Anna Minos and JEEDS

[1995] IRCA 123

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1225 of 1994

B E T W E E N :

ANNA MINOS
Applicant

AND

JEEDS PTY LTD
(trading as Alma Village Supermarket)
Respondent

Before:       Judicial Registrar Chancellor
Place:         Melbourne
Date:          31 March 1995

REASONS FOR DECISION

This is an application pursuant to Section 170 EA of the Industrial Relations Act in respect of the termination of the employment of Anna Minos by Jeeds Pty Ltd (trading as Alma Village Supermarket) on 15 July 1994.

The Applicant commenced employment with the Respondent on 8 April 1994.  She had attended at the Respondent’s supermarket shortly prior to that date seeking work.  She was interviewed by the manager, Pino Alessi and was successful in obtaining a position in the delicatessen or deli section of the supermarket.  Although the Applicant had prior experience in a fruit shop she had not previously worked in a deli.  Mr Alessi agreed to take her on a two day trial which commenced on 8 April.

The Respondent’s supermarket is of small to medium size employing between 8 - 10 full-time staff and 20 - 22 part-time staff.  It was agreed by all witnesses that top quality customer service and customer relations were critical to enable the supermarket to compete with its larger rivals.  This point was emphasised upon the Applicant’s commencement as a part-time deli assistant.

The Applicant was handed over to Lisa Pio, the deli manageress, for general deli training.  The Applicant gave evidence that she watched Lisa and Nola Trickett, another deli employee, carry out their duties and they explained what had to be done.  They helped her if she had any problems in the first couple of days.

The versions of the Applicant and Respondent as to what took place during the Applicant’s subsequent employment varied to a large degree.

The Applicant gave evidence that she performed all of the duties of a deli assistant, including taking chickens from the fridge and cooking them, taking bread from the upstairs freezer and then baking and shelving it, packing cheese, meat and sausages, ensuring the dips displays and salads were properly stocked and presented, making pizzas and most importantly serving customers.  She said that she did her fair share of the work.

The Applicant gave evidence that one day Mr Alessi had told her in his office that Lisa was not happy with her.  She said he told the Applicant to sort it out and the Applicant said that she and Lisa agreed to start afresh.  The Applicant said that this was the only occasion during the course of her employment that she was advised of any complaints or was in any way counselled.

Nola Trickett who worked in the deli until she was terminated by the Respondent on 5 May 1994, gave evidence on behalf of the Applicant.  She gave evidence that Anna was friendly, polite, easy going and not arrogant.  She confirmed that Anna had come in early or on short notice if asked and that Pino had told her that Anna was reliable.  She was not aware of any complaints about Anna or of any fights, disputes or complaints in relation to customers.  She claimed that she was joint manageress of the deli and that Pino had not raised any problems about Anna with her.

In cross examination she agreed that she had successfully sued the Respondent over her own termination, that she was not happy with the Respondent and that she was happy to come along to say what she could against it.  Accordingly, her evidence has to be treated with caution.  Further, although both the Applicant and Nola Trickett said that Nola was joint manageress, this evidence was disputed by other witnesses, including Eleanor Zigouras who impressed me as being the most honest and straightforward witness called in this case.

However, Nola conceded that the Applicant’s work was not up to expected standard by early May but that she was learning and her performance was consistent with only one month’s work in a deli.

The Respondent called evidence from a current employee, Judy Abrahamer, who was very critical of the Applicant and her performance.  Judy had 20 years prior deli experience and worked with Anna on Saturday and Sunday mornings.  She described Anna as uncooperative, lazy and someone who refused to take instruction from her.  She said Anna had refused to go to the freezer and had refused to serve customers when Judy had told her to do so.  She recalled one incident where a customer appeared annoyed when he requested some roast chicken from Anna.  She gave evidence of a heated argument between herself and Anna on 4 June when she was angry about the way in which Anna was cleaning the display case and had refused to comply when Judy told her the right way.  She said that Anna had started to cry, that she had seen Anna cry numerous times, and that Pino had to intervene.  She said that Pino was right in sacking Anna because she didn’t do the job properly.

