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[2001] WAIRComm 4426
mixed. The application claiming unfair dismissal was dismissed. The Respondent was ordered to pay Zuglian $13,604.60 gross for contractual benefits.
No linked legislation citations have been extracted yet.
The Commission accepted the employer’s account of how Zuglian’s employment ended. It found that the offer of another product range was genuine and that Zuglian resigned without duress, so her unfair dismissal claim failed. Separately, the employer had guaranteed her gross income of $80,000 per year and the parties agreed on the basis for calculating amounts still owing. The Commission ordered payment of $13,604.60 gross.
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Kathleen May Zuglian was employed by Ordberg Nominees Pty Ltd, trading as Western Biomedical, from 7 August 2000. The position was described in the employment letter as “Sales Manager Device Technologies Products”, with responsibility for overseeing two other salespeople and a further specialist salesperson yet to be appointed. The letter specified a salary of $56,000 per annum, a bonus scheme, a company vehicle, mobile telephone and laptop, and stated: “Total Gross Income to be not less than $80,000.”
Zuglian had substantial experience in medical product sales and management. Her previous roles included 16 years with Smith & Nephew, followed by employment at Maersk Medical. At Western Biomedical, the principal dispute was what she had been hired to do. Zuglian’s account was that she was primarily a manager who would help other staff sell Device Technologies products. Ord said she was also to sell the interventional and orthopaedic products herself, in addition to managing the other salespeople. The Commission accepted Ord’s account.
In early October 2000, Zuglian travelled to Sydney for product training. Ord was also there. He gave evidence that Device Technologies told him on 9 October that it intended to give the interventional and orthopaedic agency to Medivenn. The Commission accepted that he had not been told of the decision before that date. Zuglian left the training before it was completed and returned to Perth. Her explanation and Ord’s account of their conversations differed.
On 11 October, Ord wrote to Zuglian explaining that Device Technologies had decided to market the interventional products, orthopaedic products and Atrium Mesh through Medivenn from 1 November. He asked whether she wished to reconsider her position or take up another product range, including Tuta Healthcare. In a separate letter, he offered salary and other benefits through 24 November, pro-rata holiday pay and a $3,000 bonus, conditional on receiving her written resignation by the end of that week.
Zuglian alleged that Ord had pressured her to resign, including by withholding a cheque for her travel expenses until she resigned and berating her. Ord denied this. He said that he had paid the travel expenses and salary, discussed whether she would take the Tuta range, and then offered terms if she chose to leave. Zuglian’s handwritten resignation said she could not accept the offer to sell Tuta products or remain with Western Biomedical and resigned effective 12 October.
The Commission dismissed her claim that she had been harshly, unfairly or oppressively dismissed. It found that she had resigned without duress. It separately upheld her claim for contractual benefits, ordering Western Biomedical to pay $13,604.60 gross.
The decision turned principally on the Commission’s assessment of credibility and the documentary record. It expressly said it preferred Ord’s and Hall’s evidence where it differed from Zuglian’s. The reasons identify several matters supporting that conclusion.
First, the Commission rejected Zuglian’s claim that Western Biomedical had lost the interventional and orthopaedic products before 9 October. It relied on the 1 November memorandum from Device Technologies, which identified the product groups Medivenn would represent from that date. It also considered Zuglian’s evidence that she had attended cardiology training on 10 October. In the Commission’s view, that evidence did not fit with the suggestion that the agency had already been lost before Ord learned of the decision.
Secondly, the Commission rejected Zuglian’s position that she was not to sell Device Technologies products herself. It considered that position inconsistent with her employment terms, including the commission arrangement, and with her evidence that she attended training in cardiology products that were intended to be among the products she would sell. The Commission accepted Ord’s account that her role combined sales management with direct selling.
Thirdly, the Commission did not accept that a conflict with Meier explained Zuglian’s return from Sydney or her departure. Hall did not corroborate the claim that Ord had given Meier “total autonomy”. Hall did say that Zuglian had spoken about difficulties with Meier, but the Commission noted that Zuglian had not raised those concerns with Ord before the events leading to her resignation. It also considered that Zuglian’s own evidence did not establish an urgent need to leave the training and return to Perth to discuss those workplace issues.
Fourthly, the Commission accepted Ord’s evidence that the Tuta offer was genuine. Ord said Tuta had requested a dedicated salesperson for new product ranges, and that he later assigned responsibility for the range to another employee. He described the products as similar to products Zuglian had sold at Maersk. The Commission preferred this evidence to Zuglian’s claim that the position was not real.
The Commission also addressed Ryan’s affidavit. It admitted the affidavit under s 79C of the Evidence Act 1906 (WA), having found the statutory preconditions met. But admissibility did not determine how much weight it should receive. The Commission gave it no weight, reasoning that parts of it stated conclusions without explaining their factual basis and that the statements concerned a central issue. This distinction is important to the actual reasoning: a document can be admitted but still be given little or no weight.
