Groder v Pavona Pty Ltd
[2009] FMCA 744
•10 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRODER v PAVONA PTY LTD | [2009] FMCA 744 |
| INDUSTRIAL LAW – Unlawful termination allege breach of s.659(2)(f) of the Workplace Relations Act 1996 (Cth) – solely on the particular ground of pregnancy – s.664(b) defence made out – application dismissed. |
| Federal Court Rules (Cth), O.82 r.6 Workplace Relations Act 1996 (Cth), ss.643, 650, 659, 663, 664, 665, 841 |
| Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490 Jones v Dunkal (1959) 101 CLR 298 Laz v Downer Group Limited (2000) 108 IR 244 Liquor, Hospitality Miscellaneous Union, Liquor & Hospitality Division, NSW Branch on behalf of its Member, Wayne Roberts v Woonona Bulli RSL Memorial Club Limited [2007] FCA 1460 Parsons v Stone Traders Pty Ltd (2008) EOC 93-500 |
| Applicant: | ROSILENE AMARAL GRODER |
| Respondent: | PAVONA PTY LIMITED |
| File Number: | SYG2713 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 20, 21 & 22 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Tucker (solicitor) |
| Solicitors for the Applicant: | Kingsford Legal Centre |
| Counsel for the Respondent: | Mr P Newall |
| Solicitors for the Respondent: | Guild Lawyers |
ORDERS
Pavona Pty Ltd has proved on the evidence that the termination of Rosilene Amaral Groder was for reasons that did not include a proscribed reason and the application is dismissed.
No orders as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2713 OF 2007
| ROSILENE AMARAL GRODER |
Applicant
And
| PAVONA PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application made on 13 June 2007 claiming a breach of s.659(2)(f) of the Workplace Relations Act 1996 (Cth) (“the Act”) solely on the particular ground of pregnancy. The proceedings were initially filed in the Federal Court of Australia in matter number NSD1066 of 2007. On 10 July 2007, Branson J ordered pursuant to O.82 r.6 of the Federal Court Rules (Cth) that the proceedings be transferred to the Federal Magistrates Court.
The Form 5 application filed in the Federal Court by Rosilene Amaral Groder (“the applicant”) seeks the following relief arising from termination of her employment by Pavona Pty Limited, ABN 21002712085 (“the respondent”):
i)The applicant claims the termination was an unlawful termination of her employment within the meaning of Pt.12, Div.4C of the Act;
ii)Pursuant to s.663 of the Act, the applicant seeks orders which the Court is empowered to make by s.665 of the Act;
iii)The applicant claims that the respondent breached her contract of employment and seeks damages pursuant to the Court’s accrued jurisdiction.
In the affidavit of the applicant sworn on 13 June 2007 which accompanied the application, she claims:
i)Pursuant to s.665 of the Act:
a)an Order requiring the respondent to pay to the applicant an amount in respect of the remuneration lost by the applicant because of the termination of her employment;
b)in the alternative to Order (a), an Order requiring the respondent to pay to the applicant compensation of such an amount the Court thinks appropriate; and
c) an Order imposing a penalty on the respondent.
ii)Further or in the alternative, an Order requiring the respondent to pay an amount in damages for breach of contract.
iii)Pursuant to s.841 of the Act an Order that any penalty or penalties imposed under Order (i) above be paid to the applicant.
iv)Such further or other Orders that the Court considers appropriate.
Background
In setting out the following background material, I have either paraphrased or quoted directly from the written submissions of
Ms Tucker, solicitor for the applicant. I have not made any further direct attribution as this would make the summary unwieldy. The background information is provided to assist in understanding the nature of the application and not to establish any evidentiary point.
Ms Groder commenced employment with Pavona Pty Limited (trading as Southern Cross Dental Laboratories) on 29 June 1999. Her duties included dental nursing, reception, IT support and accounting. In October 2006, Ms Groder informed Dr Penn – one of the principals of Pavona – that she was pregnant. On 26 February 2007, Ms Groder informed Dr Penn in writing that she wished to take maternity leave and, on 22 March 2007, requested in writing leave from 7 May 2007 with an anticipated return date of 1 October 2007.
Ms Groder’s employment was terminated on 16 April 2007.
Ms Groder’s evidence is that she was informed orally that she was being dismissed because she had used the internet and left work early that day. In a termination letter dated 18 April 2007, Ms Groder was informed that she was dismissed because of her clashes with other staff and for her use of the internet.
On 1 May 2007, Ms Groder made an application to the Australian Industrial Relations Commission (AIRC) under s.643(1)(b) of the Act for relief in respect of her termination by Pavona, being in contravention of s.659(2)(f) of the Act. A conciliation conference was held by the AIRC on 31 May 2007 at which no settlement was reached. The application was made to the Federal Court and the proceedings were subsequently transferred to this Court.
Ms Groder claims that her pregnancy was wholly or partly the reason for her dismissal and therefore constituted unlawful termination. Section 659(2)(f) of the Act states that an employer must not terminate an employee’s employment because of pregnancy, or for reasons which include her pregnancy. Section 664 of the Act provides that it is a defence if the employer can show that they did not terminate the employee’s employment for a proscribed reason.
The Court has been referred to in Laz v Downer Group Limited (2000) 108 IR 244 per Moore J at [26] where s.170CQ of the Act was considered. Section 170CQ is the forerunner to the current s.664 of the Act. His Honour stated:
In my opinion an applicant alleging termination in contravention of s 170CK(2) will succeed in the application unless the employer establishes a defence by proving that the alleged reason was not the reason or one of the reasons for the termination. Perhaps it can be put in terms that though the applicant must prove on the balance of probabilities each element of the contravention, s 170CQ enables the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise: see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 and 501 where Wilcox and Cooper JJ refer to R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507. The success of the application does not depend on the Court being satisfied, other than by reference to the allegation of the applicant, that the termination was for a proscribed reason (or one reason was a proscribed reason) if the employer fails to made good its defence. (Emphasis added)
Evidence
The following affidavit material was tendered and read:
a)Affidavit of Rosilene Amaral Groder sworn on 13 June 2007 (first affidavit of Ms Groder);
b)Affidavit of Rosilene Amaral Groder sworn on 12 October 2007 (second affidavit of Ms Groder);
c)Affidavit in reply of Rosilene Amaral Groder sworn on 14 January 2008 (third affidavit of Ms Groder);
d)Further affidavit in reply of Rosilene Amaral Groder sworn on 12 September 2008 (fourth affidavit of Ms Groder);
e)Affidavit of Aileen Morel sworn on 12 October 2007;
f)Affidavit of Kimberli Schuitman affirmed on 15 November 2007;
g)Affidavit of Joanne Izenberg sworn on 15 November 2007;
h)Affidavit of Tracey Goodgame sworn on 16 November 2007;
i)Affidavit Louise Hassin sworn on 16 November 2007;
j)Affidavit of Dianne Cheryl Gillespie sworn on 16 November 2007 (first affidavit of Ms Gillespie);
k)Affidavit of Dianne Cheryl Gillespie sworn on 15 August 2008 (second affidavit of Ms Gillespie);
l)Affidavit of Grace Parasiligi sworn on 16 November 2007;
m)Affidavit of Mayada Barake sworn on 27 November 2007 (first affidavit of Ms Barake);
n)Affidavit of Mayada Barake sworn on 15 August 2008 (second affidavit of Ms Barake);
o)Affidavit of Dr David Penn affirmed on 4 December 2007;
p)Affidavit of Dr Albert Sharpe sworn on 15 August 2008;
q)Exhibit “R1”, being Ms Groder’s engagement invitation;
r)A certificate under s.347 of the Legal Profession Act 2004 (NSW).
