Jennifer Swapna Nayar and Philip Morris Limited

[1994] IRCA 54

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI-579 of 1994

B E T W E E N:    JENNIFER SWAPNA NAYAR

AND:    
  PHILIP MORRIS LIMITED

COURT:              J.A. RYAN, Judicial Registrar

PLACE:               MELBOURNE

DATE:                  26 September 1994

EX TEMPORE JUDGMENT

Jennifer Swapna Nayar has applied for remedy for termination of employment under section 170EA of the Industrial Relations Act 1988. She has expressed the belief that the termination of her employment is unlawful because it is her position that no reason, valid or otherwise, was given for her termination. She also asserts that she was told that she was being terminated on very thin grounds and she expressed the belief that she was dismissed due to racial discrimination. She has categorised the action of the employer as harsh and has referred to a “high-handed and a whimsical attitude of the employer and its top management.”

I have read the applicant's written submission handed up at the commencement of these proceedings yesterday.  I have read all the documents tendered in evidence by the respondent although I have not studied in detail exhibit R8 which has just been tendered  and comprises the file notes of Janine Hill.  I simply note that they are consistent with the documentary evidence that was tendered in the other exhibits and which I read last night in detail.  Further than that, given that Exhibit R8 is the notes of Janine Hill - her own notes for file purposes - I do not regard them as of being of particular relevance, although they are consistent with the other documentary evidence provided in exhibits R1 to R7.

It is clear that in the first 5½ months of 1994 the applicant failed to achieve the standards of competency expected for an assistant secretary to the executive secretary of the vice president of corporate affairs for the Phillip Morris Group of companies.  The applicant appears to be quite competent in shorthand and typing but failed to adapt to the particular demands of the small, specialised office of corporate affairs in the respondent company.

While the applicant was prepared to concede that everyone is human and makes mistakes, and while she does not exclude herself from such human frailty, she has taken the view that by and large she performed well and that deficiencies identified by her immediate superior, Janine Hill, and the manager of Corporate Affairs, Nerida White, were the result of the actions or omissions of others.  There is ample evidence that Ms Janine Hill in particular, and Ms Nerida White in a sense of more general oversight, and indeed the manager of human resource services, Mr David Lawrie, all discussed performance issues with the applicant.

Ms Hill and to a lesser extent Ms White expressed concerns about performance as it related to the stocking of food and drink and stationery, the proper form of address of letters, particularly to politicians, adequate filing and the importance of cross-referencing, the receipt of phone calls, the recording of phone calls, the operation of the telephone system, appropriate advice to be given by telephone, and the operation of the fax machine and the installation of a new computer-based filing system known as Tracker.

There is a plethora of written material produced electronically, most of it from Ms Hill to the applicant, with a copy to Ms White.  No doubt some of it was irritating and possibly some of it was unnecessary, but taken as a whole, the material documents numerous incidents of operational directions particularly in relation to filing, cross-referencing and the accurate and careful compilation of expense returns, and the stocking of requisites, especially food and drink.

Some of the cross-referencing requirements may have been eccentric, and others incapable of easy prediction and implementation.  Be that as it may, there is scant evidence that the applicant sought adequate assistance and advice from either Ms Hill or Ms White in a genuine attempt to meet the operational requirements in relation to filing or expense claims.

The sworn evidence of the applicant that she considered she was prevented from getting on with more important tasks because of the requirement to undertake what she described as “non-productive” work is revealing.  The applicant identified as non-productive work the opening and cross-referencing of files, price and cost checking, and a market survey on water filters.  I would categorise such tasks as productive in almost any environment, and certainly I would not categorise them as non-productive in a small, specialised, corporate affairs office.

There is no evidence of discrimination against the applicant; none alleged (except in the initial affidavit) and none led.  I do not accept that the attitude of the employer was, to use the words of the applicant, "high-handed and whimsical".  The applicant was given ample oral and written advice.  I pause to note that it is not clear to me that the applicant was adequately trained or equipped to introduce the Tracker system and it would have been preferable if she had been provided at the outset with a written description of her expected duties. Having said that, I do not accept that the applicant sought the assistance she may well have needed and deserved with the Tracker system.

I have concluded that the applicant was terminated for inadequate performance and that in the circumstances the performance overall was inadequate.

I have concluded that in terms of the applicant’s performance, the respondent was unable to locate another suitable position and that the termination, complete with a termination payment well in excess of that required under the contract of employment, was valid and was not harsh, unjust or unreasonable.

The application under 170EA of the Industrial Relations Act 1988 is dismissed.

I certify that this and the preceding page is a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              
Date    :               September 30, 1994
Appearances:
Applicant  :  In person
Counsel for the Respondent             :              C.J. Blanden
Solicitor for the Respondent             :              Freehill Hollingdale & Page
Dates of Hearing  :              25 and 26 September 1994

Judgment  :              26 September 1994