The contractual claim was dealt with separately. Counsel for both sides conceded that if the unfair dismissal claim were dismissed, salary owing through 24 November was to be calculated at the guaranteed annual rate of $80,000, with specified payments and the $3,000 bonus taken into account. The Commission accepted the resulting figures and ordered $13,604.60 gross.
The reasons do not set out a general legal test for unfair dismissal, constructive dismissal or duress. They are primarily a decision applying the evidence to the particular events surrounding Zuglian’s resignation. It would therefore go beyond this judgment to extract a comprehensive rule about when a resignation amounts to a dismissal or when pressure makes a resignation involuntary.
The statutory legal material discussed in the reasons concerns documentary evidence under ss 79C and 79D of the Evidence Act 1906 (WA). The Commission set out s 79C, which allowed certain documentary statements to be admitted when direct oral evidence of the fact or opinion would be admissible, subject to specified conditions and exceptions. The section also gave the Commission a discretion to reject a statement in certain circumstances, including where its admission could cause undue delay or prejudice or confuse the issues.
Section 79D, as reproduced in the reasons, addressed the weight of evidence admitted under s 79C. It directed attention to circumstances relevant to accuracy, including whether a statement was made contemporaneously, whether there was an incentive to misrepresent, whether information was systematically collected, and how it was reproduced or derived.
The Commission’s treatment of Ryan’s affidavit illustrates the distinction between those stages. It admitted the affidavit but gave it no weight for the reasons stated. The judgment does not purport to alter or develop the statutory rules. Nor does the supplied judgment establish how later courts treated it. No cited cases or later decisions are discussed in the reasons provided.
The reasons state: “I prefer the evidence given by Mr Ord and Ms Hall where their evidence departs from the evidence given by the Applicant.” In plain English, the Commission resolved the conflicting accounts by accepting the employer’s witnesses on the disputed matters. The result depended significantly on that factual assessment.
The Commission’s central finding on departure was: “Accordingly, I find that the Applicant resigned without duress.” This was not a general statement that any resignation in similar circumstances is voluntary. It was the Commission’s conclusion on the evidence it accepted in this case.
The decision also records the finding that the Tuta offer was genuine. That mattered because Zuglian’s position was that the alternative role was not real. Ord’s evidence that Tuta wanted a dedicated salesperson, and that another employee was assigned the range after Zuglian declined it, supported the Commission’s conclusion.
On the affidavit, the Commission said that the statutory preconditions for admission were met, but that it did “not intend to give any weight to the matters stated in Mr Ryan’s Affidavit.” It gave two reasons: several statements were conclusions unsupported by factual information, and the statements concerned a central and significant issue. In plain English, the affidavit entered the evidentiary record but did not assist the Commission in resolving the key factual dispute.
For the contractual claim, the reasons record that the parties agreed on the calculation basis and state that the Respondent should pay “the gross sum of $13,604.60.” The figure was not a general award for unfair dismissal. It was an order for the contractual amounts calculated on the agreed basis.
The text supplied for this judgment displays repeated paragraph numbers, apparently because of document formatting or extraction. For that reason, this analysis refers to the section headings, dates and passages rather than assigning potentially inaccurate paragraph references.
The decision is most relevant as an example of a short-employment dispute where the employee’s departure is contested as either a resignation or a dismissal, and the Commission must decide between materially different accounts of the conversations leading to the resignation. Its reasoning shows the importance it placed on contemporaneous documents, the timing of the agency change, the employee’s stated job responsibilities and the evidence of other witnesses.
It may also be relevant where an employer offers an alternative role after a product line or business opportunity is lost. Here, the Commission considered whether the Tuta role was genuine by examining the employer’s evidence about the supplier’s request, the product range, and the later allocation of responsibility to another employee.
A further relevant pattern concerns a contractual pay guarantee that differs from the stated base salary. The employment letter identified a $56,000 salary but also guaranteed total gross income of at least $80,000. The parties’ concession on the payment calculation allowed the Commission to resolve the contractual claim independently of the unsuccessful dismissal claim.
Finally, the case illustrates the difference between admitting a document and relying on it. A party relying on a statutory documentary-evidence provision may still face a separate question about the document’s weight, especially where it states conclusions without giving their factual basis and addresses a central disputed issue.
These observations describe features of this decision, not a complete legal test or a prediction about another dispute.
The judgment supplied for analysis contains no discussion of later decisions, and no later court treatment can be established from its text. It cites no other judgments and does not identify itself as applying, distinguishing or overruling a precedent. The precedent-relationship field is therefore empty.
The citation identifies a decision of the Western Australian Industrial Relations Commission delivered by Commissioner J H Smith on 14 December 2001. The source also gives the citation as [2001] WAIRC 04426. The supplied text states that it was last updated on 5 July 2007, but it does not provide a subsequent history or a list of citing cases. Any account of later treatment would require sources beyond the judgment provided here.