The relevant law
The original application seeks:
i)“The application claims the termination was an unlawful termination of employment within the meaning of Part 12, Division 4, Sub-division C of the Workplace Relations Act 1996 (Cth) and pursuant to s.663 of the Act the applicant seeks orders which the court is empowered to make by 665 of the Act.”
Section 663 of the Act states:
Section 663(1) [Application re contravention of s 659 and 660]
Subject to subsection (5), an employee may apply under this section to the Court for an order under section 665 in respect of an alleged contravention of one or more of sections 659 and 660 by his or her employer.
Section 663(5) states:
Section 663(5) [Requirements before application can be made]
An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 659, 660 or 661 may not be made to a court unless the applicant:
(a) has received a certificate under subsection 650(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and
(b) has elected under section 651 to begin proceedings in that court for an order under section 665 in respect of the alleged contravention.
The Court file contains a certificate under s.650 of the Act which was issued by Commissioner Redmond of the AIRC on 31 May 2007 for an alleged contravention of s.659 of the Act. The certificate states that the Commission was satisfied that conciliation between the parties was unsuccessful. The file also contains a copy of Form R33 issued by the AIRC which is a notification of election to begin court proceedings. This is also dated 31 May 2007. There is no dispute between the parties in respect of these procedural steps.
Section 659(2) of the Act states:
Section 659(2) [Grounds in which employment must not be terminated]
Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
…
(f)… pregnancy …
There are no decided cases in respect of this specific issue which have been made since the introduction of the WorkChoices amending legislation on 27 March 2006.
The operative provisions prior to the WorkChoices amendments, being ss.170CK and 170CQ, were expressed in identical terms to the current ss.659(2) and 659(5) respectively.
Sections 170CK and 170CQ were considered in Laz v Downer Group Limited per Moore J at [25] and [26]:
[25] …I discussed my understanding of provisions such as s 170CQ in Stojanovic v The Commonwealth Club Ltd (IRCA unreported, 8 December 1995) (though the section in question, s 170EDA(2), was expressed differently and made more clear the consequences of the employer not discharging the onus the section imposed) and in Kelly v Construction, Forestry, Mining & Energy Union (No 3) (1995) 63 IR 119 at 126-130 (though again the section was differently worded (but substantially the same in substance) and arose in a different statutory context): see also Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd (2000) FCA 441 and Maritime Union of Australia v Geraldton Port Authority[1999] FCA 899; (1999) 165 ALR 67 and Johns v Gunns Ltd (1995) 60 IR 258.
[26] The only authority of which I am aware which deals specifically with the operation of s 170CQ is the judgment of Finn J in Boyce v William and Suzanne Leggett T/A Baker Bill's Fine Pies (Federal Court of Australia, unreported, 12 December 1997). In that matter the applicant alleged that her employment had been terminated because of her pregnancy in contravention of s 170CK(2)(f). His Honour said:
It is rightly accepted that in consequence of her (the applicant) raising a s 170CK ground in this proceeding, she is not obliged to prove that the termination was for a proscribed reason. Rather it is a defence if the respondent proves that the termination was for a reason or reasons that do not include a proscribed reason: the Act s 170CQ
In my opinion an applicant alleging termination in contravention of s 170CK(2) will succeed in the application unless the employer establishes a defence by proving that the alleged reason was not the reason or one of the reasons for the termination. Perhaps it can be put in terms that though the applicant must prove on the balance of probabilities each element of the contravention, s 170CQ enables the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise: see Davids Distribution Pty Ltd v National Union of Workers[1999] FCA 1108; (1999) 91 FCR 463 and 501 where Wilcox and Cooper JJ refer to R v Hush; Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487 at 507. The success of the application does not depend on the Court being satisfied, other than by reference to the allegation of the applicant, that the termination was for a proscribed reason (or one reason was a proscribed reason) if the employer fails to made good its defence.
Relevantly, s.664 of the Act addresses “proof of issues in relation to alleged contravention of s.659.” The section reads:
In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).
It is necessary to identify the employer’s reason for termination, see Liquor, Hospitality Miscellaneous Union, Liquor & Hospitality Division, NSW Branch on behalf of its Member, Wayne Roberts v Woonona Bulli RSL Memorial Club Limited [2007] FCA 1460 at [19] where Branson J stated:
[19] I do not accept that s 659(2)(g) of the Act calls for the application of a simple ‘but for’ test of causation. Section 659(2) is concerned to proscribe the termination by an employer of an employee’s employment for any one or more of nine separate reasons, or for reasons that include those reasons. Subject to s 664, the subsection calls for the identification of the employer’s reason or reasons for terminating the employee’s employment.
If it is identified on the evidence that the employer acted for reasons which do not include a proscribed reason then the defence is made out, see Woonona Bulli RSL (supra) at [27] where her Honour stated:
[27] I conclude that the only reasons why Mr Roberts’ employment by the Club was terminated were that his position of Level 5 Supervisor became redundant following the implementation of the catering division’s restructure and he was unwilling to accept the lower paid position of Chef. The Club has therefore proved that the termination was for reasons that do not include a proscribed reason (s 664 of the Act).
Evidence and Submissions
Defence under s.664(b) of the Workplace Relations Act
In Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490, Wilson FM considered the application of the relevant provisions of the Act. His Honour established that the initial question to be resolved was as follows:
11. In my view, in proceedings under either Part 12 or Part 16 of the Act the applicant bears the legal onus of proving his or her case to the requisite civil standard. As will shortly be discussed, the respondent bears the evidential onus of proving a negative, regarding the reason or reasons for termination of employment. That is, in the absence of the employer proving that the reason for termination of employment was not for a proscribed reason, under either s.659(2) or 793(1) of the Act, it is not necessary for the employee to prove such facts; they are presumed in his favour.
