked by the applicant ie the smaller the period the greater the notice; the greater the period the smaller the notice. E Further, in addition, that the respondent pay to the applicant damages which are to be assessed for loss of the opportunity to continue the employment and/or passing up of other opportunities in taking up this contract. F An order that the respondent pay the applicant's costs of these proceedings.

G Such further or other orders as this Honourable Commission considers appropriate.

14 In making and framing the application in the terms that she did, Ms Followes was unrepresented. That was the case when the matter came before me for hearing. In presenting her case, Ms Followes filed an affidavit on 20 June 2002 accompanied by some annexure material. She gave evidence on her own behalf.

15 Witnesses called for the respondent were Ms Iona Mackenzie, National Human Resources Co-ordinator for the respondent and Ms Philippa Wilton, Property Manager for the respondent. As well, the respondent called Ms Bernadette Williams and Mr Ali Daher. Ms Williams had been employed by the respondent at its Customs House office on a temporary basis as a secretary/receptionist at the time Ms Followes commenced work on 4 February. Mr Daher was employed by Advent Security during the same period. His employment involved him attending the respondent's premises at Customs House on a daily basis.

16 Ms Wilton was Ms Followes' immediate superior in the office at Customs House. According to clause 2, Position and Reporting Arrangements, of the terms of employment between the applicant and respondent, Ms Followes was: 'required to perform the duties detailed in the attached position description and in accordance with the directions of your manager, Philippa Wilton, Property Manager.'

17 Ms Williams was employed, in part, it seems, to assist Ms Followes to ease into her role and provide her with training and assistance as required. That at least was the expectation as far as Ms Wilton was concerned. It was certainly not Ms Followes' understanding, as she consistently repeated in evidence before me. Indeed, the accumulation of issues that quickly gave rise to Ms Followes' dismissal was mired in disagreement both as to recollection and perception between Ms Followes and Ms Wilton as well as Ms Williams and Mr Daher.

18 On the evidence of Ms Mackenzie, she began to receive complaints from Ms Wilton about Ms Followes from Tuesday, 5 February. These complaints were noted by Ms Mackenzie and reported in evidence before me in the following terms: (a) That the applicant had repeatedly been directed to sit at the reception desk and take telephone calls and messages, but had disregarded the instruction and sat in the management office;

(b) That the applicant repeatedly asked to be shown the functions procedure, notwithstanding that Philippa Wilton had said she would continue to manage the functions until she felt the applicant was ready to take over this work;

(d) That the applicant's tone and manner had, at times, been inappropriate;

(e) That the applicant had not permitted a security guard, Ali Daher, to enter the office and had said to him words to the effect of "things have gone missing in the past" in an aggressive manner;

(f) That the applicant had been at Philippa Wilton's desk without permission for approximately 2 hours and had altered the email format on her computer and opened files;

(g) That the applicant had been found looking through filing cabinets in the management office without authorisation.

19 Ms Mackenzie was employed in the respondent's head office. She had interviewed Ms Followes and negotiated with her by email and phone concerning amendments to her employment contract. She also visited Ms Followes at Customs House on 7 February 2002 to deliver documents to her. But she did not directly work with Ms Followes. Accordingly, in setting out the complaints as detailed above, she was recounting the information passed on to her by Ms Wilton.

20 Ms Mackenzie responded to Ms Wilton's concerns by advising her to "keep file notes of the issues that arose and to continue to monitor the applicant's performance throughout the week." As she stated, 'I emphasised to Philippa Wilton that the applicant was on probation and that it was important to address issues as they arose.'

21 On the basis that Ms Wilton continued to express complaints about Ms Followes, Ms Mackenzie sent a letter to Ms Followes on 7 February 2002 in the following terms: Dear Judie, I am writing to advise that you are required to attend a meeting on Friday 8 February 2002 at 2pm. The purpose of this meeting is to discuss your inability to follow directions and instructions of your manger, Philippa Wilton. This may result in your termination of employment within your probationary period (sic). Should you wish someone to accompany you at this meeting, please advise us at your earliest convenience in order for suitable arrangements to be made. Please call Philippa Wilton or Iona Mackenzie if you have any further queries in relation to the above. Yours sincerely, KNIGHT FRANK (NSW) PTY LIMITED Iona Mackenzie National Human Resources Co-ordinator

22 On any view it was clear that, by 7 February 2002, Ms Followes was on notice that her continued employment was already in jeopardy.