The decision leaves several matters unaddressed as general legal questions. It does not formulate a test for distinguishing a resignation from a dismissal, nor does it set out a general test for duress. Its conclusion rests on the evidence and the Commission’s assessment of the witnesses in this particular matter.
The reasons also do not explore in detail how the $80,000 guarantee interacted with the bonus scheme in circumstances where the employee might earn commissions. The parties agreed on the calculation used after the dismissal claim failed, so the Commission did not need to resolve a broader dispute about the operation of the remuneration terms.
The evidentiary discussion is similarly confined. The Commission explained why it admitted Ryan’s affidavit and then gave it no weight. It did not undertake a broader analysis of the scope of s 79C or s 79D, or decide a contested issue about the application of every subsection reproduced in the reasons.
Finally, the text does not establish whether the decision was appealed, followed, distinguished or otherwise treated by later courts or tribunals. Those questions remain open on the material supplied.
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CITATION NO. 2001 WAIRC 04426
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Result Application claiming unfair dismissal, dismissed. Claim for contractual benefit upheld.
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Breast Implants - For Augmentation and Reconstruction
Sterilizers - Steam and Low Temperature - liquid and gas
Washing & Decontamination Equipment (free standing & Tunnel Washers)
Cleaning Brushes (specifically designed to clean surgical instruments)
I confirm your appointment with the Company as Sales Manager Device Technologies Products, overseeing Jan Hall, Chris Meier and a yet to be appointed additional specialist salesperson, who will have sales responsibility for selected ranges of D.T.A. lines.
Bonus scheme - as well as your own bonus paid on performance to budget, you will receive in addition, amounts equal to the bonuses paid to the three sales people under your contract.
Fully maintained Company vehicle to be supplied before commencement.
Mobile Telephone supplied, and all charges related paid by the company.
Out of pocket expenses incurred to be claimed and paid by the Company 15th of each month.
Kathy, I look forward to your role in the development of Device Technologies team within Western Biomedical, and a long and fulfilling career with us.
Ms Meier, she said she was not a team player and was an extremely difficult person to get along with. She said she did not wish to answer to anyone and was blatantly arrogant towards her (the Applicant). 4. The Applicant testified that Ms Meier would often purchase cakes and incur expenses for lunches and dinners without asking the Applicant to sign off the expenses for the bills. Further, that she would exclude the Applicant from dinners and lunches with clients so the Applicant had no opportunity of meeting the people that Ms Meier was having contact with. She said she spoke to Mr Ord about this and he indicated to her that she should be signing off expenses for the accounts. As a result, the Applicant sent Ms Hall and Ms Meier an email on 14 September 2000 setting out what she required from each of them:
"Dear Ladies, In an effort to assist me with the running of Device Tech. I would appreciate it if in the future the following information etc. be run past me prior to any action being taken by you.
Mr Ord and one to Device Technologies. She said a report was due on Friday 6 October 2000. Ms Hall gave her report to the Applicant. She asked Ms Meier for her report on a number of occasions but Ms Meier refused to submit a report to her. She asked Ms Meier on 6 October 2000 why she had not provided a report and Ms Meier said "I don't have to answer to you. Jim's given me total autonomy to do basically what I like." The Applicant said she went to speak to Mr Ord about this issue but that Mr Ord was too busy and was unable to see her. She said, however, that when she was leaving the office at about 5.15pm she saw
Ms Meier sitting in his office. The Applicant flew to Sydney for training on Sunday 8 October 2000. Mr Ord also flew to Sydney on the same day on a separate flight but he stayed at the same hotel as the Applicant. The next morning the Applicant and Mr Ord were picked up from their hotel in Sydney and taken to the offices of Device Technologies. The Chief Executive Officer of Device Technologies is Mr Ord's brother, Mr Peter Ord. Mr Peter Ord was going to America that day. The Applicant said that Mr Ord was not interested in talking to her, in particular his body language was very non-committal. She said they met most of the people in the office and did a tour of the warehouse. Later that day she sat down with the lady who is the products specialist in the plastic surgery area of products and did some training. The Applicant said she only saw Mr Ord briefly on the Tuesday when he came to part of the cardiology session. She received training in the cardiology range of products for two or three hours. Mr Ord returned to Perth on Tuesday afternoon. 2. On Tuesday evening the Applicant rang Ms Hall, who was in the northwest of Western Australia on company business. The Applicant asked her if she knew anything about what had transpired at the meeting (between Mr Ord and Ms Meier on Friday). She said that Ms Hall told her that "Mr Ord had given Ms Meier total autonomy". She said she felt very upset about that and decided to return to Perth. She telephoned Mr Ord from the airport the next morning and told him "Look, I really think we need to have discussions about what is going on." She said he told her she should not cut her trip short because she was going into a training session on the sterile area of products. The Applicant informed Mr Ord that she had already telephoned the person who was picking her up and told her she would not be there to go to the training session. She flew back to Perth and arrived at about 2.30pm. She said Mr Ord telephoned her when she returned. She said she was at home and that she tried to have a discussion with him about Ms Meier but it was hopeless, that he was not interested in talking to her and he asked her for her email address. 3. The Applicant said that the next day she met with Mr Ord in his office at 7.00am and that he gave her two documents, one of which outlined a package for her to leave. The first letter is dated 11 October 2000 and it stated as follows:
Having just returned from Device Technologies in Sydney, I have to advise you that Device have decided to market their Interventional range of products (Cardiology, Urology and Radiology) Arthrex Orthopedic products and Atrium Mesh through a new company, Medivenn Pty Ltd, which commences trading November 1st.
