Robyne Louise Cole and Sean Francis Xavier Kenny [2007] NSWIRComm 1074

CASES CITED: Jones & Dunkel (1959) 101 CLR 298

Mr Maurice Gelbert of Counsel briefed by Ralph Wall, a solicitor of Hinterland Legal, Mullumbimby. LEGAL REPRESENTATIVES: Mr P Smart of Counsel briefed by Darryl Quigley, Partners, Lawyers of Byron Bay.

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Robyne Louise Cole re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 The applicant was employed as a Real Estate Agent with the respondent from the 1st April, 2005 until the end of her employment on the 9th November, 2006 when she alleged that her employer told her to "pack her bags" and that she was entitled to believe that she had been terminated at that point. 2 The respondent's case was that there was no dismissal of the applicant and that she voluntarily left her employment after a heated exchange resulting from the actions of the applicant in obtaining an exclusive agency agreement with a particular vendor, on the basis of reducing the selling commission from 4.4% to 3.3%, without deference to her employer as required under her employment contract and the related award. 3 The application came before the Commission as presently constituted for the purposes of conciliation on two occasions at Byron Bay Courthouse, that is, the 13th December, 2006 and the 15th December, 2006, after which directions were given for hearing. The file was referred back to me for arbitration and the hearing of the matter proceeded on the 12th and 28th June, 2007 at Byron Bay. 4 The applicant was represented by Mr Maurice Gelbert of Counsel, briefed by Wroth Wall, a solicitor of Hinterland Legal, Mullumbimby. 5 The respondent was represented by Mr P Smart of Counsel briefed by Darryl Quigley & Partners, Lawyers of Byron Bay.

BACKGROUND 6 A jurisdictional issue of whether or not the applicant was dismissed or left voluntarily following a heated exchange with her employer on the 9th November, 2006 occupied the major focus in the evidence between the parties. 7 The incident on the 9th November had its origins in the offer and acceptance of the sale of a property belonging to a client of the respondent by the name of Maurie Cross on the 8th November. 8 It was the applicant's controversial evidence, that the vendor had indicated to her that Elders Real Estate Agency at Byron Bay was bringing another prospective purchaser to look at the property, which caused her to be concerned about losing the sale. 9 It was common ground that the applicant had spoken to Mr Sean Kenny, her employer, on the morning of the 9th November and the question of an exclusive agency agreement was raised and she was instructed to go and sign up her vendor accordingly. Mr Kenny claimed that there was no mention of the Elders threat at that stage. 10 The applicant maintained that she understood such an instruction to mean that the commission in those circumstances is usually reduced from 4.4% to 3.3% in consideration of the vendor signing an exclusive agency agreement. In any event, an offer of an exclusive listing at the reduced commission was made to the vendor and accepted by him and executed. 11 The applicant's oral evidence was that she received the offer from a purchaser to purchase the property from Mr Cross on the 9th November, in the morning, and she then spoke to the respondent, and then went up to the vendor to get the exclusive listing all on that morning. This is different from her affidavit evidence where the arrangement for the reduced Commission in return for the exclusive agency arrangement was arrived at the previous day. Mr Gelbert asked the Commission not to draw any adverse inference from the difference between her affidavit and her oral evidence, and to accept her oral evidence, especially as the respondent agreed that he had discussed the exclusive agency issue on the morning on the 9th November.

