Dianne Burgess v Snowy Mountains Engineering Corporation Limited
[1996] IRCA 43
•20 Feb 1996
DECISION NO: 43/96
INDUSTRIAL LAW - UNLAWFUL TERMINATION OF EMPLOYMENT - Application for review of Judicial Registrar's decision - Only point argued was Judicial Registrar's finding about a pre-termination conversation in which employer's representative allegedly stated that it did not matter what employee said as his mind was made up - Whether Judicial Registrar misunderstood an independent witness' evidence about this conversation - Necessity to accept Judicial Registrar's findings of credit on review.
Industrial Relations Act 1988, ss.170DC and 377
DIANNE BURGESS v SNOWY MOUNTAINS ENGINEERING CORPORATION LIMITED
No. NI.94/1407
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 20 FEBRUARY 1996
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.94/1407
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: DIANNE BURGESS
Applicant
AND:SNOWY MOUNTAINS ENGINEERING CORPORATION LIMITED
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 20 FEBRUARY 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application for review be dismissed.
The balance of the money payable pursuant to the orders made by Judicial Registrar Patch on 3 October 1995, with interest thereon calculated in accordance with Order 35 rule 8, be paid by the respondent to the applicant within 21 days.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.94/1407
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: DIANNE BURGESS
Applicant
AND:SNOWY MOUNTAINS ENGINEERING CORPORATION LIMITED
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 20 FEBRUARY 1996
REASONS FOR JUDGMENT
WILCOX CJ: Pursuant to s.377 of the Industrial Relations Act 1988 Snowy Mountains Engineering Corporation Limited ("SMEC") has applied for review of orders made by a Judicial Registrar in favour of Dianne Burgess. Ms Burgess was employed by SMEC as personal assistant to the Chief Executive Officer of the corporation, Jack Boniface. She commenced employment with SMEC on 5 April 1994 and was dismissed on 14 December 1994 by Mark Wright, General Manager Corporate Services, in the absence overseas of Mr Boniface.
When the application for review was called for hearing, counsel for Ms Burgess (Mr R MacDonald) and the solicitor for SMEC (Mr C McArdle) both said they did not wish to adduce further evidence or recall any witness. Both were content to argue the application on the basis of the evidence tendered to the Judicial Registrar. Furthermore, Mr McArdle indicated that he wished to raise only one point. This point concerned a meeting held on 30 November 1994 for the purpose of discussing criticisms of Ms Burgess' work performance listed by Mr Boniface in a letter handed to Ms Burgess on the previous day. The Judicial Registrar found as a fact that, at the beginning of the meeting and before Ms Burgess was given any opportunity of responding to the criticisms, Mr Boniface "said something to the effect that he had already made up his mind, that it didn't matter what the applicant said, and he was going to terminate her employment". In the Judicial Registrar's view, this attitude deprived Ms Burgess of the opportunity to defend herself against the criticisms, so that the subsequent termination of her employment constituted a contravention of s.170DC of the Industrial Relations Act . Mr McArdle accepted this analysis of the position. He conceded that the Judicial Registrar's conclusion was correct if the finding of fact was correct. But he contended that the Judicial Registrar erred in making that finding and that I should set it aside; and, with it, the Judicial Registrar's conclusion that the termination was unlawful.
It is common ground that four persons were present at the meeting of 30 November: Ms Burgess, Mr Boniface, Enid Bentley, a librarian at SMEC who had a connection with the union of which Ms Burgess was a member and attended the meeting at her request, and Kenneth Brundell, Corporate Taxation Manager of SMEC who attended at Mr Boniface's request. All four persons gave evidence about the meeting.
Ms Burgess made an affidavit dated 3 May 1995 in which she referred to the meeting of 30 November 1994 in this way:
"6.In relation to the meeting, discussion and correspondence leading up to my dismissal in December, I must point out that I believe that the CEO's actions were driven by his desire to remove me from the organisation, without regard to the matter I raised. I do not believe I was given a fair opportunity to respond to the matters set out in the CEO's letter to me 29th November 1994. I say this because the CEO said, at the meeting of 30 November 1994, in the presence of Enid Bentley, CPSU Workplace Delegate, that it did not matter what I responded with, that he was going to sack me."
