Janet Rohozinski v Real Estate Network (Qld) Pty Ltd T/A LJ Hooker Brisbane Central
[2013] FWC 6931
•7 NOVEMBER 2013
[2013] FWC 6931 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Janet Rohozinski
v
Real Estate Network (Qld) Pty Ltd T/A LJ Hooker Brisbane Central
(U2013/8974)
COMMISSIONER SIMPSON | BRISBANE, 7 NOVEMBER 2013 |
Application for relief from unfair dismissal - date of termination contested - application in time - valid reason - defiance of managerial authority - procedural flaws - dismissal not unfair - application dismissed.
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Janet Rohozinski (“the Applicant”) who alleges that the termination of her employment with Real Estate Network (Qld) Pty Ltd T/A L J Hooker Brisbane Central (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.
[2] The application was filed on the 29 April 2013 and conciliation conferences were not successful in resolving the matter. Directions were sent out for the matter to be heard in Brisbane on 16 and 17 September 2013.
[3] The Applicant was employed by the Respondent as a Sales Consultant/Salesperson on 18 July 2012 and dismissed on 23 April 2013. Her period of employment was approximately 9 months. The Applicant represented herself at the hearing on 16 September and the Respondent was represented by Ms Suzanne Cram-Rossiter.
[4] A jurisdictional issue appeared to exist in that the Form 3 filed by the Respondent asserted the Applicant was dismissed on 22 March and this was only reconfirmed on 23 April 2013. If the assertion was correct an extension of time would need to be granted. The Respondent had not agitated the issue at any point leading up to the merits hearing. I advised the parties I would hear both matters together and deal with the jurisdictional issue before the substantive matter in my decision. 1
[5] Part way through the hearing one of the witnesses for the Respondent Mr Mark Robinson advised the Respondent he was unwell and the Respondent subsequently advised they decided not to call him to give evidence. 2
[6] The Applicant is a licensed real estate agent and said she had worked in real estate for many years. She gave evidence that she had worked with Mr Michael Rossiter, the Principal of the Respondent for a few years in Mackay. 3 She said during that time she had achieved entry into the LJ Hooker Captains Club, an award given to high achievers.
Offer of Employment
[7] The Applicant said she was contacted by Mr Rossiter in May/June 2012 and asked if she would be interested in relocating to join his sales team at LJ Hooker Central in Brisbane. The Applicant said Mr Rossiter also invited her sister Di Thompson who was a real estate agent to work for him as well but she did not accept that offer. 4
[8] The Applicant said in her discussions with Mr Rossiter he advised her she would be able to earn at least $150,000 per annum and rather than putting her on retainer he would increase the commission percentage slightly. 5
[9] The Applicant said that as part of the offer Mr Rossiter told her she would be managing the office in the New Year and he would renegotiate her remuneration to take this extra responsibility into account. 6 Mr Rossiter said in his evidence at no time did he offer the Applicant the role of sales manager for Brisbane central.7 8
[10] The Applicant said she was provided an employment agreement and when she queried why the office manager details were not included Mr Rossiter told her he would deal with this in the New Year. 9 The Applicant said she spoke to Mr Rossiter about this in June or July when she meet him at a restaurant.10
[11] She said she asked Mr Rossiter to put in her agreement that she would be taking up the sales manager’s role when he went to Dubai in January, but he said no that they would wait until January when he went away to Dubai. The Applicant claimed Mr Rossiter offered that position and her sister was with her at the time. 11
[12] It was put to the Applicant that Mr Rossiter could not have known about travelling overseas to Dubai at that time as the reason he visited Dubai was to see his daughter who didn’t get a job in Dubai until September. The Applicant said she had no knowledge of why someone could say that, and couldn’t comment. 12
[13] The Applicant’s evidence changed slightly when asked about her claim about being offered the sales manager position. She said she thought that the role was sales manager or the office manager. 13 The Applicants sister Dianne Thompson gave evidence that she was at the meeting where both the Applicant and herself were offered employment in Brisbane by Mr Rossiter. Contrary to the Applicants evidence Dianne Thompson was that the Applicant was not offered the managers role. When it was put to her that there was actually no offer as such for the Applicant to be employed as a manager she responded, “Nothing in writing, it was just a discussion that that we had.”14 When it was put to her again that it wasn’t an offer as such, it was just part of a discussion she agreed with that.15 She also did not recall specific mention of Dubai but that she did recall Mr Rossiter commenting he needed someone to manage the office and sales staff when he was overseas.16
[14] The Applicant agreed that she had spoken to Mr Rossiter about being a trainer. 17 The Applicant agreed she was considering negotiating a contracting relationship instead of an employment relationship with the Respondent but received advice she could not do that so the commission only agreement was made.18 She agreed the commission only arrangement paid a higher commission than if she had gone onto a retainer.19 The Applicant said she commenced on 18 July 2012 and had a good working relationship with co-workers and clients of the agency. She confirmed since commencement she had always been employed on a commission only basis.20
[15] On the basis of the conflict between the evidence of the Applicant and Mr Rossiter concerning whether any offer included an agreement she would be promoted to sales manager at a point after her commencement, on balance I am satisfied no agreement was made between the Applicant and Respondent to this effect. The evidence of Ms Thompson supports this conclusion.