23 The meeting that was scheduled to occur on 8 February 2002 did not occur until 11 February, the following Monday. There was no evidence given as to the particular reason for that and nothing was made of it in evidence before me. As the letter indicates, Ms Followes had been invited to have somebody accompany her at this meeting but the arrangements she suggested fell through. Despite that, the meeting proceeded with Ms Follows, Ms Mackenzie and Ms Wilton in attendance.

24 According to Ms Mackenzie's evidence, the meeting commenced by her outlining the issues that had been raised by Ms Wilton. They were in effect those matters that had been detailed in para [18] above but summarised in four points as follows:

· Tardiness on Tuesday 5th February and Monday 11th February 2002.

· Inability to follow the instructions of your manager, Philippa Wilton in relation to reception duties and your work station location on the 5th, 6th and 7th February 2002

· Locating yourself at your manager's workstation on Wednesday 6th February 2002, viewing her computer files and changing the structure and format of her e-mail account. This was conducted without permission from Philippa Wilton after you had been repeatedly asked to sit at the Reception desk.

· Addressing a security guard in an aggressive manner on Wednesday 6th February 2002 in relation to their presence in the office.

25 According to Ms Mackenzie, Ms Followes responded to the issues that had been raised in the following manner: (a) That Philippa Wilton had not repeatedly told her to sit at reception;

(b) That she had been late on two occasions because of traffic and that she was not "James Bond";

(c) That she had been late on 8 February 2002 because of the alleged harassment incident;

(d) That she had not been aggressive to the security guard nor had she accused him of theft;

(e) That in the previous job she had sat at her manager's desk and did not think there was anything wrong with sitting at Philippa Wilton's desk;

(f) That she had not altered the format of Philippa Wilton's email.

26 No elaboration or explanation was made by either party as to what was meant by "the alleged harassment incident" in para (c) above. Accordingly, I am unable to say what relevance, if any, that matter had to the issue before me.

27 After the discussions between the parties, Ms Mackenzie and Ms Wilton conferred privately to consider Ms Followes' responses and "make a decision as to termination within the probationary period." According to Ms Mackenzie: 'Philippa Wilton and I decided the applicant's responses were unacceptable. Given the range and number of problems with her behaviour and conduct in the workplace we decided to terminate her employment within the probationary period.'

28 Ms Followes then returned to the meeting and was advised that the decision had been made to terminate her employment. Ms Mackenzie stated: 'I emphasised that the probationary period was a time for an employee and an employer to decide whether they were a 'right fit' and in this case the applicant was not the 'right fit'. I reiterated that her lateness, aggressive manner, the failure to follow the directions of her manger and accessing her manager's computer were major concerns.'

29 In accordance with the terms of her contract, specifically Clause 4, Probationary Period, Ms Followes' was paid out the monies owing to her in addition to one week's pay.

30 Given Ms Followes' denials of a number of the allegations made against her, it was necessary to consider the evidence of Ms Wilton, Ms Williams and Mr Daher.

31 On the vexed question of giving Ms Followes' directions to sit at the front desk, Ms Wilton gave the following evidence, in affidavit form: (i) On Monday 4 February 2002 … she (Ms Followes) was approximately 10 minutes late … I explained to her that the initial expectation of her was to answer the telephone and take messages at the front desk. I told the applicant that Bernadette Williams, a temporary Receptionist/Secretary would provide training and assistance. I told the applicant that I wanted her to ease into the role and, as such, that there would be no specific tasks for her other than sitting at reception, observing, listening and asking questions. I told the applicant that there would be no function duties until she had settled into the role and was conversant with all aspects of work at Customs House.

