Jacqueline Feilich and Sutton City Holden

[1995] IRCA 591

Industrial Relations Court
of Australia
New South Wales District Registry  NI 95/1267

Between:                   Jacquiline FEILICH
  Applicant

And:  Suttons City Holden
  Respondent

Place:  Sydney
Date:  6 October 1995
Before:  Tomlinson JR

Revised reasons for decision delivered Ex-Tempore

By application dated and filed 15 February 1995 the applicant Mrs Jacqueline Feilich sought reinstatement and compensation from the respondent.  In her affidavit dated 15 May 1995 the applicant stated she commenced employment with the respondent on the 1st of June 1994 as a New Motor Vehicle Sales Consultant with the respondent at Rosebery.  The applicant stated she was terminated on 6 February 1995 and that from 1 June 1994 until early December 1994 that her employment was harmonious and that during that period she received no complaints either in writing or verbally as to her sales technique or dealings with other staff.  The applicant stated that no manual or documentation regarding sales practices or employment conditions were provided.

On 9 December 1994 an incident occurred involving the applicant and Mr Tony Baini arising out of a borrowed chair.  The applicant stated that having borrowed the chair, she noticed Mr Baini running to her saying words to the effect:

“Where’s my fucking chair?”

To which the applicant deposed she stated in reply:-

“Fuck off Tony.”

The applicant stated that no clients were in earshot during this exchange and that her tone and volume did not rise above normal conversational level.  Thereupon Mr Baini allegedly leaped at the applicant and physically assaulted her.  The applicant was grabbed around the neck and after he released her she gasped for breath and remained seated.  Allegedly Mr Baini then according to the applicant used lewd and personally vile language towards her personally and called her a  “cunt”.  Paragraph 14 of the applicant’s affidavit stated

“... I was still too stunned to respond and I just sat at my desk.”

The court heard no distinguishing evidence as to whether the alleged lewd language caused the applicant to be stunned in addition to the alleged physical assault.

A further conversation occurred between Mr Baini and the applicant and it is noted that this incident occurred, according to the applicant, between 11:00 a.m. and 12 midday.

The applicant deposed that at 4:30 p.m. that afternoon she felt composed enough to advise her husband, Maurice Feilich of the matter.  The applicant stated when her husband arrived she was not aware of the contents of a conversation between her husband and Mr Baini.

On Monday 12 December 1994 the applicant stated she was called into the office of Mr Mark Fitzgerald and advised that her husband was banned from the dealership as he had made threatening comments to Mr Tony Baini.

On 12 December 1994 the applicant said that she had received a letter, “C” in her affidavit, which stated inter alia:

“During our conversation we also discussed a number of requirements we have of you of in both personal performance and behaviour...  Therefore derogatory comments and swearing at others in a public area of the dealership is unacceptable and cannot be tolerated.  Although you may not wish to accept total responsibility for Friday’s events, your behaviour helped created this problem...  At all times please ensure the Sutton’s smoking policy is adhered to.  You recently agreed to the condition of smoking associated with your demonstrator, but for some reason this has not been adhered to.”

The applicant said that she did not sign this letter as she did not agree with the contents.  Further, that from 12 December 1994, she was suddenly and without consultation subjected to strict and intense supervision.  In her oral evidence the applicant told the court that “her recollections were correct” in that she was treated differently from the other sales staff and that on 23 December 1994 she stated to Mr Stuart Armstrong:

“you are plotting to get rid of me” and further that she had the feeling that other people were ganging up on her.  In response the applicant alleged she was directed to speak with Mr Kevin Libdy.  The particular restrictions the applicant referred to were apparently that she was required to show her valuation book to Mr Lidby.  Further, that Mr Libdy had to be physically present with the customer when the applicant closed the deal.  It was further indicated to the court that the applicant had to check “every step of the way” with management during the course of negotiations with the customer.  The applicant exhibited an air of grievance at what seemed to be a fairly normal procedure.

The applicant stated that she had “a general authority to discount vehicles at the commencement of her employment” and that no-one told her how to discount stock.  The applicant stated that she never discounted over the sum of one thousand dollars.  The applicant stated that in so doing she would check the position with her managers Stuart Armstrong and Mark Fitzgerald.

