Dianne Burgess v Snowy Mountains Engineering Corporation Limited
[1995] IRCA 554
•3 Oct 1995
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - No VALID REASON - Onus of Proof - No PROCEDURAL FAIRNESS - UNJUST - REINSTATEMENT IMPRACTICABLE - COMPENSATION, factors to be taken into account.
Industrial Relations Act 1988 ss 170DE, 170EA, 170EDA, 170EE, 430, Schedule 10
Narelle Jones -v- Armas Nominees Pty Ltd t/as Network Rent a Car (VI 1245 of 1994 unreported, Millane JR, 22 December 1994)
Grout -v- Gunnedah Shire Council (1994) 125 ALR 355
Mitchell -v- Gagdju Association Inc and Anor (DI 132 of 1994, unreported, Boulton JR, 7 March 1995)
James Lewis Aitken -v- The Construction, Mining, Timberyards, Sawmills & Woodworkers Union of Aust - WA Branch (WI 328 of 1995 - unreported, Lee J, 7 August 1995)
Allan James Duncan -v- Kingfleet Holdings Pty Limited trading as Lyster Removals and Storage (No. WI 1215 of 1995, unreported, Patch JR, 1 August 1995)Jason Scott Johns -v- Gunns Limited (TI 148R of 1994 - unreported, Northrop J, 18 May 1995)
Browne -v- Dunn (1894) 6 The Reports 67
Jones -v- Dunkel (1959) 101 CLR 298
Nicolson -v- Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233
Graham Foxcroft v The Ink Group Pty Ltd (1994) 57 IR 65DIANNE BURGESS -v- SNOWY MOUNTAINS ENGINEERING CORPORATION LIMITED
No. NI 1407 of 1995
COURT: PATCH JR
PLACE: BYRON BAY (HEARD IN COOMA)DATE: 3 OCTOBER 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRYNo. NI 1407 of 1994
BETWEEN:
Dianne BURGESS
ApplicantAND:
SNOWY MOUNTAINS
ENGINEERING CORPORATION
LIMITED
RespondentREASONS FOR JUDGMENT
3 OCTOBER 1995 PATCH JR
This is an application under section 170EA of the Industrial Relations Act 1988 ("the Act").
REMEDIES SOUGHT BY THE APPLICANT.
In her application the applicant sought the following orders:
1. Reinstatement; or
2. Compensation.
In his opening address on 26 May 1995, Mr MacDonald, counsel for the applicant, stated that the applicant "seeks damages at common law for mental distress."
That was the first time that the respondent had been informed that the applicant sought any common law damages.
In his written submissions, filed on behalf of the applicant, Mr MacDonald referred to the orders the applicant seeks as follows:
Pursuant to Section 170EE of the Act the Applicant seeks the following orders:
1.An order declaring the termination to have contravened Section 170DE;
2.The following consequential orders;
(a)Payment of compensation equivalent to twenty six weeks gross pay ($22,500.00);
(b)Pursuant to Clause 16(t) of the Snowy Mountains Engineering Corporation Limited General conditions of Service Award, 1990, recreation leave loading of seventeen and a half percent for the period April until December 1994 ($5,250.00);
(c)Damages at common law for mental distress ($15,000.00);
(d)Such further order or orders as will place the Applicant in the same position as if the employment of the Applicant by the Respondent had not been terminated."
In his written submissions Mr MacDonald clarified what he meant by "damages at common law for mental distress". He referred to the case of Narelle Jones -v- Armas Nominees Pty Ltd t/as Network Rent a Car (VI 1245 of 1994 unreported, Millane JR, 22 December 1994). That was not a case of common law damages at all. It was a case in which the Court awarded, by way of compensation under section 170EE(2) of the Act, some damages specifically for mental distress, which did not amount to a psychiatric illness or the exacerbation of an existing psychiatric illness.
Mr MacDonald also referred to the case of Grout -v- Gunnedah Shire Council (1994) 125 ALR 355. That was a case of common law damages - but the damages awarded by Justice Moore in that matter were for a breach of the contract of employment, and not compensation under section 170EE (2) of the Act. They were awarded, pursuant to the power conferred by section 430 of the Act, in the associated jurisdiction of the Court.
The third case which Mr MacDonald referred to, Mitchell -v- Gagdju Association Inc and Anor (DI 132 of 1994, unreported, Boulton JR, 7 March 1995), was a case in which compensation under section 170EE(2) of the Act was ordered for distress, not amounting to a psychiatric illness or the exacerbation of an existing psychiatric illness, arising out of the termination of employment. It was not a case in which "damages at common law" were awarded.
As the applicant has never filed proper process in respect of any so-called "common law" claim for damages, for mental distress, there is no such claim before the Court. The applicant is, therefore, not entitled to any "damages at common law" for mental distress. (My emphasis).
However, in accordance with the decision of Justice Lee in the case of James Lewis Aitken -v- The Construction, Mining, Timberyards, Sawmills & Woodworkers Union of Aust - WA Branch (WI 328 of 1995 - unreported, Lee J, 7 August 1995), the applicant is entitled, by way of compensation under section 170EE(2), as a separate head of damages under that section, for compensation for hurt feelings, distress, stress, humiliation and suffering (or the like) caused by an unlawful termination of employment.
If it were for me alone to decide, I would, for the reasons I gave in Allan James Duncan -v- Kingfleet Holdings Pty Limited trading as Lyster Removals and Storage (No. WI 1215 of 1995, unreported, 1 August 1995), rule that an applicant is only entitled to compensation under section 170EE(2) for direct economic loss. However, I am bound to follow the decision of Justice Lee in Aitken, and will do in this case.
In his written submissions, counsel for the applicant also sought an order for unpaid recreation leave for the period April to December 1994, (the period of the applicant's employment by the respondent) in the sum of $5,250.00.
Once again, no process was filed by the applicant seeking such damages, and the respondent was not put on notice that such damages were sought.
It was necessary for the applicant to take those steps because compensation under section 170EE(2) of the Act does not include claims for wages unpaid, or benefits accrued, prior to the termination of a person's employment.
Therefore, such a claim can only be made under section 430 of the Act, in the associated jurisdiction of the Court.
It follows that there is no claim for unpaid recreation leave before the Court.
Finally, it is apparent that counsel for the applicant has confused "compensation" under section 170EE(2) with "common law damages". But, in essence, he is asking for the same thing, and I will proceed on the basis that he is seeking "compensation" for distress (etc) under section 170EE(2) of the Act, rather than "common law damages" under section 170EE(2).
THE HISTORY OF THE MATTER.
The matter was listed, as a one day hearing, at Cooma on 26 May 1995. It became almost immediately apparent that whoever had given that estimation had grossly underestimated the length of the case. As it turned out, the hearing of the matter took three full days, 26 May, 30 June, 24 July 1995, and, due to the lateness with which the evidence concluded on the third day, there was no time for oral argument, and written submissions were called for.
The legal representatives of both parties did not comply with the timetable for written submissions.
The applicant's submissions were to be filed and served by 4.00 pm Monday 14 August 1995. They were not filed until 29 August 1995.
The respondent's submissions were to be filed and served by 4.00 pm 24 August 1995. Although it was not possible for the respondent to comply with that order because of the lateness with which the applicant filed its submissions, the respondent's submissions were not filed until 25 September 1995, and were only filed on that day because my Associate had telephoned the respondent's solicitors and asked where the submissions were.
Counsel for the applicant, upon finally receiving the respondent's submissions, acted expeditiously and filed written submissions in reply on Wednesday 27 September.
