Maria D'Ortenzio v Charles Parletta Real Estate Pty Ltd T/A LJ Hooker Glynde - [2018] FWC 1002

[2018] FWC 1002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maria D’Ortenzio

Charles Parletta Real Estate Pty Ltd T/A LJ Hooker Glynde

(U2017/8572)

Commissioner Platt

ADELAIDE, 20 FEBRUARY 2018

Application for an unfair dismissal remedy – valid reason – dismissal not harsh, unjust or unreasonable – application dismissed.

Summary

On 8 August 2017, Ms D’Ortenzio lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer Charles Parletta Real Estate Pty Ltd T/A LJ Hooker Glynde (LJ Hooker Glynde) on 7 August 2017.

The matter was arbitrated on 29 and 30 November 2017. Mr Blairs of counsel represented Ms D’Ortenzio and Mr Short of counsel represented LJ Hooker Glynde. Permission was granted under s.596(2) of the Act.

There was no dispute that Ms D’Ortenzio was protected from unfair dismissal at the relevant time pursuant to s.382 of the Act.

Ms D’Ortenzio gave evidence on her own behalf and led evidence from:

· Pasquale Mazzone
· Mario Bonomi
· Phillip Matthews
· Lena Athanasiou

LJ Hooker Glynde provided witness statements and led evidence from:

· Charles Parletta
· Alex Humphrys
· Antonietta Conti
· Jenny D’Angelo
· Sharaze Pentland
· Rod Adcock

The position of Ms D’Ortenzio is summarised as follows:

·Ms D’Ortenzio commenced employment with LJ Hooker Glynde in 1990 progressing to Senior Property Manager.
·Ms D’Ortenzio was not responsible for the performance of HR functions.
·Ms D’Ortenzio’s work performance was never questioned prior to the events which led to the dismissal.
·For almost all of the employment period she enjoyed a good working relationship with Mr Parletta and any breakdown was limited to her relationship with Mr Parletta as a shareholder.
·She communicated with the Commonwealth Bank of Australia and the National Australia Bank as a shareholder and she was entitled to make those enquiries.
·She communicated with Mr Adcock (LJ Hooker State Manager) with the intention of drawing attention to conduct which could impact on the LJ Hooker business.
·She communicated with Mr Bonomi (LJ Hooker St Peters) with the intention to prevent herself from being tarred with any impropriety arising from Mr Parletta’s conduct.
·Ms D’Ortenzio was invited to respond to the allegations in relation to the performance of HR functions and concerns in relation to transactions made in respect of services provided to Mr Mazzone and Mr Minicozzi, but she was not given an opportunity to respond to the other reasons relied upon for her dismissal.
·Ms D’Ortenzio was dismissed with effect from 7 August 2017 as a result of the HR Room Report findings, for serious misconduct and because the working relationship with Mr Parletta had broken down.
·Ms D’Ortenzio contends there was no valid reason to terminate her employment.
·Ms D’Ortenzio contends that the dismissal was harsh, unjust and unreasonable.

The position of LJ Hooker Glynde is summarised as follows:

· From 2015 the working relationship between Ms D’Ortenzio and Mr Parletta began to deteriorate. By the time of the dismissal, Ms D’Ortenzio’s working relationship with Mr Parletta and other employees was dysfunctional.
· Ms D’Ortenzio committed two acts of misconduct, one concerned requests for information from the Commonwealth Bank of Australia and the National Australia Bank, the other concerned communications with Mr Adcock (State Manager LJ Hooker) and Mr Bonomi (LJ Hooker St Peters) where it was alleged that Mr Parletta had acted improperly.
· Ms D’Ortenzio was responsible for the conduct of the HR function within the business and was accountable for the deficiencies revealed by the HR Room Report.
· Ms D’Ortenzio was afforded procedural fairness.
· LJ Hooker Glynde had a valid reason to dismiss Ms D’Ortenzio.
· The dismissal was not harsh, unjust or unreasonable.