When she gave oral evidence, Ms Burgess was taken by Mr MacDonald to notes of the meeting of 30 November made by Mr Brundell. Mr MacDonald asked her whether they were "basically accurate". She said that she did not agree that they were and gave as her reason:
"that during that meeting Mr Boniface made a comment that it didn't matter what I was going to do or what I was going to write, that he was going to terminate me, and that is not recorded in the minutes of this meeting."
During the course of cross examination, Mr McArdle asked Ms Burgess about the letter of 29 November:
"And I put it to you that it's a clear instruction of the letter of 29 November that, if you did come up with satisfactory explanations and you did give reasonable undertakings, that you wouldn't be sacked?---No, that was not my understanding at all. I went into a meeting on 30 November and both myself and the union representative who was with me, heard Jack say to me, 'Diane, it doesn't matter what you do, I'm going to terminate you'. Upon which, I replied in the manner that I replied, on my letter that came back on 29 November and then I received another letter from SMEC which was a complete turnaround to anything that I had any information that I had got to that point, and then the day after I received that letter, I then receive a letter of termination.
Now, this Mr Boniface saying, 'Here we are having a meeting but it doesn't matter that we're having a meeting, I'm going to sack you anyway', or words to that effect, I put it to you that Mr Boniface never said that?===No, I disagree with you."
Ms Burgess did not retreat from that position even when it was put to her that Mr Brundell would confirm Mr Boniface's version of the meeting.
Ms Bentley did not make an affidavit but she gave oral evidence. She said that she did not remember the exact words spoken on 30 November but that Ms Burgess asked Mr Boniface if there was any chance of a reconciliation and he reiterated an earlier statement that she should have her allegations in writing and he would review the matter but also said "that his mind was made up".
It is not clear whether Ms Bentley was saying Mr Boniface said all this at the one time. If so, his statement would involve a degree of inconsistency. But the situation was clarified in cross examination. In response to questions from Mr McArdle, Ms Bentley gave this evidence:
"Now Dianne, you say, said - Ms Burgess said, 'Is there a chance of a reconciliation?' or words to that effect?---Yes.
And Mr Boniface said he would review the matter but his mind was made up?---Yes.
...
I put it to you that he did not say that. I put it to you that he said 'I would review the matter but it will depend on your answers to the matters put'?---No. Yes to the first part, no to the second part.
I am sorry?---Yes to the first part, no to the second part.
I put it to you that she said words to the effect of 'Is there any chance of a reconciliation?---Yes, she did say that.
You agree with that?---Yes.
And that he said 'I will review the matter', and she said the words, 'But your mind is made up'?---No.
And that he replied to those words that she put that 'It will depend on your replies to the matters put'. That is what was said, was it not?---No."
Later, asked to state the words used by Mr Boniface, Ms Bentley replied: 'He did say - well, he - words to the effect, not did or didn't, words to the effect that his mind was made up'. Ms Bentley said she did not keep any notes at the meeting and she was flabbergasted. Asked in re-examination to explain this, she said 'I expected it to be a different kind of meeting'. The Judicial Registrar asked her what type of meeting she expected it to be. She replied:
"I expected it to be a type of a counselling meeting, where points would be brought up by both sides, and discussed. Allegations were made in the letter that Dianne had received, on the 29th, and that she was to answer those, and it became very clear, in that meeting, that it was not going to be a counselling session.
...
Now, you have said that Mr Boniface said words to the effect that he had made up his mind?---Yes.,
What effect, if any, did those words have on you, when he said them?---It was then that I realised that what he had said in the letter of the 29th may happen.
Namely?---That it would be her resignation."
In the course of further cross examination by Mr McArdle, Ms Bentley gave this evidence:
"I put it to you that in fact he said, 'If that's what you think then that's up to you. At this stage no decision has been made. Your response to the letter will be very important in determining your future employment.' Do you recall Mr Boniface saying that? You do recall Mr Boniface saying that?---Yes."
Your answer is 'Yes'?---He did make words to that - say words to that effect."
Mr Boniface made an affidavit in which he said that the meeting notes prepared by Mr Brundell "basically reflect what occurred at the meeting" but he said he recollected a conversation at the conclusion of the meeting to the following effect:
"Boniface:'The personal assistant position is unique and you're my personal assistant, not anyone else's. Anything which you need approving should go through me.'
Burgess:'Seems to me like you've already made your mind up about my employment.'
Boniface:'If you want to think that, you can think that. At this stage no decision has been made. Your response to the letter will be very important in determining your future employment.'
