Kellie Stockdale v Network Video and Home Entertainment Experts Pty Ltd T/A Network Video and Home Entertainment
[2011] FWA 4553
•21 JULY 2011
[2011] FWA 4553 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kellie Stockdale
v
Network Video and Home Entertainment Experts Pty Ltd T/A Network Video and Home Entertainment
(U2011/4640)
COMMISSIONER BISSETT | MELBOURNE, 21 JULY 2011 |
Application for unfair dismissal remedy - termination at the initiative of the employer.
[1] This is an application by Ms Kellie Stockdale (the Applicant) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
[2] Ms Stockdale commenced employment with Network Video and Home Entertainment Experts Pty Ltd t/a Network Video and Home Entertainment (Network Video, the Respondent) in December 2009. Her employment was terminated on 27 January 2011. She says she was notified of the termination on 15 October 2010. Ms Stockdale says that she was dismissed from her employment.
[3] Network Video is a marketing and licensee buying group. It has approximately 300 video stores as members. The stores pay a membership fee and Network Video coordinates and negotiates all of the buying and marketing and supplies most of the requirements necessary to run the stores. 1
[4] Ms Stockdale worked for Network Video in a receptionist/administration position. In October 2010 she was directed to do some invoicing work. After two weeks she refused to do the invoicing. Ms Stockdale says that at a subsequent meeting with Ms Keran Wicks, the Managing Director of Network Video, her employment was terminated. The Respondent says that Ms Stockdale and the Respondent mutually agreed to part company and that Ms Stockdale resigned.
[5] Ms Stockdale gave evidence on her own behalf.
[6] Evidence for the Respondent was given by Ms Keran Wicks (Managing Director), Ms Denise Pretty (Office Manager and Personal Assistant to the Managing Director), Ms Dianne Lawler (Rental Manager), Ms Hilary Brown (Financial Controller) and Mr Daryl Robinson (IT Manager).
Evidence
Initial interview and selection
[7] Ms Stockdale applied for the receptionist/administration position with Network Video in response to an advertisement. It is agreed that the advertisement was in similar terms to the advertisement for Ms Stockdale’s replacement.
[8] The advertisement was for a reception/administration specialist. It sought someone who could handle varied clerical tasks; could multi-task; was well presented with good communication skills; could handle computer programs such as Word, Excel and Outlook; was an expert in directing incoming calls and visitors; and was more than ‘just a stereotypical receptionist, capable of handling multiple responsibilities.’ 2
[9] Ms Stockdale gave evidence that she was interviewed for the position by Ms Pretty and Ms Helen McConnell. She says she remembers this clearly as she was to ask for Ms McConnell when she arrived. 3 Ms Stockdale’s evidence is that at the interview she was told she would not have to deal with customer complaints.4
[10] Ms Pretty gave evidence that she interviewed the Applicant with Ms Lawler and that during the interview Ms Stockdale never raised any limitation on the work she would do nor raised the issue of dealing with customer complaints. 5
[11] Ms Lawler gave evidence that she and Ms Pretty interviewed Ms Stockdale and that Ms Stockdale did not raise anything in the interview about not wishing to deal with customer complaints. 6
[12] Following the interview Ms Stockdale was asked to do a half day trial and was subsequently offered the position, which she accepted.
[13] Until the events in October 2010 there appears to have been no issue with Ms Stockdale’s performance.