(ii) On 5 February 2002 I directed the applicant to sit at the front desk, answer the telephone and take messages. She ignored this request and sat in the management office …. When Bernadette Williams left at 2pm I instructed the applicant to sit at the front desk and take telephone calls. I reiterated that I wanted the applicant to gain some experience before taking on other tasks. I believe that answering the telephone and taking messages was a good introduction to the role.

(iii) On 6 February 2002 I directed the applicant to sit at the front desk, answer telephones and observe and ask questions.

(iv) On 7 February 2002 the applicant was 20 minutes late for work. I again asked the applicant to sit at the front desk … I asked the applicant to sit at the front desk, answer the telephone and take messages. The applicant responded that there were no telephones to answer. I again asked the applicant to sit at the front desk. She refused to do so.

32 Ms Followes made much of the fact that no such precise request had ever been made to her initially and certainly no request was made of her before Wednesday, 6 February 2002. Ms Follows' evidence on this issue which she consistently repeated in one form or another is encapsulated by the following extracts from transcript: Q. You were told by Ms Wilton when you commenced employment that she wanted you to sit at the front desk? A. No I wasn't. Q. You deny that? A. I deny that.

33 Ms Followes later conceded that on Wednesday 6 February Ms Wilton had said words to the effect 'all I want you to do is sit at the front desk'. According to Ms Followes, 'that was the first time it came to my attention that that was where she wanted me to be placed'.

34 Much was made by Ms Followes, in answer to questions, of what only can be described as her view as to what Ms Wilton may or may not have said to her and the interpretation she chose to place upon it. For example, in Ms Followes' own affidavit she says, in relation to her activities on Monday 4 February: 'On Bernadette's departure PW asked me to sit at reception, which I did. I answered calls and took messages. I wrote the messages onto the book in which I had been recording my notes. PW gave me a book following these recordings and let me know that all messages are to be written up in the book. I subsequently concurred with that request.'

35 Ms Followes had already emphatically denied that she had ever had any request made of her by Ms Wilton to sit at the front desk at reception and take messages until, perhaps, Wednesday, 6 February and even then, in qualified terms, according to her. Having made that denial, her attention was drawn to her own affidavit and the entry of Monday, 4 February detailed above. Her answer was in the following terms: 'A. I misunderstood your question. I believe that, well, she did not say to me "this is where I want you sit. This is where your work area is and I want you to sit at reception full time." She wanted me to sit there because Bernadette left. I had to cover the telephones so there is a cover for reception. That was my interpretation of her request.' 36 I have to say the impression I gained of Ms Followes' evidence on critical points was her propensity to slide away from the point in issue by a change in emphasis according to her recollection and interpretation to what was said to her.

37 The evidence of Ms Wilton in relation to her directions to Ms Followes is supported in their general tenor by Ms Bernadette Williams, the temporary secretary/receptionist. Ms Williams' evidence, which was not in any way shaken by the cross examination of her by the applicant, was that she witnessed a number of incidents involving Ms Followes during that week. Of those incidents she gave evidence that she saw Ms Wilton on 4, 5 and 6 February repeatedly ask the applicant to sit at the front reception. She gave evidence that Ms Wilton explained to Ms Followes that this would enable her to gain an understanding of and familiarity with reception procedures, function enquiries and common requests from the public about Custom House activities. According to Ms Williams, despite Ms Wilton's requests, Ms Followes' tended to remain at, or return to, another desk situated in the management area of the office.

38 Ms Williams' also stated that she observed Ms Wilton explaining to Ms Followes that it was not appropriate for her, within her first week of employment, to be accessing documents located within the filing cabinet or on the computer network without gaining prior permission. According to Ms Williams, Ms Followes did not comply with this request. Ms Williams further recounted that, on 6 February 2002, she saw Ms Followes sit at Ms Wilton's desk to access computer files when Ms Wilton was out of the office and certainly without her permission.

39 Ms Williams also stated that she observed Ms Followes reprimand 'security guards' working within the property management office about their perceived lack of knowledge or adherence to office security procedures. In such circumstances she stated that Ms Followes' manner was abrupt and/or discourteous.