Timetables ordered by the Court are to be followed. The representatives of a party should abide strictly by them. If it turns out that, for some reason, it is not possible to abide by a timetable (and there would, no doubt, be many good reasons why that might not be possible) then contact should be made with the Court in order to seek a variation of the orders made.
BACKGROUND FACTS
The applicant commenced employment with the respondent on 5 April 1994. She was employed as the personal assistant to Mr Jack Bonfire, the Chief Executive Officer of the respondent. The respondent, the Snowy Mountains Engineering Corporation Limited, ("SMEC"), (better known under its former name as the Snowy Mountains Authority) is now a multi-national engineering corporation providing a wide range of large scale engineering services all over the world.
As the Chief Executive Officer, Mr Boniface was required to frequently travel overseas.
Because the headquarters of the respondent corporation in located in Cooma, the applicant was required to re-locate, with her family, to the Cooma area. The applicant's employment was terminated by respondent (see below) on 14 December 1994.
WAS THE APPLICANT'S EMPLOYMENT TERMINATED BY THE RESPONDENT - OR DID SHE RESIGN, OR ABANDON HER EMPLOYMENT IN SOME OTHER WAY?
Article 3 of the International Labour Organisation Termination of Employment Convention (Schedule 10 of the Act) defines "termination" as follows:
"For the purpose of this Convention the terms "termination" and "termination of employment" mean termination of employment at the initiative of the employer."
It follows that, if the Court were to find that the applicant had resigned or had otherwise abandoned her employment (thereby repudiating the contract of employment) and that that repudiation had been accepted by the respondent, there would be no termination of employment "at the initiative of the employer", and the application would be dismissed.
On 29 November 1994, Mr Boniface gave a letter (exhibit 1) to the applicant setting out some points in respect of which he said he had been "unhappy" with the applicant's performance. After setting out those points, he said "if we are unable to obtain a satisfactory explanation and undertakings from you regarding the above issues we may be forced to terminate your employment.".
On 29 November and 30 November 1994, meetings were held concerning that letter. A copy of the "minutes" made by the respondent of the meeting of 29 November 1994 is exhibit 2, and a copy of the "minutes" made by the respondent of the meeting of 30 November 1994 is exhibit 3. I will refer to those meetings in more detail below.
On 9 December 1994 the applicant replied in writing to the letter of 29 November 1994. Her reply is exhibit 4. In that letter the applicant responded to each of the points in respect of which Mr Boniface had said he was unhappy.
The last three paragraphs of the letter were as follows:
Lastly, I wish to communicate that if you terminate my employment that I consider it an unfair dismissal. I have sought legal advice, and shown your initial letter to a barrister, and I will continue to pursue action should you terminate my employment.
You have also at this point made it virtually impossible for me to return to SMEC given that many task have now lapsed, any relationship that I had with Breige and yourself is now lapsed, and I have been severely embarrassed by this whole matter.
What I request is that his (sic) matter be finalised before I return to any sort of work duties. I can be contacted over the weekend on my home number or the mobile number (015) 427 498. I will not be at work on Monday until the matter is resolved.."
On 13 December 1994 Mr Boniface replied to the applicant's letter of 9 December 1994, in a letter which he dictated, but, as he was overseas, was signed by Mr Mark Wright (the General Manager, Corporate Services) on his behalf.
That letter was received by the applicant at her home on the evening of 13 December 1994.
On Wednesday 14 December 1994 (2 days after the Monday to which the applicant had referred in her letter of 9 December 1994) the applicant attended work. She had not been at work since 30 November 1994, the day of the second meeting.
Following the meeting on 30 November 1994, she was told by the respondent that she should take the next day off work, and she did. That was the Thursday. On that Thursday she was told to take the next day off as well. She did.
From Monday to Thursday (8 December) the applicant had pre-arranged leave. On Friday 9 December, Monday 12 December and Tuesday 13 December the applicant took stress leave.
Therefore, when she, according to her evidence (which I accept) returned to the office on Wednesday 14 December 1994 to resume her duties, she had been legitimately away from work for every day since 30 November. It cannot be said that she had repudiated her contract of employment by deliberately absenting herself from work.
On 14 December 1994 Mr Wright having spoken to the applicant that day at the office, and having subsequently spoken to Mr Boniface, had a letter prepared, (at Mr Boniface's direction), which was given to her. That letter is exhibit 6.
He said in that letter "the mutual position appears to be that your employment be terminated. It is therefore terminated effective immediately."
In my opinion, the communication of that last sentence to the applicant was the act by which her employment was terminated.
Nothing in the applicant's actions, nor anything in her correspondence, was a resignation, or an abandonment of her employment. In particular, when the applicant said in the letter of 9 December 1994, "I will not be at work on Monday until the matter is resolved" she was not abandoning her employment. She was away on that Monday, but she was on stress leave. Given the circumstances, it was understandable that she be on stress leave. It was understandable that she said she would not be at work - on Monday. That statement was not a refusal to ever attend at work again, it was a reference which was limited to one day only - Monday, 12 December 1994. It was made in direct response to Mr Boniface having told the applicant, at the meeting of 30 November that, no matter what she said, her employment would be terminated (see below).
The respondent's submissions are to the effect that, because the applicant strenuously asserted herself, and denied, in essence, that any of the criticisms directed to her by Mr Boniface had any validity, expressed her disappointment with the way she had been treated, did not give "undertakings" as required, and said that she thought that any relationship with Mr Boniface and Breige (his secretary) had "lapsed", that she was abandoning her employment.
I do not accept that. True it is that the applicant directly confronted the assertions made by Mr Boniface - but she was perfectly entitled to do that. In particular, I do not agree with Mr Boniface, when he said in his letter of 13 December 1994 to the applicant: "Generally, your answers to the areas of concern set down in my letter of 29 November are aggressive and unco-operative."
In my opinion, the contention in the respondent's submissions, and to a limited extent during the hearing of the matter, that the applicant somehow abandoned her employment, is a contention which the management of the respondent does not, and never did, believe.
This is more than amply illustrated by paragraph 23 of the affidavit of Mr Boniface, sworn 23 May 1995 in which, referring to 14 December 1994, he said this:
"As it was then clear to me that Ms Burgess did not intend to undertake to change her ways, I decided her employment should be terminated. I instructed Mr Wright to draft a letter of termination."
A copy of the letter subsequently drafted by Mr Wright was annexure "I" to Mr Boniface's affidavit, and the original is exhibit 6.
Furthermore, in paragraph 10 of the affidavit of Mr Wright, sworn 23 May 1995 (exhibit E) Mr Wright set out the conversation he had had with Mr Boniface, on 14 December 1994, at the end of which Mr Boniface said to Mr Wright, "Okay, there is no other choice, draw up her termination letter."
It is quite clear that the respondent's case, when those affidavits were drawn up in May, was that the respondent had terminated the employment of the applicant, but that that was for a valid reason. There was no suggestion, in any of the material prepared at around that time, that the applicant had resigned or in some other way had abandoned her employment.
In cross examination Mr Boniface was referred to exhibit 1 - the letter of 29 November 1994 setting out the reasons in respect of which he was "unhappy" with the performance of the applicant.
The following questions and answers occurred:
"Mr MacDonald: Mr Boniface, are those the points upon which you had cause to dismiss Ms Burgess?
Mr Boniface: No. These were the points that we wanted to start a counselling session with Ms Burgess on.
Mr MacDonald: Well, following the meeting of the next day she ended up being dismissed correct?
Mr Boniface: That's correct.
Mr MacDonald: Were there - are you saying that there are other points that led - other than these points, there are other points that led to her dismissal?