Burgess:'If I'm sacked I'm going to go to the unions, the Industrial Relations Commission, take legal advise on what options are available and pursue a sexual harassment which occurred at the cocktail party."
In his affidavit Mr Boniface did not, in terms, deal with Ms Burgess' affidavit evidence. Apparently for this reason, Ms Burgess' account of the conversation was not put to him in cross examination. However, the Judicial Registrar dealt with the case on the basis that Mr Boniface denied her evidence that he had said he had made up his mind. Having regard to the cross examination of Ms Burgess and Ms Bentley, this was the proper approach.
Mr Brundell gave affidavit evidence about the meeting that was almost identical to Mr Boniface's affidavit evidence. In cross examination, Mr MacDonald put to him that Mr Boniface had said he had made up his mind but Mr Brundell said this was incorrect.
There is one other piece of relevant evidence. On the day of her dismissal, Ms Burgess attended a meeting with Mr Wright. Ms Bentley accompanied her. Mr Wright's personal assistant took minutes. The minutes were tendered in evidence and both parties agreed they were accurate. The minutes record the following exchange:
"Mark Wright: 'Lets look at the questions - Lack of Progress with the Strategic Plan.'
Dianne Burgess: 'Mark, are we going to go on this merry-go-round? Jack Boniface stated and it was witnessed by Enid Bentley that regardless of my answers to Jack Boniface, that Jack Boniface was going to terminate me any way. My answer was not going to make any difference.'
Enid Bentley: 'Ken Brundell took notes at that meeting and we should have a copy of them, basically Dianne Burgess is correct in that no matter what Dianne Burgess's reply to Jack Boniface was, it was not going to make any difference."
In his reasons for judgment, the Judicial Registrar said:
"Both the applicant and Ms Bentley gave evidence to the effect that, at the meeting on 30 November 1994, Mr Boniface had said something to the effect that he had already made up his mind, that it didn't matter what the applicant said, and he was going to terminate her employment.
Mr Boniface denies this.
Putting aside all of the questions of the relative credit of the applicant and Ms Bentley on the one hand, and Mr Boniface on the other, the applicant's version of the events is supported by her words and conduct at the meeting on 14 November 1994 between herself, Mr Wright, and Ms Bentley.
That was the final meeting between the applicant and any manager of the respondent before her employment was terminated by letter of the same date."
He then quoted the minutes of the 14 December meeting and went on:
"The words and conduct of the applicant and Ms Bentley at that meeting are entirely consistent with Mr Boniface having said, on 30 November, that he had already made up his mind, and no matter what the applicant said, he was going to terminate her employment.
If there were no serious questions regarding the credit of Mr Boniface, I would, nonetheless, resolve this issue of fact in favour of the applicant. The fact that I do not regard Mr Boniface as a witness whose credit I can accept when his evidence conflicts with that of the applicant is another reason why I accept the applicant's version.
It follows that I find as a fact that Mr Boniface had made up his mind, in advance, to terminate the applicant's employment, no matter what her response to the criticisms was."
Mr McArdle offered two main criticisms of these passages. First, the Judicial Registrar made no reference to Mr Brundell's evidence about the meeting. As I have noted, Mr Brundell's evidence corroborated that of Mr Boniface. Second, he said that the Judicial Registrar erred in treating Ms Bentley's evidence as supportive of Ms Burgess' account of the 30 November meeting. Properly understood, he argued, it pointed the other way.
The first criticism is justified. Mr Brundell's evidence was relevant and it would have been desirable for the Judicial Registrar to deal with it in his reasons. But it is difficult to think that Mr Brundell's evidence could be critical to a determination of what happened at the meeting. If the Judicial Registrar was inclined to the conclusion, from the evidence of Ms Burgess and Ms Bentley and the minute of the 14 December meeting, that Mr Boniface said what was claimed, Mr Brundell's evidence would not reasonably preclude a finding to that effect. Although Mr Brundell attended the meeting for the purpose of taking notes, and recorded a comment by Ms Burgess at the end of the meeting that it seemed Mr Boniface had already made up his mind about her employment, he did not record the response to that statement that both he and Mr Boniface claimed Mr Boniface to have made: "If that's what you think, then that's up to you. At this stage no decision has been made. Your response to the letter will be very important in determining your future employment." Mr Brundell must have been relying on his memory when he recorded this speech in his affidavit six months later. If so, his recollection was virtually identical to that of Mr Boniface. Unfortunately, the matter was not explored at the hearing before the Judicial Registrar but it would be remarkable if the two men had independent recollections of these particular words.