40 As I understood the evidence before me, the matters observed by Ms Williams took place within the relatively narrow confines of a small office comprising only some three people at that time. According to her, when challenged as to what she would have been able to see and hear, she gave evidence that she was able to overhear as well as observe what she saw.

41 The respondent also called Mr Ali Daher, the security guard who had had an altercation with Ms Followes on 6 February 2002. It should be said that while Ms Followes agreed that she spoke with Mr Daher, she denied being aggressive or offensive to him.

42 Prior to Ms Followes taking up employment with the respondent at Customs House, there was an agreement between Ms Wilton on behalf of the respondent and the security guards employed at Customs House to enable them to access the respondent's office at Customs House in order to use the photocopier, amongst other things. It would seem that this was done on a regular, almost daily basis. According to Mr Daher when he entered the respondent's office on 6 February 2002, he was confronted by Ms Followes who said to him in a somewhat aggressive manner, that: 'I was no longer allowed to access or use the facilities contained in the office area. She said to me words to the effect of "I don't want things to go missing." Her tone was aggressive.'

43 Not surprisingly, Mr Daher, as a security guard, was extremely offended by this comment and spoke to Ms Wilton about it. Ms Wilton subsequently spoke to Ms Followes. Ms Followes' evidence on this matter was to deny that she had behaved aggressively towards him or that she had been offensive or abrupt. She agrees that she was spoken to by Ms Wilton but says that it was not counselling - simply that Ms Wilton approached her and asked her about the situation and that she had explained it to her.

44 Mr Daher gave his evidence in a calm and reasonable manner. There was nothing put to him nor did her give any evidence that would suggest that the incident between he and Ms Followes on 6 February 2002 had not occurred in the way that he recounted. The fact that he saw fit to complain to Ms Wilton about it would lend credence to his recollection as to Ms Followes manner and tone in speaking to him on that day. It was an incident that had clearly upset him, given that his honesty and integrity as a security officer was being questioned.

45 In relation to the complaints that she had sat at Ms Wilton's desk in her absence without permission and used her computer, Ms Followes agreed that she had - but she denied changing Ms Wilton's email format. She said that in the two hours she sat at Ms Wilton's desk using her computer she was 'accessing the internet', not opening Ms Wilton's files. Ms Followes further agreed that she did go through files in a filing cabinet despite being told not to. Her explanation for her action was that she was simply showing initiative by following up client files. She also said she saw no reason why she should not sit at Ms Wilton's desk in her absence.

46 In the relatively small workplace at Customs House with three employees, where an employee sits may not generally be considered a significant issue. Equally, accessing a particular client's file for a relevant work related matter would be a necessity sooner or later in the course of a working day. But the time and circumstances confronting Ms Followes were not quite as straightforward as they may have become if things had developed differently.

47 For a start, Ms Followes was a new employee on something of a learning curve. She had yet to establish herself and get to know and become known and familiar to, and with, her fellow colleagues. In such a situation it would be reasonable to expect a new employee to tread a little cautiously, sensitive to the nuances of the workplace and the boundaries of her/his role. Any assertive extension of that role or specific initiatives would, it seems to me, wait until one had become an established and familiar member of the workplace.

48 On the evidence before me, Ms Followes was either incapable of appreciating, or insensitive to, the need for caution and courtesy in her new job. Assuming a right to sit at the Property Manager's desk, accessing her computer and files without permission in the first week on the job as secretary / receptionist shows a lack of sensitivity to basic workplace courtesies and no insight into how her behaviour might objectively be perceived.

49 The difficulty that one has in accepting Ms Followes' explanation and denials of all of the matters that were raised concerning her period with the respondent is that one is being asked to put aside all of the evidence of Ms Wilton, Ms Williams and Mr Daher as well as to seriously question their respective credibility. On that view it has to be said that there is no evidence before me that would lead me to such a conclusion or that there was a conspiracy by all three of them to give evidence adverse to Ms Followes.