The Witness Evidence

The two key witnesses in this matter are Ms D’Ortenzio and Mr Parletta. Their evidence was lengthy and traverses numerous matters relied upon by LJ Hooker Glynde to support the dismissal. I have not tried to detail every piece of their evidence, but have summarised their evidence and structured that summary in a manner intended to address each of the valid reasons identified by the submissions. Whilst all of the evidence could be said to be relevant to the working relationship, I have separated out the evidence on the alleged acts of misconduct for clarity. The witness evidence of the other witnesses was not so lengthy and did not address all of the alleged valid reasons and has not been divided by topic.

Maria D’Ortenzio

Ms D’Ortenzio provided a witness statement,[1] supplementary statement[2] and a statement in reply to the statement of Ms Sharaze Pentland.[3] In addition, LJ Hooker Glynde tendered a statement made by Ms D’Ortenzio which appears to have been prepared for another proceeding.[4] Ms D’Ortenzio’s evidence is relevantly summarised as follows.

(a) Ms D’Ortenzio’s role

Ms D’Ortenzio was first employed in 1990 as Property Sales Representative at LJ Hooker Glynde. Ms D’Ortenzio’s duties changed over the course of her employment with tasks like helping out in the office, performing tasks for Property Managers and office administration added. Ms D’Ortenzio reported to Mr Charles Parletta.

In 1995, Ms D’Ortenzio stopped working as a full time Property Sales Representative and took over responsibility for:

· Organising wages for all employees.
· Ms Berno’s residential property management role.
· Out of hours property management calls.

By 1997, Ms D’Ortenzio had increased the property management portfolio to 210 properties and, around the year of 2000, Mr Parletta promoted her to Senior Property Manager and engaged personnel to assist Ms D’Ortenzio.

Ms D’Ortenzio’s duties as Senior Property Manager involved:

·Bringing in new business through word of mouth inquiries.
·Placing advertisements offering the service of the company in the Messenger Express and other media.
·Maintaining good relationships with landlords.
·Appraising new residential properties for rental and negotiating with landlords on their rent requirements.
·Attending to non-complying tenants and dealing with evictions.
·Assisting landlords in refurbishment of properties for letting.
·Attending at tribunal hearings involving disputes with tenants.
·Dealing with the formalities of completing agreed tenancy arrangements (e.g. documentation, approval of prospective tenants).
·Supervising other property managers.
·Implementing more efficient practices on an ongoing basis.
·Bringing in new clients or expanding the purview of the Company’s management of properties of existing clients.
·Supervising the residential Property Managers of the Company.
·Supervising the commercial Property Managers of the Company from time to time, and assisting them when they came to me with complex issues.

Ms D’Ortenzio denied being the HR Manager for the business and submitted that matters relating to human resources were dealt with in consultation with Mr Parletta.

(b) Shares

On several occasions prior to 2007, Mr Parletta had told her that he would sell the business when he reached the age of 60.

In 2007, Mr Parletta gifted Ms D’Ortenzio 10% of the shares in LJ Hooker Glynde, in 2016 he gifted an additional 5%.

In 2008, Ms D’Ortenzio was given a share certificate.

In 2015, Ms D’Ortenzio also regained contact with her grandson. Ms D’Ortenzio wanted to spend weekends with her family and especially her grandchild and did not wish to continue with sales work. She discussed the matter with Mr Parletta.[5]

In 2015, Ms D’Ortenzio asked Mr Parletta about the sale of the business. This conversation was repeated several times over the next year. Ms D’Ortenzio formed the view that Mr Parletta was evading the topic.

In around 2015, Ms D’Ortenzio participated in a meeting with Mr Parletta and Mr Rod Adcock where the topic of succession planning was raised. Ms D’Ortenzio had previously advised that she wanted to exit the company after the sale of her shares or the sale of the business. Mr Parletta said he would sell the business when he was ready and no one would tell him what to do. Ms D’Ortenzio felt that her relationship with Mr Parletta began to deteriorate from this point.

In February 2016, Ms D’Ortenzio was thinking about working less hours and she wanted her shares to be paid out.