The applicant produced documentary evidence to the court indicating according to her that her performance at work in thefield of sales was above average.

On 6 February 1995 the applicant stated she was called into a meeting with Mr Mark Fitzgerald and Stuart Armstrong where she was shown a note written by Mr Craig Duffy.  The applicant stated in her affidavit that to the best of her recollection the note said that she had called Duffy and arse-licker and that she told Duffy he was a dead man.  Further, that these statements were made by the applicant in a loud voice in a showroom.  The applicant agreed that she had called Mr Duffy an arse-licker and that the incident took place in an office, not in the showroom.  The applicant stated that she did not shout at Mr Duffy.

Shortly thereafter the applicant was terminated and she was advised by the respondent that she had abandoned her employment as the termination form was being typed but that she left the premises without it.

By affidavit dated 17 May 1995, Maurice Julian Feilich, the husband of the applicant stated that on Friday 9 December 1994 he received a phone call from his wife to the effect that Tony Baini strangled her, swore at her and that no-one came to help her.

Mr Feilich deposed that he had a conversation with Mr Baini wherein he asked how would Mr Baini feel if he hurt Mr Baini’s little girl.  It appears that the witness was of the view that this approach was justified in that Mr Baini had hurt his little girl - that is, the applicant.  Further, it was deposed that the JDL was mentioned (Jewish Defence League) in the context that Mr Feilich stated Mr Baini had better not put another finger on the applicant as he, Mr Feilich, could arrange to have anything done to Mr Baini by just clicking his finger.

In oral evidence Mr Feilich stated that on occasion he would visit the showroom where his wife worked and would sit nearby in the visitors lounge reading the paper and on occasion he appeared he would have his vehicle washed as his vehicle by the respondent.

As a result of the verbal exchange between Mr Feilich and Mr Baini evidence was placed before the Court that Mr Feilich was classified ‘persona non grata’ and advised he was not welcome to enter the respondent’s premises.

For the purposes of these proceedings I place no weight on the evidence of Mr Feilich other than to support a conclusion reached by this court that will be set out below.

On behalf of the respondent the court heard evidence from Mr Mark Fitzgerald whose affidavit of 9 June 1995 was admitted into evidence as exhibit A

The court heard that Mr Fitzgerald was the principal dealer of Suttons City Holden a position he had held at various dealerships since 1987. 

In oral evidence Mr Fitzgerald stated the business had begun extremely well and things at Sutton City were much busier than anticipate.  To use the words of Mr Fitzgerald, "The scenario in the beginning was total mayhem", and that it was necessary for him to work seven days a week.  Mr Fitzgerald specifically stated that sales staff cannot discount motor vehicles to customers.  The witness was shown a copy of the floor plan of Sutton City and stated the work area of the applicant was very noisy and that voices would travel.

As a result of the Tony Baini incident involving the assault on the applicant, Mr Fitzgerald provided details as to the putting into place of an anti-discrimination policy.  The witness deposed to the fact that he dealt with the applicant concerning her conduct at work and that he kept file notes prepared by managers involving staff.  Paragraph 5 of the affidavit of Mr Fitzgerald states:

“Sutton City places great importance on the behaviour and conduct of its staff.  Amongst other things, swearing in the work place and upkeep of company vehicles are taken very seriously.”

The affidavit continued to say that he had said to the applicant that her swearing and arguing was unacceptable, that it was not proposed to terminate her at that time but her conduct would have to improve.  I quote:

“We will be putting a warning letter together for you to sign.”

Specifically at paragraph 14 Mr Fitzgerald requested the applicant to advise, "Did you call Tony Baini account?"  Whereupon Mrs Feilich responded:

“I don't remember but I can stand toe to toe with anyone in a swearing match.”

In cross-examination Mr Haylen directly put the above passage to the applicant who stated:

“That is a mistake in the evidence of Mr Fitzgerald.”