Commencement of Edwards as Sales Manager
[16] The Applicant said Ms Edwards was not introduced as the Sales Manager. It was put to the Applicant by Ms Cram Rossiter that she facilitated a whole team meeting in the boardroom where Ms Edwards was introduced as the Sales Manager but the Applicant was late for that meeting so missed the announcement. The Applicant said she did not remember what comments she made at the meeting. 21
[17] Ms Cram-Rossiter, who is a consultant to the Respondent, and wife of the Director Mr Rossiter said the day Tina Edwards commenced she facilitated a team session for team members to get to know Ms Edwards and the Applicant arrived late. 22 Ms Cram-Rossiter said that when the Applicant was told Ms Edwards was appointed as Sales Manager the Applicant then spoke directly and rudely about some work matters, talking over others including her. Ms Cram-Rossiter claimed it was obvious the Applicant was unhappy about the Respondent inducting a new manager.23 Mr Rossiter said that it was clearly identified that everybody had to report to Ms Edwards because she was brought on as Sales Manager to recruit and increase profitability.24
[18] The Applicant was asked at what point did she accept that Ms Edwards was her Sales Manager and that she reported to Ms Edwards. The Applicant said she wasn’t sure what the question meant. 25 It was put to the Applicant that she would go straight to the Sales Director instead of Sales Manager and therefore at what point did she recognise she reported to a different person and not Mr Rossiter. She responded that she would always irrespective talk to Mr Rossiter.
[19] Ms Edwards said on her second day of having commenced work she and the Applicant were in a vehicle travelling to a property and the Applicant asked her what her role was, and she replied she was the Sales Manager, to which the Applicant asked how she got the role. Ms Edwards said the Applicant asked her what she was paid and she said she would not answer that question. She claimed the Applicant spoke to her in a very direct and cold way. 26
[20] Ms Edwards gave evidence that other staff told her the Applicant claimed she was offered Ms Edwards position and could do a better job than her. Ms Edwards said this made her position awkward. Ms Edwards said that despite the Applicant being told by Mr Rossiter to report to her, the Applicant continued to go directly to Mr Rossiter and would not tell Ms Edwards about her sales activities.
Warnings
First warning 6 February
[21] The Applicant said that during her period of employment she had two warnings. The first was on or about 11 February 2013 issued by Ms Edwards, the Sales Manager, to the whole sales team for not attending a sales meeting of which she said the date had been changed. In her oral evidence she said most other sales members did not attend. 27 She said no one had been reminded of the change and, as a result, no one turned up. The Applicant said the Sales Manager had been present with the staff for the whole of the previous day which was a training day and did not mention the changed meeting date at any time.28
[22] In fact a warning was given to the Applicant by Ms Edwards on 6 February 2013 for being late for a sales meeting. The email stated that this was not the first time this has happened despite previous discussions had with Michael (Mr Rossiter). The email also raised the matter of reports not being provided in a timely way. 29 Ms Edwards said the first warning was at her own instigation whereas the second later warning was given after discussion with Mr Rossiter but was still at her instigation as well.30
[23] The Applicant was asked how often the days and dates for sales meetings were changed. She said after Ms Edwards arrived it was changed from a Thursday to a Tuesday and they started at 8.30am.
[24] The Applicant said the email sent to her from Ms Edwards included a complaint that she had not provided information about open homes and diary matters, and this was simply wrong. The Applicant claimed that she had done everything required. 31
[25] The Applicant claims Ms Edwards did not discuss the warning with her, and when she asked Ms Edwards for a meeting to discuss the warning so she could give her version of events, Ms Edwards said to her she could not work with the Applicant and she believed the Applicant hated her so she could not talk to the Applicant. 32 This is somewhat inconsistent with the Applicants oral evidence as she was asked why she sent an email to the Sales Director in response to the warning from the Sales Manager. She claimed she did speak to Ms Edwards and said she had forgotten and apologised for not being at the meeting.33 The Applicant claimed the only person who went to the meeting was Mark Taylor.34 Ms Edwards refuted the evidence that the Applicant asked to speak to her about the warning, except to say to her “We weren’t told” which Ms Edwards rejected.35
[26] On 8 February Ms Edwards emailed a reminder to staff there would be one on one meeting between 9am and 11am on Monday 11 February. 36
11 February 2013
[27] On 11 February at 10.26am Ms Edwards sent an email to Mr Rossiter and Ms Cram-Rossiter making an official complaint about the Applicant after what she described as an unpleasant one on one meeting she had with the Applicant that day. She complained about the undermining and disrespectful behaviour of the Applicant toward her which was occurring weekly. She complained that over 4 months the Applicant had continued to make an issue over Ms Edwards’s position having been previously promised to her, she contests every decision Ms Edwards makes and belittles her in front of the rest of the staff. Ms Edwards expressed the view in the email that the Applicants unprofessional attitude is, and has been disruptive for the office, does not set a good example and will always make it difficult for Ms Edwards to work with her colleagues in a friendly environment. Ms Edward went on to say she had tried everything possible to try and make it work, but the situation had gone beyond unhealthy. 37
[28] The Applicant sent an email to Mr Rossiter 38 on 11 February complaining about the warning, and the manner Ms Edwards had handled the situation among other things. Mr Rossiter said he followed this up by meeting the Applicant for a coffee. It was his evidence that he explained to the Applicant that she had to work effectively with Ms Edwards, and he also claimed he told the Applicant other staff had complained to him about her attitude toward Ms Edwards. Mr Rossiter said they had to work as a team however the Applicant responded by denying any problem on her part and she believed she was doing her job properly.39 The Applicant agreed others felt the relationship between her and Ms Edwards was not amicable.40
Meeting 12 February
[29] Ms Cram Rossiter put to the Applicant that she met the Applicant on 12 February over the formal complaint made about her by Ms Edwards 41 and that when Ms Cram Rossiter advised her of the complaint the Applicant said words to the effect that she should have gotten in first.42 The Applicant said she did not remember what she said but thought it would have been something like she found it extraordinary.43
[30] The Applicant was referred to the statement of Ms Cram Rossiter 44 regarding the meeting between them.45 The statement set out that at the meeting that the Applicant was told she had to learn how to work with Ms Edwards, and that Ms Edwards had the support of management. The statement claimed the Applicant said she disliked Ms Edwards’s communication style, she was not trying to set up a team, and nothing she did builds up the team.