This is followed by a detailed analysis of these provisions in paras.12-19 inclusive which are summarised in para.20:
20. I respectfully adopt the reasoning of Jessup J, Moore J and Lucev FM and conclude that the applicant must prove the preliminary facts necessary to enliven the need for a respondent to embark upon attempting to discharge its evidential onus of proof.
After establishing that issue, the focus then turned to the following:
21. The next question that arises is what the respondent must establish to discharge its onus of proof under either s.664 or s.809 of the Act.
His Honour then carried out a detailed analysis of this issue at [22] - [28] inclusive and reached the following conclusion at [29]:
29. In my view, not only is it not sufficient for an employer to prove a valid reason for dismissal, it is not necessary for it to do so. The onus on the employer is to prove, to the satisfaction of the court, that the reason or reasons for dismissal did not include a proscribed reason. The Court may conclude that the reason established by the employer was entirely unmeritorious, or even capricious. In those circumstances, provided the reason for dismissal did not encompass a proscribed reason, the respondent would successfully discharge its onus of proof.
It is common ground that Ms Groder had been employed by the business of Pavona since 29 June 1999 and that her duties included dental nursing, reception work, IT support and accounting. In 2005,
Dr Penn sold a 50% share of his dental practice to Dr Sharp. From that time, Ms Groder was employed both by Pavona and the dental partnership between Dr Penn and Dr Sharp.
It is also not contested that Ms Groder received both performance and productivity based bonuses during the time she worked for Pavona. Dr Penn describes the granting of bonuses as not pre-determined and they did not regularly form part of the staff’s remuneration packages. The bonuses were paid on a discretionary basis as reward and vindication of exceptional efforts and for results achieved during the calendar year: affidavit of Dr Penn at [7].
Ms Groder gave evidence that she had received extremely warm and effusive cards from Dr Penn and her co-workers. Similarly, photographs demonstrate the closeness of her relationship with Dr Penn and her colleagues. Dr Penn also hosted Ms Groder’s civil wedding reception in Australia and attended her religious wedding ceremony in Brazil.
It is not contested that many allowances and specific forms of dispensation were provided to Ms Groder during her employment with Pavona which included:
a)English tuition at lunchtime each day during the first year of her employment when Dr Penn was at the surgery.
b)Training as a dental assistant as she had no prior experience despite her contrary representation at the employment interview. Dr Penn stated that initially Ms Groder was unaware of instrument names, basic sterilisation procedures and simple restorative techniques commonly used in everyday practice.
c)Tuition fees for the Graduate Australian Medical School Admission Test (GAMSAT), a prerequisite for entry to dental or medical school.
d)Study leave to sit the GAMSAT examinations.
e)Sponsorship of her employment as required by the Department of Immigration after a visa violation.
f)Extended annual leave beyond the usual four weeks for visits to her family in Brazil.
g)Organisation and payment of Ms Groder’s wedding reception in Australia in February 2006 for 60 guests at Dr Penn’s home as she had no family in Australia. Dr Penn also gave Ms Groder away at the civil ceremony as her father was deceased.
h)Free dental treatment, including complex crown work worth more than $6,000.
The evidence of Dr Penn is that Ms Groder’s English language skills were limited, that she lacked familiarity with dental surgery procedures, had little or no practical experience as a dental assistant and had a resume which was largely untrue: affidavit of Dr Penn, at [15].
In October 2006, Ms Groder told Dr Penn that she was pregnant and on 26 February 2007 she informed him in writing that she wished to take maternity leave. In a further letter of 22 March 2007 Ms Groder indicated that she wished to take leave from 7 May 2007 to 1 October 2007.
Ms Groder’s employment was terminated by Dr Penn during a telephone conversation at about 6.00pm on 16 April 2007. A termination letter dated 18 April 2007 was couriered to her house together with a payment of her entitlements. I am satisfied that the preliminary issues have been established and that Pavona is required to discharge its evidentiary onus that the termination was not for a proscribed reason.
The written submissions made by Mr Newall, on behalf of the respondent, maintain that the evidence shows that Pavona terminated Ms Groder’s employment for reasons which do not include the proscribed reason of pregnancy under s.659(2)(f) of the Act.
The primary evidence relied upon is that of Dr Penn the principal decision maker at Pavona Pty Limited. Dr Penn gave the following evidence as the reasons for termination of Ms Groder’s employment:
a)Continual disruption in the workplace, the most recent of which was when she falsely accused Tracey Goodgame of assaulting her and hitting her baby;
b)Her late arrival and early departure to and from work;
c)The events of 16 April 2007;
d)Continued use of the internet for personal reasons during work hours after being told not to do so.
Mr Newall submits that the reasons advanced in evidence before the Court were the same reasons given at the time of Ms Groder’s termination of employment. He submits that the reasons are sound and cogent.
In the telephone conversation of 16 April 2007, Dr Penn advised Ms Groder (identified by her first name ‘Rosie’) of her termination in the following terms:
98. At approximately 6pm, I telephoned Rosie at home and informed her that her employment was being terminated. I spoke to her for approximately 5 minutes and informed her as to why her employment had been terminated. I said:
“Rosie, I am utterly disappointed that you disobeyed my specific instructions again by using the internet. You had been warned many times and additionally continued to cause mass disruption to the rest of the staff. Your productivity has been worsening ever since your engagement and key staff are threatening to leave. I cannot have you as part of our team any longer. You have been most unethical. Even after coming in late today, and using the internet for 45 minutes during work hours you still had the gall to leave 15 minutes early…”
Rosie’s husband then picked up the phone, swore at me and hung up. (affidavit of Dr Penn at [98]).
The letter written by Dr Penn on 18 April 2007 to Ms Groder states:
As per our conversation of Monday evening, I am regrettably writing to provide official notice, confirming the termination of your employment with Pavona Pty Ltd from April 16, 2007, effectively immediately.
The decision was made after numerous roisterous clashes and incidents with other staff members over the past few years, making our work environment unstable and divided. The final incident relating to your inappropriate use of the company’s computer to access the internet which you have been spoken to about in past. (Second affidavit of Ms Groder, Annexure “K1”).
Dr Penn provided the following sworn evidence as the reason for the termination:
100. Rosie worked in our company for 7 years and had contributed significantly to its success in the period between 2000-2003. However, from 2003-2006 her work ethic and productivity deteriorated considerably and from my observations in her interaction with other employees… a dangerous, unpredictable side of her personality emerged, resulting in many devastating confrontations with other staff members, caused by seemingly trivial events.
101. She had been asked many times to desist from using the internet and to try to control her temper with staff. The continual exasperation of these conflicts, poor work ethic and time wasting in the last 2 years posed a threat to our business which could no longer be tolerated. (affidavit of Dr Penn at [100]-[101]).
Mr Newall submits in written submissions that Dr Penn was justified in forming the view that Ms Groder was, during the period of her employment, becoming a seriously disruptive, inharmonious and stressful factor in the workplace. Examples of specific incidences were detailed in the affidavit of Dr Penn.