As this was the range of products you were scheduled to handle for Western Biomedical, I wonder whether you may wish to re-consider your position with us, or alternatively I could offer you another range of products such as Tuta Healthcare etc.
Apparently a husband and wife team have just resigned from Boston Scientific, and being old friends of Device Technologies Australian management, convinced them to alter the WA distribution.
Provided I receive your resignation in writing (due to the Device Technologies Australia decision) by close of trading this week, I am willing to offer you:-
As you have only been with us 10 weeks, I feel that my offer is very fair.
It is with regret that I cannot accept your offer to sell the Tuta range of products or remain with Western Biomedical. So as of today's date 12/10/00 I tender my resignation.
Ms Meier's behaviour. However, when it was put to her that the first time Mr Ord had heard of any difficulties she had had with Ms Meier, was when she gave her evidence, she said that was totally untrue. She stated he would have been able to sense it in the office because you cannot work in a small office without knowing that there is a problem. Further, she said he knew there was a problem because she had tried to make appointments with him to discuss this matter. She did, however, concede that she did not try to speak to Mr Ord at home on the weekend prior to going to Sydney. She said she wanted to return to Perth because there seemed to be a lot of unanswered issues in her management and that she was not in control of her position. However, she also conceded that at no stage did Mr Ord tell her that she was not in charge as sales manager, nor did he tell her that Ms Meier had total autonomy. 6. It was put to the Applicant that the reason why she returned from Sydney was because Mr Ord told her on Tuesday morning that Device Technologies had made a decision that the orthopaedic and interventional division range of products had been lost and that she had said to Mr Ord "Well, what is the point of continuing to train if we haven't got the product?" The Applicant denied that such a discussion had taken place and strongly denied that was the reason why she left Sydney. The Applicant's mobile telephone records of calls made by her on and from 9 October 2000 until 12 October 2000 were tendered into evidence. The records showed the Applicant had telephoned Mr Ord on Wednesday afternoon and spoke to him for 34 minutes and 25 seconds. It was put to the Applicant that Mr Ord discussed with her in a very lengthy conversation whether she wanted to take up selling the Tuta range of products as they had now lost the range of Device Technology products which it had been intended she sell. She denied he did so. It was put to the Applicant that she told Mr Ord that she was not interested in selling "that crap", to which she said she had said no such thing and there was no discussion about the Tuta range, so she could not have made any derogatory comments. It was also put to her that she said, "If I chose to resign what are you prepared to offer me?" which she denied. It was then put to her that she made it fairly clear to Mr Ord on the Wednesday afternoon that she was intent on resigning. She denied this and said that she was not in any position to resign. However, she said that she could not recall very much about the conversation that she had with Mr Ord on the Wednesday afternoon. As to her letter of resignation, she agreed that she composed the letter but said she put the part in about the Tuta range, as Mr Ord told her to put that in otherwise she would not get her pay. When it was put to her that it was intended that she sell the orthopaedic range she denied that that was the case and said you could not learn the orthopaedic range in one week and that she was not equipped or qualified to sell orthopaedic products. 7. When asked what she had said to Ms Hall on the telephone when she spoke to Ms Hall from Sydney, when Ms Hall was in the Northwest, the Applicant said she couldn't recall much about saying anything about the courses in Sydney, although in her opinion the courses were not the most exhilarating she had ever been on.
