Cuthbert v Impulse Airlines Pty Ltd
[2004] TASSC 19
•18 March 2004
[2004] TASSC 19
CITATION: Cuthbert v Impulse Airlines Pty Ltd [2004] TASSC 19
PARTIES: CUTHBERT, Katie
v
IMPULSE AIRLINES PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 73/2002
DELIVERED ON: 18 March 2004
DELIVERED AT: Hobart
HEARING DATES: 7, 8 October, 14 November 2003
JUDGMENT OF: Crawford J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff: S B McElwaine
Defendant: S P Estcourt QC
Solicitors:
Plaintiff: S B McElwaine
Defendant: Douglas & Collins
Judgment Number: [2004] TASSC 19
Number of Paragraphs: 57
Serial No 19/2004
File No 73/2002
KATIE CUTHBERT v IMPULSE AIRLINES PTY LTD
REASONS FOR JUDGMENT CRAWFORD J
18 March 2004
The plaintiff sues the defendant for damages, claiming that on 31 May 2002 the defendant contracted to employ her as a flight attendant but subsequently repudiated the contract. The legal bases for her claim are breach of contract, estoppel and misleading conduct under the Trade Practices Act 1974 (Cth), s52, and the Fair Trading Act 1990 (Tas), s14. Whether she succeeds depends on whether she has discharged her onus of proof and persuaded me that it is more probable than not that in a telephone conversation she had with the defendant's employee, Ms Zoe Johnston, on 31 May 2002, she was told that her application for employment had been successful. That was her evidence. Ms Johnston's evidence was that she said no such thing.
The plaintiff was married and had two children. She had previously been employed as a flight attendant by Southern Australian Airlines. At first the company was based at Western Junction, which suited her because she and her family lived on their nearby farm, "Midwood", at Epping Forest. She enjoyed her work very much. However, the company moved its base to Canberra. She and her husband put Midwood on the market and she moved to Canberra with her children. Her husband commuted between Canberra and Midwood. It proved unsatisfactory for all of the family and ultimately she resigned from Southern, effective on 15 February 2002, and returned to live at Midwood with her family. Her evidence of the reasons for her resignation was that the situation was difficult for the family and it was proving difficult to sell Midwood for what they thought it was worth.
She had been contemplating training for nursing and the University of Tasmania had already accepted her into the Bachelor of Nursing degree course at the Launceston campus. Three years' full‑time study was usual for that degree. She commenced the course in March 2002, on a full‑time basis. She and her husband continued to work Midwood, which he described in evidence as a hobby farm.
The plaintiff preferred being a flight attendant, and on or about 28 March 2002 she wrote to the defendant seeking such a position. It operated Qantaslink. At or shortly after the time of her letter, it advertised for applications for flight attendants to be based in Hobart. On 7 May 2002, she submitted by internet a further application in response. In the application she gave her reason for leaving Southern as being that she had been unable to sell Midwood after relocating to Canberra. She added that the "property is now under contract", which was untrue. Her neighbour, Mr Farrell, had offered $370,000 for it on 15 April 2002, but the offer had not been accepted. Mr Farrell had made offers of lesser amounts over the previous 18 months to two years.
The plaintiff accepted an invitation from the defendant to attend a recruitment seminar in Hobart on 13 May 2002. Between 30 and 50 applicants attended. Representing the defendant were its human resources manager, Michelle Despas, the other two human resource officers who worked for the company, Zoe Johnston and Christy Hill, the flight attendant manager, Pilita Bolton, and possibly two other employees who were flight attendants. The seminar was conducted by Ms Bolton. The applicants were placed at tables, with a company employee acting as an assessor at each. A series of exercises was performed and the assessors observed the applicants at their table and assessed them for particular qualities, filling in a form as they did so. The assessor at the plaintiff's table was Ms Johnston, who after completing a form relating to the plaintiff, in which she assessed her qualities to be excellent, noted that she recommended her. At about that time flight attendants were also being sought for Melbourne and Sydney and similar seminars were conducted at those places by the same employees of the defendant.
The evidence of the defendant's witnesses established that it had in place a standard procedure to be followed by its staff in the recruitment process following the receipt of applications. So far as is relevant to this case, the recruitment seminar constituted the first stage. Those who were successful at the seminar were to be invited to take part in the second stage, which consisted of an interview with two members of staff, a representative from the human resources department and a representative from the flight attendants department. Those who had a successful interview were to be moved on to a third stage which, in no particular order, consisted of medical and security checks and checks with the referees they had nominated when they applied for employment. In the plaintiff's case, she had nominated four referees, each of whom was ultimately spoken to by one of the human resource officers, Ms Hill.