Paragraph 17 of Dr Penn’s affidavit alleges:
17. Rosie was generally productive in her first year of employment. However, Rosie became increasingly bold and more aggressive with other staff members and had a number of heated altercations during 2001-2002, particularly with Kimberli Schuitman, who spent much time training her. I specifically remember Rosie stated to me on a number of occasions:
· “I don’t like her [meaning Kimberli] telling me what to do!” (This was often said in response to a request to put patient cards away or clear the surgery);
· “She is jealous of my brains and beauty and the work she is asking to do is beneath me.” (This was often said in response to a request to telephone patients to confirm appointments or to simply tidy up our waiting room);
· One of the most emotionally outbursts I heard from Rosie in relation to Kimberli was that “she stole my wallet, she cannot be trusted.” In fact, Rosie had inadvertently left her wallet in her car which she discovered after she had made this accusation. I suggested to Rosie that she should not make such accusations towards Kimberli without hard evidence.
On each of the above occasions, I spent up to 1-2 hours counselling Rosie on her inappropriate behaviour and asking her to apologise to Kimberli. I told her “her response is irrational and childlike and will not be tolerated”.
I was concerned about the effect that Rosie’s conduct was having on Kimberli, who threatened to leave our company if Rosie’s behaviour continued.
In Ms Groder’s third affidavit (in reply), she claims that she did not tell Dr Penn that she disliked Kimberli Schuitman and that none of these alleged comments were true.
Paragraph 24 of Dr Penn’s affidavit alleges:
I asked Mayada Barake, who worked in both arms of the business of Pavona, to train Rosie in this role. I always found Mayada to be an extremely patient employee but I became aware, over time, that she found Rosie increasingly difficult to control as her period of training progressed. During this training period Mayada came to my office on a number of occasions and said:
“Rosie is really not happy taking instructions from me. She says “only David is my boss””.
During this training period I recall counselling Rosie in my office and, on one occasion, I recall counselling both Rosie and Mayada together, after they had had an argument:
I said “Rosie, I have mentioned to you previously that Mayada has assumed the role of office manager and that you must be prepared to take instructions from her. I am annoyed that we have had to have this discussion again and that we are wasting our precious energies on these trivial matters”.
In Ms Groder’s third affidavit (in reply), she challenged this evidence and said that Dr Penn did not make the comments as in his affidavit above.
Dr Penn then gave examples of what he says were the escalating confrontations between Ms Groder and other members of staff:
28. The confrontations with Mayada and other staff members intensified in frequency and amplitude from early 2003 onwards and particularly when her role changed and her daily duties meant a closer involvement with other staff members. Almost every altercation centred on Rosie being unwilling to take instructions from senior staff and questioning the personal work practices of staff members, which were irrelevant to the dispute. Each occasion seemed to grow in intensity and Rosie would cry and run out of our office for varying amounts of times.
29. I specifically recall a number of major incidents involving Rosie and various staff members. These incidents necessitated my intervention and subsequent counselling of Rosie…These disputes were managed mainly by Mayada and sometimes by Diane and did not need my personal intervention but were brought to my attention. (affidavit of Dr Penn at [28]-[29])
Ms Groder denied having any problem taking instructions. She further denied that she was ever warned verbally or in writing (third affidavit of Ms Groder).
Another example of the alleged escalating confrontations is in
Dr Penn’s affidavit at [30]-[31]:
30. In approximately March 2003, Rosie had a dispute with Dianne Gillespie during which she told Dianne to “F..k off”. This occurred during a discussion regarding overtime. I counselled Rosie after this incident and asked her to apologise to Dianne for her behaviour, which she did immediately.
31. In approximately June 2003, Rosie came into conflict with Mayada Barake due to Mayada’s seniority. Rosie told me speaking of Mayada:
“She is not my boss and I want to work my own way”
My reply was:
“Everyone works differently but we have protocols that have to be adhered to.”
I can recall a similar argument taking place in 2004.
Ms Groder in her third affidavit denied the use of inappropriate language and in her discussion with Dr Penn she indicated that she would like to work more independently to Mayada Barack.
Dr Penn gives another example of the alleged confrontations between Ms Groder and staff members in his affidavit at [32]:
32. In early 2004 Rosie had an argument with Natalie Bingham, a dental nurse, over the handling of patient record cards. Rosie told Natalie, in front of a patient;
“This is your bloody job, why should I do it?”
I was in the surgery at the time and could hear the raised voices of both staff members, particularly Rosie. I asked both girls to come into my office to discuss the issue regarding the patient cards. I said to Rosie:
“If we are running behind schedule with our patients, please try and make it easier for us as Natalie has to sterilise the instruments and set up the next patient. Please try and anticipate our needs.”
Rosie replied:
“I have my other work to do…but you are my boss and I will do as you say but not from her!”
I explained to Rosie:
“We are a team and I cannot remove myself from a patient to come out and ask you personally to do every task. If Nat is asking for help, just do it!”
Rosie said:
“I don’t like her tone…she speaks to me like a child…if she asks me nicely I may do it.”
In her third affidavit Ms Groder denied these exchanges and claims them to be completely untrue.
Dr Penn says that staff threatened to leave the organisation due
Ms Groder’s behaviour:
37. In 2005 and 2006, Rosie became more difficult to predict and counsel. I said to her on a number of occasions:
“Surely Rosie you must be able to see almost all of the significant disputes in our organisation involve you. I can only recall one that has not involved you!”
Her response was:
“They are all jealous of me.”
38. In approximately 2005, I warned Rosie that other key staff members were finding it impossible to work with her and this pattern of confrontation had to stop. I told her:
“There is a lot of tension in the office and most of it seems to have been centred around you! This has got to stop.” (affidavit of Dr Penn at [37]-[38])
Ms Groder claims in her third affidavit that these conversations never occurred. In cross-examination Dr Penn was asked to identify what the other incident which did not involve Ms Groder was, to which he referred to an incident between Ms Hassin and Ms Schuitman. However in Ms Hassin’s cross-examination, she indicated that she could not recall the incident. Further, she said that there were many incidents at work which did not involve Ms Groder.
Dr Penn gave evidence in his affidavit about the expansion of the dental practice and new business structure which resulted in Ms Groder being employed by both Pavona and the dental partnership between Dr Sharp and Dr Penn:
51. Rosie continued with her same work pattern but seemed to lose enthusiasm and her productivity was noticeably diminishing, especially at the time leading up to her engagement and wedding. She refused to perform work in any role that was outside the range of her specific duties.
52. After every confrontation, if I was in the office then Rosie would rush into my office sobbing and whimpering and I spent a considerable amount of time with her one-on-one calming her down, counselling her about her unacceptable behaviour and asking her to apologise to or make peace with the colleague with whom she had come into conflict.