Peter Ord, that the Western Australian agent, Stubber Medical, had expressed a desire to relinquish the agency because they wished to pursue importation of different products. Consequently, Device Technologies were looking for a new Western Australian agent. As a result of discussions between Mr Ord and representatives of Device Technologies he obtained the agency. He said that the conditions attached to obtaining the agency were that he was required to employ three people to sell and support the product range. He said there were three main divisions of products. Plastics, theatre and sterilisation, and interventional and orthopaedics. He said he engaged Ms Meier to sell the plastic products, Ms Hall to sell the theatre products and the Applicant to sell interventional and orthopaedic products. He testified that the Applicant was primarily employed to do two things. Firstly, she was to sales manage Ms Meier and Ms Hall, who had no experience in selling. Secondly, she was to sell the interventional products and in the short term she was required to sell the orthopaedic products as well. He said that if the market had become big enough he might have employed another person to sell specifically the orthopaedic products. He said he was advised by Device Technologies that he was required to take on the full range of products. However, when cross- examined he said shortly after he obtained the agency that Device Technologies lost the right to distribute gynaecological products. Also, there were no laparoscopic products offered to him. He said there was practically nothing in the product line for general surgery, but that one line of surgical products was given to Ms Hall and anaesthesia and critical care was given to an existing employee. Further, that vascular surgery was given to Ms Meier and electrosurgery products which were intervention division products, were also given to Ms Meier. Consequently, he says that cardiology, radiology and urology, together with orthopaedic products were the responsibility of the Applicant. 3. Mr Ord said that he agreed to guarantee the Applicant a higher salary than Ms Hall and
Ms Meier as she was to carry out sales manager duties. Mr Ord testified that the reason he employed the Applicant was because she had an excellent reputation in the market as both a sales person and a sales manager. He said that he estimated when he took over the Device Technologies range of products that it would add to the turnover of his business in the vicinity of $2.5million per annum. This estimation was based on reports of Stubber Medical's performance. He said that he expected that with three sales persons the volume of sales could increase to $3million per annum so as to support three sales persons. 4. As to the range of Device Technologies products Mr Ord said that he did not foresee that the Applicant would have any difficulty learning and understanding the products and being able to oversee the other two sales persons as the products were not very complicated. He said that the Applicant said to him "they don't seem to be very complicated to me. I can sell these." He said that he had anticipated that they would sell roughly $1million in plastic products, $1million in infection prevention products and the balance would be $500,000 to $600,000, consisting of sales in the interventional/orthopaedic division. 5. Mr Ord said there was only one type of orthopaedic product and they were knee implants. He said that in relation to cardiology products that they were principally low-tech disposable products that are inserted in the heart. Further, the radiology and urology range consisted of a range of stents. 6. Mr Ord said that prior to going to Sydney for training the Applicant spent time in the field with Ms Hall and Ms Meier getting to meet the clients and seeing how they reacted with the clients. He said he knew nothing about any difficulty between the Applicant and Ms Meier until he heard the Applicant's evidence. He said that on Friday 6 October 2000 the Applicant was not in the office most of the day; that he understood that she was training elsewhere. He said
Ms Meier came into his office but he was not aware that the Applicant wanted to see him or that Ms Meier had refused to provide a monthly report to the Applicant for preparation of the Device Technologies monthly report. 7. Mr Ord testified that the trip to Sydney was for the Applicant to receive training in the products she was going to sell and also to familiarise herself with the products that
Ms Hall and Ms Meier were selling. He said she was going to be learning about cardiology, radiology, urology products, some orthopaedic products, plastic surgery products and sterilisation products. He agreed that the Applicant paid for the trip to Sydney on the understanding that the Respondent would reimburse her for all expenses including the cost of accommodation and the airfare. 8. Mr Ord said that the reason he went to Sydney was that he was having some logistical difficulties in getting a sterilisation chemical which was highly corrosive across from Sydney to Perth and he went to Sydney to have discussions with Mr Kevin Ryan, who was also a director of Device Technologies, about the logistics and transportation of that product. He said he had not intended to visit any of the training sessions, although when he had a spare moment he attended the cardiology session for about 15 minutes and he also went to another training session for a short period of time. 9. Mr Ord said that on Monday, 9 October 2000 he and the Applicant were picked up from their hotel by a Device Technologies representative. He said that when they arrived at their office he spoke briefly to his brother who was leaving to travel to America. He then went to speak to
Mr Ryan as Mr Ryan was the person that he (Mr Ord) dealt with in the company. He said that Mr Ryan informed him that the Respondent was about to lose the agency for the orthopaedic and interventional range of products as the directors of Device Technologies had made a decision that their products would be better served by granting an agency for these products to a Mr and Mrs McLauchlan who owned a business called Medivenn, and who were about to commence operation in Western Australia. Mr Ord testified that he thought this decision was very unprofessional. He was very unhappy. He said he did not discuss the decision with the Applicant on Monday as she was in training during the day and that evening he and the Applicant went out to dinner with two Device Technologies managers. He said he did not think it was appropriate to discuss it with her in the presence of the managers. 10. Mr Ord said the next morning he spoke to the Applicant shortly after they arrived at Device Technologies office in Sydney in the foyer. He said that her response was "What am I doing here training? Why should I keep on training when I haven't got the products anymore?" He said she was upset and he said to her "Kathy, well look, it's up to you. I've got to go back but it is entirely up to you whether you keep training or whether you return." He said he really left it up to her as to whether she wished to stay on. He said he would have preferred her to stay for the rest of the training because she could have received training in the plastic surgery and surgical theatre products. 11. Mr Ord said he returned to Perth on Tuesday 10 October 2000 and on Wednesday morning,