After the medical, security and reference checks were carried out, the applicants were to be jointly considered by the human resources manager, Ms Despas, and the flight attendant manager, Ms Bolton, for the making of a decision whether they should be offered employment as a flight attendant. Ms Despas would give a list of the successful applicants to either or perhaps both of Ms Johnston and Ms Hill, with instructions to contact them and offer them employment. Those who accepted offers of employment would have to successfully complete a probationary employment period of six months. It commenced with them being paid a training salary and attending a ground school in Sydney for about three weeks. At the time of the recruitment seminar attended by the plaintiff on 13 May, the defendant's staff were looking to conduct ground schools starting on 3 and 24 June. After some time had passed, attendees who continued to succeed, and most of them could be expected to do so, would be "Checked to the Line", effectively meaning that they were certified fit to work as a flight attendant, whereupon they would be entitled to be paid a full base salary that was substantially greater than the training salary.
Most of the recruitment process I have described was explained by Ms Bolton to the plaintiff and the other applicants at the seminar on 13 May, including most of that part of it up until the making of offers of employment and the commencement of ground school.
Shortly after returning home from the seminar, the plaintiff learned that she had successfully passed the first stage when she received a telephone call from an employee of the defendant asking her to return to Hobart the following day, 14 May, for an interview, which she did. She was interviewed by Ms Bolton and Ms Johnston and successfully passed that stage of the process. Ms Johnston made notes on an interview form. It was the evidence of Ms Bolton that the plaintiff did well at the interview. On the basis of the plaintiff's evidence, I find that she was told by Ms Bolton that she was the only applicant at the seminar with flying experience and that the company was looking for people with that experience with a view to training them for the position of purser. For reasons she explained, she left the interview believing that it had gone very well and she was pleased.
The plaintiff gave evidence that at the interview Ms Bolton told her that the checks of the third stage would be performed in the order first of reference checks, then a medical check and finally the security check. In answer to a question from her counsel, she confirmed that it was emphasised that she had to go through each of those steps in that order. Based on that evidence, it appears likely that she believed that those checks would be carried out in that order, but I find that such a belief was a mistaken one. Ms Bolton was not asked about the matter, but I think it unlikely that she said anything that was intended to cause the plaintiff to form such a belief. It was the evidence of three of the defendant's witnesses, Despas, Johnston and Hill, who together made up the human resources department and between whom the checks were made, that there was no set order. What subsequently happened with regard to the plaintiff's application supports that, for contact with her referees was carried out after her medical and security checks. It is also supported by exhibit L, entitled Flight Attendants for Proposed Ground Schools, that demonstrates that the order of the checks varied.
It was the plaintiff's evidence that a couple of days after the second stage interview on 14 May, she received a telephone call from an employee of the defendant, requesting that she arrange an appointment to see Dr Tooth of Hobart for the medical check. She made an appointment for 24 May, travelling to Hobart the day before and staying in a hotel overnight. An exhibit shows that on 24 May, Dr Tooth's clinic sent the results of the examination to the defendant by fax. In summary, the doctor reported that everything about her was normal and she was fit to perform the duties of a flight attendant.
Before seeing Dr Tooth, she received from the defendant a form relating to the intended security check. As requested, she filled it in and posted it back to the defendant on 24 May. The evidence of Ms Johnston explained that the form was supplied by Federal Police and after completion by the plaintiff and return to the defendant, it was to be posted with a cheque to the police for a criminal history check. There was no other evidence enabling the determination of the date on which the result concerning the plaintiff was reported by the police to the defendant.
One exhibit consists of handwritten notes which the plaintiff said she made on 17 June 2002, after the dispute arose, as a record of the communications she had with the defendant's employees. In the notes she recorded that in the course of the telephone call from the defendant in which she was asked to arrange to see Dr Tooth: "I expressed if I was successful could I do the second ground school to give me time to sell and relocate to Hobart. They said they were thinking about the first ground school, but that would probably be ok." For reasons I will give later, it is likely that she was speaking to Ms Johnston on that occasion. It is also likely that she induced the defendant's employees to process her application for employment upon the basis that if she was successful, she would start at the ground school commencing on 24 June and not at the one commencing on 3 June. It was Ms Johnston's evidence that in fact the human resources officers were concentrating first on the applications of those who would attend the ground school on 3 June. If so, they had no need for haste with her application and instead could concentrate on completing first the processing of applications by other applicants to fill the ground school commencing on 3 June. There was evidence of an electronic file (exhibit L is a print-out of it as at an unknown date) that was kept by the human resources department with the names of applicants provisionally scheduled for ground schools to be held on particular dates (if they were successful with their applications). It is quite possible that at about the end of May her name appeared on that list for the ground school on 24 June.
Anticipating that if her application for employment was successful, she and her family would move their place of residence to the vicinity of the Hobart airport, the plaintiff and her husband began to make enquiries about available properties in that area. On 23 May, when she went to Hobart for the purposes of the medical check, they inspected a house and farm in the Carlton River area which may have been suitable, although possibly too expensive. On Thursday, 30 May, her husband arranged with Mr Theo Cassimaty that during the following week they would inspect his farm which was also on the market at Carlton River, which did not have a house and which was less expensive than the property they had already seen.