[31] Ms Cram Rossiter said the Applicant was told if this is how the Applicants behaviour is being seen by others then the employer had a duty to ensure others were not under pressure because of her behaviour. 46 Ms Cram Rossiter said the meeting ended because the Applicant had to go to an appointment.47
[32] It was the Applicants evidence that she did not remember what the issue was out of this meeting. 48 As the Applicants did not have a clear recollection of this discussion in contrast to the clear evidence of Ms Cram-Rossiter I accept the version of Ms Cram-Rossiter of this discussion. The Applicant went on to give evidence that she didn’t ever get what the issue was.49 It seems reasonable to adduce from the evidence that the Applicant did not acknowledge any wrongdoing on her part despite the complaint from Ms Edwards.
Second Warning 26 February
[33] The Applicant said that on 26 February 2013 Ms Edwards left a folded piece of paper on her desk with the second warning for not attending a meeting earlier that day. In her evidence the Applicant said that on the day in question she had contacted one of her colleagues and asked him to let Mr Rossiter and Ms Edwards know that her car had broken down, and she was waiting for the RACQ to tow her car. She said she was surprised to see the warning on her desk and left it on Mr Rossiter’s desk with a request that she would like to discuss it with him. 50
[34] The Applicant said Ms Edwards came to her later that day and told her that it was not enough to contact the office if she could not attend, and that she had to contact Ms Edwards directly. The Applicant said she told Ms Edwards that as she had changed phones, she had not programmed any office numbers in yet and believed contacting her colleague to pass a message on to her was all that she could do in the circumstances. 51 She said in oral evidence the person contacted was Mark Taylor, which appeared to be by text message.52
[35] The Applicant claims that Ms Edwards told her she was lying and she could only contact her directly. In oral evidence the Applicant said Ms Edwards yelled and screamed and said she must contact her directly. 53 The Applicant said that while she was distressed by Ms Edwards’s attitude she did not say anything further to Ms Edwards.54
[36] The Applicant claimed that when she spoke to Mr Rossiter later in the day he told her that he could not give her a valid reason why she had been given the warning in the circumstances. 55 Mr Rossiter denied that he had told the Applicant he could not give her a valid reason for the second warning as claimed by the Applicant.56
[37] In his statement Mr Rossiter said Ms Edwards handed the formal warning to the Applicant and he was on a teleconference at the time. He said the Applicant walked past his desk and slammed the formal warning on his desk without saying anything. He also said the Applicant “slammed it on my desk and stomped out”. 57 He said the Applicant did this with enough force to interrupt his telephone conference. He said she did not sign or acknowledge the formal warning.58 During cross examination Mr Rossiter said that Ms Edwards had issues with the Applicant not turning up to meetings on a regular basis and he said to Ms Edwards “it’s time for written warnings.” Mr Rossiter said because of the relationship between Ms Edwards and the Applicant Ms Edwards was very nervous about doing certain things.59
[38] The evidence of a number of witnesses for the Respondent which is dealt with in more detail below supports a conclusion that Ms Edwards generally did not act in an unprofessional manner toward the Applicant. This evidence makes less likely the claim of the Applicant that Ms Edwards “yelled and screamed” at her as claimed by the Applicant. I am also not inclined to accept the evidence of the Applicant that she was unable to speak, or at least attempt to speak directly with Ms Edwards to advise her of the reason she could not attend the meeting that day. I find it difficult to accept that the Applicant would not have known the office telephone number of her own employer. She decided instead to send a message to another employee contrary to what she had been directed to do in such circumstances.
28 February 2013
[39] Mr Rossiter said he meet with the Applicant to follow up the disciplinary warning on 28 February and pointed out to her issues of concern regarding still not inputting data to the system, and not speaking to Ms Edwards respectfully. Mr Rossiter claimed he told the Applicant she needed to be respectful of Ms Edwards’s position. He also claimed he told her she must attend sales meetings and her attendance had been unsatisfactory. He said the Applicant complained to him that Ms Edwards was not a good manager but that he told her Ms Edwards was her manager and she had to work with her. He said he advised the Applicant to go and speak to Ms Edwards face to face to resolve the problems between them.
[40] On 28 February 2013 at 11.04am the Applicant sent the following email 60 to Ms Edwards under the heading “Working Together”;
“Michael has asked me to say to you that we can work together. I feel this is an unusual situation and have never encountered this before. There is no need for us to be at logger heads with each other.
Regards”
[41] Ms Edwards responded 61 at midday as follows:
“Hi Jan,
Thank you for your email. I thought I should reply via email also, since every time I try to speak to you in person, you seem to have an issue with my use of the English language and my accent. I can only hope that my writing is clearer to you.