In cross examination Judy basically agreed that she was an expert and that Anna should do what she was told by Judy, despite the fact that Judy did not hold a managerial position.  She said that she had not received any instructions on how to train Anna and that she was not aware that Anna had not worked in a deli before.

I am not prepared to give much weight at all to the evidence of this witness.  Apart from an obvious personality conflict and dislike of the Applicant, the witness showed a preparedness to alter her evidence to support that of Mr Alessi.  During the course of cross examination she gave three different versions as to whether or not she cried during the course of the alleged altercation with the Applicant when sections of Mr Alessi’s supporting Affidavit were put to her.  I note that Eleanor Zigouras, who also worked on Saturday mornings, gave no evidence concerning the alleged altercation and gave evidence that she never saw the Applicant cry at work.  In the circumstances I am more inclined to accept the Applicant’s evidence that an incident of such magnitude did not occur on 4 June.

The Respondent called evidence from another current employee, Eleanor Zigouras, who I found to be a most impressive witness.  She had many years of deli experience.  She agreed in cross examination that she had been asked by her employer to recall everything that might assist them in their case.  She said that the Applicant lacked initiative, at times was hesitant, slow and vague and had to be told.  She felt that on Friday nights she was left by Anna to do most of the work.  She complained to Pino on two or three occasions that she had to do most of the cleaning on Fridays.  She said that Anna would generally leave it up to others to get the bread.  She said that she would go three, four or five times compared to Anna’s one.  She recalled that twice over the three month period she had called Anna to come and serve customers but she had not come although on at least one of those occasions Anna was doing other work.  Anna’s serving was sometimes fine but sometimes a big vague and lacking in interest.  There was one incident involving a pizza when Anna told a customer it would take 15 minutes and the customer said “you can’t be bothered can you”.  However this was the normal time to make a pizza and Anna tried to call her back and apologise.  Eleanor did not recall complaining to Pino about Anna’s treatment of customers.  She never had a disagreement with Anna.  She recalled that twice Anna had left at 2.30 pm and there was a gap until 3.00 pm when the next shift arrived.  As far as she knew no one had given Anna permission to leave early.

In cross examination Eleanor also said that she was unaware that Anna had no prior deli experience and agreed that this may have explained why she appeared hesitant or tentative at times.  Eleanor expressed the view that Anna’s treatment of customers did not merit sacking, particularly when some customers were difficult.

The main impression I got from Eleanor’s evidence was that Anna was less inclined to perform the more onerous tasks such as going to the freezer and cleaning and was perhaps on occasions not as enthusiastic as she might have been in serving customers and that, quite naturally, she was somewhat inexperienced.

My acceptance of Eleanor’s evidence places some doubts on the Applicant’s evidence.  The Applicant said that Eleanor, as well as the others, had given her permission to leave before 3.00 pm on Saturdays, that Nola was the joint manageress of the deli, and that the Applicant never said that she was renting her house.  All of these matters were rejected by Eleanor.  Further, Eleanor remembered two occasions on which she had asked the Applicant to serve, although two occasions over a three month period, and when the Applicant was probably doing other work at the time, might understandably be overlooked.

Pino Alessi gave evidence that he had been the manager of the supermarket from mid-1990.  He employed the Applicant in April 1994 despite the fact that she had no prior deli experience and did not have any references with her.  Pino said that he kept an eye on Anna from the beginning and that her first few days were fantastic.  He said that after the first few weeks her performance deteriorated.  He said that he had received complaints from customers - half a dozen in the first month or so, and complaints from the staff.  He said that the staff complaints were from Lisa, Judy who complained that Anna was not helping, Theo and Eleanor who complained that customers were a bit annoyed with her attitude.  This was contrary to the evidence of Eleanor who did not recall complaining about Anna’s treatment of customers.