The plaintiff's evidence established that by 30 May she was of the opinion that she had performed well with regard to her application for employment. She believed for good reason that she had passed the first two stages of the recruitment process and that she had passed the medical check. She had every reason to believe that she had passed or would pass the security check, because there was nothing adverse in her history. She had no reason to believe that any of her four nominated referees would have other than good things to say about her. They were all employees of Southern Australian Airlines, from which she had voluntarily resigned a few months earlier. She believed that she was the only applicant with previous flying experience. She did not expect there to be any complications. I note that if she did in fact believe, as appears likely, that the third stage checks were to be carried out by the defendant's employees in the order she understood Ms Bolton had communicated to her, that is, references, medical and security, it is also likely that by 30 May she believed that the defendant's employees had spoken to her referees, that Dr Tooth's report had been received and the results of the security check may also have been received, although about that last matter she could not have been sure. It was put to her in cross-examination that at that time she was supremely confident of success, which she denied. Nevertheless I have no doubt that she believed her chances of success were good.
On 31 May, the defendant's employees were still to contact her four referees. The evidence of Ms Hill established that she contacted them on about 14 June. On the evidence, it is clear that no decision to offer employment to the plaintiff had in fact been made and that until the reference checks were completed, Ms Despas and Ms Bolton would not be considering whether to make an offer to her. The evidence of the defendant's employees also established that Ms Johnston had no authority to offer employment to the plaintiff on 31 May or to inform her that her application for employment had been successful. Until she or Ms Hill were instructed to do so by Ms Despas, neither of them had authority to communicate such matters to the plaintiff.
The plaintiff gave evidence of two telephone conversations she said occurred between her and Ms Johnston on 31 May. She was able to produce an Optus telephone account to establish that she telephoned the defendant's number in Sydney at 12.18pm and again at 12.38pm. She said that she asked to be put through to Ms Johnston, I presume on both occasions. The account reveals that the first call to the defendant lasted 4 minutes 25 seconds. It may be inferred that she talked to Ms Johnston for less than that.
Of her first conversation with Ms Johnston that day, the plaintiff's evidence was as follows:
"I first said to Zoe that I was just enquiring – I was quite anxious to know when I might find out if I had been successful in getting the job or not. I explained to her that we had possibly found a property in Hobart and sold our – and had a buyer for our farm in Launceston and I was just enquiring when I might find out if I had been successful."
Asked whether Ms Johnston responded she said:
"She did and her response was that I would be starting ground school on the 24th June."
The defendant's counsel pointed out in his closing address that in that passage of evidence the response was not that she had been successful with her job application. The plaintiff continued:
"I was absolutely ecstatic and very excited about it and I expressed how excited I was and, you know, thanked her for the position."
When her counsel asked a question seeking further information, the plaintiff lost her way, giving every appearance of an actor who had forgotten her lines. I thought it an embarrassing moment for her and it caused me to conclude that like many witnesses who give evidence, she was not recounting her direct memory of the events, but a version of the events that she had committed to memory. However, it should not be inferred that I concluded that she was giving evidence that was deliberately untrue. (There was another passage in her evidence where, once again, she appeared to forget her lines.)
After a short time, the plaintiff indicated that she had recovered her memory and her counsel took her back to the beginning of the conversation she had with Ms Johnston. She said that once Ms Johnston told her that she would be starting ground school on 24 June in Sydney:
"Then I expressed how excited I was. I clarified with her that I was getting the job and I clarified with her that I was starting ground school on 24th June and I was quite excited and her voice, I could tell she was quite excited and happy for me."
Asked whether she thanked Ms Johnston she said:
"I said thank you very much, it's wonderful news and then I clarified with her again that it was 24th June."
It was her evidence that the conversation with Ms Johnston continued with her asking whether she would be receiving any documentation regarding the position and Ms Johnston replied by saying that she would receive all the documentation on her first day at the ground school in Sydney. She then related a further conversation which is not particularly material to the issues in this case, but involved her asking questions about wages and conditions.
In the handwritten notes that she later made, the plaintiff recorded the first part of the conversation as follows:
"I rang Zoe at Impulse to see when I may expect to find out wether [sic] I had been successful or not. I expressed I didnt [sic] want to ring but I had a buyer for the farm and we had found a property in Hobart.
Zoe said 'You start ground school on the 24th June.'
I said 'So I have been successful in getting the job.'
Zoe said 'Yes you have, you start ground school on the 24th June in Sydney'.
I expressed how happy I was to get the job and then I clarified with Zoe that I was to start in Sydney on the 24th June and ground school was 3 weeks. She replied 'Yes' again.
I asked Zoe if I was to receive any documentation regarding the position and she said 'No, you will receive all your documentation on your first day of ground school in Sydney'."
I do not think that the opening statement that "I had a buyer for the farm and we had found a property in Hobart" was accurate. It certainly has the ring of exaggeration, although that would not have affected the conversation that followed after it. She and her husband only had a buyer for their farm in the sense that Mr Farrell had made an offer, but it was not an offer that they accepted. They eventually sold the farm to him for a higher price than he had offered at that time. They had not in fact found a property near Hobart to purchase. All they had done was inspect one property, which may have been too expensive (it turned out to be so), and they had arranged to inspect another property the following week.