I find your choice of words very interesting, as I thought we were working together. My belief is that people should be able to work together because they are willing to, not because they believe someone told them to, which by the way, is not exactly what happened.
I personally am not “at logger heads” with anybody, and it is unusual that you should think so. On the contrary, I believe that Team work is the backbone of every business, and my efforts have and will always be directed to achieving just that.
Kind regards,”
[42] The evidence of the Applicant was that she was not clear on why Mr Rossiter had asked her to speak to Ms Edwards about the matter. 62 This evidence of the Applicant supports a conclusion that the Applicant still did not see any basis for her needing to adjust her behaviour toward Ms Edwards despite what had been said to her by management. The evidence also indicates that there was no direct discussion between the Applicant and Ms Edwards following this exchange as the Applicant soon after became ill and was not at work.63
[43] Mr Rossiter said when he subsequently learned that the Applicant had not spoken to Ms Edwards but sent her an email he became concerned that the Applicant may have no intent to get along with Ms Edwards and did not appear to be willing to address her behaviour constructively. 64
2 March
[44] Mr Rossiter said that on 2 March he received a phone call from the Applicants sister stating the Applicant was ill and going to be hospitalised. The Applicant said that at the beginning of March 2013 she contracted pneumonia and was taken to hospital by ambulance. She said she returned to work on 18 March 2013 and continued to work until Thursday 21 March. Mr Rossiter said that before the Applicant returned to work he arranged to meet with her.
Further Meeting between Applicant and Mr Rossiter
[45] The Applicant said she attended a lunch with Statewide Conveyancing on Thursday 21 March but that as she was so ill Mr Rossiter told her to go home. The Applicant said Mr Rossiter said to her “Jan, please go home as you are sick and your health is more important.”
[46] The Applicant denied being at work on Friday 22 March but said that she had a meeting with Mr Rossiter was on Thursday 21 March. 65 66 The Applicant said Ms Edwards walked away so she wasn’t there for the meeting67 and there was a discussion between Mr Rossiter and herself. She believed Mr Rossiter brought up that he wanted the Applicant to go and speak to Ms Edwards. The Applicant said this discussion occurred on the morning of Thursday 21 March with Mr Rossiter and Ms Edwards but that Ms Edwards left the meeting.68
[47] Mr Rossiter said this meeting was on 22 March, and not the 21 March 69 and was at a coffee shop. He said he asked the Applicant about her health and then told the Applicant there had been ongoing complaints about her not putting data in the systems, not attending sales meetings and still not being respectful to Ms Edwards. He claimed at this point he said “I do not want you back in the office” and claimed to have said it three times and that he meant that her employment was terminated.70 He said the Applicant did not reply and at the time he believed she understood she had been terminated.
[48] The Applicant maintained this discussion was 21 March and not 22 March because it was the same day that staff had lunch with Statewide Conveyancing and she went home after lunch. She said she was standing in the kitchen with the management team and Mr Rossiter told her to go home as she was not well, and she said she went to her sisters and went to bed. 71
[49] The uncontested evidence was that Mr Rossiter sent a text message to the Applicant on the morning of Friday 22 March 2013 saying “Please call me before you come in. I need to go through a few things.” 72Mr Rossiter claimed a meeting did happen later that day and in the course of the meeting he said to the Applicant “I don’t want you back in the office at all.” 73 74 He also said he told the Applicant to “go home”.75 He repeated this later in his evidence.76
[50] The Applicant said on Friday 22 March she was at her sisters and went back to the Doctor and was given another certificate after that. 77 The Applicants sister Dianne Thompson gave evidence that supported the Applicant’s version that she was sent home ill by Mr Rossiter on 21 March and Ms Thompson said she spoke to Mr Rossiter on Friday 22 March because he rang her and said words to the effect “Tell your sister not to return to work until she is better. I have recently lost a friend and don’t want to lose another one.” 78 Dianne Thompson evidence was clear that the Applicant came to her house on the afternoon of 21 March.79
[51] The Applicant was asked what she understood the discussion at the meeting between herself and Mr Rossiter was about. Her evidence was unclear, but it appeared she thought the meeting was something to do with a problem with Ms Edward’s language.
[52] It was put to the Applicant Mr Rossiter was of the impression that the employment relationship was terminated following the meeting between them as there was an inability to come to an agreement on a way forward concerning the relationship between the Applicant and Ms Edwards. The Applicant responded she would have known if that was the case. 80 The Applicant indicated she did not believe there was a serious concern about her employment at the time.81
[53] The Applicant challenged Mr Rossiter about why the HR manager (which I understood to be a reference to Ms Cram-Rossiter) was not told of her alleged termination. Mr Rossiter said to the Applicant during cross examination “I thought you understood what I was saying. You had left. You were away. Then when we got the email saying - whatever it was - that’s when I realised that there were was a miscommunication and that’s why I got Suzanne involved, because I was on the other side of the world..” 82
[54] When asked if she was aware of the need to modify her behaviour in relation to Ms Edwards she answered no. 83 The Applicant agreed harmony within the team was very important. She did not accept her relationship with Ms Edwards was causing disharmony.84
[55] Ms Cram-Rossiter gave evidence she had not been told by her husband that the Applicant had been terminated and she was unaware of this even after her husband had travelled overseas which seems unusual. 85 It was apparent the Applicant was quite ill around the time of 21 and 22 March.
