Abruzzese v David Jones Limited

[1996] IRCA 516

DECISION NO:516/96

CATCHWORDS

INDUSTRIAL LAW - UNFAIR TERMINATION - no VALID REASON -
REINSTATEMENT

Industrial Relations Act 1988  s.170DE

Re Rubber, Plastic & Cable Making Industry (Consolidated) Award 1983 (1989) 31IR 35

MARIA ABRUZZESE -v- DAVID JONES LIMITED
No. NI 4866 of 1995

Before:                   WALKER JR
Place:  SYDNEY
Dates of Hearing:  1 MAY & 6 AUGUST 1996
Date of Judgment: 1 NOVEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

No. NI 4866 of 1995

BETWEEN

MARIA ABRUZZESE
Applicant

AND

DAVID JONES LIMITED
Respondent

Before:                   WALKER JR
Place:  SYDNEY
Dates of Hearing:  1 MAY & 6 AUGUST 1996
Date of Judgment: 1 NOVEMBER 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The respondent appoint the applicant to the position of a uniformed loss prevention officer at the Bondi Junction store of the respondent’s company.

1. The employment of the applicant be for all purposes deemed to have been continuous from the date of termination.

1. The respondent pay to the applicant all remuneration and benefits that she would have received but for the termination.

Note:   Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

No. NI 4866 OF 1995

BETWEEN

MARIA ABRUZZESE
Applicant

AND

DAVID JONES LIMITED
Respondent

Before:  WALKER JR
Place:                SYDNEY
Date :     1 NOVEMBER 1996      

REASONS FOR JUDGMENT

The applicant, Maria Abruzzese, is a 52 year old woman who migrated to Australia with her husband and family from Italy. In 1986 her husband died and she sought employment to support her family at the Bondi Junction store of David Jones. She commenced work there as a casual fitting room attendant on 5 May 1986 and was promoted to a full time position of loss prevention officer on 25 November 1989. She attended a basic training course and was issued with a certificate on 28 November 1989.

A staff progress report was carried out by the loss prevention manager for the period  27 November to 27 March 1990 as to the applicant’s performance. This report was marked as exhibit 4 and refers to her in favourable terms. The overall opinion in paragraph eight says,

“Maria is keen and is very security conscious. She will an asset [sic] in the future”

In the opposite column there are four boxes: 1. “Not want”,  2. “Take a chance”,  3. “Happy to have”, and  4. “Fight to get”. The question asked of the supervisor is,

“OVERALL OPINION (To what extent would you want him/her working for you in any future appointment?)”

The supervisor has ticked box 4: “Fight to get”.

On 8 November 1990 the applicant received a memorandum signed by Charles Lloyd Jones, the store manager of the Bondi Junction branch, recommending a merit increase in the applicant’s salary by $40.00 per week. It would appear from this evidence that David Jones were more than happy with the applicant’s performance and she would be looking at a long and successful career.

It was the applicant’s evidence that she had told the Manager, Warren Henry, when she commenced her employment that she had a phobia about city crowds and felt sick in the city. Under cross-examination the applicant was asked if she had informed Peter Newbold, the New South Wales loss prevention manager, when she commenced her employment nine years before that she had a problem working in the city. She replied,

“I no speak with Peter Newbold. I speak with my manager of security, Henry. Henry was my first manager; for he asked me to go in security and I told him I don’t write English, ‘I want to be clear with you and I want you tell the boss in the city because I never meet Peter Newbold before,’ - and my manager said - I said to him, ‘Please tell him I couldn’t go work in the city.’ If you want to send me to training three months in the city I couldn’t go three months in the city. He say all right. The day after he’s come back to me and me, Maria, I speak with Peter Newbold and Peter Newbold say, ‘You okay, you no need to go in the city for training; you training at Bondi.’”

She also said she advised her employer that she could not write English as she had attended school in Italy and it is also evident that she is not fluent in the language but is easily understood.

When asked in cross-examination whether the applicant had ever indicated to him that she had a problem with crowds, Mr Newbold replied,

“Well, she indicated that, too, at one stage.” 