In February 2016, there was a meeting between Mr Parletta and Ms D’Ortenzio in the presence of Ms D’Ortenzio’s mother, about when the sale of the business would occur. The meeting ended without resolution and with Ms D’Ortenzio becoming extremely angry.

By letter dated 9 February 2016,[6] Ms D’Ortenzio advised Mr Parletta that she was taking three weeks’ sick leave. Ms D’Ortenzio expressed the view that Mr Parletta’s SMS account of the prior meeting[7] was not accurate and put her view that Mr Parletta was abusive, disrespectful and did not value the contribution she had made to LJ Hooker Glynde.

On 15 February 2016, Mr Parletta sent Ms D’Ortenzio a SMS message to the effect that he might not be ready to sell the business.[8]

On 8 August 2016, Mr Parletta agreed to Ms D’Ortenzio driving the sale process with his assistance if required.[9] At this point Ms D’Ortenzio had the belief that in the absence of a sale, Mr Parletta would pay out her shares.[10]

(c) Wage Rate

Ms D’Ortenzio contends she reached agreement with Mr Parletta in 2015 to increase her wage to $50 per hour on the basis that Mr Parletta’s effective income (when combined with his wife’s income) was also $50 per hour.[11]

The matter was the subject of a discussion which became heated.[12] Ms D’Ortenzio prepared a document which detailed what she wanted. Ms D’Ortenzio suggests that Mr Parletta was aware of and agreed that her wage would be $50 per week.[13]

The agreement was not recorded in writing as it was not the practice to record anything in writing, that being the ‘culture of the business’.[14]

(d) Working relationship

Ms D’Ortenzio commenced a relationship with Mr Minicozzi in 2015. At the time, Mr Minicozzi provided legal advice to LJ Hooker Glynde.

In November 2016, Ms D’Ortenzio unilaterally reduced Ms D’Angelo’s car allowance. Ms D’Ortenzio rejected the contention that the loss of a large property management contract by Ms D’Angelo prompted her decision and suggested the allowance was reduced as a result of the number of properties managed.[15]

In early 2017, there were a number of meetings with LJ Hooker St Peters concerning a proposal to purchase LJ Hooker Glynde. Mr Minicozzi prepared a sale agreement which was rejected by Mr Parletta.

On 25 January 2017, Ms D’Ortenzio gave Mr Parletta a letter[16] in the presence of Ms Conti which expressed her view that Mr Parletta was not interested in selling the business to LJ Hooker St Peters, urged him to pursue their offer, reminded him of the commitment he made on 2 September 2016,[17] and stated if Mr Parletta failed to take ownership of the transaction and drive, she would hold him accountable. Ms D’Ortenzio contended that Mr Parletta’s behaviour and conduct was causing her much stress and concern. In cross-examination Ms D’Ortenzio explained the need for a witness to be present as she did not trust Mr Parletta to acknowledge that he had received the letter.[18]

On 27 January 2017, Ms D’Ortenzio advised Mr Parletta in writing that she was offended by Mr Parletta’s response when he was handed the 25 January 2017 letter, that she was not prepared to meet with him because of his behaviour and that they should communicate in writing so as to prevent any misunderstanding and emotional outbursts. Her letter stated ‘there were no alternatives open now to the two of us’. In cross-examination Ms D’Ortenzio suggested that these comments only applied to the share dealings.[19]

Ms D’Ortenzio suggested her relationship with Mr Parletta really went downhill after the sale of the business to LJ Hooker St Peters was rejected by Mr Parletta in February 2017. Ms D’Ortenzio contends that Mr Parletta became difficult to work with and communication had broken down with Mr Parletta largely ignoring her.[20]

On 4 April 2017, Ms D’Ortenzio took more sick leave as a result of the stress of the situation. When Ms D’Ortenzio returned to work on 10 April 2017, Mr Parletta had taken some of her responsibilities away by hiring a property Sales Representative without her involvement and directed that the keys to the office safe be returned to him.