[56] It seems more likely than not that Mr Rossiter intended to communicate to the Applicant that the employment relationship could not continue and was being terminated but failed to effectively do that. He accepted that he did not ask her to return office keys or property of the Respondent. 86 Further no one else on behalf of the Respondent advised the Applicant directly, either orally or in writing between early April 2013 and 23 April 2013 that she had been terminated which also seems odd.
[57] The evidence concerning Mr Rossiter’s conversations with the Applicant and her sister on or after 22 March whilst she was recovering do not indicate that either the Applicant was told her employment was being ended, or that she had any apprehension that there might be a prospect of that happening. It is also inconsistent with the evidence of Ms Thompson who said Mr Rossiter had said to her in a telephone call on 22 March 2013 to tell the Applicant not to come to work until she is better.
[58] Mr Rossiter said he did recall having the conversation with Ms Thompson but then added that he couldn’t remember ever ringing Ms Thompson. He said he did remember ringing the Applicant in the afternoon. 87 Further Ms Edwards also said in her evidence she did not know about the alleged termination of the Applicant until Mr Rossiter raised the matter at the team meeting the following week.88 It also seems odd Mr Rossiter said nothing to Ms Edwards before that time if it were true that the Applicant had been terminated. Mr Rossiter said he overlooked sending a letter confirming termination of employment.89
[59] Based on all of the above I am satisfied on balance that the employment relationship between the Applicant and Respondent had not been terminated by the Respondent in the course of a meeting between the Applicant and Mr Rossiter on either 21 or 22 March, and that the jurisdictional issue regarding whether the application was filed out of time is resolved on the basis that the termination occurred on 23 April, and the application was therefore within time.
Complaints
[60] The Applicant was asked if there were any occasions that it was brought to her attention that a discrepancy or complaint had been made by a client about her work and she replied not that she was aware of. The Applicant was referred to an email dated 22 November 90 from a client complaining about the use of a blue marker pen to cover over an error on an advertising sign. The Applicant recalled the email when shown it and conceded the error was her fault and it did look unprofessional however said the signs are ordered from others who erect them for the Respondent, she spoke to the client and it did not prevent the property from being sold. 91 The Applicant was also referred to a separate complaint about a further error on the internet advertisement. Neither of these matters are particularly important in determining this application.
Phone calls with Mr Rossiter while on leave
[61] The Applicant said she had several telephone conversations with Mr Rossiter when she was away sick. She described the tone of these conversations was to the effect that she should just get better, and to take as much time as she liked, 2 months if needed. 92 She said later it was three calls, or “several times”.93 94 It was put to the Applicant Mr Rossiter spoke to the Applicant once and to her sister once.95 The Applicant appeared to say they spoke twice and she left a message on his phone once.96
[62] The Applicant said on 25 March after some medical tests she rang Mr Rossiter to tell him she was having tests and would ring him with the results. She said Mr Rossiter telephoned her and her sister a number of times while she was ill to see how she was. The Applicant said she rang Mr Rossiter on 2 April 2013 when he was in Dubai.
Sales Meeting Tuesday 26 March
[63] Mr Rossiter agreed that at a sales meeting the following Tuesday he told staff the Applicant was not coming back to work. 97 He said he couldn’t recall if he said it was because of ill health or not.98 Ms Edwards confirmed Mr Rossiter said at that sales meeting the Applicant would not be returning to work.99 Mark Taylor gave evidence that Mr Rossiter said at the meeting that the Applicant was “..unwell and wouldn’t be coming back to work with us.” 100
Applicants Efforts to Return to Work
[64] The Applicant said that she became aware that shortly before she was due to return to work that her name and contact details had been removed from the website and her work given to another agent. 101
3 April 2013
[65] The Applicant said on 3 April 2013, she had spoken to a salesperson in the office to advise she would be returning to work. She said in oral evidence she spoke to a sales person who said “We thought you had resigned.” 102 The Applicant said she got a message from Ms Cram-Rossiter who advised her that Mr Rossiter had contacted her and asked her to ask the Applicant not to come back to work until he had a chance to talk to her to resolve issues. This was consistent with the evidence of Ms Cram Rossiter.103 Ms Cram Rossiter then sent an email to the Applicant on the same day confirming the conversation.104
5 April 2013
[66] The Applicant sent an email to Ms Edwards at 9.51am on 5 April 2013 advising she had received phone calls from clients asking why they were receiving marketing material in Ms Edwards’s name. She also raised that she had received phone calls about it being said at the sales meeting that she had resigned and had left. She stated in the email she had not resigned and asked to be advised about these matters and that she had been deleted from the website. 105
[67] The Applicant said on the same day she received an email from Ms Edwards stating that the staff had been told that she would not be returning to work because of ill health and that Ms Edwards had taken over her marking work and clients. 106 The Applicant said that on 5 April 2013 she received an email from Ms Suzanne Cram-Rossiter confirming she should wait until 22 April 2013 and a discussion with Mr Rossiter before returning to work.107
13 April 2013
[68] The Applicant said she wrote to Mr Rossiter on 13 April 2013 asking for an explanation about her name being removed and her work being given to other agents, but said she received no response. She said on 22 April she received an email from Mr Rossiter asking her to meet him at 3pm the next day. She said she did not know what was meant by the expression “unresolved issues” in the email.