11 October, the Applicant rang him from Mascot Airport to say that she saw no purpose in continuing the training when they had lost the products so she was coming home. He said he told her "fine, then please phone me when you get here"? He said that she telephoned him later that day and in the phone call that lasted over 35 minutes, they discussed the loss of the agency and he made the offer to her of selling Tuta products. He said she was quite derogatory about the range. Mr Ord said that when he offered the Tuta range of products to the Applicant she said "I don't want to sell that crap." So he said to her "perhaps we should look at you leaving company. If so, let's discuss it." He said he discussed this with her for about 15 minutes and at the end of the conversation he offered to pay her until 24 November 2000 and for her to have the use of the company vehicle and mobile phone until that time. He also said he would pay her pro-rata annual leave until 24 November 2000. He said she asked for a $3,000 bonus. He said he thought that was overboard but he would agree to it. He said that if she had stayed and taken over the Tuta range of products she still would have overseen the sales of Ms Hall and Ms Meier. 12. When it was put to Mr Ord that the offer of the Tuta range of products was not genuine, he said that this was not correct. He said he had received a demand from the marketing manager of Tuta Healthcare that they put in someone specifically to handle their product range, as they had just released two ranges called "Rocket" and "Paragon". He said Tuta Healthcare wanted someone dedicated within his agency to sell those products. Mr Ord testified that after the Applicant refused the offer he appointed another person who was already employed by the Respondent, to take responsibility for the Tuta range. He said that Ms Sandy Oswald had recently lost part of her range of products so he allocated the Tuta range to her. A memorandum from Mr Ord to Ms Oswald dated 24 October 2000, was tendered into evidence stating that Ms Oswald was responsible for that range from 1 November 2000. He said that this range of products was very similar to the range of products the Applicant was selling when she was employed by Maersk. He said that they are extruded plastic products which are manufactured in Australia. They are low-tech, high volume, low-value products. He said she should have known what the Tuta range of products were because quite a few of the products were competitors to the products that she sold at Maersk. He said he had nothing else to offer her apart from the Tuta range. 13. Mr Ord said that when he spoke to the Applicant on the Wednesday afternoon, he told her to come in at 7.30am the following morning before the staff came in so they could discuss the matter. He said she came in about 7.30am the next morning and the first thing he did was to hand her a cheque to reimburse her for the expenses incurred by her for the Sydney trip and he also handed her a pay cheque. He said he asked her whether she had reconsidered the Tuta range of products and that she said, "Yes, I have, but no thank you." He said he then began to talk about why the Medivenn people had been preferred by Device Technologies and his understanding as to why Device Technologies had made the decision to grant an agency to Medivenn. He said she asked if there were any other products he could offer her and he said "No." He then talked about her resignation and he gave her the two letters and after she read them she said, "Well, hand me a pad, Jim, I might as well resign here and now." He handed her a pad and pen and she wrote out the resignation. 14. He said the Applicant was extremely calm during this meeting. After she wrote out her resignation he said to her, "I suggest you get your personal things out of the office" and he said goodbye. He said she had her own office at that stage. He said he paid her two weeks' salary on 28 October 2000 in accordance with the agreement, but then he received a letter from the Applicant's solicitors making a claim for unfair dismissal. He then decided he would not pay the Applicant anymore money in accordance with the agreement because of the action she took in making a claim for unfair dismissal. He said he had been prepared to make the payments in accordance with the letter. The Applicant retained the car and mobile telephone until the first week in December 2000. 15. Mr Ord said at no time did the Applicant ever mention to him that she was having difficulties with Ms Meier or that Ms Meier had not provided her report by the deadline required by Device Technologies. Further, she did not mention anything to him about Ms Meier apparently having total autonomy. He said he had heard nothing about the Applicant's complaints in relation to Ms Meier until he heard her evidence at the hearing. Further, he denied that he had refused to provide her with a cheque for expenses and her salary until she had supplied the resignation. He also denied saying that she was "hopeless". He also denied ringing anyone at Smith & Nephew. He said he did not know anyone at that company to call. 16. When the email to Ms Meier and Ms Hall was put to Mr Ord in cross examination, he said that he had not previously seen a copy of the email. He said that staff were permitted to spend money on petty cash items and claim it back as expenses. He said however, that all visits from Device Technoligies personnel should have been discussed with the Applicant but that