On or about 13 April 2017 at a meeting with Mr Parletta (and also attended by Mr Minicozzi) to discuss the shareholding issues, Ms D’Ortenzio accepts she said to Mr Parletta ‘You lie all the time. I can be a good actress to’ and ‘I will bring you down.’

During Easter 2017 (14-17 April), Ms D’Ortenzio had intended to spend some time with her grandson but did not do so as she expected to deal with after-hours calls. On 18 April 2017, Ms D’Ortenzio ascertained that the office had been opened by Mr Parletta and Ms Conti had worked in the office that day. Ms D’Ortenzio was unhappy that she was not advised that Ms Conti would be attending the office over Easter and could have spent time with her grandson.

Ms D’Ortenzio took sick leave from 21 April to 14 May 2017.

In cross-examination Ms D’Ortenzio initially rejected the contention that there was no trust between her and Mr Parletta,[21] then suggested the lack of trust only related to the shareholder issue,[22] then that the lack of trust was as a result of an incident (causing Ms D’Ortenzio to commence sick leave on 4 April 2017) that was unrelated to the shareholder issue[23] and finally conceded that there was a complete lack of trust and respect towards Mr Parletta.[24]

Ms D’Ortenzio did not agree that the relationship was ‘dysfunctional’, but agreed that verbal communications were minimal and important matters were discussed by email.[25] Ms D’Ortenzio contended that she and Mr Parletta were still doing their jobs.[26]

Ms D’Ortenzio accepts she made statements to Mr Parletta over the last 10 years to the effect of ‘If you don’t like it sack me’, sometimes whilst yelling at him.[27] Ms D’Ortenzio contends that these statements were made as a gesture and she never really meant it.

Ms D’Ortenzio accepts that she was yelling at Mr Parletta in the presence of Mr Mazzone, during a discussion about her desire to dismiss an employee, to which Mr Parletta disagreed. At the end of the conversation, Mr Parletta said ‘Fungula’.[28] Ms D’Ortenzio stated that after Mr Parletta swore, she said to Mr Parletta words to the effect ‘I will bring you down, I will get you for everything you have done’. Ms D’Ortenzio explained her conduct by stating she was very angry that day.[29]

Ms D’Ortenzio accepted that she thumped on the table at a meeting with Mr Parletta in April 2016 at Mr Minicozzi’s office to discuss the shareholding.[30] On the return trip to the office Ms D’Ortenzio referred to Mr Parletta as a ‘piece of shit’ and said to him ‘You know what I am capable off and you know what a good actress I am, I will bring you down’.[31]

As a result of the loss of a contract for the management of a group of rental properties, Ms D’Ortenzio was upset with Ms Jenny D’Angelo. In a meeting with Ms D’Angelo to discuss the matter, Ms D’Ortenzio yelled at her and later suggested to Mr Parletta that Ms D’Angelo be dismissed. Mr Parletta did not agree and Ms D’Ortenzio became ‘very reserved’ towards Ms D’Angelo and did not trust her. From that point, Ms D’Ortenzio never spoke to Ms D’Angelo unless she had to. Ms D’Ortenzio suggested that their professional relationship was not over and described Ms D’Angelo as her ‘offsider’.[32]

Ms D’Ortenzio accepted she had a fiery temperament[33] and that at times she yelled at staff members at LJ Hooker Glynde.[34] Ms D’Ortenzio denied reducing staff to tears on the basis that the staff did that to themselves.[35]

Ms D’Ortenzio accepted that her refusal to communicate with Mr Parletta, other than in writing, would have made it impossible to work together.[36]

Ms D’Ortenzio agreed that she had a complete lack of trust and respect towards Mr Parletta and that was indicative of a complete breakdown in the relationship.[37]

(e) HR Room Report

Ms D’Ortenzio said she did not have any HR qualifications and that LJ Hooker Glynde had never employed a permanent HR employee.

