PR910623

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.170CE application for relief in respect of termination of employment

Roweena Ann De Silva

and

ExxonMobil Chemical Australia Pty Ltd

(U2000/34254)

SENIOR DEPUTY PRESIDENT LACY

MELBOURNE, 9 JANUARY 2002

Termination of employment on basis of alleged poor performance of applicant - change in role of applicant in early 1999 which involved performance of more complex tasks - applicant acknowledged that she had the skills and ability to carry out new role - inaccuracy and general poor performance of tasks - tardiness in completing tasks - lack of initiative - poor work attendance - valid reason based on applicant's performance and respondent's reasonable requirement to employ competent and reliable people with an eye for accuracy - procedural defects associated with termination not of sufficient significance to render termination harsh, unjust or unreasonable - application dismissed.

DECISION

Introduction

[1] Roweena Ann De Silva (the applicant) was born on 9 May 1963. In her 27th year, on 15 November 1989, the applicant commenced work at Exxon Chemical Australia Ltd (Exxon) in Melbourne. Exxon and, subsequently, the merged entity of ExxonMobil Chemical Australia Pty Ltd (the respondent) employed the applicant to perform various clerical roles such as data entry and secretarial duties.

[2] As a result of a departmental restructure, the applicant was given the new role of "general accounting clerk" in early 1999. This role involved more responsibility and the performance of more complex tasks than were previously expected of her.

[3] In the beginning of applicant's 12th year of employment, on 1 December 2000 to be precise, the respondent terminated her employment on the basis of "[p]oor performance".1

[4] The applicant, on 5 December 2000, applied to the Australian Industrial Relations Commission under s 170CE of the Workplace Relations Act 1996 (the WR Act) for a remedy in respect of the respondent's termination of her employment.

[5] The applicant contends that the termination of her employment was harsh, unjust or unreasonable and seeks an order for an amount in respect of the remuneration lost, or likely to have been lost as a result of the termination. The applicant submits that:

[6] The respondent submits that the termination of the applicant's employment was not harsh, unjust or unreasonable in that:

[7] I now turn to address the evidence pertaining to the respective claims outlined above.

Relevant events leading up to creation of a new role for the applicant

The "Infinium" joint venture

[8] In or about January 1999, a part of the respondent's operations known as the "Paramins business" was separated from the rest of its operations and used by the respondent to enter into a joint venture with The Shell Company of Australia Limited called "Infinium".

[9] The Paramins business generated approximately one-third of the respondent's business at the time that it was separated from the rest of its operations.4

[10] The Infinium joint venture managed its own accounts payable and accounts receivable. The effect of this was to significantly reduce the number of accounts payable which were to be processed by the respondent.5

Change in the applicant's role in early 1999 - the creation of the combined position

[11] From the commencement of her employment in 1989 until the beginning of 1999, the applicant was employed as a "Data Input Operator". The applicant's primary role during this period was to "support the activities of the Accounts Payable Clerk and to enter the totals of the batches of invoices, and to then key the corresponding invoice details into the computer system."6 In addition to this, the applicant also performed some general administrative and accounting duties,7 including filing, photocopying and updating fortnightly, monthly and year end Accounts Payable Reports.

[12] Up until the end of January 1999, Wanda Goral undertook the role of Accounts Payable Clerk for the respondent. Ms Goral did not have any specific accounting qualifications and acquired her skills through general clerical experience.8 Towards the end of January, Ms Goral retired from the position of Accounts Payable Clerk. At this point, a decision was made by the then General Manager of the respondent and Christa Bell, the Financial Services Department Team Leader of the respondent, that the functions of the Accounts Payable Clerk and the Data Input Operator would be combined into one role (the combined position). It was the applicant's evidence that the combined position involved her undertaking "substantial additional duties"9 in that "Accounts Payable work had been carried out by a dedicated full-time employee before it was handed over to me".10

[13] The reasons behind the decision to create the combined position were summarised by Ms Bell as follows:

[14] The respondent offered the applicant the combined position and this offer was accepted by the applicant.

The combined position

Requirements of the combined position

[15] The combined position entailed a four day working week, as the respondent "did not consider that the workload necessitated a full time position."11 Prior to undertaking the combined position, the applicant had been working three days per week. It was Ms Bell's evidence that she discussed with the applicant the issue of the applicant working a four day week and that the applicant accepted that this was reasonable.12

[16] The Witness Statement of Christa Bell which was tendered during proceedings before me13 described the requirements of the combined position as follows:

[17] In addition to the functions outlined above, in or about May 2000, the applicant was given responsibility for performing intercompany accounting functions. The decision to allocate to the applicant intercompany accounting functions stemmed from the relocation of the Credit Manager's role from the respondent's Financial Services Department to the Marketing Department.15 The respondent decided that the Credit Manager's accounting functions (such as intercompany accounting), would still be performed by the Financial Services Department.16 It was Ms Bell's evidence that the performance of this role was well within the applicant's capabilities and would not represent an undue burden in terms of workload. In this regard, Ms Bell's Witness Statement states that:

[18] According to Ms Bell, the applicant had been performing a number of the functions involved in the combined position while she was in the Data Entry Operator position. These functions included:

[19] The accounts payable controls which the applicant was required to adhere to were described by Ms Bell as follows:

[20] During proceedings before me, the applicant did not lead detailed evidence as to her understanding of the requirements of the combined position. However, the applicant gave evidence that she had the skills and the ability to undertake the requirements of the combined position.20

Training of the applicant before commencing the combined position

[21] The respondent led evidence that it trained the applicant prior to her commencing in the combined position in order to assist the applicant to perform adequately the tasks involved in that position.