Meeting at Coffee Shop 23 April
[69] The Applicant said she met Mr Rossiter at the coffee shop near the office at 3pm. She said in the course of the conversation Mr Rossiter apologised for asking the Applicant to relocate to Brisbane, that he would like her to resign, and if the Applicant did not resign he would have to fire her. In his evidence Mr Rossiter accepted he asked the Applicant to resign. 108
[70] The Applicant said when she asked Mr Rossiter why, he replied because she was not a team player. The Applicant said she refuted this. The Applicant said Mr Rossiter then asked for the key to the office back and the Applicant agreed but said she wanted to collect her property from the office. 109 110 The Applicant said she went back to the office and retrieved her things and returned the key.
[71] Mr Rossiter claimed he said that “I’ve had complaints from quite a few of the staff about you undermining Tina’s authority. You have to finish up, I want you to resign.” He said the Applicant said that he would have to fire her. 111 In cross examination the Applicant added that she said to Mr Rossiter that she had backed the wrong horse.112
Confirmation of Termination
[72] The Applicant said that until she received the Respondents response to her Unfair Dismissal Application she had never seen or received the letter dated 8 May 2013 concerning her termination and employment separation certificate. She reaffirmed that evidence in cross examination. 113 The Applicant put it to Mr Rossiter that the separation certificate said the date of termination was 23 April which he accepted.114
Relationship between Applicant and Edwards
[73] Mark Taylor, a Sales Partner corroborated the evidence of Ms Edwards in that his evidence was the Applicants attitude toward Ms Edwards was very poor. He said the Applicant was argumentative towards Ms Edwards in sales meetings and generally in the office. He said the Applicant failed to show at most compulsory sales meetings. 115 Mr Taylor said at Tuesday morning sales meetings Ms Edwards would ask each salesperson how they were going and they would share what they had done but the Applicant was reluctant to answer and Taylor claimed it was obvious she did not want to share details with Ms Edwards.116 He also said at sales meetings the Applicant disagreed with most of Ms Edwards opinions. He said this made meetings uncomfortable for the rest of the staff.117
[74] Taylor said the issues escalated between them over time. Mr Taylor claimed Ms Edwards made numerous attempts to resolve tension between her and the Applicant. Mr Taylor said he observed Ms Edwards being upset and teary 3 or 4 times and he attributed this to the Applicant attitude toward Ms Edwards. 118
[75] Simon Chien, another Sales Partner employed by the Respondent gave similar evidence to that of Mr Taylor. He gave a specific example of the Applicant attempting to talk over Mr Rossiter and Ms Edwards when they were announcing business strategies at a meeting. He said the Applicant kept interrupting. 119 Mr Chien also gave evidence he saw Ms Edwards upset after interactions with the Applicant, and that the Applicant would interrupt Ms Edwards in sales meetings and was disruptive in meetings. Like Mr Taylor, Mr Chien said he did not observe Ms Edwards act inappropriately toward the Applicant but that when Ms Edwards would say hello to the Applicant she would walk straight past and not acknowledge her.120
CONSIDERATION OF RELEVANT FACTORS
Valid Reason related to capacity or conduct (including its effect on the safety and welfare of others)
[76] Somewhat revealing was the closing submission of the Applicant at the hearing where she said she felt she had no real issues with the Respondent. The single biggest issue from the Applicant’s perspective was the difficulty she had in understanding how it could be that the Respondent believed she had been terminated without her knowing, and having to wait until 23 April to be told that she was terminated. 121
[77] It appeared to me that the Applicant genuinely did not understand at the time why she was being terminated even on 23 April 2013. She said at the time she was one of the best performers in the office, and that she said she got pneumonia. 122 The Respondent said that despite informal discussions and two formal warnings unfortunately the Applicant did not seem to have the level of self-awareness or acceptance following those discussions.123
[78] The evidence makes clear the relationship between Ms Edwards as Sales Manager and the Applicant had become unworkable, and that on the evidence it appears this was principally due to the conduct of the Applicant and not Ms Edwards. The Applicants conduct was impacting on the ability of Ms Edwards to be effective in her role, which was impacting on the wider business. The Respondent could not allow this to go on in the face of the complaints from Ms Edwards. In matters related to conduct the tribunal must determine whether the conduct occurred.
[79] In all of the circumstances for the reasons set out above I am satisfied that on the balance of probabilities it is more likely than not that the conduct alleged against the Applicant in term of her conduct referred to in the two warnings, and also more broadly her conduct directed at Ms Edwards as claimed by a number of witnesses for the Respondent did occur, and that the conduct of the Applicant gave the Respondent a valid reason for termination based on the Applicants repeated defiance of Ms Edwards managerial authority and its wider impact on the business.
Whether the person was notified of the reason
[80] The Applicant was issued two warnings in regard to the issue of attendance at meetings on 6 February and 26 February but from the evidence it is clear those warnings were symptomatic of a broader issue which was the inability of the Applicant to accept Ms Edwards as her manager. The first warning raised a number of other matters. The evidence supports a finding that the Applicant was also spoken to informally by Ms Cram Rossiter on 12 February and Mr Rossiter on 28 February about her attitude toward Ms Edwards although the Applicant appeared unprepared to accept blame on her part during those discussions.
[81] The Applicant then had a period off work due to illness and Mr Rossiter claimed to have terminated her employment at a meeting on 21 or 22 March following her return but for reasons set out above I have already found he did not. The evidence is that the Applicant had medical certificates to cover the period from 25 March through to 8 April 2013 but on wanting to return to work was advised not to. Mr Rossiter did advise of the Applicant the reasons for termination were based on her conduct toward Ms Edwards during the meeting on 23 April.