On behalf of the respondent the court heard evidence from Mr Kevin Libdy whose affidavit was admitted into evidence as exhibit D.  The witness had worked with the respondent for some time and at the time of the dismissal he was the supervisor of the applicant.  The witness deposed that no differentiating treatment was accorded to the applicant as alleged.  In relation to the conversation wherein Mr Duffy was called an arse licker, Mr Libdy stated that at that time he requested the applicant to apologise to Mr Duffy and that she had refused.

In his oral evidence Mr Libdy stated the particular offensive conversation took place outside his office, wherein the applicant stated:

“I don't have to lift a finger to fix him.”

To the mind of the witness this was a serious threat of physical violence.  The conversation is documented as exhibit A annexed to the affidavit of Kevin Libdy.  Paragraph 10 of the affidavit of Mr Libdy outlines a conversation he had with the applicant later that day, 5 February, wherein the applicant said word to the effect:

“I'm going to get sacked over this and I'm not coming in tomorrow.”

In his oral evidence the witness deposed that the applicant subsequently handed to him the keys of her vehicle and her petrol card.  On behalf of the respondent the court heard from MrSteve Barrett whose sworn testimony was admitted into evidence as exhibit E and who stated he had been a sales consultant with the respondent since 1992.  Mr Barrett deposed:

“During the entire time of Jacqueline Feilich's employment at Sutton City her desk was located only a short distance behind mine, approximately one metre.  During this entire period I heard Feilich on a very regular basis using foul and obscene language whilst at her desk which I believe would have carried to the showroom floor.  It would not be uncommon for customers to be on the showroom floor at such times within several metres of Feilich.”

The affidavit of the witness then explicitly set out the details of the language indulged in by the applicant.  In his oral evidence the witness stated that he got on well with the applicant, that he had witnessed the assault incident occasioned by Mr Tony Baini.  Mr Barrett stated he had never heard Mr Armstrong swear and further that he himself had a loud voice and he was often asked to lower his voice.  On behalf of the respondent the court also heard from Mr Craig Duffy whose sworn statement was admitted into evidence as exhibit F.

As a result of being threatened by the applicant as stated in his affidavit, in oral evidence Mr Duffy stated that after he had finished work that particular day, still feeling threatened, he discussed this incident with his wife.  Further, that the second time he spoke to the applicant it was not a conversation but a barrage which to my mind took on the complexion of a verbal assault.

The applicant, Jacqueline Feilich seeks compensation. Section 170EE of the Industrial Relations Act deals with the remedies this court may grant. In respect of contravention of division 3 of part 6A of the Act other than section 170DB or DE this court may make orders requiring the respondent to reappoint the employee. However, in this particular case reinstatement is not sought so I do not propose to deal in detail with that part of the legislation at present. Section 170EE(2) allows the court to make an order requiring the employer to pay compensation to the employee of such amount as appropriate.

Section 170DB requires an employee to be given notice of termination and further provides if the employee is guilty of serious misconduct, that is misconduct of such a kind it would be unreasonable to require the employer to continue the employment, accordingly a notice period is not required.

In my mind in order to determine whether the applicant, Jacqueline Feilich, was unlawfully terminated it is necessary to look in detail at the events that occurred on 5 and 6 February 1995.  At paragraph 43 of the affidavit of the applicant dated 15 May 1995, it is stated that the applicant on Sunday 5 February 1995 called a fellow employee and arse licker.  The following Monday, 6 February, the applicant was called to a meeting with the manager, Mr Mark Fitzgerald and Mr Stuart Armstrong.  At that meeting the applicant confirmed she had in fact used the words to a fellow employee referred to above.

The supervisor of the applicant was present at the time when another incident involving the applicant occurred.  The incident involved the applicant using unacceptable and threatening language directed towards Mr Duffy.  I found the witness, Mr Kevin Libdy, to be a most reliable and credible witness and to say I was able to rely on his evidence with regard to the conduct of the applicant.  To my mind the demonstrated courteous attitude of Mr Libdy towards his fellow employees in the work place is one which the general public look forward to experiencing when purchasing a motor vehicle or being involved in a sales situation generally.