[22] Evidence was led that the applicant received "hands on" training during an "extensive handover period"21 which took place over four months.22 This hands on accounts payable training was conducted by Wanda Goral, the Accounts Payable Clerk in the Financial Services Department of the respondent prior to the Infinium joint venture commencing.

[23] In addition, prior to September or October 1998, Ms Goral developed an accounts payable procedures manual which was given to the applicant as a guide on how to perform many of the tasks required of her.23

[24] During proceedings before me, the applicant acknowledged that a hand over period took place24 and that she was provided with a manual which outlined the requirements of the combined position.25

The applicant's performance in the combined position

[25] The respondent submitted that the applicant "showed a lack of capacity and aptitude to adequately carry out the duties required of her new role as general accounting assistant. [The applicant] further showed an inability to adapt to the changing demands associated with this new role".26

[26] The respondent based its assessment of the applicant's capacity or conduct on the following grounds (some of which overlap):

[27] The evidence in relation to these grounds will be addressed in turn.

Inaccuracies in and general poor performance of work completed

[28] Ms Bell was directly responsible for supervising the applicant's work from the end of January 1999 until the termination of the applicant's employment.

[29] It was Ms Bell's evidence that, as part of the respondent's "attest" function, she was "required to perform random checks on batches of invoices before they were entered into the computer".27 In her witness statement, Ms Bell stated that when reviewing batches of invoices which were prepared by the applicant, "[f]rom time to time ... I noticed that there were a number of errors caused by her failure to follow basic accounts payable controls."28

[30] Ms Bell cited several examples of inaccuracies in and general poor performance of work completed by the applicant. According to Ms Bell, the applicant had:

[31] The respondent also had grievances in relation to the way in which the applicant prepared accruals and reconciliations. It was Ms Bell's evidence that it appeared to her that the applicant "did not adequately understand the concepts of accruals and reconciliations and appeared to be doing some of these tasks by rote. Consequently if anything unusual came up, she appeared to have difficulties".38

[32] In order to gauge whether her expectations of the applicant were realistic Ms Bell contacted Stephen Grant, the supervisor of Accounts Payable at Esso Australia Pty Ltd (Esso), the parent company of the respondent, to note the workload of people in the Accounts Payable department at Esso.

[33] Mr Grant advised Ms Bell that the position in Esso's Accounts Payable department which most closely resembled that of the applicant is that of a "Senior Grade 1 clerk", which is an award position with a rate of pay less than that of the applicant.39 It was Ms Bell's evidence that Mr Grant advised her that Esso's Senior Grade 1 clerks:

[34] It was Ms Bell's evidence that the applicant's performance did not compare favourably to that of Esso's Senior Grade 1 clerks.40 The applicant was processing an average of 187 invoices per month for the year in 1999 and an average of 163 invoices per month for the year ending October 2000.41 According to Ms Bell, "[i]n most cases, the invoices being processed by [the applicant] were not very complex".42

[35] No evidence was led by the applicant which convinces me that I should not accept the respondent's evidence as to the inaccuracies in and general poor performance of work completed by the applicant.

[36] I find on the basis of the evidence outlined above that the applicant was not performing adequately the tasks set for her by the respondent. In particular, I find that the accuracy and overall standard of the work completed by the applicant was not acceptable.

Tardiness in completing tasks

[37] The following issues were raised by the respondent in relation to the applicant's alleged tardiness in completing tasks:

[38] The applicant gave evidence during proceedings before me that "[t]here was a severe overload of work"57 which she was required to do in the combined position and that this is an excuse for her tardiness.58 However, later in the process of cross-examination, the following exchange took place between counsel for the respondent and the applicant in which the applicant suggested that she always met the deadlines set for her by the respondent:

[39] In relation to the issue of overdue payments, it was the respondent's evidence that in 2000 there was an escalation in the importance of ensuring that there was a minimum level of late payments. There was some concern from the respondent's regional office in Singapore about the level of its late payments as that level was quite high in comparison to the rest of the region. Thus, attention was focused on reducing that number.60

[40] It was the applicant's evidence in relation to the overdue payments issue that:

[41] The respondent acknowledged that external factors may have been a contributor to the applicant's tardiness in completing tasks, but that if this was the case, there was an onus on the applicant "to `escalate' those issues i.e. raise them with [Ms Bell] so that [she] could then progress it with the appropriate Manager to resolve the issue"62 and not simply allow the delays caused by other departments to go unchecked. The respondent led evidence that it organised training for the applicant in order to assist her in retrieving information from other departments.63

[42] Notwithstanding the applicant's evidence to the contrary, it is clear from the respondent's evidence outlined above that the applicant had trouble meeting deadlines set for her by the respondent. When external factors contributed to the applicant's tardiness, she did not endeavour to overcome them by being proactive.