The invoicing function
[14] In late September Ms Pretty advised Ms Stockdale that she would be given some invoicing functions. Ms Pretty’s evidence is that this work had previously been done by reception for various items such as stickers and key rings. Ms Stockdale would be required to undertake the invoicing function for product (cases) from an external supplier. 7
[15] Ms Pretty further gave evidence that there was no shift in the handling of customer complaints to Ms Stockdale from other parts of the business but it was expected that she would deal with issues arising from the products (cases) she was responsible for. 8
[16] Ms Wicks gave evidence that invoicing had been done by despatch from December 2009 until October 2010. The change made in October 2010 was not just a change to who did the invoicing but also a change to the process of despatching goods so it was no longer done from head office but directly from the supplier. Despatch no longer did the invoicing because it no longer did the despatching. 9
[17] Mr Robinson gave evidence that the system records showed that Ms Stockdale only completed one invoice in the period 1-14 October 2010. 10
[18] Ms Stockdale’s evidence is that her role from 1 October 2010 included ordering cases through the supplier, following through on queries and complaints from stores in relation to these and associated data entry. 11 She stated that she had no problem with undertaking the invoicing function but that she did have trouble dealing with store complaints while trying to run reception.12
[19] Ms Stockdale gave evidence that dealing with the stores and suppliers was the cause of stress to her. In the two weeks after she was given the function she raised concerns with Ms Pretty about missing stock codes and complaints from stores that they were not receiving stock on time. She says she was advised to speak to Steve regarding missing codes. Her further evidence is that the two weeks she spent following up with suppliers and dealing with the stores became too stressful and she no longer wanted to have contact with suppliers. 13
[20] Under cross examination Ms Stockdale said that invoicing was the straw that broke the camel’s back and that her problem related to the stress she was under leading up to being given the invoicing. 14 Ms Stockdale says that she had been dealing with the store complaints for two months prior to being given the invoicing.15
Events of 14 October 2010
[21] Ms Stockdale’s evidence is that on 14 October 2010 several invoices came in and she felt she could not handle them anymore. She took them to Ms Pretty and said ‘I can’t do this anymore’. 16
[22] Ms Pretty raised the matter with Ms Wicks as she wanted Ms Wicks to speak to Ms Stockdale.
The meeting of 15 October 2010
[23] Ms Stockdale’s version of the conversation she had with Ms Wicks on 15 October 2010 is set out in her written witness statement:
Ms. Wicks asked, “What’s the problem doing the duties?”
I said, “It’s not good for my health because the contact with the stores is stressing me. I tend to take on other people’s problems. It is not good for my body and soul. I cannot concentrate on the reception duties when I [sic] dealing with peoples’ complaints.”
Ms. Wicks said, “I need someone who is going to be flexible.”
I said, “I’ve been very flexible over the months and have done duties outside of my role such as emptying ashtrays and general cleaning.”
Ms. Wicks said, “Yes and I was very surprised and that was really great, but I still need you to do the new duties.”
I said, “I can’t do the new duties.”
Ms. Wicks said, “You will have to finish up your employment with us because I need someone who is flexible to do the new duties. But we won’t worry about it now. We will get through the Christmas period first.”
I said, “I think that is a bit unfair but if that is your decision then that is your decision. I can appreciate what you need but that wasn’t the role that I applied for.”
The meeting then finished but I had no idea what was going to happen although I felt that I might be terminated but I also thought that it might blow over and so I would wait and see. 17
[24] Under cross examination Ms Stockdale said she was not given an opportunity at the meeting with Ms Wicks to raise the stress she felt she was under 18 but later said Ms Wicks raised the invoicing issue and she raised the stress issue at the meeting.19
[25] Ms Wicks’ oral evidence is that Ms Stockdale said she did not want to do the invoicing duties. Ms Wicks said it was part of the role and asked her if she was sure she wanted the role if this task was part of it, to which Ms Stockdale said no. 20 Further, when Ms Stockdale said she would not do the invoicing, Ms Wicks asked where the situation left them and Ms Stockdale said she would finish up.21 Ms Wicks then said ‘we’ll get through to Christmas’ and asked Ms Stockdale if this suited her, to which Ms Stockdale answered ‘yes’.22
[26] Ms Wicks’ evidence is that Ms Stockdale indicated that she wanted to leave by stating that she would not do the job that Ms Wicks required of her. 23
[27] Ms Wicks’ evidence is that Ms Stockdale never raised issues of stress in the meeting of 15 October 2010 24 and that Ms Stockdale’s version of the conversation in the meeting is incorrect.
[28] Ms Wicks maintained under cross examination that she did not terminate Ms Stockdale’s employment but that it was mutually agreed that Ms Stockdale would leave.