In October 1994, Mr  Frank Loki was appointed as loss prevention manager of the Bondi junction store. He tendered a statement in these proceedings marked as exhibit R2. In this statement he says his duties were the oversight and administration of the store, monitoring the performance of staff, and providing the company with performance reviews.  He says in paragraph four,

“I am also responsible for the stock loss in the store and expected to keep it to a minimum. My performance is reviewed on the stock loss of the store. I therefore encourage and support my staff in making apprehensions of offenders within the store and deterring offenders.”

Mr Loki’s statement indicates that the applicant made few apprehensions. He concludes his statement with the following summary,

“From October, 1994 until December, 1995, Maria made or assisted with 3 apprehensions in the store. For the year of 1994 the total number of apprehensions in the Bondi Junction store was 175, of which Maria’s contribution was 2 apprehensions. During the 1995 year a total of 165 offenders were apprehended at the store, of which Maria’s contribution was 2 apprehensions.”  

Following his arrival at the Bondi Junction store Mr Loki said he continued to monitor the applicant’s progress and on 2 March 1995 he carried out a performance review with her. In his evidence he says he explained to the applicant that she lacked the technical knowledge of a loss prevention officer. Mr Loki also made comment in the performance appraisal that the applicant had difficulty working with other members of staff and that she felt that they did not want to work with her. As a result of this report Mr Loki gave the applicant three options: the first, to work in a specific target area as designated by him; the second, to be demoted back to a fitting room attendant; and the third, to go to the city store for further training. The applicant chose the first option and was allocated to the women’s accessories / handbag department on level three of the Bondi Junction store.

On 25 May 1995, Mr Loki completed a further performance review of the applicant. In this report he says that the applicant has not improved her productivity over the last three months as she has not instigated nor assisted in any apprehensions. He also reports that the applicant has been observed by “management and other reports had been made” that she was spending a lot of her time talking to staff and customers and that “no doubt this has impeded her ability to spot suspects.” Because of the applicant’s failure to make apprehensions Mr Loki implemented option three: further training at the city store. The applicant was sent to the city store on 5 June 1995 and returned after the training to the Bondi store on 18 July 1995.

Following this training, Mr Peter Newbold carried out what appears to be an evaluation of the applicant’s suitability as a loss prevention officer during her training at the city store. I must say that I find this rather puzzling, as the applicant had been employed for the past six and a half years doing this work. It would also appear that the applicant was not informed that she was being evaluated; rather, it was supposed to be further training. Mr Newbold, it would appear, is more concerned with the applicant’s lack of English and her ability to give evidence in court appearances rather than her performance regarding apprehensions. His memorandum to Mr Loki of 13 July includes the following:

“Attached also are the questions put to Maria and her answers to those questions covering the subjects involved. These subjects and questions have been repeated over the last three weeks. There has been only marginal improvement.

It is obvious to me that Maria has difficulty in on learning and retaining the information imparted. She also has a problem understanding the complexities of the position and has a great difficulty in explaining her understanding of her actions. This lack of understanding would certainly expose her to extreme stress when giving evidence as a witness, exposing herself and the Company to possible litigation over any action that may have been instigated on information she has provided.

Maria’s activity as a Loss Prevention Officer would be restricted to nothing more than bag checks, parcel checks and locker searches. If sincerity and dedication were the criteria for a successful Loss Prevention Officer then Maria would be appropriately placed. This unfortunately is not the case and although I would judge her to be a loyal and dedicated employee, this is in itself insufficient reason to retain her services as a Loss Prevention Officer.

RECOMMENDATION.
My recommendations are that taking into account the number of years Maria has given this Company - albeit in a passive and non productive form she be considered for placement in a more appropriate position to be determined by Management.

Her lack of knowledge and failure to undergo appropriate training can only be credited to the lack of responsibility exhibited by Managers previous to yourself. There would have been an obvious awareness of this staff members short comings and lack of knowledge of the duties she is required to perform. Because of this lack of commitment to training we find ourselves in a position of retaining a staff member who, through no fault of our own is incapable of performing the function for which she is employed.”