The second telephone conversation between them on 31 May was more brief. According to the Optus account, the connection between the plaintiff and the defendant's number lasted 1 minute 8 seconds. Her evidence was that she asked Ms Johnston whether the company had a relocation package that would pay her expenses of relocating from Launceston to Hobart. She was told that she would have to relocate at her own cost. I do not regard her oral evidence about that conversation as being of assistance in the determination of the question whether, in the previous conversation, she had been offered employment or informed that her application for employment was successful. However, I note that she recorded in her handwritten notes that she said were made on 17 June, that she also clarified with Ms Johnston again "So I will be starting on the 24th June", to which Ms Johnston replied "Yes that's right".
In the next paragraph I will commence to deal with Ms Johnston's evidence about the conversations, but note now that I find that as a result of them, the plaintiff believed that the company had determined to employ her and that her employment would commence with the ground school in Sydney on 24 June. Following that, she and her husband began to take steps to negotiate a deal for the sale of Midwood. They inspected Mr Cassimaty's property and decided to purchase it. As the farm had no residence on it, they made enquiries about renting a house. They also contacted the Richmond Primary School for the purpose of booking their children in from about the end of July.
Although she had no memory of the date, Ms Johnston accepted that it was on 31 May that she spoke by telephone to the plaintiff. She was adamant that she did not tell the plaintiff that her application for employment had been successful. She did not claim to be able to remember word for word what was said. It was her best recollection of the substance of the conversation that she purported to relate in evidence. She did not recall having two conversations with the plaintiff that day. The telephone records support the plaintiff's evidence that there were in fact two conversations. It is likely that Ms Johnston's memory of the two conversations has rolled them up into one. The plaintiff's evidence was that in the second call she inquired about whether the defendant had a relocation package. Ms Johnston remembered being asked about that on the day in question.
The evidence-in-chief of Ms Johnston about the conversation was that the plaintiff asked about the progress of her application for employment and Miss Johnston explained that her reference checks had not been completed because "we" were behind the time schedule. She explained that as soon as the reference checks were completed, "we" would get back to her. She told the plaintiff that she had been successful on the second interview. She asked the plaintiff which of the two ground schools scheduled for 3 and 24 June would she be able to attend if she was successful, to which the plaintiff responded that 24 June would best suit her. Ms Johnston said that there was then a discussion about the salary that would be paid during ground school and prior to being checked to line after that, in the event of an applicant being successful, and she explained, on being asked, that everyone would be based in Hobart and training flights would be between Hobart and Melbourne. Ms Johnston could not recall the specific question whether the plaintiff had been successful in obtaining employment, nor of any discussion about the plaintiff's personal situation. She remembered that the plaintiff asked whether the defendant would cover the cost of relocating to Hobart if she was successful in gaining the position, to which Ms Johnston replied that it was not company policy to do so and if the plaintiff was successful, it would be up to her to relocate herself to the Hobart base.
As a result of the dispute that was raised a few days later by the plaintiff concerning whether she had in fact been informed that she had the job, Ms Despas asked Ms Johnston and Ms Hill to inform her about the events leading to the decision not to employ the plaintiff. On 19 June, Ms Johnston responded by e-mail, but only briefly, concerning the conversations she may have had with the plaintiff prior to 11 June, and her reply did not specify dates. She said:
"The following are the details regarding Katie Jo Cuthbert.
Katie Jo was originally asked if there was a possibility of her starting ground school on the 3rd June. When asked this she told us that this was impossible and was there another Ground School after that. She was told that there was one on the 24th of June and that we could push her back to that one, at this stage we were still to receive her medical and complete her reference checks.
Katie called back a couple of days later and asked if she would be getting any documentation in the mail. I told her that the letter of offer could not yet me [sic] completed as we hadn't finalised her application. By this stage the medical had arrived but the reference checks had not be [sic] done. I told Katie that we were concentrating on the applicants for the 3rd of June and that we would be in contact with her closer to the date."
By the time she came to give evidence sixteen months later, Ms Johnston had no memory of the contents of the e-mail or of sending it to Ms Despas. She said that she had not re-read it since. Upon reading it in the witness box, she described it as an overview of the events, without details of specific conversations. She believed that the contents were a "joint effort" of Ms Hill and herself. Concerning the second of the paragraphs cited above, she was unable to recall in her evidence-in-chief whether she was the one who spoke to the plaintiff about the possibility of her starting ground school on 3 June, but thought it was either Ms Hill or herself. However, in cross-examination she said that she recalled that conversation and therefore believed that she spoke to the plaintiff about it, but she could not discount that Ms Hill did so also. I find that it is likely that most of the contents of that paragraph, if not all of them, refer to the conversation the plaintiff said she had with an employee of the defendant, and, in the normal course of events, it was likely to have been either Ms Johnston or Ms Hill, when she was requested to arrange an appointment to see Dr Tooth. She gave no oral evidence about it, but as I observed earlier, in her notes of 17 June, she mentioned it and recorded that she asked if she could attend the second of the scheduled ground schools if she was successful and was told that "they were thinking about the first ground school, but that would probably be ok". Ms Johnston's e-mail confirms that such matters were discussed with the plaintiff prior to receipt of the medical report from Dr Tooth, which probably occurred on 24 May. Ms Johnston's evidence was that as a result of the conversation, the plaintiff was noted as a possibility for the ground school starting on 24 June. I reject the submission by counsel for the plaintiff that by referring in her e-mail of 19 June to such a discussion, Ms Johnston was weaving a story to make it sound more plausible and "to cover her tracks". The plaintiff's written statement of 17 June obviously referred to the same discussion and to it occurring at or about the same time referred to by Ms Johnston in her e-mail.