[43] The applicant's tardiness caused significant problems for the respondent, particularly in relation to overdue payments, as the respondent regularly received overdue notices from organisations such as Telstra Corporation Limited and received "phone calls from suppliers threatening to stop supply in some areas".64

Not exercising sufficient initiative in performing her tasks and proactively developing solutions to problems

[44] It was Ms Bell's evidence that the applicant:

[45] The evidence in relation to the applicant's lack of initiative and inability to proactively develop solutions to problems further underlines the fact that the applicant did not adequately handle the requirements of the position. As such, I have given due consideration and weight to this evidence in my assessment of whether the termination was harsh, unjust or unreasonable.

Communications with her direct supervisor and other staff did not enable them to adequately address the issues raised by her

[46] The respondent alleges that the applicant did not communicate effectively with her colleagues. Ms Bell in her Witness Statement cited as examples of the applicant's ineffective communication:

[47] I have given little weight to the respondent's allegation that the applicant was an ineffective communicator. While the applicant's deficiencies as a communicator would have in all likelihood represented an inconvenience to her co-workers, I am not satisfied on the evidence before me that the applicant's poor communication skills provided the respondent with a ground upon which it could terminate her employment.

[48] In any event, while I note the documents authored by the applicant which are on the file in this matter often contain imprecise grammar and perhaps reflect language difficulties experienced by the applicant,71 the respondent was bound to take the applicant as it found her.72 That is, if the respondent was of the view that the applicant's communication with colleagues was sub-standard, it should have accepted this as the status quo and sought to rectify this problem by way of training the applicant. There is no evidence that the applicant was provided with formal training in relation to her communication skills.73

Attendance at work and work hours

[49] The applicant was required to work 30.4 hours per week.74 It was Ms Bell's evidence that around mid-2000 she:

[50] Ms Bell gave evidence that while the applicant's performance did improve, there were "still occasions when she would be absent from her desk for periods of up to half an hour without notifying me of where she was going and when she would be back".76

[51] While I recognise and acknowledge that the applicant was erratic in her working hours and that this would have represented an inconvenience to the respondent and Ms Bell in particular, I am not satisfied on the evidence before me that the applicant's work attendance provided the respondent with a ground upon which it could terminate her employment.

Was the termination harsh, unjust or unreasonable?

[52] Section 170CG(3) of the Workplace Relations Act 1996 (the Act) provides that in determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

[53] These issues will be addressed in turn.

Was there a valid reason for the termination related to the capacity or conduct of the employee ?

[54] In Selvachandran v Peteron Plastics Pty Ltd,77 Northrop J held that a valid reason is one that is "sound, defensible or well founded" and not "capricious, fanciful, spiteful or prejudiced".78 This definition has been widely adopted in decisions of the Australian Industrial Relations Commission.79

[55] There is no doubt that incompetence or under performance on the part of an employee constitutes a "valid reason" for the purposes of s170CG(3)(a) of the Act. That is, an employer is not required to keep under performing employees.80

[56] Similarly, an inability on the part of an employee to perform one of the inherent requirements of the position for which they have been engaged (such as accurately undertaking accounts payable controls) can, in certain circumstances, constitute a "valid reason".81

[57] In assessing whether the respondent had a valid reason to terminate the applicant's employment, I must also take into consideration the applicant's evidence that she "had neither accounting qualifications nor [a] bookkeeping background, however had accounting related duties progressively added to [her] earlier data entry and secretarial duties, with most of such duties added after 1 January 1999."82

[58] In Fowler v Australian Red Cross - ACT83 (Fowler's Case), Commissioner Larkin stated that:

[59] In Fowler's Case, the respondent acknowledged that the applicant, who was employed as an accountant, did not "have the qualifications nor experience to perform to the standard required by the job specification"85 but that, given the applicant's enthusiasm, the respondent "felt [the applicant] capable of fulfilling the requirements with guidance and assistance".86 After approximately 10 months in the position, the applicant's employment was terminated due to her:

[60] Larkin C concluded that the respondent's expectation of the applicant was not reasonable in the circumstances,87 given the applicant's inexperience, the level of responsibility given to her and the fact that her mentor, who provided support and assistance, left the employ of the respondent after three months of her commencing employment.88

[61] I am of the opinion that in the present matter, the respondent's expectations of the applicant were, in all of the circumstances, reasonable. The tasks allocated to her by the respondent were not so complex or burdensome as to make unreasonable the respondent's expectations that the tasks be completed thoroughly, accurately and in a timely fashion. Indeed, the applicant herself gave evidence that she had the skills and the ability to undertake the requirements of the combined position.89

[62] I am satisfied on the evidence before me that the respondent had a valid reason to terminate the applicant's employment based on:

Was the applicant notified of the reasons for her dismissal ?