50 My own observation of Ms Followes during the time she appeared before me was that she does, unknowingly or otherwise, from time to time, display behavioural characteristics that would have the propensity to upset and antagonise people. In other words, there was evidence of a somewhat abrasive and, on occasions, dismissive personality that also clearly lacked insight into how her actions were received and perceived by others.

51 The reality is, I believe, that while she accepted the position of Secretary/Receptionist at the office of the respondent at Customs House, she clearly saw herself above that role and she wanted, rightly or wrongly, to ultimately progress to a Property Manager position - preferably as quickly as possible. The reality was that she went about that task in the wrong way. This was a small office of some three people. In going about her task in a way that she saw as demonstrating initiative, I believe she took it upon herself to ignore direction when it suited her and she did things that she knew she was not required to do. Indeed if she had any insight at all, she would have known that some of the things she did would have upset people - and those people were the people she was working with. For example, when she accessed Ms Wilton's computer and the files in the manner in which she did. On any reasonable view, such actions would offend and upset the people she was working with and rightly give them cause for concern about the way in which she went about her work. Significantly, of course, her somewhat abrasive and dismissive manner would also be likely to give concern as to the possibility of establishing harmony in the workplace.

52 Ms Followes was late for work on three occasions in one week. It seems that one of these occasions was when she went to the head office of the respondent to see Ms Mackenzie. Her primary explanation was that that particular week was a week of very bad wet weather in Sydney. She did not deny that, when spoken to about the matter on 11 February 2002, apart from using the weather as a reason for being late, she also did say that she was not "James Bond". In many ways that response from Ms Followes is a very good example of what I mean by her lack of insight and her dismissive manner in relation to matters that clearly required a much more appropriate and thoughtful response. For a start, if there was bad weather in Sydney during that week, that was a factor that everybody who had to go to work that week, not just Ms Followes, had to contend with. To simply dismiss that complaint, which was not without some cause, in the way that she did, shows the lack of insight I have commented upon as to how her employer may view this matter. At the time she made that statement her employment was on a knife-edge. There were also other matters that she had to address and yet she saw fit to respond in the somewhat flippant way she did. She explained her response by saying that she was trying to lighten the mood of the meeting between herself, Ms Mackenzie and Ms Wilton. On any view, a clearly inappropriate perception as to what she was confronting.

53 It was not seriously disputed by Ms Followes that, after she was advised she was to be terminated within the probation period, she responded by stating that the matters that had been raised by Ms Mackenzie and Ms Wilton as to the reasons for her dismissal were "idiotic". On any view, yet again, a remark designed to further antagonise the people upon which her employment was dependent and, further, designed to antagonise any reasonable employer presented with the variety of complaints concerning Ms Followes within one week of her arrival.

54 In considering the extent to which the complaints about Ms Follows were substantiated, it is necessary to have regard to Ms Wilton's evidence corroborated as it was in many respects by Ms Williams and Mr Daher. There was no evidence before me that Ms Wilton went about her task as manager of the office of the respondent at Customs House in a way that would suggest that she was overly aggressive or excessive in her demands of Ms Followes. If anything, Ms Wilton certainly spoke very quietly which may give credence, in part, to Ms Followes' explanation that she didn't understand Ms Wilton to be directing her. Ms Wilton's rather quiet way of speaking may not have been the rather emphatic tones that Ms Followes may well have used if she had been in Ms Wilton's position. If there was any criticism of Ms Wilton to be made, it was that, when she was questioned by Ms Followes as to whether she spoke to her about her being late to work, she acknowledged that she had not, as she stated in response to a question from Ms Followes in cross examination: A. No I expected you to be on time because that was in the job description. I didn't think it was necessary to mention it and it was your first week and I was concerned.

55 Further, when Ms Wilton was questioned by Ms Followes as to the words she used when she allegedly refused to sit at the front desk her response was somewhat qualified, as the following exchange between she and Ms Followes indicates: Q. I am asking if you recall what were the words used to refuse, how that picture came across - she refused to do so? A. I asked you to sit at the front desk and you did not. Q. There are different ways that refusal could be done, was it a no I will not sit at reception; was it perhaps you did not speak up; perhaps it was not heard; was it ignored; how was it refused?