In cross-examination, Ms Johnston confessed to being uncertain about the dates of conversations she had with the plaintiff and I think her uncertainty extended to the number of them. On 20 September 2002, she signed a detailed typed statement for the defendant's solicitors. In it, she stated that in the course of her telephone conversation with the plaintiff on 31 May, she asked the plaintiff which of the ground schools commencing on 3 and 24 June would she be able to attend if her application was successful, and the plaintiff replied that she could attend the one on 24 June. It is likely that she was mistaken as to the date and that she was relating her memory of that earlier conversation with the plaintiff that took place before Dr Tooth's report had been received. As pointed out by the plaintiff's counsel, it is unlikely that in a conversation on Friday 31 May, only one week day before the commencement of the first ground school on Monday 3 June, Ms Johnston would have asked the plaintiff for which of the two ground schools would she be available if her application for employment proved successful. The finding is also supported to some extent by the plaintiff's evidence that on 31 May she was told by Ms Johnston words to the effect that she had been allocated to the ground school commencing on 24 June.
I find that it is likely that the third of the paragraphs from the e-mail cited above, referred to the first of the telephone conversations between the plaintiff and Ms Johnston on 31 May. It was the plaintiff's evidence that on that day she asked whether she would be receiving documentation. (Of course, on other aspects relating to the question of documentation, her evidence differed from what Ms Johnston said about it in the e-mail to Ms Despas.) That was confirmed in the detailed typed statement that was signed by Ms Johnston for the defendant's solicitors on 20 September 2002, in which she said that the plaintiff asked whether letters of offer would be sent out and she responded with words to the effect that they would not be sent until reference checks were completed, a process that she hoped to attend to very soon, adding that "we" were concentrating on applicants who were scheduled to start the ground school due to commence on 3 June. In cross-examination she agreed that on 31 May, she could see no reason why the plaintiff would not be offered employment, and it is quite possible that she was not discouraging about the likelihood of the plaintiff's application being successful.
For the purpose of securing the purchase of Mr Cassimaty's farm, the plaintiff and her husband enquired at the Commonwealth Bank about borrowing funds. The bank asked for documentary verification that she had employment. She had not expected to receive documents from the defendant at that time. I accept her evidence that as a consequence of the bank's request, she telephoned the defendant's office on 12 June and spoke to Ms Johnston. The Optus account establishes that the call was made at 11.14am and lasted 1 minute 50 seconds. Her handwritten notes of the conversation that she said were made on 17 June, record it as occurring on 11 June as follows:
"I rang Zoe to say I needed some type of documentation for the bank manager. As we had sold our farm in L'ton and bought one in Hobart. As I wanted to be ready and settled in Hobart straight after ground school.
Zoe said 'They are sending out the letters tomorrow. I can fax it to you! What is your fax no.'
I said 'I didn't have a fax but I will call you back with a fax no I can use'."
Her evidence of the conversation was that she said to Ms Johnston that she and her husband were going to buy a property in Hobart and were selling one in Launceston [sic]. She said that their bank required some type of documentation regarding the job for the purposes of the purchase. Ms Johnston said that she would be sending out the documentation the following day and asked if she could fax it. The plaintiff responded that she did not have a fax but would call back with a fax number. Ms Johnston did not tell her what the documentation would be. The plaintiff's evidence was that as she did not have a fax, she obtained the fax number of the solicitors in Launceston who would be acting for her and her husband in the real estate transactions, and telephoned the defendant's office, leaving the fax number with the receptionist. The Optus account records a 1 minute 24 second call to the defendant at 11.25am.
Ms Johnston did not claim to remember the date of that conversation, but she accepted that it occurred, with somewhat different content. Her evidence-in-chief was as follows:
"And what was the reason for her call? ... The reason for the call was, once again, to find out if we had completed the reference checks. She was anxious to find out if she had been successful in the position and I believe that I said to her that the reference checks still had not been completed. I was hoping to complete them the following day and then we would have some further information for her.
Did she say anything to you about her bank manager? ... Yes, she did.
What was that? ... She asked if, sorry, she explained to me that they were refinancing and that the bank manager required a letter from Impulse to outline her, I suppose, terms of employment. I explained to her that we couldn't do that until she had been offered the position and the reference checks had been finished.