[63] In Byrne & Frew v Australian Airlines Ltd90 McHugh and Gummow JJ stated that:

[64] Both s170CG(3)(b) and s170CG(3)(c) are clearly related to the concept of "procedural fairness". The relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.92

[65] The doctrine of procedural fairness dictates that a respondent should notify an applicant of its reasons for terminating the applicant's employment:

[66] I have some doubts in relation to the issue of whether the applicant was appropriately notified of the respondent's reasons for terminating her employment.

[67] In P. Crozier and Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport,96 a Full Bench of the Commission held that s.170CG(3)(b) of the WR Act refers to the giving of notice prior to a decision to terminate being taken and that it is not sufficient if the employee is told of the reason for termination after the employer has made the decision to terminate their employment. The Full Bench stated that:

[68] While the applicant was warned by the respondent on several occasions that her performance was less than satisfactory and that a failure to improve may result in the termination of her employment,98 it appears from the evidence before me that the respondent had made up its mind that it would terminate the applicant's employment before notifying the applicant of its reasons for doing so.

[69] It was Ms Bell's evidence that she:

[70] According to Ms Bell, Mr West made the final decision to terminate the applicant's employment.102

[71] The meeting at which the applicant's employment was terminated took place on 1 December 2000 and was attended by Mr West, Andrew Westerman (a Human Resources consultant with Esso) and the applicant. It was the evidence of Mr Westerman that during the meeting:

[72] It is clear from the evidence of Ms Bell and Mr Westerman that the meeting of 1 December 2001 was scheduled for the primary purpose of terminating the applicant's employment and that the respondent was going to take this action regardless of what the applicant had to say on the issue. This is evidenced by Mr Westerman's account of the final meeting, where he recounted that the applicant was informed that the respondent had decided to terminate her employment and then the applicant was asked whether she had anything to say in response.104

[73] Not surprisingly, after being told that the respondent had decided to terminate her employment, the applicant did not say anything to try to convince the respondent that its decision was an imprudent one. In my view, it is understandable for a person in the position of the applicant to be of the view that there would be no point in saying anything in response to the statement that their employer had made the decision to terminate their employment. This is a situation which paragraphs (b) and (c) of s170CG(3) were designed to circumvent.

[74] During proceedings before me, counsel for the respondent acknowledged that at the termination meeting of 1 December 2000, "there was no opportunity for [the applicant] to defend herself".105 However, counsel for the respondent submitted that this is a minor misdemeanour on the part of the respondent in the context of the overall matrix of the matter in which the applicant was the subject of a Performance Improvement Plan and was on notice that her position was at risk by virtue of a series of review meetings with Ms Bell.

[75] I agree with this view. In doing so, I note and acknowledge the following statement which is contained in the Explanatory Memorandum to the Workplace Relations and Other Legislation Amendment Bill 1996 (Cth):

[76] Similar sentiments were expressed by Wilcox CJ in Gibson v Bosmac Pty Ltd,106 where his Honour expanded on his earlier observations concerning the application of section 170DC of Industrial Relations Act 1988 (Cth),107 stating that:

[77] I am of the view that the procedural defects associated with the termination in this matter are not of sufficient significance as to render the termination harsh, unjust or unreasonable for the purposes of s170CG(3) of the WR Act.

Was the applicant given an opportunity to respond ?

[78] In Reader v Wyndham Lodge Nursing Home,109 Marshall J stated that an employee whose employment may be in jeopardy as a result of their capacity or conduct must be given a "real and full opportunity to seek to disabuse her or his accusers of the allegations against her or him".110 Naturally, this opportunity must be afforded prior to the decision to terminate takes place.111

[79] As stated above, I have concluded that the procedural defects associated with termination in this matter are not of sufficient significance as to render the termination harsh, unjust or unreasonable for the purposes of s170CG(3) of the WR Act.

Was the applicant warned about unsatisfactory performance before the termination?

[80] From the evidence presented before me, I am satisfied that the applicant was warned in unambiguous terms112 that the respondent saw her performance as being unsatisfactory and was accordingly instructed to improve in several areas of her performance.113

Other matters that the Commission considers relevant

Manner of termination interview and departure from the workplace

[81] In the applicant's "Outline of Submissions",114 the applicant submitted that the Commission should take into consideration "the manner of the termination interview and departure from the workplace" as these events "were unnecessarily harsh and were humiliating and degrading for the applicant".115

[82] In relation to the issue of the termination interview, it was the applicant's evidence that the interview was particularly abrupt116 and that she was not provided with a genuine opportunity to put her case to the respondent. I do not see this as being an issue which I need to address over and above that which has been already addressed in relation to s170CG(3)(b) and (c).