12 It was an important feature of the applicant's evidence that the offer to reduce the commission was made according to established commercial principles in the industry to ensure that the offer was not jettisoned (or gazumped) by the vendor receiving a late better offer, involving another agent. Put another way, the offer of the lower commission rate is seen as an enticement to ensure the vendor client is locked in to the one agency - but in return for a cheaper commission rate. The applicant gave evidence that no vendor would make the change to list the property exclusively on the basis of retaining the 4.4% originally negotiated for a multi listing. 13 On that basis, there was a significant disagreement by the applicant to the proposition put to her that it was common in the respondent's office that, when a transaction was converted to an exclusive agency agreement, that there was no change in the commission if an offer and acceptance had been executed. In contradicting that, she testified that if there was a change sought by the selling agent to an exclusive listing, then there was a need to change the commission. She had not heard of a case where the exclusive agreement had been arrived at without a change in the rate of commission. That latter point received some support through records subpoenaed from Mr Kenny's business, marked Exhibits 10A and 10B, referred to later in this decision. 14 Counsel for the applicant, Mr Gelbert, tested the respondent on the point that it would not appear logical for a vendor to constrain his commercial power in such a way without receiving some financial benefit. 15 Conversely, Mr Kenny gave evidence in his affidavit that because the commission rate in this case was changed without his prior approval, after an offer and acceptance had taken place, this was contrary to the practice of the firm. 16 He gave the basis for that practice being that the reason for seeking exclusive agencies agreement at that point, (that is, after offer and acceptance), was to give "an opportunity for the staff to increase their commission" as well as controlling the listing. (Note: an exclusive listing attracts a higher sellers commission). Alternatively, where there was no offer and acceptance, he as the employer, was entitled to insist upon a lower seller's commission to a selling agent for an exclusive listing, along with a lower commission rate payable by the vendor. Where an offer and acceptance had been arrived at, however, approval had to be sought from the employer for such a change. Mr Kenny maintained in evidence that it was illogical to change the commission after the offer of acceptance - a point also strongly challenged by Mr Gelbert, and dealt with below. 17 In terms of the situation facing the parties on 9th November, it was an agreed position that Mr Kenny had spoken to the applicant on the morning of the 9th November, 2006, and instructed her to go and ensure an exclusive listing on the Cross transaction, but the emphasis Mr Kenny put on that issue was that he wanted to give the applicant an opportunity to make a higher commission for herself. The difference in commission earned by the selling agent was to the tune of $1800 for achieving an exclusive deal compared with $1500 for a multi-listed property, apparently the difference between 22.5% and 10%. 18 It was conceded in cross-examination by Mr Kenny that an offer and acceptance did not constitute a legally binding contract. He also agreed that an exclusive agency agreement had the effect of restricting the respondent from dealing with any other agent. He went on to accept that the exclusive listing prevented gazumping in the industry, as well as giving an extra commission to the employed selling agent. Only after some further questioning did Mr Kenny agree that the prime motive for seeking an exclusive agency agreement was to ensure that the sale "does not walk away". 19 However, the respondent went on to repeatedly deny that the commission rate decreased from 4.4% to 3.3% necessarily with an exclusive agency agreement and suggested, as a crucial part of his case, that when an offer and acceptance had been arrived at, the vendors were still prepared to close off the market to the sale of their house with an exclusive agency agreement at the same commission rate, simply because they were happy with the service they had received. However, when pressed on that issue, Mr Kenny reverted to simply saying as part of his answer "there has been an offer and acceptance". Mr Gelbert asked the Commission to take into account that that response ignores the fact that there was no legally binding contract to prevent gazumping. 20 Accordingly, with that evidentiary background, the Commission was required to focus upon the applicant's return to the office on the morning of the 9th November, 2006, having obtained an exclusive agency agreement, but with the reduced commission rate of 3.3.%, and where it is fair to say, a heated exchange occurred between the parties. Mr Kenny vigorously disputed the applicant's right to reduce the commission, at that stage after acceptance of the purchaser's offer, which had resulted in a loss of $12,860 in commission earnings for his agency. 21 It was not disputed that the respondent had said to the applicant that she would have to "fix it"- meaning that she would have to change Mr Cross's agreement to revert to the higher commission rate of 4.4%. 22 According to the respondent's evidence, the applicant became emotional, was crying and became annoyed with Mr Kenny's reaction to the 1.1% drop in commission. 23 Again, according to the respondent's evidence, no dismissal took place when the applicant decided in the heat of the moment that she no longer wanted to work with Mr Kenny, and informed him in the presence of two other employees, Mr Maxwell and Ms Steel-Boyce, that she was leaving. 24 The applicant's version was that she was dismissed when told by Mr Kenny "pack your bags and leave now". 25 It was also the applicant's evidence, not refuted by Mr Kenny in his evidence, that he had indicated to her that she should not bother to clean her desk drawers out, but that he would do that at a later stage. The applicant's evidence was at that point that she had picked up her diary, and that the respondent had said to her "leave the diary". 26 After a further interchange involving her being asked for the keys, the applicant left the building at that point.

Canvassing of the evidence 27 It was an important part of the applicant's evidence that there was a threat to the sale falling through, with advice from the vendor that he was awaiting another offer from Elders - another local Real Estate Agent. 28 Mr Gelbert for the applicant unsurprisingly asked the Commission to be sceptical of the respondent's claim that opportunity for an increased selling agent's commission (mentioned earlier) was behind his alleged policy of not reducing the commission when obtaining an exclusive agency agreement, after an offer of acceptance. It was an attempt he submitted to disguise the real motive, which was the leverage an exclusive agreement held over the vendor. The logical means of being able to derive such control was obviously the discounting of commission as an incentive to the vendor. 29 Mr Gelbert also relied upon exhibits 10A and 10B which were the bundles of documents presented as a result of a subpoena issued by the applicant. He pointed out that an inspection of those documents showed there was not a single transaction in respect of exclusive agency agreements, which attracted a 4.4% commission rate. Mr Smart for the respondent, countered this argument on the basis that this simply showed that there was no exclusive agency agreement achieved by the firm, after an offer of acceptance had been arranged. Mr Gelbert pointed out another relevant fact - that there was no occasion that the applicant had acted contrary to the instructions of her employer. 30 In Mr Gelbert's submissions to the Commission, he sought to cast doubt on the independence of both the respondent's supporting witnesses, Mr Glen Maxwell and Ms Steel-Boyce, pointing out that Mr Maxwell had attempted to dovetail his evidence to fit with the respondents. His statement is curiously identical to the respondents in recitation of events and conversations. Where Mr Maxwell suggested that he had witnessed the respondent saying, "Robyne is leaving this office on her own accord" - this showed that he was keen to suggest that she abandoned her employment in circumstances where in fact Mr Kenny had earlier in conversation told her to, "pack your bags and leave now". 31 The fact should be noted that Mr Maxwell sought to minimise any evidence critical of the respondent when he suggested that the respondent did not appear to be upset and hysterical, but then conceded that both were heated. His statement that the respondent was not loud that day, and that he did not know why the applicant started crying, pointed to an attempt to minimise any criticism of the respondent. 32 Mr Gelbert went to another aspect when saying, on the other hand, in contrast to the evidence of the respondent, Mr Maxwell stated that the applicant did not say "I'm leaving" but said "I'm going home for the afternoon". This offers a different context to the applicant's intention to leave the office that day, than as shown in the respondent's case version. 33 On Mr Maxwell's version, nothing had happened to require the respondent to tell the applicant to leave her diary behind. (Note: However, Mr Maxwell gave evidence that the diary belonged to the respondent and that his never left the office).

