Kennedy v Menzies International (Aust) Pty Ltd

[1997] IRCA 183

DECISION NO:183/97

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
VALID REASON - CONDUCT AND PERFORMANCE -

Workplace Relations Act 1996 ss170DE(1), 170EA,

KENNEDY -V- MENZIES INTERNATIONAL (AUST) PTY LTD
VI 2431 of 1996

Before  :          PARKINSON JR
Place              :          MELBOURNE
Date               :          23  MAY  1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2431 of 1996

B E T W E E N:

Dorothy KENNEDY
Applicant

A N D

MENZIES INTERNATIONAL (AUST) PTY LTD
Respondent

MINUTES OF ORDERS

23  MAY  1997  PARKINSON JR

THE COURT ORDERS THAT:

1. The application pursuant to Section 170EA of the Workplace Relations Act, 1996 be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court            Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2431 of 1996

B E T W E E N:

Dorothy KENNEDY
Applicant

A N D

MENZIES INTERNATIONAL (AUST) PTY LTD
Respondent

REASONS FOR DECISION

23  MAY  1997  PARKINSON JR

This is a decision in relation to an application made pursuant to Section 170EA of the Workplace Relations Act 1996.(‘the Act’)  The applicant was employed as Administration Manager at the respondent’s Morwell premises on 13 May, 1996.  Her employment was terminated by the respondent on 29 August, 1996.  The respondent conducts a cleaning and property maintenance service.  It provides these services to its customers at their premises.  The applicant was employed with an operative probationary period of 3 months, specified in the written agreement, to expire on 12 August, 1996.  The applicant continued in the employment after the expiration of that date.  No step was taken by the respondent to terminate the employment prior to the expiration of the probationary period.  I am satisfied that there is no jurisdictional impediment arising from Regulation 30B(1)(c) to the Court proceeding to hear and determine the application. 

The applicant attended an interview at the respondent’s head office in Melbourne, present at which were Mr. and Mrs. Helps of the respondent and Mr King, the respondent’s Gippsland Branch Manager.  The applicant commenced working at the Morwell Branch after participating in a training and induction program during the week commencing 13 May, at the respondent’s head office in Melbourne. 

The applicant’s duties as described in the duty statement, (Exhibit R2), were to conduct the general administration of the respondent’s office at Morwell, including payroll, debtor management, and general administrative duties, typing of quotes and other documents as required.  The duty statement was signed by the applicant on 13 May, 1996, the day she commenced the employment. 

At the time of the applicant’s employment the Morwell Branch office was staffed by 6 full time employees; the Branch Manager, Mr King, a Senior Contracts Manager, Ms Jolly, three persons employed as contracts supervisors and the applicant as administration manager and an administration assistant who was employed to work on a part-time basis. 

The respondent contends that it had valid reason for the termination of the applicant’s employment based upon her conduct.  In particular it refers to the strained relations between the applicant and other employees, her lack of co-operation with others and her refusal to perform certain tasks allocated to her. 

The evidence of both parties in this proceeding is that the relations between the applicant and the other employees at Morwell were strained within a short period after the applicant commenced.  It is apparent that both parties attribute the responsibility for the poor relations to the other.
The respondent refers to particular incidents occurring after the applicant’s first month of employment.  Mr King’s evidence was that he had in the second month of the employment observed that there was some unrest in the office and that there were often arguments between the applicant and other staff members.  His evidence was that he took the view that they were all grown ups who would sort it out.  The issue of poor staff relations also came to his attention after he made enquiry of the other employees as to their behaviour towards the applicant.  In this regard he was acting upon a complaint by the applicant and a request by her that steps be taken by him to resolve the problem.  In the course of making the enquiry he was informed by other staff members of complaints they had in relation to the applicant’s work performance and her level of co-operation. 

These reports led to a meeting being held, on 23 August 1996, between the applicant, Mr King and the Senior Contracts manager, Ms Jolly, wherein a number of issues were discussed.  Mr King’s evidence was that he made notes of the matters discussed at the meeting and the result of enquires he made in consequence of matters raised by Ms Kennedy at the meeting.  His evidence was that the notes were made shortly after the conclusion of the meeting. 

I accept the evidence of Mr King as to the notes and the circumstances of the typewritten version being produced. The applicant’s evidence as to Mr King reading from what he indicated to be his notes recording the events of the previous meeting, on the occasion of the termination meeting, is consistent with his evidence that he had produced notes of the first meeting.  I am satisfied that the matters set out in Exhibit R2 were discussed at the meeting on 23 July.  It was made clear to the applicant that her duties involved the typing of quotations on request and the general administrative functioning of the office.  This included typing and mailing duties.  It is equally clear that the applicant objected to performing these tasks and continued to object to the performance of these tasks after the review meeting of 23 July. 