A. I believe you ignored me. When questioned by me as to what she meant by that Ms Wilton said: A. I believe she understood what I said but didn't choose to sit at the front desk.

56 On one view, one could say that Ms Wilton should have spoken sooner than she did to Ms Followes about her lateness. But that view has to be balanced against the fact that Ms Followes was spoken to after one week when she had been late on three separate occasions. As for the evidence from Ms Wilton about her belief that Ms Followes heard but ignored her request for her to sit at the reception desk, one cannot come to a concluded view. Nevertheless, as I have earlier indicated, there were elements of Ms Followes' behaviour before me that would suggest that she was quite capable of ignoring Ms Wilton if it suited her. One thing that must be said overall was that Ms Followes was no shrinking violet when it came to her views and expressing those views. For that reason, I cannot totally dismiss Ms Wilton's own perception and belief that Ms Followes knew and did hear what she asked her to do, but simply chose to ignore her. That characteristic of Ms Followes behaviour was evidenced not only by Ms Williams but also by the actions of Ms Followes in determinedly pushing ahead in accessing the computer network and the filing cabinets of the respondent without first obtaining permission and despite being told expressly not to do so.

57 At the outset there was no doubt that the respondent viewed Ms Followes' employment and her behaviour during the first week through the prism of it being a probationary period of employment. That much is clear on the evidence of Ms Mackenzie in her advice to Ms Wilton when the latter commenced to complain about Ms Followes within one day of her arrival. Ms Mackenzie gave evidence that the probationary period was viewed by the respondent as a period to assess whether or not Ms Followes was the 'right fit' for the respondent's business. It was clear that the view of the respondent was that, if Ms Followes was not the 'right fit', they would exercise their right as they saw it, subject to procedural fairness, to terminate Ms Followes' employment in accordance of the provisions of the probationary period of employment clause.

58 According to Ms Followes, it was her belief that the probationary period of employment was a fixed term within the overall contract of employment during which time neither party could exercise their rights to terminate. I say neither party because, according to Ms Followes, the probationary period provided for in the contract should have been allowed to run its full 3 months before any notice period could operate. That was her view as to how it should apply to her. On that view, one has to assume that was how she saw it applying as far as any decision she may have wished to make about leaving the company's employment. That view of how a probationary period clause should be read is clearly wrong in law.

59 The role of probationary periods of employment in the contract of employment has been commented upon in a decision of this Court in Burks v Zanmarl Pty Limited (2001) 107 IR 187 and in particular at paras [108] and [109] where Glynn J said as follows: 'The usefulness of the probationary period goes beyond such practical aspects as observing how competent an applicant actually is in the position to other matters such as seeing how the employee measures up in the workplace as to interaction with other people. A probationary period offers the utility of finding out whether, for instance "paper" qualifications that may have been offered are a true indicator of the effectiveness of the employee in the actual job or that claimed experience is actually demonstrated in practice …It is one for the benefit of both parties. It allows a reasonable period within which each party could assess his satisfaction either with the job itself and its conditions (the applicant) or, for the respondents, with the fitness of the applicant for the position."

60 As in the facts pertaining to Burks v Zanmarl Pty Limited, it was not surprising that the respondent quickly concluded that Ms Followes did not have those attributes it was clearly looking for. On all of the evidence before me, it was clear that Ms Followes simply wasn't going to fit in and provide a co-operative and harmonious working relationship between herself and Ms Wilton. Further, all the evidence suggested that there was, inherent in Ms Followes behavioural makeup, an employee who believed that she was entitled to go about her work in a way that she believed was best. She certainly did not take kindly to direction. While such characteristics may be a positive benefit to some employers, they were certainly not what this respondent was looking for. Inevitably there was a clash. Inevitably the respondent saw that its only recourse so soon in the contractual relationship was to exercise its rights in relation to the probationary period of employment.