34 Mr Maxwell agreed that he had heard the applicant say "you're been waiting for me to get in front of my debt/credit and then you were going to get rid of me", which Mr Gelbert thought showed that she was dismissed. (Note: However, he also maintained in his affidavit that this was responded to by Mr Kenny saying "that's not true. You have just begun hitting your straps".

35 Mr Gelbert also dealt in his final submissions with the evidence, which pointed to some tainting of the process of obtaining an affidavit from Mr Maxwell and Mr Kenny, with Mr Maxwell stating that they were asked by Mr Quigley's office not to communicate with each other or to refresh their memory and disputed they discussed the matter at all. This conflicts with the respondent's evidence where Mr Kenny recalled he and Mr Maxwell going to another room in Mr Quigley's office and talking about the issues to get a summary together, and he conceded that they were trying to refresh each others memory some months earlier. (Note: The Commission has not been able to agree with the extent of collusion suggested here by Mr Gelbert). 36 When Mr Maxwell was taken by Mr Gelbert through a number of areas of his affidavit which were identical with those of Mr Kenny, he could not explain how one page narrative of events about a conversation five months before, could be in identical terms. He believed that there was clear evidence of collusion. 37 Mr Gelbert also attempted to cast doubt on Ms Steel-Boyce's evidence on the basis also of extraordinary similarity between the contents of the three affidavits for the respondent. 38 He dealt with the evidence of distances within the office from the reception area occupied by Ms Steel-Boyce, and the point in the office layout from which the respondent and applicant were talking, which was some nine metres. Apart from considering it her brief to eavesdrop on a professional communication in the office, she gave evidence that she believed "I did not hear every single exact little detail, no". Nor was she claiming that her affidavit represented everything that the applicant and respondent had said to each other, and agreed that it was happening some distance from where she was sitting. (Note: The Commission's finding that there were matters not heard by Ms Steel-Boyce, but recalled by Mr Maxwell and Mr Kenny is relevant to this also). 39 Ms Steel-Boyce claimed that the respondent was speaking in a calm and forceful manner, which was in contrast to the respondent's own evidence that he was speaking loudly. She heard the applicant say "I'm leaving", rather than "I'm leaving for the afternoon" as stated by Mr Maxwell. 40 Mr Gelbert dealt with the particular instance during the cross-examination of the respondent, Mr Kenny, which he said pointed to an illustration of his contempt for the proceedings and his willingness not to tell the truth, especially combined with other indications. He signalled out the instance where the respondent was asked why he was smiling during cross-examination, to which he had responded "I'm thinking about sex I had last night with my wife" and the fact that he continued smiling. 41 Mr Gelbert dealt with the allegation after dismissal by Mr Kenny, that the applicant had stolen money from the trust account. 42 The respondent agreed that he had rung Mr Wall, the solicitor for the applicant, and accused the applicant of stealing $500 from the firm's trust account and threaten Mr Wall that he would go to the police about the matter. 43 In cross-examination, the respondent stated that he did not go to the police and had not been able to determine that the applicant had done anything wrong with the trust account. 44 This was an attempt by the respondent to exert pressure on the applicant to withdraw her unfair dismissal action. Mr Gelbert went on to talk about an issue raised by the respondent involving the applicant's son using the computer outlet in the respondent's office. It was established that the respondent had allowed the applicant's son to use the outlet on two earlier occasions. On a third occasion, while the respondent was interstate, the applicant had given her son permission to use the same outlet. 45 Mr Gelbert suggested this was another illustration of the manner and credit of the respondent as in the evidence mentioned earlier, showing that he was prepared to ring the applicant after she left and threaten her with action against her son if she did not desist from the application. This is also an indication of the distain and lack of respect the respondent has for the unfair dismissal law regime. 46 Again, after these proceedings were instituted, the respondent rang the applicant and threatened her in terms set out in the applicant's affidavit. 47 As told to the Commission, Mr Kenny explained those actions on the basis that he was bemused by the proceedings being brought on and "got a little bit hot about it", but denied trying to exert pressure on the applicant.

48 When asked as to whether he was trying to blackmail the applicant, the respondent had told the Commission "and so is she by having me here".