[83] As to the issue of the applicant's departure from the workplace after her employment had been terminated, the applicant gave the following account of events which took place immediately after the termination interview:

[84] While the manner in which an applicant was escorted from a respondent's premises immediately after a termination may be a relevant consideration for the purposes of s170CG(3)(e) in certain circumstances, I do not consider these circumstances to be in existence in this matter. Employers are entitled to escort dismissed employees from their premises, however I note that, in doing so, employers must ensure that they exercise appropriate sensitivity.

[85] There is no evidence which suggests that the manner in which the applicant was escorted from the respondent's premises on 1 December 2000 rendered the termination of her employment harsh, unjust or unreasonable.

Training and other assistance provided to the applicant whilst in the combined position

[86] I have already discussed the training and assistance provided to the applicant before commencing in the combined position earlier in these reasons for decision.117 However, it is important to address the issue of whether the respondent provided the applicant with adequate training during the period in which she was employed in the combined position.

[87] The question which the Commission must ask itself is: did the respondent provide the applicant with adequate support and training in order to overcome the perceived deficiencies in the applicant's performance ? This question becomes even more important given the fact that the applicant was required to undertake bookkeeping and accounting functions in the combined position and was perhaps under-qualified to undertake such functions. Therefore, it could be argued that the respondent should have been active in providing the applicant with additional training in order to assist her in adapting to the new role.118

[88] The respondent argued that it became increasingly dissatisfied with the applicant's performance during the period April 2000 - June 2000119 and that it provided the applicant with an opportunity to participate in "a number of training courses which were thought may assist her in improving her performance".120 It was Ms Bell's evidence that:

[89] Subsequently, as part of a Performance Improvement Plan (PIP), the respondent organised and paid for the applicant to undertake the following training:

[90] I have taken into consideration the evidence in relation to the respondent's efforts to train and assist the applicant by such measures as the hands-on training provided by Ms Goral prior to the applicant commencing in the combined position and the PIP which was initiated after it became apparent that the applicant was not performing her role adequately.

[91] It is my view that the respondent took reasonable and adequate steps to assist the applicant in performing the tasks required of her in the combined position.

Conclusion in relation to s170CG(3)

[92] For the reasons set out above, I conclude that the termination of the applicant's employment was not harsh, unjust or unreasonable.

Remedy

[93] If the Commission determines that the termination of employment was harsh, unjust or unreasonable, it may make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) of s 170CH of the Act. However, the Commission must not make an order for such a remedy unless it first considers the matters set out in subsection (2) of s 170CH of the WR Act and is satisfied that the remedy ordered is appropriate.

[94] In view of my conclusion it is unnecessary for me to consider the issue of remedy. However, I would not award compensation in this matter even if it were the case that the termination of employment was found to be harsh, unjust or unreasonable.

[95] The matters to be taken into account in determining whether the remedy is appropriate are as follows:

[96] The applicant does not seek reinstatement,122 instead she seeks "reasonable compensation for lost wages and damages for distress and humiliation".123

[97] The considerations in s170CH(2) of the WR Act are repeated in s170CH(7) as considerations relevant to the calculation of an amount in lieu of reinstatement.

[98] The matters set out in s170CH(7) of the WR Act are addressed below.

Effect of order on viability of employer's undertaking, establishment or service

[99] The respondent is a large corporation and there is no evidence that its viability would be adversely affected by an order for an amount in lieu of reinstatement.

Length of employee's service

[100] The applicant had been employed by the respondent for 11 years.

Remuneration that the applicant would have received, or would have been likely to receive, if her employment had not been terminated

[101] Due to the applicant's poor work performance as outlined earlier in these reasons for decision, I have concluded that she would have continued to be employed by the respondent for a further four weeks but for the termination of her employment on 1 December 2000.

Efforts of the employee to mitigate her loss

[102] I am satisfied on the evidence before me that the applicant made reasonable efforts124 to mitigate her loss.125

Any other matter that the Commission considers relevant

[103] In the applicant's "Outline of Submissions",126 it is submitted that:

[104] However, after hearing the submissions of the applicant's representative during proceedings before me, it is not entirely clear whether the applicant seeks to rely on this argument.128

[105] Nevertheless, I see this claim as having no merit. Evidence was led that the applicant was escorted from the respondent's premises by Mr West, that this event was witnessed by some employees of the applicant and that she was not allowed to say goodbye to her colleagues. It was the applicant's evidence that "I felt that everyone was watching and felt that Mr. West had degraded and humiliated me by the forced manner of my departure".129

[106] These facts can be contrasted with the facts in Burazin v Blacktown City Guardian Pty Ltd,130 where the employee was escorted from the premises by the police in full view of other staff, a circumstance likely to lead to exacerbation of the shock, humiliation and distress Ms Burazin was already suffering at the time of her dismissal.

[107] In the present matter, the respondent was perfectly entitled to have the applicant escorted from its premises. Indeed, this seems to be an accepted business practice. Further, the respondent did not, in my opinion, degrade or humiliate the applicant by the manner in which Mr West escorted her from the building.

[108] I am not satisfied on the evidence before me that the applicant endured inordinate pain and suffering131 as a result of the termination of her employment.