Mm, mm. Was there anything more said about that? ... Yes, she then said, 'Pending the outcome of the reference checks and my application, would I be able to leave a fax number with you to fax that letter through too, once that's been completed?', and I believe I said, 'Yes, once the reference checks have been completed then I could do that for you'.
And did you later receive a fax number for Miss Cuthbert for that purpose? ... Yes, I didn't speak to Miss Cuthbert but she e, she, sorry, phoned through to reception and I received the fax number via e-mail from our receptionist.
And did you ever have occasion to fax through a letter of offer? ... No, I didn't.
Why was that? ... Because we didn't actually offer Miss Cuthbert employment."
In her e-mail of 19 June to Ms Despas, Ms Johnston described the conversation as follows:
"Katie then called to ask if she could have a letter of offer faxed to the bank for the refinance of her loan. She was once again told that her reference checks had not been completed, but when they had, we would be in contact with her and if everything was fine we could then arrange something. Katie rang reception and left the fax number for a friend presumably for the letter of offer to be sent through to."
In her statement of 20 September 2002, Ms Johnston added that when she told the plaintiff that her references had not been checked, she was asked and responded that she hoped to get to it "tomorrow". In response to that, the plaintiff said assuming it was finalised "tomorrow", could she telephone back with a fax number so that the letter of offer could be faxed after the application had been completed, with which she agreed. If that was all that was said about the matter, the plaintiff was at least given cause to hope that a letter of offer would be sent to her by fax the following day.
The contract by which the plaintiff and her husband agreed to sell Midwood is dated 28 June 2002. By 14 June, the plaintiff and her husband had orally agreed to sell the property to Mr Farrell for $410,000 and the contract was being drafted. The contracts by which the plaintiff and her husband agreed to purchase Mr Cassimaty's property are dated 1 July 2002. The plaintiff's evidence was that she and her husband signed them at her solicitor's office on the morning of Friday 14 June, following which they requested their credit union to electronically transfer $10,000 from their account with it to the real estate agent handling the matter for the vendors. The statement of the account records the transfer taking place on 17 June.
The plaintiff's evidence was that having made that arrangement with the credit union, she telephoned the defendant's Sydney office, in response to a message to call Ms Hill. Her husband's Telstra mobile telephone account records a call to the defendant on 14 June at 10.25am that lasted 2 minutes 23 seconds. Her evidence of the conversation was:
"Christy said to me that she required me to – they were doing my reference checks and they required me to nominate some nominees ... and I said to Christy, words to the effect of 'Oh haven't you done my reference checks yet' and she said who would you like to have as a referee, who would you like as referees and I just said, you know, whoever is on my CV will be fine."
She said that was the end of the conversation.
Ms Hill's evidence of the conversation differed. No finding depends on the resolution of the difference, but I mention it because it is an example of how individual recollections of conversations commonly differ and in fact differed in this case. Ms Hill explained to the Court that she was completing reference checks and found that she did not have the plaintiff's interview data form containing the names and (telephone) numbers of the references (referees) that the plaintiff had nominated. Her evidence continued:
"So I contacted Katie ... I telephoned her and asked if I was able to contact the references which were written on her resume. ... She said that that was fine. She said one of the referees she believed was on annual leave and that she could give me an alternative reference if necessary."
In cross-examination, Ms Hill recollected that the alternative referee was a current Southern pilot and that the plaintiff said that she could give her details, and she remembered replying "We will see how we go with these ones and if we do have a problem or can't get in contact with the references that you stated on CV [sic] then we will be in contact". Ms Hill denied that the plaintiff said "haven't you done my reference checks yet". She also denied asking the plaintiff who she would like to have as referees, maintaining that she asked whether she could contact the ones written on the plaintiff's curriculum vitae.
The plaintiff's evidence was that she was shocked because she had been told she had been given the job and the ground school was starting in only six day's time. In fact, the next ground school was due to start in 10 day's time, on 24 June. She said that later that day she telephoned Ms Hill again. The Telstra account records a call to the defendant on 14 June at 11.51am for 1 minute 15 seconds. She said that she asked Ms Hill if she was going to send her the documentation because the bank manager needed it and Ms Johnston had said that it would be faxed "yesterday". She said that she also told Ms Hill that Ms Johnston told her that she was starting ground school on 24 June and also that she had the job. Her evidence was that Ms Hill made no comment about what had been said to her by Ms Johnston, other than to say that the documentation would be sent out after her references had been checked. She maintained that she still believed that she had the job and that she had no reason to believe that she did not have it.
The plaintiff's evidence that Ms Hill said that the documentation would be sent out after the references had been checked may have reflected her misunderstanding of the defendant's processes. It was not simply a matter of an applicant passing each check and then receiving an offer of employment. The result of each check might not have been black or white. In particular, checks with referees might produce comments about the character and qualities of an individual applicant that needed consideration. Ultimately, it was not until Ms Bolton and Ms Despas considered all of the information they had and made a decision to offer employment that an offer would be made. For that reason and because Ms Hill did not know what the referees would say, it is unlikely that she would have simply said that a letter of offer would be sent out after the references were checked.