Mr Boniface: No. I think it was basically Ms Burgess' response to that letter which virtually said that she wasn't prepared to discuss it any more.
Mr MacDonald: Please, Mr Boniface, be responsive to my question. My question to you was, were there other points put to Ms Burgess that she was dismissed - ultimately dismissed on?
Mr Boniface: No.
Mr MacDonald: No. So these were the points that led to her dismissal?
Mr Boniface: No. It was her response to those points.
Mr MacDonald: But there was no other - the question I asked you was - please listen carefully to the question - were there any other points which led to her dismissal? Your answer was no?
Mr Boniface: No. What I'm saying is those points in themselves did not lead to her dismissal. It was her response to those points - her written response."
That evidence simply cannot stand together with the contention that the applicant resigned, or, in some other way, abandoned her employment.
For the above reasons, I find that the applicant's employment was terminated by the respondent on 14 December 1994.
WAS THE TERMINATION OF THE APPLICANT'S EMPLOYMENT UNLAWFUL?
Was there a "valid reason" or "valid reasons" for the termination of the applicants employment?
Section 170EDA(1) is as follows:
ONUS OF PROOF
[Termination contravenes subsec 170DE(1)] If an application under section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1):(a)the termination is taken to have contravened subsection 170DE(1) unless the employer proves that, apart from subsection 170DE(2), there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1); and
(b)if the employer so proves, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid.
Therefore, the onus is on the respondent to prove a "valid reason" or "valid reasons" for the termination of the applicant's employment. See Jason Scott Johns -v- Gunns Limited (TI 148R of 1994 - unreported, Northrop J, 18 May 1995).
WHAT WERE THE REASONS FOR THE TERMINATION OF THE APPLICANT'S EMPLOYMENT?
In his letter to the applicant of 29 November 1994 (exhibit 1) Mr Boniface expressed his dissatisfaction with the applicant's performance as follows:
"Over the preceding months I have been unhappy with your performance. The following points are some of the more recent examples:
· Lack of progress with completion of the Strategic Plan.
· Poor attendance/punctuality
· Lack of organisation for SMEC's first birthday function
· Late reporting for Board reports
· Poor relations with other SMEC staff
· Short notice on absences from work
· Non-completion of tasks as directed by myself
If we are unable to obtain a satisfactory explanation and undertaking from you regarding the above issues we may be forced to terminate your employment."
At first blush, therefore, it would be logical to look for the reasons for the termination of the applicant's employment within those criticisms. However, it is not as simple as that.
The applicant's firm rejection of nearly all of the criticisms directed at her, and, indeed, her rebuttal of them in her letter of 9 December 1994, became, in my opinion, the principal reason for the termination of the applicant's employment.
In paragraph 23 of Mr Boniface's affidavit of 23 May 1995 (a passage which I have already quoted - but which it is necessary to repeat) he said:
"As it was then clear to me that Ms Burgess did not intend to undertake to change her ways, I decided her employment should be terminated. I instructed Mr Wright to draft a letter of termination."
Thus, it seems that it was the refusal of the applicant to "undertake to change her ways" rather than anything of substance contained in the criticisms of 29 November 1994, which formed the true basis for the termination of the applicant's employment.
This is reinforced by an examination of Mr Boniface's letter (signed by Mr Wright) the letter of 13 December 1994, which was in response to the applicant's letter of 9 December 1994. The bulk of the applicant's letter of 9 December 1994 had consisted of a point by point rebuttal of the criticisms contained in the letter of 29 November 1994, including reference to those criticisms which had been made at the meetings of 29 and 30 November. However, Mr Boniface, in the letter of 13 December 1994, made little reference to the substance of the criticisms of the applicant's employment. Instead, the bulk of his letter was a response to the closing remarks of the applicant in her letter, in which she had expressed her disappointment, embarrassment, and a feeling that the relationship with Mr Boniface had "lapsed", etc.
Mr Boniface was simply unwilling to accept the applicant's response - and was unwilling to accept that the criticisms which he had of the applicant could be unfounded. Numbered paragraphs 3 and 4 of the letter of 13 December were as follows:
"3.Generally, your answers to the areas of concern set down in my letter of 29 November are aggressive and unco-operative. I think it is unfortunate that you seek to blame a secretary for any shortcomings at all. For instance, your failure to attend to a simple matter such as name tags at the first birthday function, according to you was Breige's fault. It is even my fault that I have now raised your failure to complete the application for the Institute of Engineers.
4.Your whole letter is saying to me that you don't want to work for SMEC. It is aggressive and confrontationist. I wanted you to address some reasonable issues and to give me some undertakings about your performance. You have simply refused to do that and now you tell me you don't want to work for us. I accept that with regret and agree that there should be a parting of the ways. I think you should call Mark Wright as soon as possible to discuss final separation."
As I said above, in my opinion the applicant's response was neither "aggressive" nor "unco-operative".
In my opinion, the applicant's employment was terminated for a variety of reasons - but the principle factor operating on Mr Boniface when he made the decision to terminate the employment of the applicant was her so-called "refusal" to "give undertakings about her performance", manifested by asserting her rights and delivering a firm, and reasoned, rebuttal of the criticisms which Mr Boniface had of her.
In his written submissions, counsel for the respondent referred to the reasons stated in Mr Wright's letter of 14 December 1994, written on behalf of Mr Boniface, (exhibit 6) as containing the reasons for the termination of the applicant's employment. No reference is made in the respondent's submissions to any of the criticisms contained in the letter of 29 November 1994 as being reasons - let alone "valid reasons" - for the termination of the applicant's employment. The reasons extracted from exhibit 6 were set out in the respondent's submissions as follows:
1.The indication of Burgess that she no longer wishes to be employed by SMEC.
2.The failure to take the opportunity to reply to issues raised, given in the letter of 29 November.
3.The aggressive confrontationist reply of 9 December.
4.The stated "lapse" of the working relationship with Mr Boniface and his secretary Ms McKenzie referred to in Burgess' s letter of 9 December. This word was never used by the employer. That the relationship had "lapsed" was the evidence of the applicant."
The respondent, in its submission, skewed the onus. The respondent submits that the reasons that I have just set out as extracted from its submissions "could not reasonably be held to be "not valid"".
As I have stated above, the question is whether the respondent has proved that there is a "valid reason" or "valid reasons" for the termination of the applicant's employment - not whether the applicant has proven that the reasons advanced by the respondent are "not valid".
In any case, in my opinion, none of the reasons advanced by the respondent in its submissions constitute "valid reasons" for the termination of the applicant's employment.
As the dominating factor in Mr Boniface's mind when he decided to terminate the applicant's employment was the way that she had reacted to criticisms, and as his reaction to the way the applicant had reacted to criticisms was itself unreasonable, the reasons for which Mr Boniface decided to terminate the applicant's employment were not valid reasons.
The termination of the applicant's employment was, for that reason alone, unlawful.
However, as the letter of 14 December 1994 (exhibit 6), by which the applicant's employment was terminated, also made reference to the "allegations made" in the letter of 29 November 1994, and also asserted "that those allegations have substance", it is necessary to deal with them.
Lack of progress with completion of the strategic plan.
The strategic plan was a long-term plan for SMEC to enable it to co-ordinate and plan its activities in advance. The applicant had been given the task by Mr Boniface of preparing the draft strategic plan, for subsequent consideration by the Executive and the Board.