49 Mr Smart referred in reply to the evidence of Mr Glen Maxwell, who gave evidence in support of the respondent's case generally, which confirmed that there was no reduction to the commission after an offer of acceptance had occurred. He submitted that there was a strong inference that the supposed threat from Elders Real Estate Agency to introduce a new offer to the vendor was falsely put before the Commission in an attempt to find an excuse for changing the commission. He suggested that the truth of the situation is that the applicant misunderstood the respondent and simply went to the vendor on the basis of him signing an exclusive agreement by saving him 1.1% in commission. Both Mr Kenny and Mr Glen Maxwell did not recall any discussion between Mr Kenny and the applicant regarding the prospect of Elders bringing in a prospective purchaser from under the nose of the respondent for the sale of the property. (Note: It should be remembered that Mr Maxwell's evidence on that issue has to be viewed with the likelihood that his attention is unlikely to have been drawn at that stage, until the discussion became heated). 50 Mr Smart took the Commission to the fact that the applicant had not discussed the change with the respondent as shown by the fact that she agreed in cross-examination that there was no mention of changing the commission in her original discussions on the morning of the 9th November with Mr Kenny. (However, although agreeing that the subject didn't come up, she added the important caveat - "it wasn't discussed because exclusive listings are 3.3%"). Mr Smart went on to draw the Commission's attention to paragraph 3.1(f) of the Real Estate Industry (State) Award 2005, which provided that employees would not enter into or sign an agreement or contract on behalf of the employer without the prior approval of the employer. 51 Mr Maxwell in his evidence supported the respondent's case, that Mr Kenny's employees could not alter commission without first verifying with him. (Note: Mr Maxwell's other evidence was that he invariably arranged exclusive agency agreements with all his clients). 52 Mr Smart made the alternate submission that the applicant was either neglectfully or possibly blatantly acting outside her authority by unilaterally changing the commission to 3.3% after an acceptance of offer, without consultation with Mr Kenny and without regard to the significant financial detriment to her employer. 53 In respect to the actual events leading to the applicant leaving her employment, it was the respondent's case that the words "pack your bags and leave now" were never uttered. Mr Smart asked the Commission to note that Mr Kenny, Mr Maxwell and Ms Steel-Boyce were all adamant that those words were never used by Mr Kenny. 54 He submitted that it was too simplistic of Mr Gelbert to suggest that all three had got together and lied about that issue. 55 He suggested that it was unrealistic to allege that the respondent had goaded his two employees to telling lies to assist the employer to defend a case against a fellow employee, and suggested several reasons why this was illogical. Such an employer would be seen as a cheat and an unfair person by his employees; would place himself in serious risk of prosecution under the Crimes Act and would realise that such of his employees would have something over him that could be used against him in the future; and finally that he could have simply settled the case to avoid all the proceedings. 56 Again, on the issue of collusion and the similarity of the above affidavits of the respondent, the Commission should take into account that these witnesses put pen to paper before the 13th December, 2006, when they had a clear memory of an unforgettable afternoon on the 9th November. The similarity of their affidavits was that they all had a clear memory of what they heard, the affidavits were prepared by the same solicitor, and it is reasonable to expect that important words would be remembered near verbatim. By the same token, he pointed to the fact that there were actually differences in the affidavits and memories of Mr Maxwell, Ms Steel-Boyce and Mr Kenny, and instanced the expression Mr Kenny used to the applicant "you're leaving of your own accord", which Mr Maxwell did not remember. (Note: At page 66 of transcript Ms Steel-Boyce also claimed not to have heard those words claimed by Ms Cole to have been said by Mr Kenny). 57 He suggested that the evidence of Mr Maxwell, and Ms Steel-Boyce was consistent and not faulted to any significant degree in the face of fairly aggressive cross-examination from Mr Gelbert.