Ms Groder in reply denied the claims she refused to perform work outside her range of specific duties and claimed that she was never counselled by Dr Penn.
A further incident referred to by Dr Penn in his affidavit at [54] – [59] was:
54. I recall Dianne phoning me on different occasions after altercations had occurred between Rosie and Natalie Bingham, and between Rosie and Tracey Goodgame. On one occasion, Dianne asked me:
“How do we handle this problem?We don’t know when she [Rosie] is likely to return.”
I replied:
“I just don’t know…Can you ring her please?”
55. I recall Mayada rang me after a major altercation between Rosie and Tracey early in 2006 and said to me:
“Rosie went berserk again with Tracey and stormed off down the street swearing. All of our patients could listen to this…it is really embarrassing. I am really finding it hard to get all of our work done when she just disappears and we never know when she is coming back! She turns her phone off.”
56. When Rosie came back 3 days later I called her into my office and said:
“This simply has to stop…we cannot operate a company like this. I am sympathetic to everyone’s emotions but at the end of the day we are here to run a company.”
Rosie cried and said:
“You don’t understand…Tracey is evil…I did nothing wrong she is a bitch.”
57. I recall that after a different dispute between Rosie and Tracey, which occurred sometime in mid-2006, I had separate discussions with Rosie and Tracey and told each of them:
“If you cannot work together as friends, then at least be mature enough to work professionally. You are both experienced women and can work as professionals. There is too much tension in this section.”
58. I was concerned that Rosie’s behaviour was setting an increasingly bad example for other staff but she seemed almost impervious to counselling and unable to change her behaviour. She also had no insight into the childish and immature nature of her own behaviour and the upsetting effect it nevertheless had on her co-workers.
59. She also had no insight into the fact that she was the common participant in all the various altercations occurring between her and other staff members.
Ms Groder in her third affidavit denied this sequence of events and claims that she was not counselled by Dr Penn and he never asked to change her behaviour or attitude.
Dr Penn gave the following evidence in respect of Ms Groder’s changed behaviour after announcing her pregnancy:
72. Her diminished productivity and increased destructive and confrontational behaviour over the previous 2 years in particular had caused me increased concern as it was affecting the moral of my employees. On two separate occasions, senior employees (ie: Kimberli Schuitman and Mayada Barake had threatened to resign due to Rosie’s behaviour).
73. I was concerned to ensure that the working environment for my staff was as happy as possible and that all staff members were pulling their weight in the performance of their duties. It became increasingly obvious to me that Rosie was being lazy, and was using work time to make personal phone calls, use the internet and read magazines.”
Ms Tucker submits that an inconsistency arises from paras.74-75 of the affidavit of Dr Penn which state that Dianne Gillespie had worked at the New South Head Road premises with Ms Groder from October 2006 and that she had advised Dr Penn that Ms Groder used the internet “continuously”. Dr Penn in cross-examination indicated that the internet was available at the New South Head Road premises at the time. However in cross-examination, Dr Sharp, Ms Barake and Ms Hassin all stated that once the Bay Street premises opened in September/October 2006 the internet server was moved there and there was no longer internet access at New South Head Road.
Dr Penn made the following sworn statement concerning an incident in early 2007 regarding Ms Groder’s allegations against another staff member, Tracey Goodgame:
83. During the week of 5-9 March 2007, I was in New Zealand doing some teaching courses and spending time with my staff. On approximately 6 or 7 March 2007, I rang Mayada to see how things were going in the Sydney office. I detected an ambivalence in Mayada’s voice.
Mayada said:
“I don’t want to upset you while you are away again…”
I asked:
“What has happened?”
Mayada replied:
“Rosie and Tracey had a huge fight in front of the patients and Rosie claims that Tracey hit her stomach…they were screaming in front of the patients and Rosie went off crying and screaming.”
84. Over the next few days Rosie called and left a number of voicemail messages on my mobile telephone saying:
“David, Tracey assaulted my baby I am scared for my safety and for my baby.”
85. I rang Dr Sharp who had witnessed this altercation and he said to me:
“I saw the whole thing…I assure you no assault took place…they swore a lot at each other and Rosie went psycho!”
Ms Tucker submits that there is a conflict in the evidence in respect of this issue. In cross-examination, Dr Sharp indicated that he could hear what happened on 7 March 2007 but did not see it. He could not recall saying the words attributed to him by Dr Penn. Dr Sharp said he spoke to both Ms Groder and Ms Goodgame after the incident and then formed a view as to what had happened.
Dr Penn’s sworn statement continues:
86. After hearing Dr Sharp’s description of the altercation, I phoned Mayada. As I was in no position to deal with the dispute from New Zealand, I told Mayada:
“Contact Rosie and tell her that I am bitterly disappointed that yet another major altercation has occurred involving her and I will deal with the issue upon my return.”
87. On 19 March 2007 I had a discussion with Rosie. This took place a week after she returned to work from her altercation with Tracey on 6 or 7 March 2007. Rosie showed me a report on the “incident” with Tracey which was intertwined with a dossier on other staff members. She had kept a lengthy account on many small or trivial issues and incidents that had occurred with staff members over a considerable period of time.
88. On this occasion I said:
“Yet again Rosie, you have been involved in another major altercation and this document contains information that would cause irreparable damages should your work colleagues see it. This must be destroyed immediately. Furthermore, the accusations you have made towards Tracey are untrue as both Dr Sharp and even our patient, Mr Hauer had verified. Your behaviour is totally unacceptable and will no longer be tolerated!”
Ms Tucker submits that Dr Penn gave an account of how he found out about the incident between Ms Goodgame and Ms Groder on 7 March 2007. His affidavit states that he found out when Ms Barake told him; however Ms Barake’s affidavit states that she became aware of what had happened when Dr Penn told her. In cross-examination, Ms Barake confirmed what she swore in her affidavit. When referred to Dr Penn’s account which appeared to contradict her own, Ms Barake suggested that his version possibly related to a later conversation. Ms Tucker submits that these two disparate accounts cannot be reconciled.
Contrary to Mr Newall’s submissions, Ms Barake did not give evidence that Ms Groder told her that Ms Goodgame had hit her. Ms Barake said she was told by Ms Goodgame about what happened. However,
Ms Goodgame was not available for cross-examination.
Ms Tucker contends that Dr Sharp, when describing the March 2007 incident in both his affidavit and in cross-examination, said that after the dispute in the surgery Ms Groder went into the reception where he asked her about what had happened. He said that there was no one in the waiting room and that he returned to his patient, Mr Heur. In contrast, Grace Parasiliti in her affidavit, statement and cross-examination stated that Ms Groder came out of the surgery, spent some time in reception and then left with Natalie Caba. In cross-examination Ms Parasiliti was clear that no one else came into the reception area before Ms Groder left. Further Ms Parasiliti stated that Ms Groder only ever said that Ms Goodgame had pushed her, which is in direct conflict with Dr Sharp’s evidence about the conversation between him and Ms Groder in the waiting room and that Ms Groder had said that Ms Goodgame had hit her and her baby.