[29] Ms Wicks cannot recall asking Ms Pretty to advertise the receptionist position following the meeting of 15 October 2010. Ms Pretty gave evidence that she caused the position occupied by Ms Stockdale to be advertised as she was aware that there was an agreement between Ms Wicks and Ms Stockdale that Ms Stockdale would be leaving. 25
The proposed end date of employment
[30] Ms Wicks’ evidence is that it was agreed at the meeting of 15 October 2010 that Ms Stockdale was to work up until 22 December 2010, when her employment would cease. In early to mid December 2010 Ms Stockdale requested this be extended to the end of January 2011. 26
[31] Ms Stockdale’s evidence is that she approached Ms Wicks in early December 2010 and said she was confused about what was happening with her role. Ms Wicks said she understood Ms Stockdale was finishing in December 2010. When Ms Stockdale said they ‘hadn’t really discussed a day’ Ms Wicks replied ‘[w]hen do you want to leave? The end of January?’ 27
[32] Ms Stockdale’s evidence is that she worked up until 22 December 2010 when the business closed for the Christmas break and resumed work on 12 January 2011. She worked for five days and then proceeded on leave. She returned to work on 27 January 2011 when she trained her replacement and finished work on that day.
[33] There is no evidence as to who or how it was decided Ms Stockdale’s last day of employment should be 27 January 2011.
Employment separation certificate and ‘termination’ letter
[34] Ms Stockdale says that in early December she asked Ms Pretty for her termination letter. This was followed up two days later with Ms Wicks who provided her with a letter addressed ‘to whom it may concern’, stating that Kellie was leaving as she did ‘not [wish] to perform some tasks required within the role.’ 28 Ms Wicks says the letter was prepared as Ms Stockdale said she required it for a meeting she had with Centrelink that day.
[35] Ms Stockdale says that on 27 January 2011, the final day of her employment, she was given an employment separation certificate that indicated she had resigned. Ms Stockdale insisted this be changed so that it was accurate. The final certificate indicated ‘unsuitability for this type of work’. 29
[36] Ms Brown gave evidence that the first version of the separation certificate indicated that Ms Stockdale had resigned because that was the advice she had received from Ms Wicks. 30
Ms Stockdale’s medical condition
[37] Ms Stockdale’s evidence is that she went to see her General Practitioner on 26 November 2011. Her General Practitioner’s advice, as contained in an attachment to Ms Stockdale’s written statement, is that Ms Stockdale consulted her regarding stress she was under at work, which exacerbated her anxiety and depression. 31
[38] The evidence of Ms Wicks and Ms Pretty is that Ms Stockdale did not raise her medical condition with them during the events of 14 or 15 October 2010 and Ms Wicks says she was not aware of any medical condition until she received Ms Stockdale’s witness statement.
Submissions
[39] The Applicant submits that her employment was terminated on 15 October 2010 when Ms Wicks said that she would have to finish up because someone more flexible was required in the role. Further, Ms Stockdale submits that the request to take on the invoicing function was not a lawful and reasonable direction and hence a refusal to do that work was not a valid reason for the termination of her employment. Further, she submits that if the refusal to do invoicing was the purported valid reason for the termination, that was waived by the Respondent by allowing Ms Stockdale to continue her reception work without having to do the invoicing role until January 2011 when her employment ended. Ms Stockdale was denied the opportunity to have a support person present at the meeting of the 15 October 2010.
[40] The Respondent submits that it did not terminate Ms Stockdale’s employment but rather that she resigned and that at the time of her resignation it was agreed that she would finish at Christmas. In December 2010 Ms Stockdale sought, and the Respondent agreed, to extend her end date to the end of January 2011.
Was Ms Stockdale dismissed?
[41] In this matter the Respondent claims that the Applicant left her employment as mutually agreed with Ms Wicks and that she was not dismissed.
[42] The Applicant on the other hand claims that her employment was terminated at the meeting of 15 October 2010.
[43] There was some argument with respect to whether there was mutual agreement that Ms Stockdale’s employment would end or if Ms Stockdale resigned. A distinction between the two, in my opinion, is not one that needs to be forensically examined in this matter. The objective intention of the parties is of much greater importance.