There had been a meeting of the senior management of the company in July in order to discuss what should be in the strategic plan. Following that meeting, both the applicant and Mr Boniface's secretary, Ms Breige McKenzie, had prepared draft strategic plans. They were not the same, and I accept the evidence of the applicant that the fact that there were "competing" draft strategic plans caused some confusion within the organisation.
Be that as it may, some time around early September, following an Executive meeting, Mr Boniface returned to the applicant the draft plan which she had prepared, and which had been considered by the Executive, with a number of amendments which had to be incorporated by her into the plan. He made it clear to the applicant that he wished to have the plan redone by her in time for the October Board meeting.
The main criticism of the applicant in respect of this aspect of the matter is that she did not have the plan ready in time for the October Board meeting.
In my opinion, the applicant did all that was reasonably required of her in order to have the draft plan ready.
I accept the applicant's evidence that, when Mr Boniface gave her the plan, with amendments as added by the Executive, he also told her that she was to give the plan, as subsequently redrafted by her, with the amendments incorporated, to another senior manager of the company, Mr Les Bohm.
The applicant gave evidence that that is exactly what she did, that she incorporated the amendments, and gave it to Mr Bohm for him to consider well in advance of the deadline for the October Board meeting.
The applicant gave evidence that, on the day that the plan was due to be incorporated into the board papers, for circulation to the Board prior to the October Board meeting, she was sick and not at work. She said that she spoke to Breige McKenzie on the phone, told her that the plan was with Mr Bohm, and that, if she wished to incorporate it in the Board papers, Ms McKenzie should get it from Mr Bohm.
That part of the applicant's evidence was uncontradicted - the contrary was not put to her in cross examination, and for that reason alone, I am inclined to accept it. It is an inherently believable version of the events. (see Brown -v- Dunn (1894) 6 The Reports 67).
Furthermore, neither Mr Bohm nor Ms McKenzie were called to give evidence. No explanation has been advanced in respect of either of those persons not being called to give evidence.
In my opinion, they were not called by the respondent because their evidence would not have assisted the respondent's case. This failure by the respondent to call either of those persons makes it easier for me to accept the applicant's version of the events (see Jones -v- Dunkel (1959) 101 CLR 298)
Ms McKenzie was potentially an important witness for the respondent. On several occasions in her evidence, and in the discussions with the respondent prior to the termination of her employment, the applicant made mention of Breige McKenzie as being a central participant in the events. It was clear that there was a breakdown in the relationship between the applicant and Ms McKenzie. The applicant asserted, repeatedly, that this breakdown was not her fault, and had occurred because Ms McKenzie did not work cooperatively with her. The general tenor of the applicant's evidence was that Ms McKenzie had set out to deny the applicant regular access to Mr Boniface, and to the information, resources and assistance that the applicant needed to properly perform her task. As Ms McKenzie was not called to give evidence about these matters, I accept what the applicant says. (see Jones -v- Dunkel (supra)).
Another reason why I accept the applicant's version of the events in respect of the strategic plan is because she set it out clearly in a facsimile message to Mr Boniface on 13 October 1994 (exhibit 7).
It is extraordinary that in his return facsimile message on 14 October 1994 (annexure "B" to Mr Boniface's affidavit, exhibit "C"), Mr Boniface made no reference to this (even then apparently credible) explanation by the applicant, simply complaining that he had been embarrassed by the failure to have the report ready in time for the October Board meeting. He, even then, simply assumed that the applicant's explanation was false, or, alternatively, paid absolutely no regard to it.
In my opinion, the behaviour of Mr Boniface as early as 14 October 1994, showed a significant degree of ill will, for no good reason, from him to the applicant.
Poor attendance/punctuality
The applicant explained, both in the meetings on 29 November and 30 November, and in her evidence, that, in the few weeks leading up to 29 November 1994, she had been under a lot of stress as a result of a court case involving the custody of her children. She agreed that, on some occasions in that period, she had arrived at work later than her normal starting time of 8:00 am. Mr Boniface was aware at the time of the Court case - and the consequent stress on the applicant.
I accept what the applicant has said, and those occasional lapses in punctuality are, therefore, trivial in nature. They could not constitute a "valid reason" or part of a "valid reason" for the termination of her employment.
The other principal aspect of this criticism had to do with 28 October 1994. The applicant was not at work on that afternoon. When she submitted her time sheet for the period up to 3 November 1994, she made no reference to her absence from work on 28 October .
As a result of that, Mr Wright sent a memo to Mr Boniface, asking how that (apparently) unauthorised leave was to be treated. In the absence of any explanation by the applicant, at that time, for her (apparently unauthorised) absence, Mr Wright's action in sending that memo to Mr Boniface was entirely reasonable.
Mr Wright's memo to Mr Boniface was, shortly afterwards, passed to the applicant. She then rectified the matter.
What had actually happened was this: The applicant had, prior to her absence on 28 October 1994, obtained approval for that absence from one of the other managers of the company. She had simply forgotten to attach that signed approval to her timesheet when she submitted the timesheet. Upon her receipt of a copy of Mr Wright's memo to Mr Boniface, she submitted that signed leave form.
The explanation for that criticism by Mr Boniface in relation to the applicant's absence on the afternoon of 28 October 1994 was, at all times, simply sitting in the respondent's records. If Mr Boniface had made any investigation at all as to whether or not there had been a response by the applicant to Mr Wright's memo (instead of simply assuming that the applicant had, in fact, taken unauthorised leave on 28 October 1994) the applicant's response to that memo would have been discovered immediately.
In my opinion, this failure by Mr Boniface to investigate demonstrates, once more, a significant degree of pre-existing ill will to the applicant.
In his evidence, Mr Boniface agreed that this question of taking the afternoon off on 28 October 1994 amounted to an allegation of dishonesty against the applicant.
However, it was never put to the applicant that she had been dishonest in this respect, either at the meetings of 29 and 30 November 1994, and nor was it put to her that she had not subsequently submitted a leave form which had been signed, in advance, by one of the other managers.
I therefore accept her version of the event.
Lack of organisation for SMEC's first birthday function
Even if this criticism were to be established by the respondent, it is of such a trivial nature that it could not possibly warrant the termination of the applicant's employment.
That said, in my opinion, the respondent has not proven that the criticism of the applicant in respect of this matter is justified.
There were two principal aspects to the criticism - firstly, that the invitations were not prepared in time (both in respect of the guest list and sending them out) and, secondly, that name tags had not been prepared in advance by the applicant.
In respect of the criticism relating to the guest list not being prepared in time, on 13 October 1994 the applicant had written to the respondent, via fax (exhibit 7) and, amongst other things in that fax, said this:
"I have just gone ahead, as communicated, and organised, with the information that I had available to me, the Anniversary Cocktail Party on the 11 November 1994.
I got to the completion stage, after work done by Ying in Sydney, and I am informed that it is not what you require. That, in fact, it is now a thank you to Jim Snow.
Therefore, I have now come up with an alternative draft including Jim Snow as the Honorary Guest at the function. Could you please let me know which alternative you would like.
My ides, in line with our communication about the function, where (sic) more along the lines of celebrating our first year successfully. I thought that you could make a formal speech to thank in particular Jim Snow, and the business people of Cooma. Jim Snow could respond, and I thought it would be a good idea at this point, to have an anniversary cake with the SMEC logo on it, which Jim could cut after his response.
I thought we could have a table with literature about SMEC, including the new SMEC Review. Put some colour photographs around of our different projects, that Bruce is going to help me with, and generally decorate in a festive manner the Coombah Room. It may also be appropriate to give to those people outside of SMEC some gifts as an anniversary present and thank you.