58 Mr Smart made the puzzling submission (on a matter of interest to the Commission) that whilst the respondent was alleged to have told the applicant "pack your bags and leave now", yet in the same paragraph the applicant acknowledged that he had said to her "leave those drawers, I will go through them". Mr Maxwell read that situation as being two different thought patterns, and whilst he said there is no dispute that he said the words, "leave those drawers, I will go through them", as Ms Cole was collecting her things, why did he allegedly say "pack your bags and leave now", and then ask her "leave those drawers etc". Mr Smart suggested that this did not make sense. 59 Mr Maxwell and Ms Steel-Boyce agreed that the words suggested by the applicant as said by herself and Mr Kenny to the effect "you just told me to get out" and with Mr Kenny's reply "I don't want you back", were never said by either the applicant or the respondent. 60 He asked the Commission to see the respondent witness Ms Steel-Boyce as a truthful young woman, not the sort to tell lies or write falsities in her affidavit. 61 Ms Steel-Boyce had said in her affidavit "Sean never asked Robyne to leave in any way and in fact asked her not to leave". 62 Mr Smart also dealt with the conversation between Ms Steel-Boyce and the applicant after her leaving, which he claimed indicated that the applicant had left voluntarily when she allegedly said to Ms Steel-Boyce, "I'm good, happy that I left and stress free". He pointed to the fact that the applicant had failed to take the opportunity to deny saying those words to Ms Steel-Boyce in the street following the leaving of her employment. (Note: Apart from the fact that the applicant did deny saying the words attributed to her, at their worst, the words recorded by Ms Steele-Boyce are capable of being read to mean no more than being happy she is no longer there, regardless of being sacked or not). 63 Mr Smart pointed to the fact that the applicant had not actually denied that Mr Kenny had said to her "I don't want you to leave, your just hitting your straps" and pointed to the fact that the applicant had merely said "yes, well, I don't know what hitting your straps means", which he took as an indication of an admission that the phrase was used by Mr Kenny. (Note: The applicant elsewhere at page 21 of transcript again passed up the opportunity of denying that was said to her). 64 On the issue of the offer to re-employ the applicant, Mr Kenny had replied to Counsel for the applicant that he had not rung her the next day to ask her to return to work because "she was quite adamant that she was leaving my office". On the other hand, the applicant had not attempted to seek re-employment. 65 Mr Smart asked the Commission to take notice of the fact that the employer, Mr Kenny, had engaged another Estate Agent to replace her and that therefore there was no evidence to indicate that the applicant had been deliberately dismissed due to any downturn in business. 66 Mr Smart defended the raising of the issue of the applicant's son's use of the computer in the office and questions as to the $500 missing from the trust account. The employer was entitled to make enquiries on the basis that it was a serious breach of trust and privacy, and also that he was not enthusiastic about a fabricated unfair dismissal claim made against him by the applicant, and wished to avoid it and the associated waste of time and money. 67 Mr Smart also dealt with the allegation of the applicant of unpaid commissions on property dealings which both he and Mr Gelbert acknowledged were not strictly within the jurisdiction of the unfair dismissal jurisdiction, although the Commission notes that such matters might be raised as an overall indication of the behaviour of a party towards the employment contract. 68 Mr Smart also dealt with what he termed as the applicant's refusal of re-employment with Mr Kenny's firm and her attempts to find alternative employment. 69 Mr Smart pointed to the fact that the applicant's refusal of re-engagement was simply that she did not like the respondent, whereas he gave evidence in cross-examination of being keen to see her return as mentioned earlier. (Note: The Commission has not accepted that argument for reasons mentioned below). 70 The applicant's evidence of approaching many agents in the local area should be looked at in terms of the applicant not informing the court of any job applications other than in real estate. Mr Smart suggested that documentation relating to another agents qualifications was tendered to show that he was not fully licensed as contended by the applicant, as a reason for her not getting that particular position at Peter Browning Hookers. Generally, the respondent's Counsel suggested that the applicant has not been interested in re-employment because of her personal circumstances of owning multiple occupancy acreage, and that she had simply refused re-employment with Mr Kenny because she wished to have a stress free environment and made further speculations for the Commission to note. He suggested that the respondent should not be responsible for the fact that the applicant was too embarrassed to return, or that she had reached her retirement age and happy to accept the pension, or that she was planning to sell a share of property mentioned in proceedings. 71 He went on to suggest that there were several indications that the applicant had left voluntarily and that there was common ground that on the afternoon of the 9th November, the applicant had said words to the effect "you are never happy with me", which was heard by Mr Kenny, Mr Maxwell and Ms Steel-Boyce. "You are unfair, you are never happy with what I do" was heard by Mr Kenny. 72 In respect of the evidence of the respondent's witness, Mr Smart pointed to the corroborated evidence which showed that the respondent had said to the applicant "I have been more than happy at present" and also said "where are you going? I don't want you to go" and finally, that "Robyne I do not want you to leave. You have just begun to hit your straps". 73 As an explanation of the respondent's case, he believed that there was a reasonable inference to be drawn that the applicant resented working for Mr Kenny, and separately suggested that she saw him as a young upstart and that in the heat of the moment she quit. 74 Mr Smart also drew the Commission's attention to the fact that the respondent had offered to re-employ the applicant and had asked if she would be prepared to let bygones be bygones, but that she had refused that offer. He separately submitted that other offers had been made to re-engage the applicant on the 13th December in the presence of the Commissioner in conciliation and again on the 12th June, 2007. Her reasons for refusing those offers were simply that she did not like to work with Sean Kenny. Mr Kenny confirmed the genuineness of his offer in cross-examination by saying "she can come back tomorrow, I am serious about that. She was making me money".

75 The fact that the respondent on the 13th December, had told the Commission that there was no jurisdiction to deal with the application, indicated that he believed he could dismiss an employee without suffering any legal consequence.