Pino said that on 26 April 1994 he spoke to Anna about her performance in his upstairs office.  He said he told Anna that he had lots of complaints from customers and staff, her attitude was poor, customers were walking out, she was refusing to go into the freezer and that her performance would have to pick up.  In cross examination Mr Alessi said he was confident that Tuesday 26 April was the day on which this meeting took place.  He said that the meeting took ten minutes.  He said he was absolutely sure that all of the matters which he referred to in an affidavit sworn by him on 1 September 1994 were put to Anna on 26 April despite not having mentioned many of the matters in his evidence in chief.

The complaints which he said had all given rise for concern by 26 April and were all the complaints which he could remember included:-

(i)Anna was uncompromising and stubborn - although unable to recall the complaint he said he had a positive recollection of telling Anna who made the complaint at the time of the meeting;

(ii)Anna was lazy and did not do what was actually required - he said Lisa made one complaint in this regard;

(iii)She left an hour early at 2.00 pm on Saturdays - although the company’s own records indicated that she had not left before

2.30 pm and had left at 3.00 pm and 2.30 pm on the previous two Saturdays;

(iv)She preferred fixing bread instead of serving customers - he said Lisa had made this complaint;

(v)Having major disagreements with other deli staff - he named Lisa, Judy and Eleanor.  This was inconsistent with Eleanor’s evidence that she never had a disagreement with Anna;

(vi)Refusing to go to the freezer;

(vii)Refusing to clean - he said Lisa complained;

(viii)Refusing calls to help with customers - he said Lisa, Judy and Eleanor complained;

(ix)Refusing to accept authority - he said Lisa, Judy and Eleanor complained;

(x)Being argumentative which was the same as disagreement;

(xi)Being abrupt and abusive with customers - he didn’t note or know their names;

(xii)Refusing to attend to her duties - he said Lisa complained.

Mr Alessi agreed that this was a large number of complaints arising within a two week period and that if correct Mrs Minos was a wholly unsatisfactory employee and causing tremendous difficulties.

According to Mr Alessi the Applicant’s performance did not improve despite this warning.  On that basis one would have expected the Applicant’s employment to have ceased within a relatively short period of time but to the contrary, the Applicant’s hours of work were actually steadily increased from 20 hours in the week ending 4 May to 26½ hours in the week ending 11 May, to 31 hours in the week ending 18 May and to 36½ hours in the following week.  When pressed on this point in cross examination Mr Alessi’s response was most unsatisfactory.  Initially he said he had a big say in her increased hours, then when it was pointed out that this was inconsistent for an unsatisfactory and difficult employee he said Lisa gave her more hours, despite her alleged complaints, and then he said he gave her more hours because he liked her!

In the circumstances I am unable to accept Mr Alessi’s assertion that he counselled and warned the Applicant on 26 April.  The Applicant’s version that Mr Alessi merely said to her that “Lisa was not happy with her” was probably much closer to the truth.  It seems that Mr Alessi has reconstructed a meeting that did not occur in the form he alleges in order to defend this claim.  This is particularly so when the Respondent’s own wage records indicate that the Applicant was not even at work on 26 April!  Mr Alessi took no notes, providing nothing in writing to the Applicant and then gave the Applicant more work.

It is also notable that Lisa Pio, the deli manageress during the Applicant’s employment, and the alleged source of many of the complaints against the Applicant, was not called to give evidence and nor was any explanation provided for her non-attendance.  Further, despite this alleged long list of complaints Mr Alessi did not arrange a meeting with the deli staff to try and improve matters nor did he attempt to implement some sort of roster system to ensure a more even spread of the more onerous work.

Mr Alessi said that when the problems continued and the complaints continued that he again counselled and warned the Applicant a few weeks later at another meeting in his upstairs office.  Although he said that he offered to assist the Applicant Mr Alessi was unable to recall what he said or what constructive advice he may have given.  Again, Mr Alessi took no notes, made no record of the warning, provided nothing in writing to the Applicant and the Applicant continued working substantial hours.

Despite what Mr Alessi alleged was continuing poor work performance leading to many customer and staff complaints the Applicant continued working until 15 July.  No deli staff meetings were held in relation to the alleged problems, no rosters developed to ensure a spread of work and the Applicant continued working over 30 hours per week.  The only conclusion one can properly draw is that the Applicant’s performance was no where near as bad as that alleged by Mr Alessi, but consistent with the level of performance outlined by Eleanor Zigouras in her evidence.