Could you give feedback as to whether or not you want formal invitations sent to all shareholders and SMEC staff, or whether or not you want the formal invitation sent to just the shareholders and a notice to staff sent to all SMEC staff.
Lastly, could you advise as to whether or not spouses of the people we invite are welcome to come to the function. Could you please give me back your opinion, so that I can finalise the invitation. Thank you."
Mr Boniface's reply to that fax was his fax of 14 October 1994 (annexure "B" to Mr Boniface's affidavit, exhibit "C"). He responded to that part of the applicant's fax as follows:
"There should be mention of Jim Snow on the invitation. I am currently sorting out the appropriate wording.
The invitations go to all SMEC employees in Cooma. Spouses of all persons invited should also be invited."
Some time after that (probably within the next few days), Mr Boniface had marked up the draft invitation, and communicated that to the applicant.
She then had that invitation properly laid out by the respondent's people in Sydney (Ying - where it was necessary to have it done due to the respondent's organisational setup). However, the computer software of the people in Sydney was different from the computer software of the printers in Cooma, and there was a bit more of a delay in respect of the printing of the invitations.
As it turned out, the invitations were not sent out until 1 November 1994. This is obviously a bit late, but, in view of the fact that the requirements for the invitations had changed from that which the applicant had first been told, and in view of the fact that there were problems between Sydney and Cooma to do with the printing of the invitations, this is understandable. 14 October was quite a late date for the applicant to find out that the requirements had changed. That was not her fault.
In respect of the guest list, I accept that the applicant did the best she could with the information supplied to her by Mr Boniface and Ms McKenzie.
At the meeting on 30 November 1994, there was a discussion about whether or not the applicant had, or should have, given a full guest list to Mr Boniface. The minutes record that discussion as follows:
"JB - Geoff Percival (GP) and Peter Busbridge (PB) both didn't seen (sic) a full list of guests.
DB - Gave GP a general list as supplied by JB and asked if he had any to add.
JB - It is obvious that a full guest list must be produced to check if all the right people have been invited..
DB - In the end gave a full list to BM.
JB - Should have given JB a full list. When BM had this list it was too late.
DB - It was obvious JB wanted more people invited. Why didn't he ask for a full listing?
JB - It is impractical to have a PA is such a senior position who has to have everything spelled out for her. The invitations went out too late"
In those minutes, DB is the applicant and JB is Mr Boniface.
From reading those minutes, one can only conclude that Mr Boniface was asserting that the applicant had not given him a full guest list, and that there was no reason why he should have asked her for that.
However, in his evidence, by way of criticism of the applicant, Mr Boniface said he had asked the applicant for a full listing, and that she had not supplied him with it.
That evidence was given under pressure, under cross-examination. It clearly cannot stand with what he said at the meeting on 30 November 1994.
When asked to explain that apparent contradiction, he said that he could do so "quite easily". He said "I think it's a sort of a timing difference. I think I was asking for the - guest list in October, and then basically I think the intent of the statement there was that - you know - I shouldn't have to keep chasing these things up."
I do not accept that explanation. I do not accept that Mr Boniface "was asking for the guest list in October." That cannot stand with the content of the facsimiles of 13 and 14 October. In my opinion, that answer by Mr Boniface was an evasive answer of convenience. It reflects adversely on his credit as a witness.
In respect of the "name tags criticism", the applicant said that she had asked Breige McKenzie whether or not name tags would be necessary for the first birthday function, and that Ms McKenzie had replied that they were not. Ms McKenzie was not called as a witness. I therefore accept the applicant's evidence in this respect. (See Jones -v- Dunkel [supra])
The applicant had never had anything to do with the organisation of an event such as this for the respondent. It was, therefore, entirely appropriate, and prudent, for her to ask Ms McKenzie's advice in respect of an organisational detail such as whether name tags should be provided. It was also entirely appropriate and prudent for the applicant to accept what Ms McKenzie told her.
It follows that there is no foundation for any criticism of the applicant in this respect.
Late reporting for Board reports
There were two aspects to this "criticism". The first was in relation to the strategic plan. For the reasons set out above, there is no substance to this aspect of the criticism and it is unjustified.
The second was in relation to some finance graphs, to do with operations of the respondent corporation worldwide, breaking up the costs of its operations department by department.
It is not clear from the evidence exactly when the applicant was asked to do that, but, as I understand the matter, in was in about September.
In any case, on a Monday, Mr Boniface asked the applicant to get together the graphs in respect of the financial information referred to above, and to have it ready by Thursday lunch time.
The applicant sought assistance from the Finance Department, and someone was seconded to her to help. She asked for this assistance because she was not familiar the financial operations of the respondent, and simply could not prepare the material herself. In my opinion, that was an entirely reasonable way to approach the matter.
Someone from the Finance Department was delegated to assist her. However, on the Wednesday of that week, without any discussion or warning to her, the head of the Finance Department withdrew that person's assistance from her, leaving the graphs in a uncompleted state, and her incapable of completing them. After the waste of most of that day, the applicant finally succeeded in having that person re-delegated to assist her.
The graphs were completed, not by midday Thursday, but by 5:00 pm Thursday.
The delay of a few hours cannot be the subject, in my opinion, of criticism of the applicant, because it simply wasn't her fault.
Mr Boniface, in his evidence, initially sought to make play of the fact that the deadline for sending out the Board papers was 4:00pm Thursday and that was why it was important for the applicant to have the finance graphs prepared by midday Thursday.
However, he agreed that it was frequently the case that Board papers went out late. He could not say whether or not the Board papers had gone out at 4:00 pm on that particular Thursday. There is, therefore, no evidence at all that the operations of the respondent corporation were adversely effected by the delay - a delay which, in any case, cannot be said to be the applicant's fault.
In my opinion, therefore, there is no substance in this criticism of the applicant's performance.
Poor relations with other SMEC staff
During the decisions on 29 November and 30 November 1994, the only person referred to as having poor relations with the applicant was Breige McKenzie. The applicant responded to that by agreeing that there was a problem, but that she had tried to resolve it by organising meetings with senior management (in the absences of Mr Boniface) in order to have their tasks more clearly set out. These meetings were agreed to by Ms McKenzie, in July, and there was some resolution of the problem.
I accept that there were problems with Ms McKenzie. But I do not accept that those problems were the fault of the applicant. The applicant, as I have said above, gave evidence to the effect that Ms McKenzie had not cooperated with her, and had, in fact, created difficulties for her in the performance of her duties. As I have noted above, Ms McKenzie was not called to give evidence. I accept what the applicant says in this respect.
Short notice on absences from work
The applicant's practice, if she was to be absent from work, was, if Mr Boniface was overseas, to obtain permission from whoever was the acting Chief Executive Officer in his absence.
Mr Boniface criticised the applicant for not obtaining his permission - even when he was overseas.
The applicant had never been told that she should obtain Mr Boniface's permission. Mr Busbridge (the Deputy CEO) said in his evidence that he was the appropriate person to approach in regard to staffing matters (Such as permission to be absent from work) in Mr Boniface's absence.
This "criticism" (in addition to having been misleadingly described in the letter of 29 November) has no basis.
Non-completion of tasks as directed by myself
The person referred to as "myself" is Mr Boniface.
The only matter of "substance" to which Mr Boniface could refer was his application to be made a fellow of the Institute of Engineers.
Shortly after the applicant commenced employment with the respondent, Mr Boniface asked the applicant to put in his application to the Institute.
I accept that Mr Boniface had asked for that to be done, but I do not accept Mr Boniface's evidence that he "repeatedly" pressed the applicant to do this.