CONSIDERATION CORROBORATIVE EVIDENCE 76 On its face, the fact that two of Mr Kenny's employees gave supporting evidence as to the pivotal jurisdictional question, indicating that Mrs Cole simply left her employment, following what was most likely to have been a heated exchange, would appear conclusive. The applicant was nevertheless prepared to accept the burden of proof as to her claim that she was dismissed by Mr Kenny, annoyed by the lost revenue of $12,840, through her reduction of commission to 3.3% on the sale of the Cross property. 77 In fact it turned out to be no easy task to decide with any certainty whether the corroborative nature of the respondent's key evidence should remain in place, as Mr Smart, Counsel for the respondent, urged, on the basis he said that they appeared to not have any unworthy motive for supporting their employer, at the expense of the applicant. 78 Of course, the Commission, at least as currently constituted in the matter, is not unused to existing employees being prepared to assist (sometimes with enthusiasm) in the concoction of evidence against an ex-employee. The motives for doing so are not always apparent, in the absence of a confession, but appear to have something to do with the desire to ingratiate themselves with their employer, who they might see can affect their future, as opposed to supporting yesterday's man or woman. However, that does not mean that they should be regarded with undue suspicion, on the basis of small inconsistencies and therefore as less than independent. 79 A broader view of all the evidence did reveal some peculiarities not easily put aside and to deal with the first idiosyncrasy of the respondent's joint evidence, the Commission was forced to agree that several pieces of narrative, (usually attributed to the applicant), were strangely word for word, composed months after the event, in instances when one is entitled to expect a slightly different composition. This led the Commission to accept that there had to be a degree of collusion, although probably not to the extent thought by Mr Gelbert for the applicant. 80 Full examination of the evidence showed several examples of where Mr Maxwell heard either Mr Kenny or Ms Cole say certain controversial things, yet Ms Steele-Boyce had no such recollection. However, like the previous example, this was not fatal to Mr Kenny's case, but nevertheless demonstrated that things were not quite as they seemed. More specifically, not just that they certainly did not hear everything, but, flowing from that, they may not have heard those profound words of dismissal claimed by the applicant - "Pack your bags and leave now". This might be particularly the case if they were uttered through clenched teeth by a frustrated Mr Kenny, just discovering a $12,860 hole in his commission budget, courtesy of what he regarded as the applicant's unilateral initiative in giving Mr Cross a reduction to 3.3% commission. Mr Maxwell's evidence, that Mr Kenny was not loud at the beginning of the exchange - was consistent with what Mr Kenny himself claimed, and may account for both he and Ms Steel-Boyce missing out on the most important action before the applicant brought attention to herself with her crying and her "cursing" of Mr Kenny. 81 The fact that the two employees of Mr Kenny were so emphatic that such a thing could not have happened, and were at pains to distinguish her loudness and hysteria over his relative calm, left the Commission sceptical of their impartiality. On the other hand, part of the reason for their defensiveness towards Mr Kenny's behaviour may just as easily have been that they were convinced by other things announced by the applicant (dealt with later), that she left of her own accord, ruling out any other option, in their reading of the situation. 82 That said, I was not able to seriously doubt their genuineness. As much of what they recalled had a ring of plausibility and, apart from some evidence of minor collusion - mentioned above. I was content to accept their evidence as to what they had actually heard, yet whilst recognising that they may not have heard the crucial "pack your bags and leave now" which was the basis of Ms Cole's case. The Commission had to reconcile some obvious conflicts in this equation. Mr Kenny's credit 83 The reliability of Mr Kenny's account of what had occurred between himself and Ms Cole, causing her to leave on the 9th November after the heated exchange over the reduction of $12,860 commission for an exclusive agency agreement, had to be judged in the light of some apparent weaknesses revealed in his credibility. 84 Firstly, more by way of background, the Commission has concluded that Mr Kenny must have genuinely believed that the applicant should have been able to achieve an exclusive agency agreement, without the need to reduce the commission from 4.4%, although the rationale is difficult to fathom. Mr Gelbert understandably pursued him on that score. Nonetheless, there does not seem to be any other reason for Mr Kenny to have a heated conversation with the applicant. 85 A question related to that, also sought to be established by Mr Gelbert, was whether Mr Kenny was being unrealistic in expecting to retain the 4.4% commission and entitled to be so upset, if he had failed to make clear to the applicant, the specific grounds upon which she should achieve the exclusive agency agreement with Mr Cross that morning, after his acceptance of the offer. The fact that the company records on exclusive agency agreements within Exhibits 10A and 10B did not show any instance of such an arrangement after acceptance of an offer, did not assist Mr Kenny's case that there was a standing policy not to reduce commission to obtain an exclusive arrangement, after offer and acceptance. Regardless of the truth of that, which is essentially a merits issue, i.e. only relevant to the situation that if there was a dismissal, whether such was harsh, unjust or unreasonable in terms of Part 6 of Chapter 2 of the Act. 86 A difficulty that I had with Mr Kenny's credibility came with his repeated insistence that he would welcome her back, an offer beginning with the conciliation conferences in December last year and carried over into his cross-examination. 87 The Commission has found Mr Kenny's emphasis upon this, with comments repeated to the effect that "she was making me lots of money", to be disingenuous. That repeated assertion was unbelievable, when his other evidence suggested that she was only finally lifting out of the debit/credit scheme for agents' commission/wages, and otherwise suggested by his comment to her "you have just begun hitting your straps". Such open offers of reinstatement are not infrequently used as a device by former employers to position themselves in litigation before the Commission, as being willing to return employees to their former position, knowing full well that there is no chance of the employee accepting, usually because of the unpleasant circumstances of the dismissal and the loss of trust involved. This was the case here on Ms Cole's version of events. Indeed, the experience of this member of the Commission has been that only a very small percentage of employees have sought reinstatement in the private sector, where there is little chance of protection in a less than equal bargaining situation. 88 The offer, if genuine, could and should have been made soon after dismissal if Mr Kenny had had no difficulty in her return as he boasted before the Commission. 89 Without needing to go too far into the ethics involved, the threats made over the phone in respect to Ms Cole's son's use of the respondent's internet during his absence, and the vague evidence of some suggested irregularity with a $500 trust cheque, pointed to someone intent on destroying any vestige of a relationship or worse, attempting to bully her out of her application under Section 84. He may have been inspired by a sense of outrage at being wrongly accused of dismissing her or even perhaps simply being aggressive when faced with his actions, but to go through the pretence of wanting her back appeared opportunistic and if anything, damaged his credit in the eyes of the Commission. Mr Kenny's statements to applicant 90 There were two uncontested statements attributed to Mr Kenny which struck the Commission as tending to reinforce that she was dismissed.