Ms Tucker submits there is another inconsistency in Ms Parasiliti’s evidence. Ms Parasiliti suggested in cross-examination that there had been “a scene” in the waiting room before the one in the surgery. By way of explanation she said that she could hear what was said by Ms Goodgame and that there was a scene in front of a patient. However this does not accord with the account of Ms Goodgame concerning the incident (in her affidavit), the evidence of Dr Sharp or Ms Parasiliti’s own affidavit. None of these individual pieces of evidence refer to an incident prior to what occurred in the surgery and sterilization room. Dr Sharp’s evidence is that Ms Goodgame told him that she had not touched Ms Groder at all, whereas Ms Goodgame’s statement/incident report states “I touched her elbow so lightly to lead her to the door.”
Ms Tucker submits that Dr Penn in cross-examination referred to his recollection that Ms Groder had left messages that Ms Goodgame had assaulted her. However, Dr Penn did not have a voicemail function on his telephone and his description of both what Dr Sharp and Ms Barake told him was at odds with their affidavit evidence. Even if this was an accurate recollection, Dr Penn himself referred to the use of the term “assault” as being a result of Ms Groder’s misuse of the language.
He stated that Ms Groder did not say that she had been assaulted.
Ms Tucker submits that these inconsistencies suggest that even if
Dr Penn’s evidence that Ms Groder had initially said she had been assaulted is to be believed, there was no concern that Ms Groder was intentionally aggravating the situation as Dr Penn perceived it was due to language difficulties. Ms Groder’s own incident report written in March 2007 states that Ms Goodgame had pushed her. Ms Groder made it clear in her further affidavit in reply that if Ms Goodgame had hit her she would have gone to the police. Ms Tucker submits that if Ms Groder was minded to make “hysterical” and “unfounded” allegations against her colleagues during the course of her employment, then her incident report would have reflected such an approach.Ms Tucker contends that Dr Penn’s emphasis on the March 2007 incident as being an example of Ms Groder making unfounded allegations completely falls away when the elements are examined. She submits that the evidence shows that Dr Penn went to great length to portray Ms Groder as a trouble maker when in fact it is Dr Penn who has exaggerated what happened. She further submits that the multiple contradictions between the evidence of the different witnesses casts doubt on Dr Penn’s evidence as a whole. Other inconsistencies include Joanne Izenberg’s affidavit which states that she saw Ms Groder
crying in Ms Hassin’s office before taking 2-3 days leave. In
cross-examination, Ms Hassin said Ms Groder had spent time in her office in March 2007 and did not normally leave the premises. The only time this occurred was directly after the incident with
Ms Goodgame on 7 March 2007.
Dr Penn made a further statement regarding staff attitude to Ms Groder’s behaviour:
94. On 24 March 2007, Mayada informed me of comments made by Rosie, and said to me:
“David, both Grace [Parasiliti] and I cannot work like this any longer with Rosie around…we have had enough.”
Mr Newall submits that Ms Groder’s persistent trouble making and disruption is supported by evidence given by a number of other Pavona employees. The respondent relies on the following evidence:
a)Mayada Baraka in oral evidence and her affidavit at [19] – [27], [36] – [40], [44] – [50];
b)Dianne Cheryl Gillespie in her first affidavit at [7], [19] – [20];
c)Kimberley Schuitman in her affidavit at [20] – [22], [25] and [32];
d)Louise Hassin in her affidavit at [2] – [7] and in her oral evidence;
e)Joanne Izenberg in her affidavit at [6] – [10];
f)Dr Albert Sharp in his affidavit at [19] – [20] and his oral evidence in respect of the false allegation made by Ms Groder about the alleged assault by Ms Goodgame.
Mr Newall submits that Dr Penn was justified in forming the view that Ms Groder was ignoring his instructions and deliberately abusing the internet usage policy by using that facility for personal reasons during work hours.
Dr Penn states at [33] of his affidavit:
33. I recall an incident in May 2005 when I escorted a patient to the front desk. When the patient left, I noticed that Rosie had internet explorer open on her computer at a website about weddings. I said to her:
“Get off the internet… this is not for personal use.”
At [34] of the affidavit, Dr Penn states:
34. Late in May 2005, as a result of Rosie being on the internet for long periods, I told all staff members:
“The internet is to be used for work only… if this practice continues I will remove the internet on everyone’s computer.”
Paragraph [35] of Dr Penn’s affidavit states:
35. In June or July 2006, I recall the dispute when Rosie accused Mayada of spying on her. I had noticed myself, and had been told by Dianne Gillespie, that Rosie had been spending large amounts of time on the internet again. As I was concerned by these reports, I checked Rosie’s cookies and internet history myself. This revealed a pattern of repeated and lengthy use of the internet by Rosie. Having checked Rosie’s computer, I said to her:
“I really hope that you don’t waste any more time on the internet as we are all far too busy with our normal work.”
At [101] Dr Penn states:
She had been asked many times to desist from using the internet and to try to control her temper with staff. The continual exasperation of these conflicts, poor work ethic and time wasting in the last two years posed a threat to our business which could no longer be tolerated.
Mr Newall relies on the following corroborative evidence in support of Dr Penn’s evidence:
a)First affidavit of Mayada Barake at [39];
b)Affidavit of Tracey Goodgame at [14] which states:
14. I was aware, as resource staff, that we were not permitted to use the internet other than at lunchtime or in our own time. We were warned about this regularly but Rosie continued to use the internet in work time.
c)Affidavit of Albert Sharp at [17];
d)The oral evidence of Louise Hassin that she was present on two occasions when Dr Penn gave a direction to staff that the internet was to be used for personal use only in the lunch and morning tea breaks or it would be disconnected. Ms Hassin’s evidence was that Ms Groder was present on both these occasions. Mr Newall’s submission is that the evidence of Ms Hassin has gone unchallenged and that there is no suggestion that this evidence was anything other than truthful and correct.
Ms Tucker submits that Dr Penn had at his disposal objective evidence central to the allegation against Ms Groder. In cross-examination,
Dr Penn confirmed that he had access to all the computers used by his staff and he could see when they had used the internet. Internet and/or telephone records were therefore available but not produced. It is submitted that it is open to infer that this evidence would not have assisted the respondent’s case particularly when it was so clearly available to Dr Penn and goes directly to the allegation against
Ms Groder: Jones v Dunkal (1959) 101 CLR 298 at 308.