Ms Hall and Ms Meier would be entitled to arrange their own lunches and dinners with clients and were not required to discuss those matters or obtain authorisation from the Applicant to make such arrangements. 17. Ms Janet Hall gave evidence on behalf of the Respondent. Ms Hall said she is employed by the Respondent as a Product Specialist and that prior to being employed in that position she worked as a nurse at the Mount Hospital in Perth for a number of years. She said she met the Applicant through her work at the Mount Hospital as she was the Area Manager of a unit that used sterile products. She said she got to know the Applicant when she was with Smith & Nephew and had contact with her again whilst she was working with Maersk. Ms Hall said that the Applicant contacted her and advised her that "she had just the job for her" and to ring Mr Ord at Western Biomedical. She says that following an interview she obtained her present position. She also said she works with Ms Meier. 18. Ms Hall says she underwent training in Sydney at Device Technologies' office for two days in October 2000. She said Monday of that week was a long weekend so she flew to Sydney on Tuesday, 3 October 2000. She had two days' training on 4 and 5 October and she flew back to Perth on Friday 6 October 2000. She said she did not see Mr Ord on the Friday when she returned as she did not arrive back in Perth until after the office was closed. She said that Tuesday of the following week she flew to Port Hedland and drove to Karratha later that day. She said that whilst she was driving to Karratha she received a call on her mobile phone from the Applicant. She said it was a very long telephone conversation and the Applicant told her that she was in Sydney. The Applicant told Ms Hall that she had gone to Sydney expecting to be given education in new products and that had not eventuated. Ms Hall said the Applicant told her she was not happy. She said initially she was quite aggressive and then she became quite emotional. Ms Hall said they also spoke about Ms Meier and the difficulties she (the Applicant) encountered with Ms Meier. She said that the Applicant and Ms Meier had a personality clash, that they did not get on very well from the very beginning. She said the Applicant told her that she had asked Ms Meier to do her report and Ms Meier had not produced the report, which seemed to upset the Applicant. She said the conversation she had about Ms Meier was along the lines of conversations she had had with the Applicant quite often in the past. When asked whether she had informed the Applicant that Mr Ord had given Ms Meier total autonomy she said she had not said that. 19. In cross-examination Ms Hall was asked about her view of Ms Meier and she said that she thought she was not a team player but that she did not have a problem with her because she did not deal directly with Ms Meier. When asked whether she recalled the Applicant complaining about the quality of the training she had received in Sydney, Ms Hall said that the Applicant commented that she was not having any training because it now appeared there were no products for her to be trained in. Ms Hall said that she did not specifically know what had happened on the Monday and Tuesday in Sydney but the Applicant seemed unhappy with the whole scenario. 20. The Respondent made an application to tender into evidence an Affidavit made by Kevin Gerard Ryan, the Services Marketing Manager for Device Technologies Australia. The application was made pursuant to and (g) of the . and of the provide:
(1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -
(b) directly or indirectly reproduces or is derived from one or other or both of the following -
(i) information in one or more statements, each made by a qualified person;
(ii) information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.
(2) Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless -
(b) he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness;
(c) he is out of the State and it is not reasonably practicable to secure his attendance;
(d) all reasonable efforts to identify or find him have been made without success;
(e) no party to the proceedings who would have the right to cross-examine him requires him to be called as a witness;
(f) having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement;
(g) having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or
(2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -
(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b) the court is satisfied that the business record is a genuine business record.
(2b) Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.
(3) This section makes a statement admissible notwithstanding -
(b) the rules against secondary evidence of the contents of a document;
(c) that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or
(d) that the statement is in such a form that it would not be admissible if given as oral evidence,
but does not make admissible a statement which is otherwise inadmissible.
(4) Notwithstanding subsections (1), (2) and (2a), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of -
(a) the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings;
(b) an investigation which led to the discovery of facts constituting or being constituents of the alleged offence;
(c) the preparation of a defence to a charge for any offence; or
(d) the preparation of the case of the prosecution in respect of any offence,
shall not be rendered admissible as evidence by this section.
(5) For the purposes of this section a court may -
(a) for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances;
(b) in deciding whether or not a person is fit to attend or give evidence as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner.
(6) For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -
(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.
79D. Evidence admitted under s. 79C, weight and effect of
(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by section 79C regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular -
(a) to the question of whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated;
(b) to the question of whether or not the qualified person or any person concerned with making or keeping the document containing the statement, had any incentive to conceal or misrepresent the facts;
(c) to the question of whether or not the information in the statement was of a kind which was collected systematically;
(d) to the question of whether or not the information in the statement was collected pursuant to a duty to do so;
(e) where the statement wholly or in part reproduces or is derived from information from one or more devices, to the reliability of the device or devices; and
(f) where the statement reproduces or is derived from any information, to the reliability of the means of reproduction or derivation.
(2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by virtue of section 79C shall not be treated as corroboration of the evidence given by the qualified person."
"1. I am the Services Marketing Manager for Device Technologies Australia of Unit 6, 10 Rodborough Road, Frenchs Forest in the said state ("Device Technologies").
"1. All stock in Western Biomedical's warehouse to be packed and collected by Medivenn on Tuesday, October 31, 2000. Both parties to agree and sign off and Device Technologies Australia will then credit Western Biomedical for agreed amount (approx. $12,000 L/C) and transfer on consignment to Medivenn.
Would everyone please complete their respective roles in this transition.
"This is to inform everyone of the commencement of MediVenn Pty Ltd with effect from November 1, 2000.