I did not find that attitude reflected in the manner or the bearing of the applicant.  The witness, Mr Barrett, was both credible and sincere.  I place weight on the fact deposed to Mr Barrett that shortly after the alleged assault incident involving Mr Baini, the applicant and Mr Baini reappeared in the showroom arm in arm, apparently having sorted out their differences.  I draw the conclusion, however, that over the incident did happen, but it did not cause the applicant much ongoing alarm nor much distress.  The applicant seemed to place emphasis on the fact that she was selected for different and harsher treatment by management in order that performance of her tasks would be more difficult.

There was no concrete evidence presented to the court that this was in fact the case and it should be borne in mind that coming to work for the respondent the applicant had not worked in the motor vehicle industry before and accordingly I place little emphasis on this evidence of the applicant.  The alleged disparity was specifically denied by Mr Libdy and I prefer the evidence of Mr Libdy in that regard.

In dealing with the attitude of the applicant towards these proceedings I have to say I found a common thread in the evidence of the husband, Maurice Feilich, regarding the admitted threats he made concerning the Jewish Defence League and the statements of the applicant as set out in the affidavit of Mr Fitzgerald as to the threats of the applicant concerning the involvement of the owner, Mr Laurie Sutton publication and the institution of these proceedings.

The common thread is to be treated with concern and to my mind demonstrates in the applicant a lack of bona fides in that employees should not resort to veiled insinuations concerning proceedings in this court instead of engaging in honest and open discussion regarding the performance of their duties.  There is no evidence to suggest otherwise than the respondent, in the form of its various managers, was available at all times so that that applicant was able to discuss all aspects of her employment.

In relation to misconduct it was common ground that the applicant verbally abused Mr Duffy.  It is clear from the evidence before this court that the applicant exhibited a total disregard for normal civility and courtesy and placed her employer at risk that a customer or indeed any member of the public may have overheard the applicant use offensive and foul language.  Further, in paragraph 13 of the same affidavit, it is clear the applicant demonstrated no hesitation in indulging in foul and abusive language to fellow employees upon the slightest provocation.

The applicant made much of the incident where it was alleged Mr Tony Baini physically assaulted her.  I note that the assault took place in the middle of the day and it was not until 4.30 that the applicant took any steps, according to the evidence to this court, to do anything about it.  The applicant stated she advised her husband of the incident.  From the evidence, I have to say however, that all forms of physical violence are reprehensible and are not to be tolerated in the workplace or any other place.

Mr Fitzgerald told the court and I find quite properly in the circumstances that he planned to terminate Mr Baini because of the incident, however that Mr Baini resigned before that could occur.  The court heard no evidence from Mr Baini concerning the incident.  The incident does not form part of the applicants allegations that she was terminated and so for the purposes of these proceedings, the incident is not relevant.  I place no weight on the fact that the respondents employees may or may not have inquired as to the well being of the applicant after the incident.  At first the applicant went straight on with her work without missing a beat and secondly to the respondent, observably suffered no ill effects.  It is often the case that the well being of one who maybe proffers extreme provocation is overlooked, sadly.

The court heard much of the applicants' piety and the importance of her religious beliefs and of the respondents respect for that piety and the applicant was allowed to observe religious holidays and not work Saturdays.  The affidavit of Stuart Armstrong specifically indicates the lengths to which her manager would go, at his own expense, to accommodate and respect her religious beliefs.  The applicant was also allowed to finish work early in order to travel home during daylight hours so she should not be working on the Sabbath.  I find it incongruous that the applicant on one hand professes to be a pious religious person and simultaneously on the other hand, is able to verbally abuse fellow workers in disgusting and lewd language should she so feel inclined.

It should be noted in my view that all the witnesses for the respondent treated the conduct of the applicant with extreme distaste and dealt with the subject matter of the applicants language with reluctance.  That attitude was not evident in the testimony of the applicant, in that regard, I find the applicant to be out of touch with reality in that normal people simply do not conduct themselves in that manner, that the applicant did while she was employed by Suttons Motors.