Mr Alessi gave evidence that shortly prior to 15 July he and David Gringas, one of the Respondent’s company directors who also worked at the supermarket, decided that the Applicant had to go.  It was a joint decision by them.

Mr Alessi said that on 15 July he called the Applicant up to his office, told her that he had some bad news for her, that he had tried to keep her on but there was no change in her performance, and that he had to let her go.  He told her that Lisa was complaining constantly and that no one would work on her shift.  He said that the Applicant cried, pleaded for a job on the registers and complained that it was not fair.

The Applicant gave a very different version of the discussion which took place on 15 July.  She said that Pino told her someone was not getting along with her in deli, that he would not name the person or the problem, that she was pregnant and it was policy to no longer employ people who were four months pregnant, that his brother and sister-in-law were doctors and they supported that policy.  The Applicant said that she pleaded to continue on working so that she would have time to find another job.

Mr Alessi denied that he had referred to a four month pregnancy policy, denied that his brother and sister-in-law were doctors and said that it was the Applicant who raised the question of pregnancy by saying toward the end of the discussion:-

“Your are terminating me because I am pregnant”.

The Applicant had become aware of her pregnancy in approximately early June 1994 and subsequently gave birth in January 1995.  She advised the deli staff of the pregnancy as soon as she became aware of it and advised Pino Alessi some time later - on Mr Alessi’s evidence a couple of days later and on the Applicant’s evidence a few weeks later, despite her agreeing that she had an obligation to tell Pino.  Both the Applicant and Mr Alessi agreed that Mr Alessi congratulated her on her pregnancy and that he agreed to reduce her working hours when it became necessary.

Mr David Gringas gave evidence that he had an upstairs office which was adjacent to that of Mr Alessi and that he could generally see and hear what went on in Mr Alessi’s office.  He gave evidence that he was present in his office when Pino spoke to the Applicant not long after she started, again a few weeks later when things had not improved and also on 15 July when the Applicant was terminated.  He basically corroborated Mr Alessi’s evidence with respect to each of these conversations.  He agreed that when Nola Trickett’s case came before this Court that he again corroborated Mr Alessi’s evidence of another alleged counselling session.  He agreed that no written record was kept in relation to any of these meetings.  He said that he wasn’t aware that Pino was going to terminate the Applicant on 15 July which was contrary to Mr Alessi’s evidence.  It may also indicate that Mr Alessi acted in haste without giving the matter proper consideration and without giving the Applicant a proper opportunity to be heard.

The Respondent called Barry Knowles, a customer of the supermarket to give evidence.  He lived near to the supermarket and shopped there nearly every day.  He said that he met the Applicant on the first day that she started.  He alleged that the Applicant spoke rudely to him, cleaned a rotisserie with no gloves on, served him chicken and ham with dirty hands and no gloves on and that he refused the goods.  On the next occasion that he went in he said he saw the Applicant spraying the inside of the deli window with windex and that the spray was going on to the food.  He said that she again served him with no gloves on, used no utensils and that he refused the food.  He said that he complained to both directors, Rae Buckwall and David Gringas about the incidents.  He said that the Applicant continued with the same behaviour over several days.  Mr Knowles said that he had attended the supermarket on weekdays after work, 3.30 pm at the earliest but generally around 5.00 pm or 6.00 pm.

The uncontested evidence of the Applicant was that she worked after 3.00 pm only on one weekday, Friday afternoon.  It was therefore impossible for the Applicant to have served Mr Knowles on the days that he alleged.  Further, his evidence is entirely inconsistent with that of Pino Alessi that the Applicant’s work was fantastic in the first few days.  Mr Alessi gave no evidence in relation to any hygiene problem - a matter which would obviously be of very serious concern to any supermarket.  It seems almost certain that if such a serious problem was occurring on such a regular basis that Rae Buckwall and David Gringas would have advised Mr Alessi.