Ms Hill's evidence of that conversation was that the plaintiff called her back and said that Ms Johnston was going to fax a letter of offer to her and she was wondering where it was. Ms Hill's evidence of her response was that she told the plaintiff that documentation could not be sent until the process was complete and as her references had not been done, it could not be sent. It is more likely that she would have said that than what the plaintiff attributed to her. Ms Hill denied that in either of the conversations she had with the plaintiff that day, the plaintiff said that Ms Johnston had told her she had the job and would be starting ground school on 24 June.
On Monday 17 June, the plaintiff received a telephone call advising her that her application for employment was unsuccessful. It was her evidence that it was from Ms Hill because the caller identified herself as Christy from Impulse. Her evidence of the conversation was as follows:
"That person said to me that they were unable to offer me the position as one of my referees was not up [sic] the Qantas Impulse standard. ... I was just in complete shock and upset. I was shaking. I couldn't believe it. ... I said to them 'what's wrong, what's happened'. I said Zoe, 'I have spoken to Zoe'. I spoke to Zoe on 31st. She told me I had the job. Zoe told me I was starting ground school in Sydney on 24th June. I said to them that I was selling our farm, we were purchasing another property in Hobart. I said that, you know, what had gone wrong with one of my references, was she the person who made the decision and she said no she wasn't the person who made the decision. I told her again that Zoe had told me I had the job and that I was starting ground school on 24th June. ... I said could you get someone to call me back so I could speak to someone in management who I could explain the whole situation to and she said that she would. I didn't ask for anyone by name or anything like that."
Ms Hill's evidence was that she made no such call. She explained that neither she nor Ms Johnston had individual responsibility for a particular applicant or file, but she was the one who happened to contact the plaintiff's referees. The evidence of all of the defendant's witnesses established that the plaintiff's application, and those of all other applicants with respect to whom medical, security and reference checks had been completed, were referred to Ms Bolton and Ms Despas for decision as to whether offers of employment would be made.
Ms Despas confirmed that she and Ms Bolton made the decision not to employ the plaintiff and that she directed either Ms Hill or Ms Johnston, she did not remember which, to telephone the plaintiff to inform her of it. Ms Hill's evidence was that it was decided that Ms Johnston would make the call.
Ms Johnston was positive in her evidence that she did make it. I have no hesitation in concluding that the plaintiff was mistaken as to the identity of the person calling her. Obviously conscious of the dispute about the matter, she accepted that she may have been mistaken because she took the call on a mobile telephone when in the sheep yards at a time when it was very windy and cold and difficult to hear.
Ms Johnston did not claim to recall the conversation word for word. Her evidence was that she always identified herself by saying "this is Zoe Johnston calling from Impulse Airlines". She said that she explained to the plaintiff that the defendant was unable to offer her employment because a reference check was not to the standard that Impulse and Qantas required. The plaintiff conveyed her disappointment. She asked Ms Johnston if she was the one who made the decision and Ms Johnston responded that she was in no position to do that and that the decision was made by the flight attendant manager and the human resources manager. The plaintiff asked to speak to them. Neither was available and Ms Johnston said that she would arrange for one of them to call her. At some point the plaintiff said something that Ms Johnston described as confusing and which showed that the plaintiff was mistaken as to the identity of the person to whom she was speaking. Ms Johnston's evidence, according to the transcript, was that the plaintiff "said, 'Oh, I had previously spoken Zoe [sic] and she had already offered me a job', and I said, 'Well, no, I'm Zoe, and I didn't do any such thing'." Ms Johnston said that she believed that she told the plaintiff that she was aware that her references had not been checked and that the plaintiff agreed with that and said that she was confused (could not understand?) that any of her referees had said anything bad about her, because she believed that all of them "loved her". The conversation ended with the plaintiff being told that someone would call her, Ms Johnston said. Her evidence was that she had no memory of the plaintiff saying that she had already sold her farm and was in the process of purchasing another property in Hobart, nor that she had booked her children into school and was ready to start ground school on 24 June, but I did not understand her to deny that she may have been told such things.
Particularly because I am satisfied that the plaintiff spoke to Ms Johnston and not Ms Hill, I prefer Ms Johnston's version of that conversation where there is disagreement. In particular, I accept her evidence that when the plaintiff declared that Zoe had told her that she had the job, she responded by saying that she was Zoe and she had said no such thing. I agree with the submission of the defendant's counsel that her evidence of that had a ring of verisimilitude.
There was no further communication between them. As a result of the plaintiff's request to Ms Johnston, the flight attendant manager, Ms Bolton, telephoned the plaintiff on the following day, 18 June. There is no need to relate the evidence about their conversation, other than to note that Ms Bolton confirmed that her application had been unsuccessful and the plaintiff maintained her claim that Ms Johnston had previously told her that she had the job.