In early 2010 at a LJ Hooker Franchise meeting, Ms D’Ortenzio was advised that many LJ Hooker franchisees lacked appropriate HR policies and procedures. Ms D’Ortenzio was delegated the task of reviewing the matter with external support. Ms Athanasiou was engaged to provide advice in relation to contracts sought from the Real Estate Institute of South Australia. In addition, Mr Matthews (a sales employee with HR experience) prepared employment agreements for two employees.

On 12 May 2017, Ms D’Ortenzio was shocked to receive an email from Mr Parletta advising that her conduct was being investigated with three allegations detailed and advising that she was suspended.[38] On the same day, Mr Minicozzi responded on Ms D’Ortenzio’s behalf.[39]

Mr Minicozzi, on Ms D’Ortenzio’s behalf, further corresponded with Mr Parletta on 18 and 23 May 2017[40] inter alia seeking further information about the allegations, advising of a potential underpayment of wages claim and seeking information in relation to that claim, and raising a potential action against Mr Parletta as a shareholder.

On 10 June 2017, Ms D’Ortenzio was directed to attend a meeting with Mr Parletta and the author of the HR Room Report on 15 June 2017 to respond to the allegations.

On 13 June 2017, Mr Minicozzi wrote to Minter Ellison and advised inter alia that a Workers Compensation claim had been lodged, a Notice of Shareholder meeting had been sent to Mr Parletta and that Ms D’Ortenzio would not attend the scheduled meeting until she had been provided with particulars of the allegations against her. Mr Minicozzi indicated he wished to attend any future meeting as Ms D’Ortenzio’s support person.[41] Minter Ellison advised on the same day that the contents of Mr Minicozzi’s communication would be considered.

On 15 June 2017, Minter Ellison corresponded with Ms D’Ortenzio via Mr Minicozzi and provided a copy of the HR Room Report and advised that these matters would be put to Ms D’Ortenzio at the meeting which was rescheduled for 16 June 2017.

On 15 June 2017, Ms D’Ortenzio through Mr Minicozzi stated there was no point in convening the meeting as a result of, inter alia, the unavailability of her support person (Mr Minicozzi) and the short period between the notice and the time of the proposed meeting.[42]

On 20 June 2017, Mr Minicozzi sought to confirm that the allegations detailed in the HR Room Report were all that was required to be responded to.[43]

On 21 June 2017, Minter Ellison advised that the allegations were contained in the HR Room Report, subject to one deletion, that Ms D’Ortenzio was responsible for the HR function, and added an allegation that Ms D’Ortenzio did not charge fees in relation to properties owned or controlled by Mr Minicozzi.[44]

On 22 June 2017, Mr Minicozzi advised Minter Ellison that his client Ms D’Ortenzio was unable to attend a face to face meeting, due to a medical condition, and would respond to the allegations in writing. A medical certificate was included.[45]

On 23 June 2017, Ms D’Ortenzio responded to the matters put to her in writing.[46] Whilst the HR Room Report contended that out of 19 staff there were only 3 signed copies of employment contracts, Ms D’Ortenzio contended that the sales people of whom there were 4 or 5 had written contracts.[47]

On 3 July 2017, Ms D’Ortenzio received a letter from Mr Parletta dismissing her with notice with effect from Monday 7 August 2017 on the basis that ‘a significant number of the allegations were substantiated’, ‘the professional relationship has broken down entirely’ and ‘there is no trust between us’.[48]

(f) Communications to the Banks

Around the time that Ms D’Ortenzio was suspended, she instructed Mr Minicozzi to write to the Commonwealth Bank of Australia (by email dated 16 May 2017) and the National Australia Bank (by email dated 17 May 2017) on her behalf and raise issues concerning the taking of proceedings against LJ Hooker Glynde on the basis that Mr Parletta had abused his authority as a Director and misappropriated funds.[49]

(g) Communications with Mr Adcock

On 29 June 2017, Ms D’Ortenzio contacted Mr Adcock, State Manager of LJ Hooker, after she received the allegations letter from Mr Parletta and had been suspended. Ms D’Ortenzio expressed her concern to Mr Adcock about improper practices in breach of the Land Agents Act 1994 (SA) undertaken by Mr Parletta.[50] In cross-examination Ms D’Ortenzio did not dispute the account of the conversation provided by Mr Adcock. Ms D’Ortenzio first became aware of this information in February/March 2017 and had unsuccessfully raised it with Mr Parletta.[51] Ms D’Ortenzio believed Mr Adcock was the appropriate person to advise.