Calculation of amount of compensation to be awarded to the applicant

[109] In calculating the amount which would have been awarded to the applicant in the event that the termination was held to be harsh, unjust or unreasonable, I follow the approach adopted by Vice President Ross in Shorten v Australian Meat Holdings Pty Ltd,132 as developed by a Full Bench in Sprigg v Paul's Licensed Festival Supermarket.133 It is not necessary to examine those decisions in detail. Nevertheless, I shall use the approach these cases contain as the basis for my calculation of the amount to be awarded to the applicant.

Estimate of remuneration which the applicant would have received, or have been likely to have received, but for the termination

[110] In Kenefick & Ors v Australian Submarine Corporation,134 the Full Court of the Industrial Relations Court of Australia stated that:

[111] As stated above, I have found that the applicant would have worked in the employ of the respondent for a further four weeks but for the termination of her employment.

[112] It was the applicant's evidence that she earned $625.20 (gross) per week,136 plus a superannuation contribution of $43.80 per week.137 Thus, I find that the applicant would have earned a total of $2,676.00 but for the termination of her employment on 1 December 2000.

Deduct moneys earned since termination. Failure of an applicant to mitigate his/her loss may lead to a reduction in the amount awarded

[113] Evidence was led that the applicant had earned a total of $3,562138 between the date of the termination of her employment and the date on which her witness statement was finalised.139 As stated above, the applicant made reasonable efforts to mitigate her loss, thus no reduction in the amount awarded is necessary in this regard.

Deduction for Contingencies

[114] I find that the applicant's 11 years of service would weigh significantly in her favour and that no reduction in the amount awarded would be warranted.140

Impact of taxation considered

[115] This requires taxation to be taken out of the amount to be ordered to ensure the employee receives the actual amount he or she would have received if they had continued in employment. As the amount used to estimate the applicant's likely remuneration was given as a gross figure, no relevant issue arises in connection to this.

The legislative cap on the amount to be awarded is applied

[116] It is unnecessary to consider this issue.

Conclusion

[117] The applicant was paid two months wages in lieu of notice on termination of her employment. After considering this fact and the matters outlined above in relation to the calculation of the amount to be awarded to the applicant, I conclude that, even if the termination was found to be harsh, unjust or unreasonable, the respondent would not have been required to pay to the applicant any amount in lieu of reinstatement.

[118] I am of the view that the employee was afforded a "fair go" in all of the circumstances.

[119] The application is dismissed.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

Mr G Dircks for the applicant.

Mr J Bourke for the respondent.

Hearing details:

Melbourne.

2001

June 22

July 6, 9.

Printed by authority of the Commonwealth Government Printer

<Price code F>

** end of text **

1 Form R21 - Notice of Employer's Appearance dated 18 December 2000; see also: Respondent's Outline of Submissions (Exhibit R12), par 14.