I my opinion, this was indeed a task given to the applicant by Mr Boniface, but the applicant regarded it as a low priority. Some, relatively minor, criticism can be made of the applicant for her failure to perform this duty, but the criticism is, again, in respect of a relatively trivial matter and should not have been a reason for the termination of the applicant's employment.
If Mr Boniface had, in fact, (as he asserted) repeatedly pressed the applicant to do something about his application, there might have been a bit more substance in the criticism - but not much more, given the nature of the particular task. However, I do not accept Mr Boniface when he says this, and prefer the applicant's evidence when she denies that he repeatedly requested her to put in the application.
Conclusion as to the matters raised as criticisms in the letter of 29 November 1994
None of the criticisms have been substantiated by the respondent. Furthermore, many of them were of a trivial nature.
On analysis, the fact that those criticisms were levelled in that letter was, in some instances, simply a result of Mr Boniface not taking the trouble to find out what the real facts of the matter were.
The applicant, in the meetings of 29 and 30 November 1994, and in her letter of 9 December 1994, gave explanations in respect of each and every criticism. Those explanations were, on the face of them, reasonable.
A reasonable employer in the situation of the respondent would have responded to the applicant's response by investigating the substance of her explanations. Mr Boniface did not do that. Instead, he simply rejected the explanations - virtually ignoring them - and reacted in an unreasonable way to the applicant's so-called "failure" to give "undertakings" in respect of criticisms which she did not accept - criticisms which, in my opinion, were almost entirely unjustified.
It was Mr Boniface who acted in an unreasonable and uncooperative way - not the applicant.
Conclusion on the question of whether there was a "valid reason" or "valid reasons" for the termination of the applicant's employment
For the reasons set out above, the principal reason for the termination of the applicant's employment was not a valid reason for so doing.
Furthermore, as none of the criticisms set out in the letter of 29 November are justified, except in respect of matters which are trivial in nature, they do not constitute a "valid reason" or "valid reasons" for the termination of the applicant's employment. The termination of the applicant's employment was therefore unlawful.
MATTERS TO DO WITH THE CREDIT OF WITNESSES
There were several points, some of which are referred to above, in respect of which the evidence of the applicant differed from the evidence of the respondent's witnesses - particularly Mr Boniface.
The applicant impressed me as a person who was endeavouring to do the best she could to tell the truth in the witness box. She did not have a tendency to "twist" the facts to suit her case. When she was unsure about something, she said so. I accept her as a witness of truth, and as a reliable witness.
Ms Bentley, called on behalf of the applicant, also impressed me as a witness of truth, and as a reliable witness. Once again, when she was not sure about something, she said so.
Mr Boniface did not impress me in this way. On the contrary, Mr Boniface had a tendency to give answers of convenience, and contradicted himself in his evidence on several occasions. He also gave oral evidence of matters to which no reference had been made in his affidavit, (nor in any contemporaneous written records - including the minutes of the meetings of 29 and 30 November 1994) and which were not put to the applicant in cross-examination. They were of such a nature that one would have expected a prior reference (in his affidavit or in prior records). Likewise, one would have expected them to be put to the applicant in cross-examination.
Some of the instances of that nature have been referred to above, but a non-exhaustive list includes:
1. The question of whether or not Mr Boniface asked the applicant for a full guest list in respect of the anniversary party.
2. In respect of the criticism concerning her "poor punctuality", the minutes of the meeting of 29 and 30 November 1994, contain no record of any specific instances being put to the applicant.
However, when Mr Boniface was being cross-examined about that, he replied "I believe I gave her several instances". He said "I don't know that they are recorded there" (referring to the minutes) "but I certainly did."
He was then further cross-examined. He was asked this question:
"And you did not provide her with any precise dates upon which she was alleged to have not been punctual. Correct?"
He gave this answer:
"Well, she didn't ask for them."
This contradicted his earlier testimony. I do not accept Mr Boniface when he said that he had given the applicant, at the meetings, "several instances" of poor punctuality, and his subsequent (contradictory) testimony was, in my opinion, a glib answer of convenience.
3. Allegations of sexual harassment.
There was a considerable amount of evidence concerning the applicant's assertion that, at a SMEC function in July 1994, she had been improperly approached by Mr Clissold, then the Queensland Manager of the respondent corporation, and propositioned in a way which amount to sexual harassment.
I do not make any finding of fact in relation to whether or not the matter of which the applicant complained in fact occurred, or occurred in the way in which she says it did. The significance of the evidence lay in the way in which the management of the respondent (in particular, Mr Boniface) responded when she complained about the matter.
The significance of the evidence also lies in the fact that it reflects adversely on the credit of both Mr Boniface and Mr Peter Busbridge, the Deputy Chief Executive Officer of the respondent corporation.
In his affidavit (exhibit "C") prepared 23 May 1995, (after he had received and considered the affidavit of the applicant made 3 May 1995) Mr Boniface referred to the applicant's claim, made in her affidavit, that he did not take her claim of sexual harassment seriously.
What he said in his affidavit in respect of that was as follows:
"As I recall, Ms Burgess did not specifically approach me about this. The topic was raised when I was discussing with her whether she wanted to act as an equal opportunity counsellor to ensure female employees of SMEC had an avenue of presenting grievances to management. Ms Burgess then claimed she had been sexually harassed by SMEC's Queensland Manager, Mr Clissold at SMEC function held in Canberra.
After Ms Burgess raised the allegation I discussed with Mr Busbridge and asked him to investigate it and severely reprimand Mr Clissold if there was any substance in the allegation. Mr Busbridge subsequently told me that Mr Clissold vehemently denied any attempted sexual harassment and was considering taking action against Ms Burgess for defamation."
However, in his evidence (given after the question of his reaction to the applicant's complaint to him had been raised in cross-examination of the applicant) he gave a different version of events.
In examination in chief the following occurred:
Q. "Now, did you have a conversation with Mr Busbridge in 1994 in relation to an allegation of sexual harassment involving Mr Clissold?"
A. "Yes".
Q. "When was that conversation?"
A. "I think that would have been somewhere early September, probably I'd say around about 6 or 7 September."
Q. "Did you make a note of that conversation?"
A. "No."
Q. "And what was the conversation about?"
A. "I told Peter that I'd been discussing with Dianne a suggested role as a staff confidante to the female staff as a channel to be able to then to get any problems they had to the executive or to me and Dianne claimed that John Clissold had sexually harasses her at the SMEC function in Canberra, which I think was held from memory on 27 July."
Q. "My question to you was did you have a conversation with Mr Busbridge in relation to that sexual harassment issue?"
A. "Yes".
Q. "And can you tell us what was said in the conversation please?"
A. "I said to Peter that Dianne had made this allegation and that -"
Q. "You would not have said that to him, would you?"
A. "Well, I didn't say allegation; I said she had complained to me that - I might have used the word "allegation"."
Q. "No, just in your answer to me you said "this allegation" You said allegation."
A. "Well, yes, I wouldn't have said that. Well, I probably have said that."
Q. "Just try to use the words your used please?"
A. "Okay. Well, I said that Dianne had made an allegation to me about John Clissold sexually harassing her at the SMEC function in Canberra. I said to him I wanted him to investigate it as he was general manager Australia and John Clissold work for him. Mr Busbridge says, "Well, what do you want to do this again for. She's already complained to me once and I've already taken it up with Clissold." And I said, "Well, I've got another complaint, this time to me, I want you to investigate it," and if there was any substance in it sack him."
In his affidavit, Mr Boniface had made no reference to Mr Busbridge having referred to an earlier discussion that he (Mr Busbridge) had supposedly had with the applicant concerning her complaint that she had been harassed by Mr Clissold.