On 30 June 2017, Ms D’Ortenzio rang Mr Adcock to check that he received documents provided by her to support her claims. Mr Adcock told her he was not going to take any action over the matter and said she could raise it with the regulator, Consumer Business Services, if she wanted to pursue the matter.[52] Ms D’Ortenzio conceded that she told Mr Adcock that she would do whatever she could to get back at Mr Parletta, having initially rejected that proposition. Ms D’Ortenzio agreed she had said to Mr Parletta that if she was dismissed she would take Mr Parletta down.[53]

(h) Communications with Mr Bonomi

Ms D’Ortenzio’s witness statement in reply suggests that Mr Adcock suggested Ms D’Ortenzio contact Mr Bonomi, and that Ms D’Ortenzio did not.[54]

Ms D’Ortenzio’s counsel advised in his opening that Ms D’Ortenzio had never had a conversation with Mr Bonomi.[55]

In cross-examination, the following took place in relation to whether Ms D’Ortenzio instructed Mr Minicozzi to contact Mr Bonomi from LJ Hooker St Peters and provide information about concerns of improper practices which had occurred at LJ Hooker Glynde:[56]

“Mr Short: You say in your statement of reply at paragraph 49 "I did not contact Mario"

Ms D’Ortenzio: No

Mr Short: What you don't say is "But I arranged for Nic Minicozzi to ring him and do the job for me"?
Ms D’Ortenzio: No I didn't arrange with Mr Minicozzi. Mr Minicozzi decided to ring Mario.

Mr Short: Well, he can't do it without your approval. He was your lawyer, wasn't he?
Ms D’Ortenzio: He was also my partner.
Mr Short: Right, so again he can't do it without your approval, can he?
Ms D’Ortenzio: He said to me "Let me speak to Mario".

Mr Short: And you agreed?
Ms D’Ortenzio: Yes.

Mr Short: And that's why it happened?
Ms D’Ortenzio: Yes.

Mr Short: If you'd said no, it wouldn't have happened would it?
Ms D’Ortenzio: No.

Mr Short: Right, so have we established that Mr Minicozzi's call to Mario was a result of your doing?
Ms D’Ortenzio: Yes.

Mr Short: Okay. Why in your statement did you just leave it at paragraph 49 as "I did not contact Mario" without giving the full picture of arranging for Mr Minicozzi to do it for you? Any reason?
Ms D’Ortenzio: I thought I had to just say that I didn't contact him.

At the time of the communications with Mr Bonomi, Ms D’Ortenzio was aware of the impending sale of the business. Ms D’Ortenzio rejected the contention that her conduct was intended to sabotage the sale, but contends she did not want the new owners of LJ Hooker Glynde to be involved in this kind of behaviour.[57]

(i) Other matters

Ms D’Ortenzio contended that there was no valid reason for her dismissal and that it was harsh, unjust or unreasonable.

Pasquale Mazzone

Mr Mazzone provided a witness statement[58] and gave evidence.

Mr Mazzone has known Ms D’Ortenzio and Mr Parletta on a personal basis for approximately 10 years. Mr Mazzone’s construction business performed maintenance work on properties managed by LJ Hooker Glynde. However, his main interaction with Mr Parletta and Ms D’Ortenzio was through social visits to the LJ Hooker Glynde office which occurred nearly every day.[59] Mr Mazzone observed that Ms D’Ortenzio had a fiery temperament and that she speaks her mind, and Mr Parletta had a more placid temperament but that he could be pushed, get angry and say things that he should not say.[60]

Approximately nine years ago, Mr Mazzone recalls making a social visit to the LJ Hooker Glynde office. On this occasion he had coffee with Mr Parletta, Ms Conti was present in the same room. Ms D’Ortenzio then entered the room and began discussing a matter with Mr Parletta, the discussions became heated and Mr Parletta told Ms D’Ortenzio to ‘fuck off’. Mr Mazzone cannot recall what the discussion was about.

