44 The applicant's contention that her dismissal was influenced by her pregnancy, was to some extent borne out by the timing of when she started to receive adverse comments from the respondent, i.e. those distinguished by the Commission from day to day banter as shown by the evidence. It was also indicative that the marked deterioration in the relationship between the parties was over a relatively short three week period after advising of her pregnancy in August and her dismissal on 9th September, 2004.
45 The initial reaction of Ms Hunt to the news of the applicant's pregnancy was at least ungracious and capable of being taken as demeaning and dismissive, or more importantly in the Commission's view, an expression of annoyance. Another comment on another occasion testified to by Ms Shipway was "don't you want a career". The applicant maintained that from the day of so advising the respondent "there were issues" and the evidence is weighted in support of that key contention by the applicant. The sheer co-incidence of the sudden accumulation of apparent failures by the applicant raised the reasonable inference that another aspect might have overlayed and influenced the downturn in the employment relationship between the parties, although an element of errors made did come through in evidence, usually through admissions by the applicant.
46 Ms Hunt for her part, unsurprisingly denied any adverse reaction to the news of Ms Shipway's impending confinement, either in the way of what was said or in talking to the applicant about poor performance. It was difficult to decide as to whether the warnings in the last couple of weeks to the applicant were genuinely delivered as a reaction to the adverse effect her relatively minor oversights were having on the business, or were more the manifestations of an employer in a close working environment being annoyed by someone who no longer was regarded as essential, being pregnant and capable of being replaced by the new recruit Ms Maddison.
47 The applicant persuasively dealt with the alleged earlier warnings, or at least those claimed to have been given prior to the advice of the pregnancy, on the basis that they were not of the seriousness or delivered in a way that she should have considered them to be anything other than day to day observations of the respondent. Her claim that she knew this from the way a person "holds themselves", or what is more commonly called body language, was a reasonable observation to make on the standard of the reasonable person test. Neither did she consider that it was necessary for her to be receiving warnings as such over those matters, although acknowledging that she made errors from time to time.
48 The extent to which the respondent followed through matters and her robust language involving the pursuit of the booking errors of 17th August and 23rd August, which were not, after all, dismissible offences, makes it hard to believe that the respondent would have put up with very much from the applicant of the type of things contended by the respondent.
49 The Commission is satisfied that the evidence of warnings prior to the crucial time of the applicant's advice of pregnancy was much thinner on the ground, so to speak, than the more concrete instances in the final weeks of the employment. In those latter instances, Ms Shipway made some concessions as to mistakes made, firstly on 17th August and then another instance being that she overlooked the usual practice of seeking and writing confirmation of the booking of a conference room at the Hotel Westin, mentioned earlier. She contended, however, that in the latter case the room had actually been booked and the respondent did not bring evidence to suggest otherwise, apart from the original broad accusation of Melissa Maddison being told by the Hotel that the booking had been overlooked.
50 This acknowledged (but limited) oversight had led to the respondent ringing the applicant at home on the Monday, 23rd August, over an issue concerning her booking of the Hotel conference room. She was at home at the time of the call, the day before her return to work after taking that Monday and the previous Friday off work, following the previous error on 17th August for which she had apologised unreservedly and even self deprecatingly (as contained in the e-mail of that date).
51 Her time off was suggested also following a lunch, where the issue of the difficulties that the applicant had advised Ms Hunt that she was having in delegating work to Ms Maddison were discussed, but which was followed with the suggestion of some time off on the basis as advised to her "you have a lot on your mind. Go away and think about the pregnancy. Come back to work fresh".
52 The applicant was told in that phone conversation of 23rd August, 2004 "you have failed to book a training room for tomorrow", i.e. at the Westin Hotel.
53 The Commission has found it significant that the applicant had been accused of actually not booking the room, whereas she claimed her error had been confined to not following up with confirmation to note on the file. Given my findings of credit in this case, I have accepted this important qualification to the level of fault attributed to her in the call from Ms Hunt, who was apparently relying upon advice given her by Ms Maddison from the Hotel, and when Ms Shipway, in response to the accusation offered to ring the Hotel to check, she was roundly asked "are you calling Melissa a liar".
54 This demonstrates that the respondent was at that stage being prepared to be seen as taking sides with Ms Maddison, against an employee of longer standing and seniority. It is not quite evident as to why this might have been so, although one explanation might be that the respondent, despite what the Commission has found to be the paucity of evidence as to the alleged previous warnings, had by this time lost faith in the applicant. At least just as likely, the respondent may have set her face against continuing the contract and at this stage, was setting the scene for Ms Shipway's departure, with the advantage of having Ms Maddison to replace her, perhaps at a significantly reduced rate.
55 That however, belongs in the realm of speculation and the real issue out of the confrontations over the last days of the applicant's employment was whether the applicant's conduct deserved dismissal and allied to that, whether she had been given sufficient time and opportunity to repair any shortcomings as she promised to do in her e-mail at the time - having regard to the gravamen of the alleged shortcomings.
56 Given the doubts in this case, the issue of procedural fairness became important.
57 The Commission has found that the accusation by Ms Hunt of the applicant of returning the mobile phone when it was not working and of impersonating Ms Hunt to the phone company was ill founded.
58 Part of the reasons given to the applicant, at least when being dismissed, was that she was "not interested anymore in her work". This was also not sustained.
59 The only indication of that was the recent errors picked up by Ms Hunt. However, as already determined, the extent of the oversight in respect to the Westin Hotel conference room booking was successfully challenged by the applicant, when the respondent failed to convince the Commission that absolutely no booking had been made (as opposed to failure to confirm). Accordingly, it was less a question of Ms Maddison's truthfulness, but very likely the hotel simply failed to properly record Ms Shipway's earlier booking. The applicant should not have been judged and accused of making things up, she should have been given the benefit of the doubt.
60 The respondent's other profound statement upon dismissal was that "this is not working out", is more the type of comment following a trial or probationary period of employment, not after some sixteen (16) months of relative smooth sailing, except for the final weeks. This is especially so given that the Commission has been unconvinced of earlier warnings and failures claimed by Ms Hunt, who apart from anything else, rewarded the applicant with several wage increases and allowed her the use of her car.
61 Ms Shipway was there long enough before things apparently started to go wrong for her to deserve greater caution in the way she was treated when her performance was alleged to have reached the stage where dismissal was justified. This was particularly so, given that she was pregnant and even advised the respondent of some complications, probably from stress, during the exchange over the telephone over the Westin Hotel booking. The advice of medical complications with the pregnancy drew a harsh uncompromising reaction by e-mail from Ms Hunt, commented upon later in this decision.