In fact, what Mr Boniface said in his affidavit is contrary to Mr Busbridge having made mention to him of such a prior discussion with the applicant. See in particular the following passage from Mr Boniface's affidavit:
"Mr Busbridge subsequently told me that Mr Clissold vehemently denied any attempted sexual harassment and was considering taking action against Ms Burgess for defamation.". (Emphasis added).
Mr Boniface's oral testimony therefore contradicted what he had said in his affidavit. This reflects adversely on his credit as a witness.
Furthermore, Mr Boniface said in his affidavit that he told Mr Busbridge to investigate it and to "severally reprimand" Mr Clissold if there was substance in the allegation."
However, in his evidence, after the matter had assumed some importance in the case, the instruction which Mr Boniface said that he gave to Mr Busbridge was to "sack him" if there was any substance in the allegation.
In my opinion, that particular change in Mr Boniface's evidence was made in an attempt to bolster the respondent's case, by giving the appearance that Mr Boniface had taken the applicant's complaint to him more seriously than he in fact had.
The applicant, in her evidence, asserted that when she spoke to Mr Boniface about the alleged sexual harassment by Mr Clissold she stated that there was a witness and the witness was from a Government Agency, AIDAB, (the Australian International Development Assistant Bureau).
However, counsel for the respondent did not cross-examine the applicant about this at all and did not put to her that that part of her evidence was not correct. Yet, despite this, Mr Boniface denied that the applicant had said that to him.
Once again, I do not accept this part of the evidence of Mr Boniface.
The applicant gave evidence that following her complaints of sexual harassment she received no feedback from any person in the management of the respondent.
Mr Boniface, on the other hand, gave evidence that he did telephone her about a month after the complaint by her to him, and told her, in that telephone conversation about Mr Busbridge's investigations and Mr Clissold's reaction. However, the applicant was never cross-examined on this. I do not accept, therefore, that part of the evidence of Mr Boniface. (See Browne -v- Dunn [supra]).
4. One of the issues which arose during the case was the question of whether or not Mr Boniface had repeatedly, or even at all, (apart from at the beginning of the period of the applicant's employment) discussed the applicant's duties with her. In her affidavit of 3 May, she said this:
"A major problem I encountered was that it became obvious that there was a lack of understanding of the role of my position by other staff in the organisation."
In an apparent response to that part of the applicant's affidavit, Mr Boniface said this in his affidavit of 23 May 1995:
"In my view the biggest difficulty with Ms Burgess was that she wanted to do the secretarial work and not the work appropriate to that of a personal assistant. I recall on a number of occasions I discussed with her the nature of her duties. Specifically on 11 July 1994 I spoke with Ms Burgess in words to the following effect:
"Look Dianne, your job here is not secretarial, I've told you this several times. You are supposed to research people's backgrounds and projects. You're also supposed to provide me with assistance for preparation of agreements and drafting letters. When I'm away you are to act on my instructions in conjunction with Breige to dispose of as much business as possible when it is received. You should also be involved in monitoring strategic projects."
I recall this specific occasion because I had recently returned from overseas and I made a note of the meeting. A copy of the note is annexed hereto and marked C."
Annexure "C" to the affidavit is a handwritten, undated, note. It is as follows (the layout is roughly as it is in the note):
"Research
peoples background
projectsAssistance with preparation of agreements
Drafting letters
When I am away acting on my instructions in conjunction with my secretary to dispose of as much business as possible when it is received to avoid a build up.
Monitoring strategic projects."
Annexure "A" to Mr Boniface's affidavit was the letter, dated 28 February 1994, from another executive of the respondent corporation, Mr Brian Turner, to the applicant, in reply to her acceptance of the position. Annexure "A" is dated 28 February 1994. Paragraph 4 of the letter is as follows:
4.Below is a brief job description - Its difficult to set out a precise job description as I would anticipate the requirements would change from time to time:
· The job is not of a secretarial nature.
· Personal Assistant will be required to carry out research into the background of people we might be carrying out critical negotiations with.
·Research into the background of certain strategic projects.
·Assist with preparation of agreements.
·Drafting letters.
·When Chief Executive is away to act on his instructions in conjunction with his secretary to dispose of as much business as possible when it is received to avoid a build up of work on his return.
·Monitoring strategic projects - generally the personal Assistant would be required to assist the Chief Executive in whatever fields she has competence in."
It is readily apparent that annexure "C" to Mr Boniface's affidavit and that part of annexure "A" are remarkably similar - frequently identical in terms.
In my opinion, Mr Boniface used the undated note (annexure "C") In an attempt to bolster his assertion (which I do not accept) that he had spoken to the applicant about her duties on July 11.
Furthermore, in his evidence Mr Boniface asserted that, in addition to the duty statement contained in annexure "A", that "there was certainly another memo given to her". That memo was not produced despite Mr Boniface being pressed to do so and having ample time to produce it.
I therefore do not accept that there ever was such a memo. In my opinion, that particular part of Mr Boniface's evidence is an other example of an attempt to bolster the respondent's case. It was a glib answer of convenience given in cross-examination.
It follows that I do not accept that a conversation occurred on 11 July 1994 in the terms that Mr Boniface set out in his affidavit.
In my opinion, once again, that part of Mr Boniface's evidence was given in an attempt to bolster the respondent's case, by making Mr Boniface's behaviour appear more reasonable than it in fact was.
Mr Busbridge also did not impress me as a witness of truth and reliability. In his affidavit, sworn 23 May 1995 (exhibit B), Mr Busbridge said this in respect of the allegation of sexual harassment:
"Mr Boniface rang me on an occasion in 1994 to pass on an allegation that Mr Clissold had sexually harassed Ms Burgess. We had a conversation in words to the following effect:
Boniface: 'Ask John about this. If it's true he has got to go.'
Busbridge: 'Okay I'll ask him.'
I subsequently spoke to Mr Clissold. He was angry and flatly denied any allegation. He indicated he would consider sueing Ms Burgess for defamation."
Mr Busbridge said nothing in that affidavit about ever having been aware of the allegation of sexual harassment prior to being contacted by Mr Boniface. In particular, he said nothing about having had prior discussions with either Mr Clissold or the applicant.
However, in his evidence in chief, Mr Busbridge said that, "about a month or so" before being contacted by Mr Boniface (as per his affidavit) the applicant had approached him in his office in Cooma and made the allegation. He said that the applicant had they said that she regarded the incident as "not a major incident" and "that she didn't wish to proceed with it further."
Mr Busbridge went on to give evidence that he contacted Mr Clissold, within a day or two of the applicant first speaking to him, and told Mr Clissold about the allegation.
The applicant gave evidence that the first time she had raised the matter was in fact with Mr Bohm, in the absence of Mr Boniface overseas - and that, in particular, she had not raised the matter with Mr Busbridge.
It was never put to the applicant that her evidence in that respect was untrue. If the fact of the matter was that she spoke to Mr Bohm and not to Mr Busbridge, one would expect that she would have been cross-examined on it.
Furthermore, Mr Busbridge's attempt to explain why no reference was made in his affidavit to these supposed earlier conversations with Mr Clissold and the applicant had all the hallmarks of a glib answer of convenience, made in an attempt to evade a difficult situation. If in fact Mr Busbridge had spoken to Mr Clissold in August, the natural thing would have been that, when Mr Boniface rang him in September for him to have told Mr Boniface.
Conclusion as to matters of creditBecause of the matters set out above, whenever there was a conflict in evidence between that given by the applicant and that given by Mr Boniface or Busbridge, I prefer the evidence of the applicant.