91 First of these was that he told her to desist from going through the drawers of her desk and that he would do so later (also recalled by Mr Maxwell and by Mr Kenny in cross-examination when prompted, although not in their affidavits). 92 The second was to instruct her not to take her diary. 93 On one hand, it would be perfectly natural for an employee being ordered to leave to first retrieve whatever personal objects may be languishing in the drawers to their desk, (along with those in the kitchen in this instance). It might also indicate that he (Mr Kenny) was impatient for her to get out of the office and would not countenance any delay. 94 However, this was not the inflection placed upon the event by Mr Kenny or Mr Maxwell. 95 The respondent agreed that he told her not to continue going through her drawers, but in the context of her saying that she was leaving and him supposedly saying "I don't want you to leave" or by Mr Maxwell's recollection, when she said initially, "I'm leaving for the afternoon" and which prompted the respondent to then say, "If your leaving, please leave the diary". 96 Mr Maxwell contended that after mention of the diary she then said "I'm leaving" (meaning permanently). The evidence between the two respondent witnesses did vary, with Mr Maxwell's accent upon her first indicating that she was leaving for the afternoon, but fundamentally both gentlemen painted the applicant as being on the move and picking up the diary in the process of cleaning her desk. The respondent could have been attempting to impatiently cut short her exit protocols, which weakened his evidence of not having said anything to dismiss her. 97 However, it was, in the end, difficult to interpret the diary comment as being too suggestive of dismissal. The diary (Exhibit 9), although containing some short personal notes, mainly as memory joggers, largely showed business records of things for future reference, and was clearly the firms property and this provided a reasonable explanation for telling her to leave the diary and later in the conversation, to leave the keys also. Exclusive Agency Commission 98 Mr Gelbert was able to make much of the fact that it did not appear logical that a vendor, such as Mr Cross, having agreed with an offer (and expecting to go on to exchange contracts followed by settlement) would willingly agree to sign an exclusive agency agreement, committing himself to a particular sale without any consideration in the form of savings on commission in return for closing off his options. 99 Putting aside the applicant's evidence that Elders Real Estate Agency was putting out feelers to Mr Cross for a better offer, it seems curious that Mr Kenny did not remind the applicant of his alleged policy, which he claimed distinguished the circumstances under which an exclusive agency agreement is to be signed after offer and acceptance as opposed to when the property is multi listed. Given that Exhibits 10A and 10B show that, during a period of time, there were no instances of exclusive agency agreements being signed after offer and acceptance, one would imagine that it would strike Mr Kenny as necessary to remind her of the alleged policy. The possibility is that it was so rare that he had not realised the implications of the reduction from 4.4% to 3.3%, being $12,860 lost commission, because this had not occurred after acceptance before or at least for some time. If that was the case, it is conceivable that part of his frustration vented on the applicant on the 9th November arose from a desire to transfer the blame from himself for not being enough on the ball to tell her of his desire not to forego the more lucrative commission arrangement of 4.4% when signing up Mr Cross, to confine himself to the offer he had accepted by way of an exclusive agency arrangement. 100 The Commission, in considering this aspect, has been satisfied that Ms Cole believed that she had to reduce the commission rate to secure the sale and also rejected the suggestion of direct personal gain as a motive. If she had known of his alleged policy, she would surely have sought his authority, given there was insufficient financial advantage to her personally, so that the extra commission of around $300 would have been most unlikely to have induced a defiance of such policy. On the other hand she would most likely have been anxious to boost her sales tally, which may have led to some sloppiness in checking properly with her employer and the chances that she had already concluded an agreement the day before are dealt with hereunder. 101 Mr Kenny's evidence in response to questioning from Mr Gelbert as to the apparent lack of logic behind a vendor being prepared to sign up an exclusive agency agreement, when the likes of Mr Cross had nothing to gain, but certainly something to lose in the way of the opportunity to "gazump" the purchaser, (should another purchaser come over the horizon with a better offer), was suspect to put it mildly. He asked the Commission to believe that a vendor such as Mr Cross was so enamoured with the service he had received from the likes of Ms Cole, that he would willingly forego the opportunity for potential personal gain either by way of being free to gazump or for the commission reduction in return for the Kenny Estate Agency being able to fence off the deal. 102 The upshot of all this background is that, whilst it would have been particularly pertinent in a claim for constructive dismissal or, as to whether a dismissal is unfair, but it is also relevant to consideration of Mr Kenny's credit. 103 In the process, Mr Kenny attempted to disguise the obvious reason for reaching an exclusive agency agreement. It was a minor enough matter in the scheme of things that Mr Kenny repeatedly deflected Mr Gelbert's questions as to the more obvious advantage to a real estate agency of obtaining an exclusive agency agreement. Whilst finally acknowledging the anti-gazumping benefit, he continually tried to put across that it was his primary aim to provide a means whereby his selling agents, such as Ms Cole, can earn a higher commission of 22.5% rather than 10%. Mr Kenny did no service to himself by attempting to fudge the issue, presumably to imply that Mr Cole's motive was direct personal gain - a concept I have rejected. I was left with the impression that he persisted with that line in an endeavour to deflect from the obvious advantage to him of securing the sale from the likes of Elders, who the applicant maintained was mooted as having a client likely to take an interest, although it is not necessary for the Commission to settle that question. MS COLE'S CREDIT 104 Mr Gelbert asked the Commission not to be concerned at the conflict between her oral evidence and the dates in her affidavit as to when she negotiated the exclusive agency agreement with Mr Cross over the sale of his property. 105 Her oral testimony was that on the morning of 9th November, in a conversation with Mr Kenny about the Cross sale, he instructed her to get an exclusive agency agreement with the vendor. She gave evidence that the agreement was secured that morning with Mr Cross, after discussion with Mr Kenny. 106 By comparison, her written statement revealed that the day before she had already set in train a reduction in the commission to 3.3% in exchange for a three week exclusive agency period. This occurred when the vendor, Mr Cross, had said to her at the time that she negotiated the sale "someone from Elders… is bringing another prospective purchaser up to the property this afternoon. You had better be quick". 107 What that piece of evidence suggests to the Commission, (taking account of her oral evidence of discussing the exclusive agreement with Mr Cross on the morning of 9th November, after Mr Kenny had told her to get such an arrangement), is that she appears to have already locked herself into an agreement at the reduced rate sometime the day before. This would mean that Mr Kenny's instruction on the morning of the 9th November was made in ignorance of the fact that arrangements were already in place for such an agreement, but with a commission of 3.3%.