It was contended in this proceeding that typing and mailing duties were not identified to the applicant as part of her duties. It is clear from the job description that the position of administration manager involved the broad range of administrative functions necessary to be performed at the branch. I am satisified that this necessarily, in the circumstances of the particular workplace, involved the mailing of the documents produced and the typing of documents on behalf of other employees whose skills or time did not permit them to undertake such functions.  The job description clearly anticipates that the detail of the duties to be performed is subject to the particular needs of the branch and the direction of the branch manager concerned. 

At the meeting on 23 July, the issue of the applicant’s attitude and relations with other employees was raised.  It is apparent from the notes of that meeting and from the evidence of both Mr King and the applicant herself, that by 23 July the applicant had a jaundiced view of her work colleagues.  It is apparent that she was dissatisfied with the workplace and her relations with other employees, including the manager and had formed the view that the other employees were not committed or competent employees.  Mr King by the conclusion of that interview had serious concerns as to applicant’s attitude to her work and her relations with her colleagues. At the conclusion of the meeting the applicant was advised that a follow up review would occur in one month,  and that the respondent expected there to be an improvement in the applicant’s attitude to her job and her attitude towards other staff members.  The applicant was informed that in the event there was no improvement her employment was likely to be terminated. 

The evidence is that little improvement in relations between the applicant and other staff occurred in the following weeks, although Mr King’s evidence was that there was a slight improvement in the applicant’s relations with him.  His observation was however that her attitude and relations with other staff had not improved.  In this regard he referred to 2 incidents in particular.  Days before the 27 August meeting, he had overheard the applicant angrily respond to a request by Ms Jolly that the applicant mail a letter.  His evidence is that he overheard the applicant advise Ms Jolly; “If you want someone to mail the letter go and get a fucking junior”.  A further incident occurred at the conclusion of a discussion between the applicant, Ms Jolly and Mr King, whereupon Ms Kennedy left the discussion in anger and was heard to observe; “cleaners becoming accountants and contract managers, is that where they get their staff from.”  The applicant left the premises on that day on account of illness.  This latter incident occurred on 28 August, 1996. 

On 29 August, 1996 the final interview was held with the applicant.  The discussion at that time included a review of the matters which had been discussed at the first interview on 23 July, 1996, together with a discussion of the additional matters set out above. At the conclusion of the interview Mr King advised the applicant that he would not be offering her permanent appointment.  He was apparently operating under the belief that such a step was required to be taken by the respondent, before the applicant was entitled to treat her employment as continuing.  As I have discussed earlier, the applicant’s employment in fact continued beyond the probationary period.  The applicant was a continuing employee at 29 August, 1996 and the conduct of the respondent on that occasion terminated the employment.  The meeting concluded with the applicant being advised that a payment would be made for notice of 2 weeks. 

The applicant contends that the her conduct and responses were due to the manner in which she was treated by the respondent’s employees from the commencement of her duties at the Morwell Branch and attributable to the fact that the other employees, including the manager, viewed her appointment from the outset as being unnecessary.  This may be so. However the requests made of the applicant, in relation to the performance of administrative duties, were not unreasonable and were not in my view outside of the scope of the duty statement.  Whilst some of the duties may have been less senior than that desired by the applicant, the need for their performance existed and the reality of the employment was that there was no other employee regularly available to perform them. I am satisfied that the applicant’s response to these duties was unreasonable.  I am also satisfied that her demeanour and relations with other employees was affected by the requirement that these duties be performed by her. 

I am satisfied that the respondent had valid reason for the termination of the applicant’s employment based upon the applicant’s conduct particularly on 28 August, 1996 and the operational requirements of the business. The operational requirement being the maintenance of a harmonious and cooperative workplace. There has been no contravention of Section 170DE(1) of the Act. I am satisfied that the applicant was given adequate opportunity to respond to the allegations made against her and that she was sufficiently informed of the matters relied upon by the respondent in terminating her employment. I am satisfied that there has been no contravention of Section 170DC of the Act.

For the reasons set out herein the application is dismissed.

I certify that the preceding six (6) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate      :          

Dated             :          23  May  1997

APPEARANCES

Counsel appearing for the applicant        :          Mr. Scarcebrook
Solicitors for the applicant  :          Scarcebrook & Associates

Counsel appearing for the respondent     :          Mr. Muir

Solicitors for the respondent  :          Tanya Cirkovic & Associates

Dates of hearing  :          3 & 4 April  1997