61 Ms Followes argued that those matters giving rise to her dismissal were based on her behaviour and not, as she expressed it, on her performance. As I understood her submissions on this point, Ms Followes sought to distinguish her behaviour from the specific competencies that she brought to the job. I have to say that it is not sensible nor practical in my view to separate an employee's overall conduct as between their behaviour versus the competencies they bring to the job for the purposes of determining unfairness. Behaviour and competence it seems to me are part of the overall package that go to create an employee's suitability for a particular job in hand. In my view, to try to divorce one from the other for the purposes of assessing whether one has been dealt with fairly or unfairly denies the reality of what goes to make a suitable employee for any workplace.

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).

65 While that issue was not fleshed out in great detail, Ms Followes certainly did not believe that anything that she said at that meeting was going to change the minds of the respondent as the following exchange with counsel for the respondent indicates: Q. During the meeting you did not promise to change your ways? A. I was not asked for a commitment to change my ways. I was asked to justify what I did and I said to them I didn't do it. Q. I want to suggest to you that matters were raised being the matters we have just discussed with you and that in response to each of them you proferred either an excuse or a denial? A. That was what was asked; they asked me to justify my actions. Q. You never once, did you, say I'm sorry about that I won't do it again did you? A. I may not have. I don't know.

Q. And there was no cause for anyone in that room from Knight Frank's side, on the basis on what you had said, to believe that you would improve your behaviour after a meeting, was there?

A. There was no cause for them not to believe. and further -

Q. Knowing your employment could possibly be terminated at the conclusion of the meeting, I suggest to you that if you did have any intention of changing your behaviour you would have said so?

A. The aggressiveness that came across from those two people indicated they were not willing to listen to my instances of where things may improve.

Q. Had you promised in that meeting to change your behaviour there may well be a different outcome, do you accept that? A. I don't know. As I said, the other party did not ask, they asked me to justify it which I did following the justification for the negation (sic). They said we will think about it. There was no offer on their part to say how can we fix it up, what can I do about it. I did not offer it. As I said, the aggressiveness in that room indicated to me that they were not willing to listen to what I had to say.

and further - Q. You were aggressive in the meeting towards Ms Mackenzie and Ms Wilton … You were aggressive towards them weren't you? A. I may have behaved that way. Q. See Ms Followes, what we have is a situation where you have been employed for approximately one week and you were asked to attend a meeting where a number of issues - four in particular were raised about your conduct during the course of that one week - and at no time during that course of that meeting did you suggest to Ms Mackenzie or Ms Wilton that in future things would be different?

A. I repeat myself. The aggression in that meeting and the way it came across indicated to me that they did not care whether or not I improved. It was and this is where I was flippant and I said to them I am not James Bond. I wanted to lighten the mood; lighten the meeting. It was no reflection on the severity of the issues. It was just that the way that meeting was held was very intense.

Q. I thought you agreed with me a moment ago that during the course of the meeting that the reasons proffered were idiotic?

66 I have to say that, despite what Ms Followes said about the aggression of Ms Mackenzie and Ms Wilton, if they did display such tendencies, then the real likelihood was that they would have been responding to Ms Followes' own aggression and responses to the matters raised in the meeting with her. They certainly did not display such tendencies in their evidence during the matter before me whereas Ms Followes certainly did from time to time.

67 That Ms Followes' attitude and responses during her meeting with Ms Mackenzie and Ms Wilton were fatal to her continuing employment prospects with the respondent is evidenced by Ms Mackenzie's letter to her confirming the termination of her employment. Ms Mackenzie stated, in part: "Your responses to these issues have been file noted. However, in light of these issues and your responses , Knight Frank advised you that your employment would be terminated 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. She had clearly displayed an obstinate and at times antagonistic determination to do her own thing and go her own way as far as her job was concerned. She was clearly unwilling to respond to directions that simply did not fit that frame of mind. I am satisfied that there were occasions when she would have been antagonistic and unnecessarily aggressive in her approach and demeanour to those she came in contact with during that week, particularly the incident concerning Mr Daher. I am satisfied that her way of dealing with Ms Wilton's request to do certain things was either to ignore those requests and then argue later that she either did not hear or did not understand or that there must have been some breakdown in communication.

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.

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."

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.

· the parties are at liberty to apply with respect to costs.

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