Mr Newall submits that the cross-examination of Dr Penn did not raise any suggestion that Ms Groder’s pregnancy formed any part of
Dr Penn’s decision to terminate her employment. Mr Newall argues that the proposition that her pregnancy was a factor was not suggested to Dr Penn during the course of cross-examination and there was no challenge to the fact that he terminated Ms Groder’s employment for the reasons that he stated. Mr Newall further argues that it was not even suggested that Ms Groder’s pregnancy may have subconsciously affected Dr Penn’s judgment.
Ms Tucker submits that Dr Penn gave evidence on what occurred on the date of Ms Groder’s dismissal and that it is clear from his evidence that he could not have known how long Ms Groder had been on the internet on that day. Yet Dr Penn gives his account of what he said in the termination phone call – “You have been on the internet for
45 minutes”. When cross-examined on this issue, he admitted that he did not know and may have only found out some days after the dismissal. Ms Tucker submits that on his own evidence, Dr Penn could only have been aware of Ms Groder being on the internet for a few minutes on 16 April 2007 prior to dismissing her.
Ms Tucker submits that a few minutes on the internet could not be the “straw that brakes the camel’s back” after nearly eight years of employment as suggested by Dr Penn. It is the respondent’s evidence that all the staff had been told about internet use (Dr Sharp’s affidavit at [17]). It is not contested that Laura Conti, who used the internet with Ms Groder was not sacked over this incident but received a warning.
Ms Tucker submits that if the respondent wished to take a hard line approach on internet usage, a warning letter should have been given to Ms Groder rather than dismissing her by telephone. Ms Tucker further submits that Dr Penn used the opportunity of Ms Groder’s pregnancy and pending maternity leave to terminate her employment. She submits that there is sufficient causal connection between the termination and the pregnancy to make out the contravention: Parsons v Stone Traders Pty Ltd (2008) EOC 93-500 at [84].
Ms Tucker in her written submissions submits that the evidence on behalf of the respondent seeks to portray Ms Groder as a difficult member of staff and that the affidavit evidence of Dr Penn at [37], Ms Hassin at [2] and Ms Barake at [6] refer to her as the cause of nearly all incidences in the workplace. Ms Tucker submits that Dr Penn acknowledged in cross examination that there had been a dispute between Ms Barake and Emma Garnade in August 2002, the details of which were set out in a report titled “Incident at David Penn’s dental surgery, 23 August 2002” (third affidavit of Ms Gorder, Annexure “C”). It is her contention that this incident was used as an excuse to besmirch Ms Groder as Dr Penn was of the view that Ms Groder had started it. It is argued that contrary to this, Ms Groder had played a conciliatory role and that the argument was between Ms Barake and Ms Garnade.
Ms Tucker submits that Dr Penn was vague when cross-examined on incidences or conversations concerning workplace issues. For example:
a)He could not give an account of his conversation with Mr Hauer, the patient present at the time of the incident between Ms Groder and Ms Goodgame in March 2007. Dr Penn indicated that he only remembered the gist of what was said.
b)He could not remember what Ms Barake had said about Ms Groder in the conversation concerning the resignation of Ms Barake and Ms Parasiliti.
c)
He could not recall what was said between Ms Hassin and
Ms Schuitman in their dispute.
However, Ms Tucker submits that Dr Penn had a remarkable recall of his conversation with Ms Groder many years prior to the three incidents identified above. By contrast, the respondent’s witnesses found it difficult to give details in conversations about what had occurred in the months prior to her dismissal. As an example, Dr Penn referred to Ms Barake telling him on 24 March 2007 about comments made by Ms Groder and that both she and Ms Parasiliti were considering resigning as a result. In cross-examination, Dr Penn could not describe these comments. Ms Tucker submits that he only repeated what was in his affidavit. Another inconsistency was Ms Barake saying in cross-examination that she only told Dr Penn that Ms Parasiliti was considering resignation.
Ms Tucker submits that the inconsistencies in the respondent’s evidence throw serious doubt on its evidence as a whole. There is almost nothing provided by Dr Penn to show what occurred in the workplace prior to Ms Groder’s termination, apart from what is contained in his affidavit.
Ms Tucker submits that, therefore, there has been significance reliance on the statements being an accurate recollection of the events. The only other evidence of the March 2007 incident are incident reports of
Ms Goodgame and Ms Parasiliti. Ms Tucker contends that neither assist the respondent’s case, in particular as Ms Goodgame did not appear for cross-examination.
Ms Tucker submits that there were also many allegations that
Ms Groder was lazy and prone to frequently leave work whenever there were conflicts between her and other staff members. She submits that these allegations are at odds with Dr Penn’s evidence of offering to pay her to stay at home instead of continuing her employment. It was Dr Penn’s evidence that this was an open-ended offer as he was unaware of his actual obligations with regards to pay maternity leave. Ms Tucker acknowledges that it is not contested that Ms Groder turned down the offer and continued to work until her termination four weeks later. It was Dr Penn’s evidence that he made the offer shortly after allegedly telling Ms Groder that her behaviour would not be tolerated (Dr Penn’s affidavit at [88]-[89]). Ms Tucker pointed out the difficulties with this evidence:
a)It conflicts with the suggestion that Ms Groder would be likely to take advantage of Dr Penn’s generosity by not working for her pay; and
b)
It makes it unlikely that Dr Penn did discipline Ms Groder on
19 March 2007.
Consideration
I acknowledge the numerous inconsistencies in the evidence given by the various witnesses in these proceedings but I do not believe that the issue can be resolved by analysing these inconsistencies in detail.
My main observation is that this business conducted by Dr Penn and Dr Sharp was under some pressure due to its rapid expansion at the time and the number of staff they employed. It is understandable that Dr Penn’s practice which he ran with four employees faced exponential growth over 8 years. The hiring of 25 employees would require substantial changes in work and supervisory practice. It would appear that much of the informality characteristic of a smaller organisation was retained during this growth period. The relationship between the principal, Dr Penn, and some members of staff appears to have a certain informality.
The relationship between Dr Penn and Ms Groder is unusual in that
Dr Penn has been extraordinarily generous in his assistance with Ms Groder’s transition into the local workforce, what with her limitations in the English language, lack of skill set in the dental industry and her admitted falsification of prior work history and skills base. The extent of Ms Groder’s acknowledgment and acceptance of such assistance is difficult to determine. However, the holistic view is that despite this extraordinary level of assistance, she appears to have become ambivalent to that help and her relationship with work colleagues has become progressively difficult. This progression seems to have developed gradually towards fellow staff who in many cases assisted Dr Penn in this educational program.