Caroline and Paul McLauchlan are representing Device Technologies Australia in the Western Australian market as commission agents on specific product lines. These are areas of business beyond Jim Ord and his Western Biomedical's business base.
The immediate product groups are the total Orthopaedic business of the Surgical Division and the total Radiology, Cardiology and Urology business of the Interventional Division i.e. all Interventional products. These product groups may be (and will be) altered from time to time and all will be informed as appropriate.
The McLauchlans will remit orders as per our old distribution business, Device Technologies Australia will invoice and ship direct to the client, or to the McLauchlans if replacing consignment inventory and a monthly commission will be paid on all sales.
Caroline was associated with us and our Interventional product range in the early 90s via Stubber Medical. She proved very successful then and since with BSC on the East Coast.
Paul also has great experience in Interventional areas and more recent success in Neuro surgery and Neuro radiology. Paul will concentrate on the orthopaedic lines initially.
We wish them well in their new endeavour and look forward to sharing success with them both. I know everyone will provide as much support and assistance as required.
(a) Paragraph 3, 6 and 7 simply state conclusions and are unsupported by any factual information on which those conclusions are based.
(b) The matters stated in paragraphs 3 to 7 make statements which go to a central and significant issue in this case.
(a) he was not informed by any representative of Device Technologies that the Respondent had lost the right to sell orthopaedic and interventional range of products until 9 October 2000;
(b) the Applicant's role was to sell orthopaedic and interventional products as well as oversee the sales work of Ms Hall and Ms Meier; and
(c) the offer to the Applicant to sell Tuta products was genuine.
In reaching this conclusion I have not had regard to the matters set out in Mr Ryan's Affidavit. I have had the opportunity of seeing the witnesses give their evidence. Of the Applicant I have considerable concern as to the veracity of her evidence. In preferring the evidence given by Mr Ord and Ms Hall to the evidence given by the Applicant I have had regard to the following matters that I view as significant:
(a) I do not accept the Applicant's evidence that the Respondent lost the right to promote and sell Device Technologies orthopaedic products prior to Monday
9 October 2000. Exhibit 7 shows that Mr and Mrs McLauchlan were granted an agency to sell "the total orthopaedic business of the Surgical Division and the total Radiology, Cardiology and Urology business of the Interventional Division i.e. all Interventional products" from 1 November 2000. Further, the Applicant's contention is inconsistent with her testimony that she received training in cardiology products on Tuesday morning, 10 October 2000. In addition, I do not accept the Applicant's contention that she was not to be responsible for selling any of the Device Technologies products. Her contention is contrary to the express provisions of contract of employment which contemplates that she would be paid commissions on products sold by her, and is inconsistent with her testimony that she completed training in Sydney in the cardiology products, which were products that it was intended that she sell.
(b) Ms Hall's evidence does not support the Applicant's evidence that she returned to Perth because Ms Hall told her that the outcome of the meeting Mr Ord had with Ms Meier on Friday, 6 October 2000 was to give her "total autonomy". Ms Hall says that she did not make this comment. Ms Hall's evidence was that she did not speak to Mr Ord before he went to Sydney as she was travelling from Sydney to Perth on Friday 6 October 2000 and did not return to the office that day. In addition, Ms Hall testified that the Applicant indicated to her in the telephone call that there now did not appear to be any products for her to be trained in.
(c) The only corrobative evidence of the Applicant's version of events is:
(i) her uncontraverted evidence that she was in a vulnerable financial position in that she had no cash reserves and had recently put an offer on a property; and
(ii) the evidence given by the Applicant and solicitor, Mrs Andrea Lyons, of a recent complaint in that she made a complaint to Mrs Lyons on 13 October 2000 that she had signed a letter of resignation under duress.
(d) I have had regard to submission made on behalf of the Applicant that as
Ms Meier was not called to give evidence, her evidence would not have assisted the Respondent's case. Further, I have had regard to the fact that Ms Hall's evidence is corrobative of the Applicant's evidence that Ms Meier refused to provide her report, was arrogant towards the Applicant and not a team player. However, the Applicant conceded that prior to her termination she did not raise these issues with Mr Ord. Her evidence at its highest is that she tried to raise these issues with Mr Ord when she spoke to him in the afternoon of Wednesday, 11 October 2000. In addition it was her own testimony that Ms Meier told her (the Applicant) on 6 October 2000 that Mr Ord had given her (Ms Meier) total autonomy. I do not accept that the Applicant returned to Perth on Wednesday, 11 October 2000 because there was some urgency in discussing these issues with Mr Ord, when training had been arranged for her on Wednesday in the products to be sold by Ms Hall.
Kathleen May Zuglian
Ordberg Nominees P/L T/as Western Biomedical [2001] WAIRComm 4426
The application claiming unfair dismissal was dismissed. The Respondent was ordered to pay Zuglian $13,604.60 gross for contractual benefits.