I find this document extremely arrogant. On the one hand it says that the applicant’s lack of knowledge is due to the company’s failure to train her and then attempts to say that through no fault of their own they now have a person who has served six and a half years who is incapable and must be removed. It is of interest to note Mr Newbold’s comments on the performance rating annexed to this memorandum. Under the heading of Performance (technical) he makes the following notes:

“...Over the 6 weeks period Maria has received training there has been a marked improvement in her performance and knowledge. The improvement is insufficient to confirm this body will ever become an effective L.P.O. She appears incapable of absorbing the technical information necessary to assist in becoming effective in this role.”

I find it difficult to understand how such an observation can be made when there has been a “marked improvement in her performance and knowledge.” After all, the applicant was only sent to the city store to be trained, and she has displayed a marked improvement. There was also evidence that during this training the applicant made a successful apprehension while in the city office.

On the applicant’s return to the Bondi Junction store, she was counselled by Ms Stackpool, the Bondi Junction store staff manager. Ms Stackpool said in her statement that the applicant did not agree with Mr Newbold’s assertion that she was not suited to the position of loss prevention officer and reminded her that she had apprehended a shoplifter while on the course. Ms Stackpool then offered the applicant her old position of fitting room attendant, however the applicant she said was adamant that she remain as a loss prevention officer. The applicant was then advised by Ms Stackpool that she was to remain as a loss prevention officer and that her apprehension results would be monitored over the next four weeks and were to be in line with the results of her fellow workers. The report marked as attachment 5 to Ms Stackpool’s statement also states,

“Maria Abruzzese is aware that a wrongful arrest may lead to litigation against David Jones and will not, through her actions place David Jones in this position.”

On 21 September 1995, Ms Stackpool reviewed the applicant’s apprehension rate and questioned her as to why she had made no arrests. The applicant she said replied that she had not observed any shoplifters in the store. The applicant was then advised that if she did not improve her performance she would be terminated after a further review in four weeks. Ms Stackpool also arranged a further period of training at the city store for the week commencing 9 October 1995.

Ms Stackpool reviewed the applicant again on the 26 October 1995 in the presence of Frank Loki and says in her statement,

“Even following Maria’s additional training in the city, there was no improvement in her performance.”

This must mean that Ms Stackpool used one week and a half after the applicant’s return from the city store to judge the applicant’s performance. Mr Loki in his statement on page six gives the following evidence:

“Maria returned to the Bondi store on 16 October, 1995, and after more than one week she again had not apprehended any offenders. In the meantime 2 offenders had been apprehended in the store by other staff.”

From these figures it would  suggest that detectable shoplifters are few and far between. However, at page five of Mr Loki’s statement he refers to the applicant’s involvement in an apprehension on 7 October 1995, which must place the applicant’s performance in a favourable light in comparison. Ms Stackpool makes no mention of this in her statement.

During this counselling session the applicant was warned that if she failed to improve her arrests to the level of the other officers, she would be dismissed.

On 28 November 1995 the applicant was again counselled by Ms Stackpool and told that she had failed to fulfil the level of standard required, but due to her length of service would be offered a transfer to the city store, where greater supervision and support would aid the applicant. The applicant was given 24 hours to consider this offer. There was no evidence this time as to the number of arrests made by the other officers as a comparison to the applicant. However, in Mr Loki’s statement on page seven he refers to the applicant making an apprehension on 20 November 1995. It would therefore appear that she indeed began to improve her performance over this period.

The applicant subsequently refused the offer to transfer to the city on the basis that she had informed the respondent when she commenced her employment that she could not work there. On 4 December she was terminated and was supplied with the following letter:

“Dear Maria,

On the 19th July, 1995, the 21st September, 1995, and the 26 October, 1995, you were counselled by myself, in the presence of Frank Loti (19/7/95 & 26/10/95) and Melinda Felton (21/9/95), and you were given copies of these interviews.

You were sent to the City Stores for re-training on two occasions, on the 5th June 1995 and the 9th October, 1995.

On the 19th July, 1995 I offered you a position as a Fitting Room Attendant, which you refused.