Whether the person was given an opportunity to respond to any reason related to capacity or conduct
[82] What makes this matter somewhat unusual is the chronology of events. There is a significant gap between the time of the meeting in March where Mr Rossiter claimed to have terminated the Applicant but I have found did not, and the subsequent meeting on 23 April when the Applicant was ultimately terminated. The manner in which Mr Rossiter on behalf of the Applicant handled the decision to terminate the Applicant was far from satisfactory in that for a period of about one month the Applicant understood she remained an employee whilst at the same time representatives of the Respondent were advising staff she was no longer employed. This had the unfortunate consequence of the Applicant learning of this information being communicated to other employees through others, rather than directly from the Respondent.
[83] The Applicants email to Ms Edwards on 28 February 2013 appeared to be the final straw in the mind of Mr Rossiter in wanting to bring the matter to finality but intervening health issues for the Applicant, and Mr Rossiters mishandling of the March meeting led to the matter drawing out until late April.
[84] Despite the poor handling of the matter I am satisfied however that the Applicant was given several opportunities to respond to the issues that ultimately became the reasons for termination, namely those raised by Ms Edwards in the two warnings and further raised by Ms Cram Rossiter and Mr Rossiter in separate discussions about her conduct toward Ms Edwards.
any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
[85] The Applicant said she was never given the opportunity to have a support person. 124 It was accepted by the Respondent that it may have been remiss in not advising the Applicant she could have a support person with her for the discussion on 23 April.125 It was said in closing submissions that the Respondent had now developed clear exit procedures and that due process is something that the organisation has taken on board to make sure this won’t happen again. 126 It is clearly too late for such changes to have any benefit for the Applicant, however the consideration in the legislation goes to whether the Respondent unreasonably refused a request from the Applicant to have a support person. It would have been expected given the earlier warnings and the direction not to return to work pending a further meeting that by 23 April the Applicant should have been aware her employment was in jeopardy but made no request for a support person to attend that meeting, or that the meeting be held over until a support person was available.
if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
[86] To the extent that the matter pertained to unsatisfactory performance the Applicant was given warnings on 6 February and 26 February. The evidence indicates however performance issues were secondary, the primary reason for termination was her conduct toward Ms Edwards referred to above and she was warned about that conduct.
the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
[87] Mr Rossiter advised the Respondent employed approximately 84 employees. 127 Given the Respondent’s structure and the nature of the industry it was highly decentralised.
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
[88] Given the structure of the business it did not have centralised human resource expertise. The evidence was Ms Cram Rossiter had expertise in this area and was engaged on a consultancy, and not a full time basis.
(h) any other matters that the FWC considers relevant.
[89] There are no other matters that I consider relevant.
CONCLUSION
[90] The determination of an unfair dismissal application requires the weighing of the various considerations under section 387 set out above. Given the finding that the Respondent had a valid reason for termination it would require significant failings on the part of the Respondent in regard to other factors under section 387 in order to find the dismissal was unfair.
[91] As I have already stated above the failure on the part of the Respondent to communicate its decision to terminate the Applicant in March lead to the very unfortunate consequence for the Applicant of an unnecessary period of uncertainty and stress. However based on my findings above I have concluded that despite these failings on the part of the Respondent in the handling of the matter they do not render the decision to terminate unfair. On that basis the application must be dismissed.
COMMISSIONER
Appearances:
Ms Rohozinski the Applicant.
Ms Cram-Rossiter for the Respondent.
Hearing details:
2013.
Brisbane:
16 September 2013
Printed by authority of the Commonwealth Government Printer
<Price code C PR541736>
1 Transcript dated 16 September 2013 PN 9 to PN 11
2 Transcript dated 16 September 2013 PN 806
3 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 3
4 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 6
5 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 8
6 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 9
7 Transcript dated 16 September 2013 PN 781
8 Exhibit 6 Statement of Michael Rossiter dated 25 July 2013 paragraph 11
9 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 10
10 Transcript dated 16 September 2013 PN 130
11 Transcript dated 16 September 2013 PN 89 to 90
12 Transcript dated 16 September 2013 PN 133
13 Transcript dated 16 September 2013 PN 134
14 Transcript dated 16 September 2013 PN 662
15 Transcript dated 16 September 2013 PN 684
16 Transcript dated 16 September 2013 PN 660
17 Transcript dated 16 September 2013 PN 145
18 Transcript dated 16 September 2013 PN 139
19 Transcript dated 16 September 2013 PN 148
20 Transcript dated 16 September 2013 PN 124
21 Transcript dated 16 September 2013 PN 149
22 Exhibit 5 Statement of Suzanne Cram-Rossiter dated 26 July 2013 paragraph 4
23 Exhibit 5 Statement of Suzanne Cram-Rossiter dated 26 July 2013 paragraph 8