Mr Fitzgerald is the principal dealer of the respondent.  In his evidence, in my view, set the tone and ethic of the respondent.  A new project was starting with new staff and a newer approach to the business of selling automobiles.  The motherhood statements placed before the court by all of the respondents' witnesses demonstrated a work and personal commitment, aimed at achieving the highest result and at establishing a reputation for personal and professional integrity in the industry.  All of which, by her demonstrated attitude, was totally lost upon the applicant.

I place no weight on the evidence as to the respondents practices allegedly adopted in discounting of motor vehicles of sales.  In dealing with this subject, the applicant, to my view, displayed no regard for the truth and it is clear that the price that a vehicle sells for is of paramount importance to a dealer and that any discounting can only be done with appropriate approval.  To quote Mr Fitzgerald, none of the sales team "had authority give away my money".  I found Mr Fitzgerald to be a credible and reliable witness who practised responsible management ideas and kept thorough records.  The incidents of poor conduct indulged in by the applicant during the course of her employment were discussed with the applicant in a fair and responsible fashion and to my mind she was afforded every opportunity to rectify her situation and to improve her work situation.

Paragraph 14 of the affidavit of the applicant sets out where a fellow applicant allegedly used foul and abusive language.  I simply find that an attempt by the applicant to discredit that fellow employee as first the applicant was not affronted by the use or the abuse and secondly, on her own evidence she used such language extremely readily.  In her evidence, both written and delivered vive voce, the applicant stated that towards the end of her employment she was treated unfairly.  As earlier said, I find nothing to support that allegation.  In defending this claim for compensation the respondent says the applicant abandoned her employment.  The respondent, via Mark Fitzgerald, indicated that it was to determine the legality of the position in which it found itself in relation to the future employment of the applicant.

On the evidence of the respondent, before that information could be obtained, the applicant left the premises and in the opinion of the respondent, the applicant thereby abandoned her employment.  The applicant, by her conduct, took the words of Mark Fitzgerald that he had dismissed the applicant.  To my mind, the respondent had formed the view that the employment contract of the applicant should come to an end because of misconduct.  However, the manager Mr Fitzgerald was careful to point out to the applicant that matter was not finalised as advice had to be given as to whether the termination could occur.  Incomplete, was the scenario, that if the advice had come back, that the respondent could not legally terminate the applicant, what then?

It will never be known in the respondent would have terminated the applicant illegally. That is, in contravention of the Industrial Relations Act. It is clear the employment of the applicant may well have continued beyond the point of advice, yet to be sought by the manager Mr Mark Fitzgerald.

According to the applicant, Mr Fitzgerald said words to the effect, "You will be terminated this morning after I have spoken to our lawyers and I am sure you will be talking to yours".  I have to place little weight on that statement by the applicant and I prefer the version given to the court by Mr Fitzgerald.  To my mind, the conduct of Mr Fitzgerald at the time was right and proper.  The words used by the applicant to Mr Duffy, on more than one occasion, in my view amounted to misconduct entitling the employer to terminate the contract of employment, however, that did not happen.

In order to put the matter beyond doubt, the respondent put into place one last check.  However, the applicant did not await the outcome of that check and left the premises of her respondent employer.  She did not return.  Proceedings in the Industrial Relations Court seeking reinstatement and compensation were commenced some 14 days thereafter. It is the finding of this court that the applicant abandoned her employment and accordingly there was no termination of the employment as alleged.

Her intention to abandon her employment was clearly set out in the affidavit of Kevin Libdy and that employment, when carried out, was a repudiation of a contract of employment.  Accordingly, I dismiss the application of Jacqueline Feilich.  I have to say at this stage, having regard for the professional stature of Mr Haylen, it is not my practice to make orders for matters that are not sought, but had an application for costs in this matter been sought, it would have been most seriously considered.

I certify that this and the preceding seven (7) pages are a true and accurate record of the reasons for decision of Judicial Registrar Tomlinson delivered ex-tempore.

Associate:

Date:  3 November 1995

Appearances

For the Applicant

Counsel:  Ms E Brus
Instructed by:               Mr P Howell of Forbes Smith & Co

For the Respondent

Counsel:  Mr W Haylen QC
Instructed by:               Mr J Catanziriti of Clayton Utz