On the 28th November, 1995 there had been no improvement in your performance. On the 28th of November, 1995, you were offered a position as Loss Prevention Officer in our City Stores.

On the 4th December, 1995, Jacki Coughlin from the SDA called David Jones to inform me that you had refused the transfer to the City Stores.

This morning you confirmed the SDA notification, that you refused the offer for a transfer to our City Stores as a Loss Prevention Officer.

On the 21st September, 1995 and 26 October, 1995 you were formally warned that insufficient improvement in your performance would result in termination.

As a consequence of this, your employment is terminated.

You will be paid the Award entitlements, which is 5 weeks notice, together with outstanding annual leave and long service leave entitlements.

Yours faithfully
DAVID JONES LIMITED

Alisa Stackpool
Staff Manager - Bondi Junction”

I must say that I find this document just as astounding as the memorandum of Mr Newbold to Mr Loki of 13 July 1995, mentioned above. It would seem the applicant is being terminated because she refused to be transferred in the same role to the city store and on the other hand is being terminated because of her lack of performance.

Ms Stackpool was asked the following question in cross-examination:

Q: Well, if you thought her performance was so bad as a loss prevention officer, why did you consider that she should go to the city and work as a loss prevention officer?

A: Well, that was actually put to me. They actually work in teams in the city, they’ve got a much larger - they actually walk around with a few people together. We dont do that in the suburbs. That seemed to be something that Maria always wanted. We don’t have the facilities in the suburbs... They also have surveillance cameras in the city so they actually do get called. The LPOs do get announcements of where there are known thieves or suspects in the store so there was a lot more assistance in there. There’s a greater supervisory team in the city as well, so there was a lot more assistance on a day-to-day basis that could have been given to Maria.

The veracity of this argument was blown out of the water by the evidence of Ms Monica Whittles, the respondent’s expert witness, and training officer from the city store. In cross-examination she was asked about the method adopted in the city store.

Q: And I suppose some work in teams and some singly?

A: Well, that’s not the way it’s - we hunt singly apprehend in teams. The idea is to get the maximum coverage out of the number of people employed so it would be hunting singly, so you would walk the floor by yourself...

Q: Right. And that is the same in the city store as in Bondi or wherever else?

A: Yes.

The reality is that there is absolutely no difference between the method of operation of loss prevention officers in either store and therefore there was no operational requirement that necessitated the transfer.

On an overall view of this matter I have come to the conclusion that the respondent was putting the applicant in a position where she would either resign or could be terminated. The reason for this, I am satisfied, is that Mr Newbold was convinced that because of the applicant’s poor ability to understand and express herself in the English language she might have caused a problem if she was required to act as a witness in Court. He in fact says as much in his memorandum to Mr Loki on 13 July 1995.

The assessment criteria

Ms Stackpool said that the method used to measure the applicant’s performance was to compare her results with the other loss prevention officers. She said that this was the fairest measurement she could come up with and that she believed it to be a very relevant one as well. She also admitted that she did not have any background, training, or experience in loss prevention. When it was suggested that the title “loss prevention” meant to prevent loss rather than make arrests, the respondent’s evidence was that these people were employed to make arrests. Of course if this was the case, the applicant should have been terminated some years ago, as it appears that in her early employment she did not make arrests at all.

During the July to September report period Mr Loki, the manager of loss prevention at Bondi worked with the applicant at weekends as part of her team. It would appear from the evidence that during this period Mr Loki, who is an ex-police officer (according to Ms Stackpool) failed to make any arrests either. Mr Loki was asked in cross-examination if he considered that during this period of the performance report his performance was satisfactory. He answered,

“Yes, because the stock losses in the store are kept under control.”

If this was the case, then surely the applicant’s performance as a loss prevention officer during this period was satisfactory as well, despite her lack of arrests. She was on equal score with the senior loss prevention officer and he was satisfied with his performance based on the criteria of stock loss, not apprehensions. Mr Loki went on in his evidence to admit that there would be no arrests on quite a few weekends and it would also follow that certain areas would be more productive for the chance to make arrests.