On another occasion approximately four to five years ago, Mr Mazzone recalls an incident of the exact same nature ending in Mr Parletta telling Ms D’Ortenzio to ‘fuck off’.

In late 2016, Mr Mazzone made a social visit to the LJ Hooker Glynde office. A discussion was had between Mr Parletta and Ms D’Ortenzio about her view to get rid of another employee. After Mr Parletta had told Ms D’Ortenzio to ‘leave it alone’ on numerous occasions,[61] he ended the conversation by telling her ‘va fa in culo’ (go fuck yourself in Italian), Ms D’Ortenzio left the room. Mr Mazzone recalls telling Mr Parletta that he should not speak to Ms D’Ortenzio in that manner.

In June 2013, Mr Mazzone approached Mr Parletta to discuss the sale of his mother’s house. Mr Parletta agreed to a commission fee and had an engagement contract drafted. Ms D’Ortenzio sold the house and told Mr Mazzone that she would not be charging him for her share of the commission. Mr Mazzone went in and thanked Mr Parletta and told him that Ms D’Ortenzio was not charging him for her share of the commission. Mr Parletta did not appear to have a problem with this.

In August 2015, Mr Mazzone reached a similar agreement with Mr Parletta in relation to Ms D’Ortenzio selling his son’s house. Again, Ms D’Ortenzio did not charge Mr Mazzone for her share of the commission.

In July/August 2017, Ms D’Ortenzio telephoned Mr Mazzone and explained that Mr Parletta had complained about the fee that Mr Mazzone was charged for the sale of his mother’s and son’s houses. Mr Mazzone approached Mr Parletta and asked why he complained to Ms D’Ortenzio about the fee that was charged. Mr Parletta explained that the fee was for Mr Mazzone and that the problem was with Ms D’Ortenzio as the money that she paid to the company was incorrect; the money was not hers and belonged to LJ Hooker Glynde. Mr Mazzone offered to pay any money owing. Mr Parletta declined and said that it had nothing to do with him.

Mario Bonomi

Mr Bonomi provided a witness statement and gave evidence.[62] On 19 October 2017, at the request of Ms D’Ortenzio, I issued an F51 Order requiring Mr Bonomi to attend before the Fair Work Commission on 29 November 2017 to give evidence.

Pursuant to s.594(1) of the Act, the attachments to Mr Bonomi’s statement, contracts and any sale agreements have been marked confidential.

Mr Bonomi is one of the Directors and Shareholders of Thomas & Masters Estates Pty Ltd T/A LJ Hooker St Peters (LJ Hooker St Peters).

Mr Bonomi had previously expressed interest in purchasing LJ Hooker Glynde and, in early 2016, Mr Bonomi was approached by Ms D’Ortenzio in relation to acquiring the business. A couple of meetings for this purpose occurred in April 2016.

In November 2016, a meeting occurred between Ms D’Ortenzio, Mr Parletta, Mr Bonomi and his partners. Various matters were discussed in relation to the purchase of the business.

After a further meeting, Mr Bonomi contacted his solicitor, Mr Minicozzi in order to commence negotiations and prepare the documents in relation to the sale of the business. As Mr Minicozzi was also acting for Mr Parletta, Mr Bonomi subsequently engaged another law firm to act on his behalf.

On 30 June 2017, Mr Bonomi received a telephone call from Mr Minicozzi who advised that there were going to be a set of documents provided to Consumer and Business Services that were going to show that there had been bad dealings between the Director and Office Manager of LJ Hooker Glynde.[63]

Mr Bonomi then called Mr Adcock and advised of his conversation with Mr Minicozzi. He asked Mr Adcock to review the documents and to let him know what was in them.