108 This would be one explanation for why she did not flag the reduction with Mr Kenny on the morning of the 9th, as he claimed his policy required, after offer and acceptance, as the dye was already cast so to speak. I have not been able to entirely disregard this inconsistency as Mr Gelbert thought I should, and although too much can be read into it, it stands as a careless approach at least to the preparation of her evidence as directed at the end of conciliation. 109 In addition to this apparent glitch in her account of events, there were other indications in the evidence, not so much demonstrating a problem with her credit, as providing a plausible alternative to her contention that she was dismissed. 110 For instance, the question arises as to why Mr Kenny would tell her to desist from packing the things from her drawers, if he had just told her to "pack your bags and leave". He may have been indulging in a figure of speech and actually was quite anxious to have her out the door. 111 Again, on the basis of plausibility, the suggestion in some of the respondent's evidence that she became irate and upset enough to abandon her employment, because of being told that she had to go back to Mr Cross and "fix it", i.e. back to 4.4% and decided to leave, (first saying that she was leaving for the afternoon), seemed to provide a reasonable explanation for why she made that decision. On the other hand Mr Gelbert's cross-examination of Mr Maxwell in particular, dwelt on the likelihood that her crying and cursing was from being told to "pack her bags and leave now". 112 It is somewhat curious that the applicant abused Mr Kenny with the fact that she could never satisfy him in her performance. According to Mr Maxwell, a variation of those words were said on the same theme. If she had been dismissed, why would she venture the opinion that her boss was so discontented with her general output, when it was not the reason for the alleged dismissal. Such an outburst sounded more like a pronouncement as to why she had decided to leave, rather than telling everyone why he had just dismissed her. Again, this is a minor point open to some conjecture either way and therefore by no means crucial to the Commission's findings. 113 Both parties provided a suspiciously brief account of the central conversation, when it appeared likely that more detail was said. Whilst it was possible that Mr Kenny reacted to her simple response "I can't" to his instruction to backtrack on the 3.3% agreement, (and stung by the loss of $12,500) did say "pack your bags and leave now" - it would have assisted the Commission to have had all the conversation. As it stands, the evidence meant that if anything, a variety of things was possible, and she could have just as easily have flown off the handle - deciding firstly to go for the afternoon, and then to say in a more definite fashion that she was leaving when asked to leave the diary, as earlier traversed by Mr Maxwell's account. 114 The Commission has not been able to say with sufficient certainty whether she said to Mr Kenny in response to his question as to what she was doing packing her things from her desk, and (according to him) saying "I don't want you to leave", the crucial words "you just told me to pack my bags". These were not heard by Mr Maxwell or by Ms Steel-Boyce.

115 The real problem for Ms Cole was the absence of a proper rebuttal statement as she was directed to do at the end of conciliation in accordance with Practice Note 17. It was part of the directions under Practice Note 17 for the preparation and conduct of her case to refute the evidence in detail of the respondent witnesses, Mr Maxwell and Ms Steel-Boyce particularly. The rule in Jones Vs Dunkel, put simply, requires me to accept their evidence, unless I have good reason not to. Her rebuttal or statement in reply, filed on 29th March, 2007, simply stated that she read the respondent's witness statement, but failed to refute some very telling evidence, especially from those two. This, inter alia, included that she had said "I'm leaving".

CONCLUSION 116 Whilst a summary dismissal, as alleged by the applicant would shift the onus to prove any misconduct justifying such a pre-emptory termination, the applicant bore the onus of proving the threshold issue that she was actually dismissed as opposed to the alternative that, in the heat of the moment, she walked out. 117 In the absence of an argument and claim for constructive dismissal, the Commission focused upon that threshold jurisdiction issue. This narrowed the task to take in all of the indications as to reliable or unreliable witnesses, as canvassed earlier; the likelihood or not of something happening a particular way; or the plausibility of things claimed to have been said; but also taking into account the rules of evidence, where in a commonsense way, they must affect the result. 118 In this case, the rule of Jones and Dunkel mentioned earlier logically required me to have the utmost regard for the fact that the applicant failed to rebut some important direct evidence from three witnesses in the respondent's case. Her affidavit in reply filed on 29th March was hugely inadequate to the task, for reasons mentioned earlier. 119 The evidence so damaging to her case included the fact that she said she was leaving and that Mr Kenny told her he did not want her to leave. 120 On that basis, it is of secondary consideration that the Commission has not been entirely comfortable with some of the respondent's evidence, given the hint of collusion between witnesses and unwarranted eagerness to say that some crucial words were not said, as mentioned earlier. I particularly had cause to note the dents in Mr Kenny's credibility and I have not entirely discounted that he may have earlier used the words of dismissal in the fashion canvassed before, not heard at that stage by others in the office because of the volume of the respondent's voice at that stage and because of the distances involved. 121 The problem for Ms Cole was that there was sufficient plausible recollection by the two supporting respondent witnesses, not properly refuted as required, to lead me to the view that, even if her dismissal did happen, their evidence stands uncontested that she used words, indicating a desire to leave. The simple forensic approach adopted by her, left no room for any other finding than that she simply failed to discharge the onus of proving that a dismissal took place, from which an intervention on merit may have followed.

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