It is the last period of the applicant’s employment, the last period of review, which appears to be blatantly unfair as an assessment. In Mr Loki’s statement at page five, he reports that prior to the applicant  leaving the Bondi store to attend further training in the city she is involved in an apprehension. Mr Loki depreciates this work as it only involves a small amount of money. He then says that the applicant returned from training on 16 October 1995 and after only one and a bit weeks she has not apprehended anyone while in the meantime two offenders have been apprehended by other staff. On 20 November Mr Loki, on page seven of his statement, admits that the applicant again apprehended an offender, but he again depreciates the work as it involves a small amount. Compared to her earlier record, the applicant is certainly now showing a clear improvement.

There are also two other points of significance to consider in relation to the fairness of this assessment. It was the applicant’s concern throughout the later part of her employment that she was being excluded by the other loss prevention officers, especially the senior officer, Jo-Ellen Westman, and that this affected her results; and secondly, what was said to her at the counselling session of 19 July 1995. On page two to attachment five of the statement of Ms Stackpool is, as quoted previously, the following statement:

“Maria Abruzzese is aware that a wrongful arrest may lead to litigation against David Jones and will not, through her actions place David Jones in this position.”

This is certainly an unwarranted threat issued to a person who is about to lose her job and is expected to improve her rate of arrests. There has never been a situation where the applicant has wrongfully arrested anyone, and this comment must place a further burden on a person who has difficulty with the language.

With regard to the complaint that the other officers excluded the applicant, there is certainly evidence that she complained to her employer about it and although Ms Stackpool said that she spoke to the others, they denied it. I am satisfied that the applicant was put at a disadvantage because of this discrimination particularly because of the criteria applied by Ms Stackpool. In fact, it appears that the applicant attended to assist on spots when they were called, however she was not credited with the apprehension. Ms Stackpool gave the following evidence:

“Maria sometimes did turn up but there was already someone that may have already been down there but she did assist in a couple of spots but the situation had already been taken into hand.”

The applicant was not credited with this assistance despite the fact that other officers were credited as a team, according to the figures produced in attachment six to the statement of Ms Stackpool. Mr Loki gave evidence that the applicant had complained to him that Jo Ellen did not like her and that this was not followed up by management.

Valid Reason?

In all the circumstances of this matter I am satisfied that the applicant’s employment was not terminated for a valid reason. Her original contract of employment was for her to be employed at the Bondi Junction branch because she was concerned about the crowds in the city. Ms Stackpool conceded that Mr Loki had told her that the applicant had informed him of this, but she said that she was not sure when. To then transfer her to the city store for no apparent proper reason was in effect a breach of the applicant’s contract of employment. (See Re Rubber, Plastic & Cable Making Industry Award (1989) 31 IR 35 at page 49.)

The lack of performance based on the comparable arrests with her fellow employees must also prove not to be a valid reason for the termination. This criterion had never been used with regard to the applicant’s performance in the previous six years of her employ, and in the particular circumstances where the applicant was excluded by the other officers and had been warned not to make arrests that could lead to litigation against the respondent, satisfies me that it was plainly unfair. It was also the case that the applicant had in fact made arrests in the last months of her employ.

Remedy
It is difficult to understand why the respondent did not simply swap the applicant’s position with the uniformed loss prevention officer at the Bondi Junction store. The evidence in this case suggests that the uniformed officer was there to display a visual deterrent to any would-be shop lifters and was not principally there to make arrests.

I therefore order that the applicant be appointed to the position of a uniformed loss prevention officer situated at the Bondi Junction branch of the respondent’s company. I further order that the employment of the applicant be for all purposes deemed to have been continuous from the date of termination and that she receive all remuneration and benefits that she would have received but for the termination.

I certify that this and the preceding nine (9) pages are a true copy
of the reasons for judgment of Judicial Registrar Walker.

Associate:

Date:    1 November 1996

APPEARANCES

Counsel for the applicant:      A. Gruzman
Solicitors for the applicant:     Glover & Glover

Counsel for the respondent:    A. Baumgartner
Solicitors for the respondent:  The Retail Traders’ Association of New South Wales