[44] For a person to be protected from unfair dismissal under the Act they must have been dismissed.
[45] The Applicant does not claim that she was forced to resign by some conduct of the Respondent but that her employment was terminated by the Respondent. The Respondent on the other hand says the Applicant resigned.
[46] The Act provides that:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[47] The meaning of ‘termination at the initiative of the employer’ was considered by a Full Bench of the Australian Industrial Relations Commission in P. O’Meara v Stanley Works Pty Ltd (O’Meara), 32 who concluded that:
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign. (Footnotes Omitted).
[48] In Re: Moly Mines Limited 33 a Full Bench of the Australian Industrial Relations Commission considered the meaning of the expression ‘termination at the initiative of the employer’ and determined that the relevant principle is: ‘did the employer take some action which is intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end’.34
[49] The Applicant argues that her conversation with Ms Wicks on 15 October 2010 terminated her employment relationship with the Respondent. The question the tribunal has to resolve is whether her view is consistent with an objective analysis of the facts.
[50] With respect to the evidence of what was said in the interview I prefer the evidence of Ms Pretty and Ms Lawler to that of the Applicant. I find that the Applicant did not say that she could not do customer complaints or that it was agreed that she would not be asked to do such work for the Respondent.
[51] It is reasonable for an employer to reorganise the way work is performed. The shifting of functions from one area to another in an attempt to streamline processes or use resources more efficiently is not unusual. It is reasonable within a workplace for an employer to request an employee to undertake functions that are within the expertise of the person and comfortably sit within the scope of work the employee is employed to undertake.
[52] The invoicing function was a small part of the job the Applicant was asked to undertake. It was work that appears to have been well within her capabilities. On the evidence she did only one invoice in a two week period and handed over to Ms Pretty four or five uncompleted invoices. Whether the invoicing had been done by the receptionist in the past is not determinative of whether the request to the Applicant was reasonable and lawful. In any event I accept the evidence of Ms Pretty and Ms Wicks that invoicing for a limited number of products had been done in the past by the reception position and that, following the departure of the Applicant, is being done by the occupant of that position.
[53] The Applicant applied for a receptionist/administration position. The advertisement suggested the position would involve multiple tasks. The Applicant has worked in administrative positions for a substantial part of the last 20 years. She put herself forward for the position with substantial experience and a broad range of skills. 35 I do not consider that the invoicing function was onerous or that it would take up a substantial amount of time in the Applicant’s working week. The job advertisement for the position suggests that a variety of tasks were expected of the position. I do not consider that the Applicant was given any specific undertaking with respect to the invoicing function or having to handle customer complaints that related specifically to the tasks she was responsible for.
[54] In all of the circumstances I find that the direction to the Applicant that she undertake some invoicing duties was reasonable and lawful. I also find that the Applicant was not given an undertaking that she would not have to deal with customer complaints.
[55] With respect to what was said in the meeting between the Applicant and Ms Wicks on 15 October 2010 I prefer the evidence of Ms Wicks to that of the Applicant. There is a consistency in the evidence of all the witnesses for the Respondent that is difficult to manufacture. To accept the evidence of the Applicant with respect to the meeting of 15 October 2010 would require a rejection of much of the evidence of all the other witnesses and there are no grounds on which to do so. Certainly Ms Wicks’ recollection of dates and her attention to detail leaves a lot to be desired. However, this does not suggest that she was not truthful.
[56] It is barely conceivable that a rational employer would call an employee in to discuss a failure to follow a reasonable and lawful direction, terminate their employment for that reason, provide the employee with nine and a half weeks notice and then extend this notice for another five weeks extending over the Christmas close down period (for which the employee would be paid) and a period of annual leave. The Respondent did not provide a letter of termination of employment and, when requested to by the Applicant to do so, provided a letter addressed ‘to whom it may concern’ advising that the employee was leaving.