I think the critical question on the review is whether or not the Judicial Registrar misunderstood Ms Bentley's evidence. If I were satisfied that he did, this would not justify my substituting a finding that Mr Boniface did not say what is attributed to him. After all, the Judicial Registrar accepted Ms Burgess as a witness of truth and held he could not accept Mr Boniface's evidence when it conflicted with that of Ms Burgess. As I have not seen or heard the witnesses myself, I would have no basis for reaching a different conclusion about the witnesses' comparative credit. The Judicial Registrar's view about Mr Boniface's credit was influenced by the evidence he gave on other subjects, the Judicial Registrar's findings on which have not been impugned before me. However, if I reached the conclusion that the Judicial Registrar misunderstood Ms Bentley's evidence about the 30 November meeting, and this misunderstanding played a significant role in his finding, the proper course would be for me to set aside the Judicial Registrar's decision and conduct or direct a new trial.
I do not think the Judicial Registrar did misunderstand Ms Bentley's evidence. I have quoted everything relevant. As the first extract shows, in her evidence in chief and in response to a non-leading question, she said that Mr Boniface had said he would review the matter and his mind was made up. Cross examined about this, she repeated the statement "his mind was made up". She went on to say she was "flabbergasted" as she thought it would be a different type of meeting, a counselling meeting.
It seems to me that this evidence is internally consistent and believable. Unless Ms Bentley was deliberately lying - and that suggestion has never been made - her claimed reaction is significant. An observer would be "flabbergasted" if a senior officer commenced a meeting called to discuss a subordinate's work performance by saying that it did not matter what she said, his mind was made up. The fact that Ms Bentley had that reaction is itself an indication that Mr Boniface behaved in an unusual and unfair way. Further, the evidence of Ms Bentley is consistent with what Ms Bentley said at the meeting of 14 December. That meeting took place before Ms Burgess was dismissed, so Ms Bentley would have had no reason to invent conversations; but at a time when the events of the 30 November would have been fresh in her memory.
The only passage in Ms Bentley's evidence that can be set against this understanding of her evidence is her response to Mr McArdle's question, quoted above, when he put to her the three elements in the statement of Mr Boniface alleged by him and Mr Brundell. Ms Bentley gave a general answer "yes" to that question. Whether, in doing so, she was directing her attention to each element in the question, I do not know. The matter was not explored. Sometimes witnesses respond to a lengthy question by giving an answer that deals only with the last part of it. A cross examiner who intends to place reliance on the witness' agreement to a particular element in a lengthy question, should direct the witness' attention to that element. If this is not done, it is difficult enough for someone who heard the evidence to determine what he or she intended to accept; it is virtually impossible for someone who did not.
Furthermore, Mr MacDonald points out that it is quite possible that Mr Boniface used the words assented to in this answer, apparently towards the end of the meeting, but also opened the meeting by saying that his mind was made up. If both things were said, Mr Boniface would have been guilty of some inconsistency. But it is possible that his opening statement was a disclosure of his true position and the closing statement an incantation of the formula that he felt bound to use.
I do not state any particular view about the matters just discussed. The only point I make is that their evaluation must be intimately linked with an assessment of the witnesses. That assessment involves forming a view about the witnesses' honesty. But it goes beyond this. It involves an assessment of their capacity to cope with situations and questions and their articulateness and confidence. The Judicial Registrar had the opportunity to take all these factors into account. As I have not seen or heard the witnesses, I have no basis for interfering with his assessment. It was clearly open to the Judicial Registrar to conclude that the effect of Ms Bentley's evidence, considered as a whole, was to support Ms Burgess' account of the 30 November meeting. Accordingly, I see no basis for interfering with his findings of fact.
The application for review must be dismissed and the orders made by the Judicial Registrar confirmed.
I certify that this and the preceding thirteen (13) pages
are a true copy of the Reasons for Judgment
of the Honourable Chief Justice Wilcox.
Associate:
Dated:
APPEARANCES
Counsel for the Applicant: C McArdle
Solicitors for the Applicant: Phillips Fox
Counsel for the Respondent: R MacDonald
Solicitors for the Respondent: Vandenberg Reid
Dates of hearing: 2 February 1996
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