I also accept the applicant's evidence that Mr Boniface did not take her claim of sexual harassment seriously.
This demonstrates that, generally, in his dealings with the applicant, he was not prepared to take her seriously. Claims of sexual harassment are not to be "laughed off" as was the case here. Furthermore, even if Mr Boniface had not "laughed off" the applicant's complaint, it is manifestly obvious (even on the version(s) given by Mr Boniface and Mr Busbridge) that it was not properly investigated.
HAD MR BONIFACE ALREADY MADE UP HIS MIND TO TERMINATE THE EMPLOYMENT OF THE APPLICANT BEFORE THE LETTER OF 29 NOVEMBER 1994?
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 December 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.
Minutes were kept by Mr Wright's personal assistant and all parties agree that they are reasonably accurate.
At that meeting, the following exchange occurred: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."
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.
In Nicolson -v- Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233, Wilcox CJ said, at 243:
"The paragraph does not require any particular formality. But this does not mean that it is unimportant or capable of profunctory (sic) satisfaction. Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as "natural justice" or, more recently, "procedural fairness". The relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well-established in public administrative law. It was accepted into international labour law when Article 7 was inserted in the Termination of Employment convention. Section 170DC is directly modelled on Article 7. The principle is, I believe, well understood in the community. It represents part of what Australians call "a fair go". In the context of section 170DC, it is not to be treated lightly. 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 poss performance that are putting the employee's job at risk. Section 170DC(a) is not satisfied by a mere exhortation to improve."
The procedure which the respondent followed, and the supposed opportunity to respond to the allegations made in the letter of 29 November 1994 was, in my opinion, a sham. The applicant was treated with scant regard for her rights - she was certainly not given a fair go by the respondent.
The opportunity to respond to allegations referred to in section 170DC of the Act must be an opportunity given to an employee before the decision to terminate his or her employment is made. An opportunity to respond to allegations made after an irrevocable decision to terminate employment has been made is not "an opportunity" within the meaning of section 170DC of the Act. For that reason also, the termination of the applicant's employment was unlawful.
For precisely the same reasons, the termination of the applicant's employment was "unjust" within the meaning of section 170DE(2) of the Act.
It follows that, even if there had been a "valid reason" or "valid reasons" for the termination of the applicant's employment, that termination would be deemed to be not for a valid reason, and unlawful, by virtue of the operation of section 170DE(2) of the Act.
REMEDIES
Is reinstatement impracticable?
Sections 170EE(1) and (2) of the Act are as follows:
170EE(1) [Orders]
“In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may make the following orders:
A.an order requiring the employer to reinstate the employee by:
(i)reappointing the employee to the position in which the employee was employed immediately before the termination; or
(ii)appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and.
B.If the Court makes an order under paragraph (a)
(i)any order that it thinks necessary to maintain the continuity of the employee’s employment; and
(ii)an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.
170EE(2) [Reinstatement impracticable]
If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate.”
Section 170EE requires the Court to first consider whether reinstatement is “impracticable”.
There is a distinction between compensation in lieu of reinstatement, which may be awarded under sub-section (2) of section 170EE, and an order requiring the employer to pay to the employee remuneration lost by the employee because of the termination, which may be awarded under sub-section (1) of section 170EE.
Compensation under sub-section (2) may only be ordered if the Court finds that the reinstatement of the employee is impracticable.
In the case of Nicolson (supra) his Honour, Wilcox CJ said, at page 244:
“It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word “impracticable” requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer’s business, it may be “impracticable” to order reinstatement, notwithstanding that the job remains available.”
I approach the facts of this case bearing in mind what his Honour said in that case.
In Graham Foxcroft v The Ink Group Pty Ltd (1994) 57 IR 65, his Honour, Wilcox CJ, said, at page 67:
“Especially since the June 1994 amendments to Part VIA of the Act, which substituted a new s. 170EE, the legislative emphasis has been on reinstatement of unlawfully terminated employees.”
It follows that the primary remedy for an unlawful termination of employment is reinstatement, but that the Court should not order reinstatement if it is “impracticable”.
In my opinion, the reinstatement of the applicant is impracticable.
This is because of the manifest ill will which Mr Boniface, Mr Busbridge, and Mr Clissold (who has now moved to New South Wales from Queensland) bear to the applicant.
The applicant does not seek reinstatement because it would be too difficult to work in such an environment.
I agree with that. To use the words of Wilcox CJ in Nicolson (supra) a reinstatement order in this case "is likely to impose unacceptable problems or embarrassment, or seriously effect productivity, or harmony within the employer's business." It would also be impracticable to order the reinstatement of the applicant because of the fact that she, quite reasonably, does not seek such an order.
COMPENSATION
The applicant was employed at an annual salary of $45,000.00. When she last gave evidence on 30 June 1995, she was unemployed. She gave evidence that she had found some casual employment at the Cooma Technical College. Although the evidence is not clear, it seems that the amount of remuneration that she earnt from that casual employment was small.
In my opinion, the applicant has lost considerably more than the maximum 6 months remuneration which the Court can award. (See section 170EE(3) of the Act).
She has earnestly tried to mitigate her loss by finding employment in the Cooma area, and has been largely unsuccessful.
It follows that her direct economic loss, as a result of the unlawful termination of her employment, is in excess of the maximum amount that can be awarded under the legislation, namely 50% of the remuneration which she was earning at the time of the termination of her employment.
She would, in accordance with the decision Aitken (supra), be entitled to compensation, in addition to direct economic loss, for the distress and suffering caused to her by the unlawful termination of her employment. In my opinion, if it were necessary to do so, I would regard the amount of remuneration earnt by her in casual employment (a reasonably small amount) as being roughly equal to the amount of compensation to which she would be entitled for distress and suffering.
The remuneration that would have been received by the applicant in respect of the period of 6 months that immediately preceded the day in which the termination of her employment took effect, would also have included accumulated holiday pay. Reference is made in her evidence to her employment being subject to an award, and her counsel, in his submissions, referred to the Snowy Mountains Engineering Corporation Limited General Conditions of Service Award, 1990.
Under that award, the applicant is entitled to four weeks holiday a year, with a recreation leave loading of 17.5%.
Therefore, in addition to the sum of $22,500.00 which the applicant has lost in respect of wages, she has also lost two weeks pay, plus the 17.5% leave loading for recreation leave. Two weeks pay is calculated as follows: $45,000.00 divided by 365 (to reach the figure for 1 days wages) multiplied by 14 (to reach the figure for two weeks wages). That comes to $1,726.02.
17.5% of that figure is $293.42.
The total amount of recreation leave which the applicant would have been entitled to in the six month period following the termination of her employment comes, therefore, to $2,019.44.
The respondent is therefore ordered to pay the applicant compensation for the
unlawful termination of her employment in the sum of $24,519.44, within 21
days of today.
I certify that this and the preceeding fifty-four (54) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.
Associte: Caroline Sternberg
Date: 3 October 1995INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRYNo. NI 1407 of 1994
BETWEEN:
Dianne BURGESS
ApplicantAND:
SNOWY MOUNTAINS
ENGINERRING CORPORATION
LIMITED
RespondentBEFORE: PATCH JR
PLACE: BYRON BAY (HEARD IN COOMA)
DATE: 3 OCTOBER 1995MINUTES OF ORDER
THE COURT ORDERS THAT:
1. The respondent pay the applicant the sum of $24,519.44 as compensation for the unlawful termination of her employment within twenty-one (21) days of today.
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