I reject the evidence of Mr Knowles and also reject the evidence of Rae Buckwall and David Gringas that complaints of such a serious nature were ever made to them in relation to the Applicant.  This finding obviously reflects very poorly on the credit of the two working company directors and confirms the suspicion that Mr Gringas is prepared to give corroborative evidence if it suits the interests of himself or the Respondent.

Pino Alessi gave evidence that he had caught the Applicant doing her own shopping during working hours on a couple of occasions, and David Gringas said that he warned her about the same problem on at least two occasions.  Neither Eleanor or Judy gave evidence that they had been left alone in the deli while Anna went shopping, and Lisa was not called to give evidence.  Given their propensity to corroborate one another and given the lack of supporting evidence I reject the evidence of Mr Alessi and Mr Gringas on this point.

Following her termination the Applicant appeared on the Real Life television program alleging that she was terminated on the grounds of her pregnancy.  Following the program she received several threatening and abusive telephone calls.  Telecom and the police were called in to investigate.  Evidence was given that three of the telephone calls were traced - one from a phone line connected to the supermarket and leased in the name of David Gringas, and two late night calls from a phone connected to Rae Buckwall’s premises and leased in her name.  David Gringas and Rae Buckwall are brother and sister and are co-directors of the Respondent company.  They were unwilling or unable to provide any explanation for the source of the telephone calls which in my view cast very grave doubts over their credibility.

Was There a Valid Reason for the Termination?

The onus is on the Respondent to show that a valid reason or reasons existed.  The Respondent’s case was that the Applicant was a very poor performer who was formally warned and counselled on two occasions and informally on many other occasions to improve.  For the reasons already outlined I do not accept the bulk of the Respondent’s evidence which was highly critical of the Applicant.  I accept the evidence of Eleanor Zigouras that there were some problems, some probably due to inexperience and uncertainty, but that they did not warrant dismissal.  I am reinforced in this view by the fact that the source of many of the complaints against the Applicant was said to be Lisa Pio, but she was not called to give evidence and no explanation was provided.  In my opinion the Respondent has failed to discharge the onus on this matter and I find that there has been a breach of Section 170 DE of the Act.

Was the Termination in Breach of Section 170 DC of the Act?

In the often quoted decision of Chief Justice Wilcox in Nicolson v Heaven and Earth Gallery Pty Ltd 126 ALR 233 he said at page 243:

“The employee is to be given the opportunity to defend himself or herself “against the allegations made”;  that is, the particular allegations of misconduct or poor performance that are putting the employee’s job at risk.  Section 170 DC(a) is not satisfied by a mere exhortation to improve”.

I do not accept the evidence of Mr Alessi and Mr Gringas in relation to the alleged formal warning and counselling sessions.  At best there may have been a comment that the girls may have been unhappy with the Applicant and that the Applicant should improve, but I accept the Applicant’s evidence that nothing more specific than that was put to her.  Further, even on the basis of Mr Alessi’s evidence the Applicant was notified of the decision to terminate her on 15 July before she had the opportunity to respond.  She was not given the opportunity to put any matters in mitigation and her pleas to be put somewhere else in the supermarket were rejected on the basis that the decision had been made.

The Respondent’s case was severely weakened by the fact that it had no written record at all of any of the matters in dispute.

Clause 8 of the Recommendation Concerning Termination of Employment at the Initiative of the Employer states:-

“The employment of the worker should not be terminated for unsatisfactory performance unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed”.

As I have said in earlier decisions, although this clause is not specifically included in the sections of the Act, it provides a very strong indicator, at the very least, of what is required by an employer prior to termination.  I also note that the advisability of written warnings was given a good deal of publicity when the Act was introduced, something any organisation which employs thirty or so people like the Respondent should have been aware of.

A written warning effectively requires the employer to specify precisely what the allegations are and gives the employee fully documented particulars of what is required.

In my opinion the level of instruction given to the Applicant and other deli staff left a lot to be desired.  Neither Eleanor or Judy knew that the Applicant had no prior deli experience.  As I have already indicated no meeting was called to overcome any problems that may have existed and no roster was set up to ensure that the more onerous tasks would be more evenly spread.  In my opinion failure to take these fairly obvious steps restricted the Applicant’s ability to improve.