As a result of the rejection of her application for employment, the plaintiff decided to continue with her studies at the University of Tasmania in Launceston for the degree of Bachelor of Nursing. It is likely that she will graduate at the end of this year. She and her husband determined to proceed with the sale of Midwood and the purchase of Mr Casimaty's property. They made no effort to avoid those transactions. She consulted a litigious solicitor and shortly thereafter, on 5 August 2002, this action was instituted.
I find that both the plaintiff and Ms Johnston honestly believed when they spoke to each other on 17 June 2002, what they asserted in evidence was their belief. In other words, I find that the plaintiff believed that she had been told by Ms Johnson on 31 May that her application for employment had been successful and Ms Johnston believed that she had not told the plaintiff that. Both of them appeared to be honest in the giving of their evidence. I cannot find and do not seriously suspect that one of them was lying or dishonest when giving evidence about the material conversations.
It is unlikely that Ms Johnston would have offered an applicant a job or informed an applicant that his or her application had been successful, in breach of her authority and without instructions to do so. The process of selecting employees was a structured one. It is unlikely that one of the human resource officers would have advised an applicant of success prior to reference checks being carried out. Wilful disregard of the process was extremely unlikely. I accept that it is possible that in some unknown way, a mistake may have been made by Ms Johnston.
In my view, the most likely source of the dispute between the parties was a misunderstanding on the part of the plaintiff of what Ms Johnston was saying to her, or the import of what she was saying to her, in the first of their conversations on 31 May. The plaintiff had every reason to be confident about the success of her application for employment. She mistakenly believed that it was the practice of the defendant's employees to carry out the three checks of the third stage of the recruitment process in the order of reference checks, then a medical check and finally the security check. On that mistaken basis, there were sound reasons for her to think by 31 May that it was likely that the results of all those checks were in her favour and she knew that she had successfully passed the first two stages. In an optimistic state of mind, she may well have interpreted what was said to her more favourably than she ought to have done. For example, it seems to me quite possible that Ms Johnston said words to the effect that her name was on the list of applicants for the ground school to commence on 24 June and she misinterpreted that as meaning that her application for employment had been successful. She may have expressed gratitude to Ms Johnston, meaning that she was thankful for being successful in obtaining employment, but it may well have been understood by Ms Johnston only as an expression of gratitude for having been placed on the list of possible attendees for the second ground school and not the first, in accordance with the request she had made some days earlier. Of course, Ms Johnston has no memory of that aspect of their conversation on 31 May, but I do not find it surprising, as in Ms Johnston's mind it would not have been an important matter.
If the plaintiff was so mistaken, it is likely that whenever she spoke thereafter to either Ms Hill or Ms Johnston, prior to 17 June, neither party to the conversation understood the state of mind of the other and what the words uttered by the other meant in the context, and because of that and possibly also because of excitement, the plaintiff may have failed to pay sufficient attention to the contents of the conversations and to what the person to whom she was speaking meant.
Generally speaking, I have no confidence in making a finding as to the actual words used by the respective parties to the conversations. I have little doubt that most of their evidence was based on what they believed was the substance of the conversations and not the actual words used. The plaintiff committed to writing her recollection of the details of the conversations about three months earlier than Ms Johnston committed to writing her recollection of the details of them. As a consequence, the plaintiff was able to give greater detail of her version of the conversations, but I do not find that the fact that she could do so is persuasive in the circumstances of the case.
Counsel for the plaintiff submitted that one of the reasons I should find in the plaintiff's favour is that she has every reason to recollect what was said to her because it was for her a single transaction that was important, whereas for Ms Johnston her conversations with the plaintiff, particularly the first one on 31 May, were merely some of a great number Ms Johnston had with many applicants for employment at a time when she and her fellow employees were very busy. Notwithstanding that submission, I remain unpersuaded that I should prefer the plaintiff's evidence of the material conversations. As can be seen earlier in these reasons, I find positively that her memory of some of them was inaccurate.
Counsel for the plaintiff referred to the plaintiff's evidence that on 31 May Ms Johnston told her that she would receive documentation regarding the position she had been successful in gaining on the first day of ground school. Ms Johnston denied saying such a thing, and taking into account her denial that she told the plaintiff that her application for employment was successful, that is not surprising. Counsel for the plaintiff pointed out that the evidence established that many successful applicants did receive such documentation on the first day of ground school and Ms Johnston conceded that when applicants were telephoned with an offer of employment which was accepted, some of them were told that paperwork would be received at the ground school. It followed, so it was submitted, that the plaintiff could only have known about that if she had been offered employment. I do not accept that submission. The plaintiff may well have asked when she could expect to receive documentation at a time when unknown to Ms Johnston, she believed that the job was hers, and she may well have received from Ms Johnston a response that bore no particular significance in Ms Johnston's mind to the effect that paperwork would be provided on the first day of ground school to those attending.
Notwithstanding that I find that the plaintiff honestly believes in the merits of her case, I find for the defendant because she has failed to discharge the onus of proof that was upon her. She has failed to persuade me that it is more probable than not that in her telephone conversation with Ms Johnston on 31 May she was told that her application for employment had been successful. There will be judgment for the defendant.
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