24 Transcript dated 16 September 2013 PN 187
25 Transcript dated 16 September 2013 PN 158
26 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 paragraph 4
27 Transcript dated 16 September 2013 PN 80
28 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 16
29 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 paragraph 39 attachment TFE5
30 Transcript dated 16 September 2013 PN 1287 to 1288
31 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 17
32 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 18
33 Transcript dated 16 September 2013 PN 180
34 Transcript dated 16 September 2013 PN 182
35 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 paragraphs 43 to 44
36 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 paragraph 39 TFE 6
37 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 attachment TFE 8
38 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 19 attachment 3 to 4
39 Exhibit 6 Statement of Michael Rossiter dated 25 July 2013 paragraph 46 to 47
40 Transcript dated 16 September 2013 PN 218
41 Transcript dated 16 September 2013 PN 245
42 Transcript dated 16 September 2013 PN 230 to 231
43 Transcript dated 16 September 2013 PN 235
44 Exhibit 5 Statement of Suzanne Cram-Rossiter dated 26 July 2013 paragraphs 9 to 12
45 Transcript dated 16 September 2013 PN 247
46 Exhibit 5 Statement of Suzanne Cram-Rossiter dated 26 July 2013 paragraph 16
47 Exhibit 5 Statement of Suzanne Cram-Rossiter dated 26 July 2013 paragraph 19
48 Transcript dated 16 September 2013 PN 250
49 Transcript dated 16 September 2013 PN 253 to 254
50 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraphs 20 to 22
51 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 23
52 Transcript dated 16 September 2013 PN 96 to 98
53 Transcript dated 16 September 2013 PN 101
54 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 24
55 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 25
56 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 paragraphs 56 to 65
57 Transcript dated 16 September 2013 PN 1126
58 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 paragraphs 50 to 55
59 Transcript dated 16 September 2013 PN 1116
60 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 attachment TFE 11
61 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 TFE 120
62 Transcript dated 16 September 2013 PN 261 to 265
63 Transcript dated 16 September 2013 PN 281
64 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 paragraph 67
65 Transcript dated 16 September 2013 PN 104
66 Transcript dated 16 September 2013 PN 303 to 310
67 Transcript dated 16 September 2013 PN 105
68 Transcript dated 16 September 2013 PN 314
69 Transcript dated 16 September 2013 PN 922
70 Exhibit 8 Statement of Tina Edwards dated 29 July 2013 paragraph 83
71 Transcript dated 16 September 2013 PN 106
72 Transcript dated 16 September 2013 PN 956 to 983
73 Transcript dated 16 September 2013 PN 922
74 Transcript dated 16 September 2013 PN 994
75 Transcript dated 16 September 2013 PN 989
76 Transcript dated 16 September 2013 PN 1158
77 Transcript dated 16 September 2013 PN 107
78 Exhibit 4 Statement of Diane Thompson dated 8 July 2013 paragraph 8
79 Transcript dated 16 September 2013 PN 672
80 Transcript dated 16 September 2013 PN 475
81 Transcript dated 16 September 2013 PN 477
82 Transcript dated 16 September 2013 PN 1145
83 Transcript dated 16 September 2013 PN 493
84 Transcript dated 16 September 2013 PN 507
85 Transcript dated 16 September 2013 PN 716 to 723
86 Transcript dated 16 September 2013 PN 1189
87 Transcript dated 16 September 2013 PN 1018 to 1023
88 Transcript dated 16 September 2013 PN 1319
89 Exhibit 6 Statement of Michael Rossiter dated 25 July 2013 paragraph 86
90 Exhibit 3 Email from A Cheen to Jan Rossiter dated 22 November 2012
91 Transcript dated 16 September 2013 PN 388
92 Exhibit 1 Statement Janet Rohozinski dated 4 September 2013 paragraph30
93 Transcript dated 16 September 2013 PN 283
94 Transcript dated 16 September 2013 PN 291
95 Transcript dated 16 September 2013 PN 293
96 Transcript dated 16 September 2013 PN 293
97 Transcript dated 16 September 2013 PN 997
98 Transcript dated 16 September 2013 PN 999
99 Transcript dated 16 September 2013 PN 1298
100 Transcript dated 16 September 2013 PN 1435
101 Statement of Janet Rohozinski dated 4 September 2013 paragraph 34
102 Transcript dated 16 September 2013 PN 111
103 Exhibit 5 Statement of Suzanne Cram-Rossiter dated 26 July 2013 paragraph 23
104 Exhibit 5 Statement of Suzanne Cram-Rossiter dated 26 July 2013 attachment SC2
105 Exhibit 5 Statement of Suzanne Cram-Rossiter dated 26 July 2013 attachment SC3
106 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 36
107 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 37
108 Transcript dated 16 September 2013 PN 1198
109 Exhibit 1 Statement of Janet Rohozinski dated 4 September 2013 paragraph 42
110 Transcript dated 16 September 2013 PN 115
111 Exhibit 6 Statement of Michael Rossiter dated 25 July 2013 paragraphs 88 to 90
112 Transcript dated 16 September 2013 PN 572
113 Transcript dated 16 September 2013 PN 622
114 Transcript dated 16 September 2013 PN 1299
115 Exhibit 9 Statement of Mark Taylor dated 26 July 2013 paragraph 7
116 Exhibit 9 Statement of Mark Taylor dated 26 July 2013 paragraph 12
117 Exhibit 9 Statement of Mark Taylor dated 26 July 2013 paragraph 17
118 Exhibit 9 Statement of Mark Taylor dated 26 July 2013 paragraph 22
119 Exhibit 10 Statement of Simon Chien dated 26 July 2013 paragraphs 4 to 5
120 Exhibit 10 Statement of Simon Chien dated 26 July 2013 paragraph 8 to 11
121 Transcript dated 16 September 2013 PN 1631 - 1638
122 Transcript dated 16 September 2013 PN 1645
123 Transcript dated 16 September 2013 PN 1651
124 Transcript dated 16 September 2013 PN 1631
125 Transcript dated 16 September 2013 PN 1651
126 Transcript dated 16 September 2013 PN 1654
127 Transcript dated 16 September 2013 PN 1632
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