I therefore find that the termination was in breach of Section 170 DC of the Act.

The Applicant also alleged that there was a breach of Section 170 DF(1) of the Act on the basis that her termination was due to her pregnancy or alternatively that one of the reasons for her termination was her pregnancy.  The onus is on the employer to prove that the termination was not due in whole or in part to the pregnancy.

All of the witnesses called gave evidence that they were unaware of any policy of the Respondent that employees should be terminated if they became pregnant or reached a more advanced stage of pregnancy, or in particular reached four months of pregnancy.  Leanne Russell, a former employee of the Respondent, gave evidence that she had worked until she was seven months pregnant in November 1992 and that she had left the Respondent of her own accord.

Both Mr Alessi and the Applicant agreed that the question of the Applicant’s pregnancy was raised at the termination interview, although there is a direct conflict as to the context in which it was raised.

It may well be that Mr Alessi used the Applicant’s pregnancy as an excuse for her termination and that performance or personality clashes may have been the real reasons behind the termination, but given that I have found that the Respondent failed to prove a valid reason for the termination, I believe it follows in this particular case that the Respondent has not discharged the burden of proving that the Applicant’s pregnancy was not at least one of the reasons for her termination.

Remedy

The Applicant did not seek reinstatement.

She is at home breastfeeding her baby and does not intend returning to any work in the short term.  Further, as a result of the threatening and abusive phone calls which she received following her termination, at least three of which seem to be in some way linked to the Respondent, she is frightened to return.

In the circumstances I find that reinstatement is impracticable.  I believe that it is certainly appropriate to award compensation in this case.

The Applicant was cross examined in some detail as to her intended departure date from work given her pregnant state.  In the same manner that her evidence concerning her work performance seemed to be somewhat exaggerated in her favour, I form the view that her evidence concerning her likely departure date was also somewhat exaggerated.

However, at one stage she said that when approaching potential employers shortly after her termination, she had to tell them that she only had three to four months work left and that this adversely affected her job prospects.  I also note that her husband also became severely ill in mid-November 1994 and although she felt her mother-in-law would have looked after her husband at that time to protect any full-time job the Applicant may have held, I think it is likely that she would have stopped work at around that time.

It is also probable that there would have been some reduction in working hours, particularly on a Sunday toward the end.  I therefore propose ordering compensation in the sum of $4,800.00 representing 16 weeks at $300.00 gross per week.  I have worked on a lower average figure rather than attempt a calculation on the basis of the expected reduction in hours.

The Applicant also sought compensation with respect to the upset, fear and distress which she suffered as a result of the threatening and abusive phone calls she received subsequent to her termination.

In my opinion the Applicant did not call sufficient evidence, medical or otherwise, to establish that she suffered a loss entitling her to further compensation under the Act.

The matter of the telephone calls has been referred to the police although no charges have been laid.

MINUTES OF ORDERS

THE COURT ORDERS AS FOLLOWS:

1.That the Respondent pay the Applicant compensation in the sum of $4,800.00.

2.There be a stay of 21 days.

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

I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment of Judicial Registrar Chancellor.

Associate:            
Dated:  31 March 1995

Solicitors for the Applicant:    A J Macken & Co.
Counsel for the Applicant:     Mr Stuckey

Solicitors for the Respondent: Milder Elfman Szmerling Krycer Pty
Counsel for the Respondent:   Mr Klemens

Date of hearing:  14, 15 & 24 March 1995
Date of judgment:                   31 March 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1225 of 1994

B E T W E E N :

ANNA MINOS
         Applicant

AND

JEEDS PTY LTD
(trading as Alma Village Supermarket)
Respondent

MINUTES OF ORDERS

Judicial Registrar Chancellor  31 March 1995

THE COURT ORDERS AND DECLARES:

1.That the Respondent pay the Applicant compensation in the sum of $4,800.00.

2.There be a stay of 21 days.

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