In cross-examination, Ms Groder emphatically denied that she ever swore or used bad language, however, this was strongly contradicted in the evidence of other members of staff. Ms Groder repeatedly (and at one stage tearfully) assured the Court under oath that swear words were not part of her vocabulary and that it was not within her personality to use such language. I was invited to assess her truthfulness on the basis of that repeated assertion. Ms Groder’s adamant assertion that she “never ever swore” is not supported by the unchallenged evidence of Ms Hassin, Ms Barake, Mrs Gillespie, Dr Sharp and Dr Penn.
Dr Sharp stated that he had a clear and distinct memory of Ms Groder using a commonly expressed swear word regularly. In cross-examination it was not at all suggested that his evidence was not accurate. I am satisfied that Dr Sharp is a witness of truth. Similarly, I accept the evidence of Ms Hassin, Ms Barake and Mrs Gillespie. Dr Penn gave
affidavit evidence (affidavit of Dr Penn at [36]) supported in
cross-examination of a discussion between Ms Groder and Ms Conti where further foul language was used. Although denied by Ms Groder, there was no challenge to Dr Penn’s evidence in cross-examination that put his evidence in doubt.
I am not critical of Ms Groder’s alleged swearing or use of inappropriate language which, unfortunately, is all too common in our society. However her adamant assertion that she “never ever swore” and the elaborate evidence about it not being in her character or part of her vocabulary demonstrates her untruthfulness in her evidence to this Court. I recognise the embarrassment in having to admit in a public forum the use of inappropriate language. However, Ms Groder’s adamant denials are contradicted by the evidence of a number of different witnesses on this specific issue. Her stance and vigorously defence of this issue places a veil of doubt on the balance of her evidence.
Ms Groder in her affidavits in reply has denied every alleged instance of dispute involving her fellow employees. Further, Ms Groder has attempted to distance herself from any wrongdoing and maintains that in many of the disputes between staff she did in fact perform a conciliatory role.
In her affidavit evidence, Ms Groder indicated that she informed
Dr Penn shortly after she became aware of her pregnancy and that from that time his attitude towards her changed. However, the sworn evidence of Dr Penn is very different. The unchallenged evidence of Dr Penn is:
70. I was informed by Rosie on October 2006 that she was pregnant. I congratulated her as I was delighted for her, as I am for any woman. I told her that being a parent was a wonderful experience.
71. I am aware that Rosie alleged that my behaviour towards her changed after she informed me of her pregnancy.
72. Her diminished productivity and increased destructive and confrontational over the previous two years in particular had caused be increasing concern as it was affecting the morale of my other employees. On two separate occasions, several employees (ie: Kimberli Schuitman and Mayada Barake) had threatened to resign due to Rosie’s behaviour.
73. I was concerned to ensure that the working environment for my staff was as happy as possible and that all staff members were putting their weight in the performance on their duties. It became increasingly obvious to me that Rosie was being lazy, and was using work time to make personal telephone calls, using the internet and read magazines.
The substantial body of evidence – some of which was referred to above – supports Dr Penn’s affidavit evidence.
Dr Penn gave unchallenged evidence in respect of the payment of the bonus at Christmas 2006:
77. It is true that Rosie did not receive as large a bonus for Christmas 2006 as she had received at Christmas 2005 when she received $12,000. The bonuses are performance related and tied to the success of SCDL. Frankly, Rosie had not made a great contribution to the success of SCDL during the previous 12 months and I did not think that her work over the preceding year warranted a large bonus.
78. At the end of 2006, I gave her a bonus of $5,000. Later, she begged me for more money so I gave in and gave her a further $2,000.
79. Additionally, I had told Rosie on three occasions that she now worked for Pavona (SCDL) only half of the week and was employed by our dental partnership the remainder of the time. The payment of part of her bonus was up to the discretion of Dr Sharp, my partner as much as was up to me, in relation to her work in the surgery.
80. In paying Rosie less in 2006, I was mindful of a comment made by my business partner, Dr Albert Sharp, for whom Rosie performed reception duties. When we were working out the 2006 bonuses, he said to me:
“I don’t want to give here a cracker.”
81. It is common sense that there is no point in paying a large bonus to an employee who is not working productively and cooperatively with colleagues. The purpose of the bonus is to reward hard work, not work which is barely satisfactory and peppered with interpersonal conflict.
This sentiment is also present in the affidavit of Dr Sharp at [12] – [13] where he states:
12. In or around December 2006, Dr Penn and I had a discussion relating to the payment of a Christmas “bonus”, which was essentially a cash gift Dr Penn would give to staff. In relation to Rosie, I said to Dr Penn words to the effect of:
“Rosie doesn’t deserve a bonus. If it was up to me I wouldn’t give her a cent.”
13. I personally did not feel Rosie deserved any “bonus” at all. Her behaviour and work performance around the surgery was very poor. However, Dr Penn is what can be described as a “softie” and a very generous employer. I suspected he would give Rosie a bonus in any event.
Although the language used is different, I accept that the sentiment is the same. I have formed the view that Ms Groder’s evidence that
Dr Penn’s attitude towards her changed after she told him of her pregnancy is not to be believed. This claimed change in attitude is wholly inconsistent with Dr Penn’s conduct towards her over the years. In support of this view I note the unchallenged evidence of Ms Barake about how Dr Penn undertook to have flexible work requirements in order to assist Ms Groder in her pregnancy.
The evidence given by Dr Penn was that he was delighted that
Ms Groder was pregnant. He also gave evidence that he spoke with
Ms Groder about the jobs she would return to after her maternity leave. There is nothing which contradicts this evidence or which suggests that it was not wholly accurate and consistent with Dr Penn’s entire conduct.The evidence before the Court clearly indicates that there was a deteriorating relationship between Ms Groder, her work colleagues and Dr Penn. This was tolerated to an extent although informal counselling appears to have taken place. There is no evidence that any formal discipline procedures were in place at either Pavona or the joint dental practice. All discipline and warnings appear to have been given orally with a complete absence of formal notification.
Dr Penn has been criticised because he is able to recall the details of conversations with Ms Groder concerning disciplinary issues but is vague about more recent occurrences concerning other staff members. I am willing to accept that in these circumstances where Dr Penn appears to have been extraordinarily helpful in assisting Ms Groder in the transitional phase of her employment to be correspondingly disappointed in her attitude to her work and work colleagues. In the same sense although very considerable effort has been expended in the Ms Groder’s training to became a competent dental nurse, her enthusiasm for that role appears to have waned with the request to perform alternate duties. Dr Penn appears to have been extremely accommodating by allowing these changes in work practice.
The termination of Ms Groder’s employment appears to be directly linked to the issue of interpersonal relationships and disputes with her work colleagues together with a direct abuse of privileges such as access to the internet contrary to specific instructions. I am not satisfied that it has been established that her termination had anything to do with Ms Groder’s announced pregnancy and impending maternity leave. Consequently the s.664(b) defence is made out and the application should be dismissed.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 10 August 2009
0
13
2