2 Witness Statement of Andrew Westerman (Exhibit R6), par 7.

3 Respondent's Outline of Submissions (Exhibit R12), par 3.

4 Witness Statement of Christa Marie Bell (Exhibit R4), par 8.

5 Witness Statement of Christa Marie Bell (Exhibit R4), par 8 and Documents 4 and 5 referred to therein.

6 Witness Statement of Christa Marie Bell (Exhibit R4), par 10.

7 Witness Statement of Christa Marie Bell (Exhibit R4), par 10.

8 Transcript PN61.

9 Witness Statement of the applicant (Exhibit A2), par 12.

10 Witness Statement of the applicant (Exhibit A2), par 12.

11 Witness Statement of Christa Marie Bell (Exhibit R4), par 13.

12 Transcript PN68-70.

13 Exhibit R4.

14 Witness Statement of Christa Marie Bell (Exhibit R4), par 14.

15 Witness Statement of Christa Marie Bell (Exhibit R4), par 30.

16 Witness Statement of Christa Marie Bell (Exhibit R4), par 30.

17 Witness Statement of Christa Marie Bell (Exhibit R4), par 30.

18 Witness Statement of Christa Marie Bell (Exhibit R4), par 15.

19 Witness Statement of Christa Marie Bell (Exhibit R4), par 18.

20 Transcript PN1745-1746.

21 Transcript PN71.

22 Transcript PN72; see also: Witness Statement of Christa Marie Bell (Exhibit R4), par 16.

23 Witness Statement of Christa Marie Bell (Exhibit R4), par 16.

24 Transcript PN1743.

25 Transcript PN1744.

26 Respondent's Outline of Submissions (Exhibit R12), par 3.

27 Witness Statement of Christa Marie Bell (Exhibit R4), par 17.

28 Witness Statement of Christa Marie Bell (Exhibit R4), par 17.

29 Witness Statement of Christa Marie Bell (Exhibit R4), par 32.

30 Witness Statement of Christa Marie Bell (Exhibit R4), par 46.

31 Witness Statement of Christa Marie Bell (Exhibit R4), par 46.

32 Witness Statement of Christa Marie Bell (Exhibit R4), par 46.

33 Witness Statement of Christa Marie Bell (Exhibit R4), par 46.

34 Witness Statement of Christa Marie Bell (Exhibit R4), par 97(b).

35 Witness Statement of Christa Marie Bell (Exhibit R4), par 101.

36 Witness Statement of Christa Marie Bell (Exhibit R4), par 116.

37 Witness Statement of Christa Marie Bell (Exhibit R4), par 139.

38 Witness Statement of Christa Marie Bell (Exhibit R4), par 33.

39 Witness Statement of Christa Marie Bell (Exhibit R4), par 35.

40 Witness Statement of Christa Marie Bell (Exhibit R4), par 37, where Ms Bell states that "the [Esso] Accounts Payable Clerks were processing between 2 and 4 times as many transactions as [the applicant] was processing."

41 Witness Statement of Christa Marie Bell (Exhibit R4), par 37 and documents 4 and 5 referred to therein.

42 Witness Statement of Christa Marie Bell (Exhibit R4), par 37.

43 Witness Statement of Christa Marie Bell (Exhibit R4), par 97.

44 Witness Statement of Christa Marie Bell (Exhibit R4), par 100.

45 Witness Statement of Christa Marie Bell (Exhibit R4), par 97(c).

46 Witness Statement of Christa Marie Bell (Exhibit R4), par 97(e).

47 I note that the applicant did not work on Mondays.

48 Witness Statement of Christa Marie Bell (Exhibit R4), par 102.

49 See: Witness Statement of Christa Marie Bell (Exhibit R4), paras 75 - 78, which emphasises the importance of this account and the importance of keeping the account "current".

50 Witness Statement of Christa Marie Bell (Exhibit R4), par 104.

51 Witness Statement of Christa Marie Bell (Exhibit R4), par 106.

52 Witness Statement of Christa Marie Bell (Exhibit R4), par 114.

53 Witness Statement of Christa Marie Bell (Exhibit R4), par 115.

54 Witness Statement of Christa Marie Bell (Exhibit R4), par 123.

55 Witness Statement of Christa Marie Bell (Exhibit R4), par 114.

56 Witness Statement of Christa Marie Bell (Exhibit R4), par 126.

57 Transcript PN1790.

58 Transcript PN1791-1792.

59 Transcript PN1837.

60 Transcript PN108.

61 Witness Statement of the applicant (Exhibit A2), par 38.

62 Witness Statement of Christa Marie Bell (Exhibit R4), par 53. Though I note in par 34 of the Witness Statement of the applicant (Exhibit A2), the applicant states that she was told by "the previous incumbent of the Accounts Payable role ... that I was not supposed to be a `policeman' in ensuring other departments carried out their roles in processing relevant information and returning it to the Financial Services Department."

63 Transcript PN192 and Witness Statement of Christa Marie Bell (Exhibit R4), par 88.

64 Transcript PN109.

65 Witness Statement of Christa Marie Bell (Exhibit R4), par 46.

66 Witness Statement of Christa Marie Bell (Exhibit R4), par 46.

67 Witness Statement of Christa Marie Bell (Exhibit R4), par 48.

68 Witness Statement of Christa Marie Bell (Exhibit R4), par 117; see also: par 133.

69 Witness Statement of Christa Marie Bell (Exhibit R4), par 97(d) and Document 14 referred to therein.

70 Witness Statement of Christa Marie Bell (Exhibit R4), par 125.

71 See example: Document 11, attached to Witness Statement of Christa Marie Bell (Exhibit R4) which is a letter from the applicant to Ms Bell which reads (in part), "Christa, I have some concerns I need to clarify in regards to my review and in the discussions we had also points I need to make."

72 See generally: Dulieu v White & Sons [1901] 2 KB 669, at 679.

73 Though I note that the applicant did undertake a "Managing Difficult People Course" (see: Witness Statement of Christa Marie Bell (Exhibit R4), par 88), however this was not directed at improving the alleged deficiencies in the applicant's general communication skills.

74 Witness Statement of Christa Marie Bell (Exhibit R4), par 39.

75 Witness Statement of Christa Marie Bell (Exhibit R4), par 39.

76 Witness Statement of Christa Marie Bell (Exhibit R4), par 140.

77 (1995) 62 IR 371; I note that this case dealt with s170DE(1) of the Industrial Relations Act 1988.

78 ibid at 373.

79 See recent decisions: Annetta v Ansett Australia (2000) 98 IR 233, at 235; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 144; Bargri v Engineered Products Group (Full Bench of the Commission, Print T4964, 2 January 2001).

80 Hurskin v Australian Jewish Press Pty Ltd (1996) 69 IR 123, at 141; Harmer v Cornelius (1858) 141 ER 94; Murray v Allied Express Pty Ltd (Foggo C, Print S0883, 10 November 1999).