[57] Viewed objectively the behaviour of Ms Wicks does not suggest she terminated or intended to terminate the employment of the Applicant. Ms Wicks was happy for the Applicant to remain up to, and eventually beyond, Christmas. The Applicant had annual leave approved apparently after 15 October 2010. No letter of termination was given to the Applicant. When she requested a letter of termination she was given a letter addressed ‘to whom it may concern’. This assessment is not to suggest that Ms Wicks handled the situation particularly well. The failure to document the outcome of the meeting of 15 October 2010 is just plain bad management. It does not however alter the objective evaluation of Ms Wicks’ actions.
[58] The behaviour of the Applicant is not behaviour that indicates she believed her employment had been terminated. Certainly she understood her employment was coming to an end but that is different to believing it had been terminated by the employer. In the 14 and a half weeks of notice she received the Applicant did nothing to dispute the termination of her employment or seek to discuss the matter with the Respondent. The Applicant says she thought there would be another meeting but did nothing to follow this through. The Applicant’s demeanour in the witness box suggests a person confident and capable of asserting herself in the workplace. Whilst Ms Wicks may be the Managing Director there were a number of other avenues by which the Applicant could have sought to clarify her position if she did not wish to speak to Ms Wicks directly. This includes speaking to Ms Pretty who, as well as being the Personal Assistant to Ms Wicks was the Office Manager. The Applicant says she did not seek an extension of her employment until the end of January 2011 but at the time her employment was extended she took no action to clarify her status.
[59] In the circumstances of this case Ms Stockdale had a number of choices available to her at and following the meeting of 15 October 2010. She could have agreed to do the invoicing as was reasonably requested of her, she could have sought to discuss alternative arrangements with Ms Wicks, she could have provided evidence of her medical condition from her General Practitioner and she could have sought some clarification of her circumstances. She chose to do none of these but rather accepted an extension of her employment until 27 January 2011 and remained working for the Respondent after she says her employment was terminated with (extensive) notice.
[60] Ms Pretty advertised the position occupied by the Applicant because she understood Ms Wicks and the Applicant had agreed that the Applicant would be leaving. Ms Brown filled in the employment separation certificate in the first instance indicating that the Applicant had resigned because she understood that to be the case.
Conclusion
[61] This is a matter that should never have made its way to the Tribunal. A meeting was held between an employer and employee with both walking away from that meeting with different beliefs as to what the outcome was. Nothing was documented and nothing more was said (save an extension of a date). It defies logic that the Applicant remained with the Respondent for almost 15 weeks following what she says was the termination of her employment by the Respondent without question.
[62] On balance I find that there was agreement at the meeting that the Applicant would resign. The resignation date was determined to be 22 December 2010 but this was ultimately extended to 27 January 2011.
[63] I find that the Applicant has not been dismissed within the meaning of the Act. There is no jurisdiction to deal with the application.
[64] The application is dismissed. An order to this effect will be issued.
COMMISSIONER
Appearances:
G. Dircks for the Applicant.
K. Cochrane, of counsel, for the Respondent.
Hearing details:
2011.
Melbourne:
4 July
1 Transcript PN254.
2 Exhibit A1, attachment KS1.
3 Transcript PN32-3.
4 Transcript PN189.
5 Transcript PN634, 643.
6 Transcript PN570, 578.
7 Transcript PN651-3.
8 Transcript PN647-9.
9 Transcript PN337.
10 Exhibit R4.
11 Transcript PN115.
12 Transcript PN100.
13 Exhibit A1, paragraphs 29-31.
14 Transcript PN112.
15 Transcript PN23.
16 Exhibit A1, paragraph 35.
17 Exhibit A1, paragraphs 42-50.
18 Transcript PN127.
19 Transcript PN151.
20 Transcript PN291.
21 Transcript PN295.
22 Transcript PN311.
23 Transcript PN375.
24 Transcript PN353-63.
25 Transcript PN675.
26 Transcript PN401.
27 Exhibit A1, paragraphs 56-8.
28 Exhibit A1, attachment KS2.
29 Exhibit A1, attachment KS4.
30 Transcript PN447.
31 Exhibit A1, attachment KS5B.
32 AIRC PR973462 (11 August 2006).
33 [2008] AIRCFB 1088 (29 July 2008).
34 [2008] AIRCFB 1088 (29 July 2008), [21].
35 Exhibit R1.
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