81 Cramer v Smithkline Beecham (1997) 73 IR 470; Qantas Airways Ltd v Christie (1998) 193 CLR 280; (1998) 79 IR 120; [1998] HCA 18; Ellawala and Australian Postal Corporation (Print S0691); La Roche v Australian Taxation Office (unreported, 22 January 1997 IRCt(Vic)); Anderson v Minister for Education (unreported, 2 July 1996, IRCt(WA)) at page 80.

82 Witness Statement of the applicant (Exhibit A2), par 5.

83 (1997) 71 IR 468.

84 ibid at 479.

85 ibid, at 478.

86 ibid, at 479.

87 ibid, at 480.

88 ibid.

89 Transcript PN1745-1746.

90 (1995) 185 CLR 410; (1995) 131 ALR 422; (1995) 69 ALJR 797; (1995) 61 IR 32.

91 ibid, at 465-466.

92 Osman v Toyota Motor Corporation Australia Ltd [PR910409], par [36]; see also: FAI Insurances Limited v Winneke (1981-1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596.

93 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport [Print S5897].

94 Previsic v Australian Quarantine Inspection Services [Print Q3730]; Cosic & Another v Nuance Australia Pty Ltd t/a Downtown Duty Free [Print Q1346].

95 Valentine Previsic v Australian Quarantine Inspection Services [Print Q3730]; Sinclair v Defiance Milling Co Pty Ltd [Print P7993].

96 [Print S5897].

97 ibid at [73].

98 See: Witness Statement of Andrew Westerman (Exhibit R6), par 16; Witness Statement of Christa Marie Bell (Exhibit R4), par 49 and 110.

99 Witness Statement of Christa Marie Bell (Exhibit R4), par 147 and document 22 referred to therein.

100 See document 22, attached to the Witness Statement of Christa Marie Bell (Exhibit R4).

101 Witness Statement of Christa Marie Bell (Exhibit R4), par 147.

102 Witness Statement of Christa Marie Bell (Exhibit R4), par 147.

103 Witness Statement of Andrew Westerman (Exhibit R6), par 23.

104 Witness Statement of Andrew Westerman (Exhibit R6), par 23; this account is supported by the applicant - see: Witness Statement of the applicant (Exhibit A2), par 58 and 61 and Transcript PN1644.

105 Transcript PN38.

106 (1995) 60 IR 1.

107 I note that this provision was expressed in different terms to that of s170CG(3)(b). Section 170DC of the Industrial Relations Act 1988 (Cth) relevantly provided as follows: "[a]n employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless ... the employee has been given an opportunity to defend himself or herself against the allegations made".

108 ibid at 7.

109 (1995) 64 IR 83.

110 ibid at 92; I note that this decision was the subject of an appeal (see: Wyndham Lodge Nursing Home v Reader (1996) 65 IR 253), but this aspect of Marshall J's decision was not interfered with on appeal.

111 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport [Print S5897], par [73].

112 See cases on need to express warnings in unambiguous terms: Pereira v Brochure Flow Pty Ltd [Print P8376]; Nicolson v Heaven and Earth Gallery (1995) 126 ALR 233 at 243; Hurskin v Australian Jewish Press Pty Ltd (1996) 69 IR 123, at 141.

113 See: Witness Statement of Christa Marie Bell (Exhibit R4), par 21, 22, 40, 46, 97, 100-110, 114-120, 123-129, 132-138 and 142.

114 Exhibit A7.

115 ibid at par 85.

116 Witness Statement of the applicant (Exhibit A2), par 57.

117 See: pars [21] to [24].

118 See: Czarnuch and Colonial State Bank [Print Q3152].

119 Witness Statement of Christa Marie Bell (Exhibit R4), par 31.

120 Transcript PN26.

121 Witness Statement of Christa Marie Bell (Exhibit R4), par 41.

122 Applicant's Outline of Submissions (Exhibit A7), par 89.

123 Applicant's Outline of Submissions (Exhibit A7), par 87.

124 See: Westen v Union des Assurances de Paris (1996) 88 IR 259 at 266; Maluk v Sutton Tools Pty Ltd [Print R0426].

125 See: Transcript PN2790-2796 and Exhibit A6.

126 Exhibit A7.

127 ibid at par 88.

128 See: Transcript PN3009 where the applicant's representative stated that, "The Burazin principle, we haven't sought to press that claim", but then went on to argue that the relevant principle in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 has been recently accepted by a Full Bench of the Commission.

129 Witness Statement of the applicant (Exhibit A2), par 66.

130 (1996) 142 ALR 144.

131 See: Coms 21 Limited [Print S3571] and Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144.

132 (1996) 70 IR 360.

133 (1998) 88 IR 21.

134 Unreported, Full Court of the Industrial Relations Court of Australia, 8 July 1997.

135 See also: Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50, at 61-61 per Wilcox CJ.

136 Witness Statement of the applicant (Exhibit A2), par 3.

137 Applicant's Outline of Submissions (Exhibit A7), par 3.

138 Witness Statement of the applicant (Exhibit A2), par 68.

139 6 April 2001.

140 See: Sprigg v Paul's Licensed Festival Supermarket [Print R0235].