Mr Bonomi had numerous conversations within the next 24 to 48 hours which he described as an intense period as they were at the 11^th hour of doing a deal to purchase the LJ Hooker Glynde business, and that they were potentially going to pull the pin on the purchase.[64]

Phillip Matthews

Mr Matthews provided a witness statement and gave evidence via telephone.[65]

Mr Matthews was employed at LJ Hooker Glynde as a Sales Consultant from August 2014 to 19 May 2017.

Mr Matthews described Mr Parletta’s role as ‘client liaison’ with Ms D’Ortenzio performing the day to day running of the operation with her sales role diminishing over the period that he worked there.[66] He viewed Ms D’Ortenzio as responsible for the HR functions.[67]

Mr Matthews gave evidence of the existence of level of camaraderie and a workplace which was the hub of the Italian community which held legendary Christmas and also Birthday celebrations.[68] However, from early 2017 he observed some friction in the relationship between Ms D’Ortenzio and Mr Parletta.[69]

Mr Matthews described Ms D’Ortenzio as ‘very direct with people and quite excitable (or typically Italian)’.

Lena Athanasiou

Ms Athanasiou provided a witness statement[70] and gave evidence.

Ms D’Ortenzio’s counsel submitted that I should accept the opinion evidence contained in Ms Athanasiou statement. LJ Hooker Glynde’s counsel objected. Whilst I accept that Ms Athanasiou has experience in human resources matters, based on the material before me I do not accept that Ms Athanasiou is an expert in the human resources field and have given limited weight to her opinions on that basis.

Ms Athanasiou first met Ms D’Ortenzio in 2007 as a customer and then developed a personal relationship.

From August 2010 to November 2010, Ms Athanasiou was engaged by Ms D’Ortenzio to conduct a GAP analysis and to prepare an action list of items in relation to Work Health and Safety and Human Resources.

During that engagement Ms Athanasiou prepared job descriptions for employees of LJ Hooker Glynde. Ms D’Ortenzio was not consulted about the job description for her role.[71]

As the budget was limited, Ms Athanasiou was unable to complete the action items identified. The preparation of position descriptions was left with Ms D’Ortenzio for completion.[72]

I accept that Ms Athanasiou did not believe that Ms D’Ortenzio possessed the required HR knowledge and provided support on a formal and informal basis.[73]

Charles Parletta

Mr Parletta provided a witness statement,[74] a supplementary witness statement[75] and gave evidence.

Mr Parletta started Charles Parletta Real Estate Pty Ltd in 1977 and subsequently the company became a franchisee of LJ Hooker Ltd and traded under the name LJ Hooker Glynde.

(a) Ms D’Ortenzio’s role

Ms D’Ortenzio commenced employment with LJ Hooker Glynde in 1990 as a commission only salesperson. At that time, Mr Parletta was responsible for the office administration.

In 1995, Ms D’Ortenzio began to provide property management services.

As the business grew in revenue and size Ms D’Ortenzio’s responsibilities morphed from sales into managing the office, this included managing the human resources functions including hiring new employees, remuneration, performance management, payroll and leave. In approximately 1999, Mr Parletta stepped back from his involvement in administration and appears to have had little or no involvement and/or visibility in such matters up to the dismissal.[76]

In 2010 Ms Athanasiou, an external human resources advisor, prepared a position description for Ms D’Ortenzio titled Senior Property Manager/Office Manager/Responsible Person.[77] Mr Parletta was not involved in this process and did not review the position description until the HR audit was performed.

The last written contract of employment for Ms D’Ortenzio was signed in July 2010.[78] This contract stated that Ms D’Ortenzio was engaged as a Sales Representative on a full time basis reporting to Mr Parletta and would be paid a salary plus commission, and a motor vehicle allowance of $250 per week.

(b) Shares

In 2007, Mr Parletta gifted Ms D’Ortenzio 10% of the shares in Charles Parletta Real Estate Pty Ltd.

In early 2015, Mr Parletta had a discussion with Ms D’Ortenzio where it was agreed that Mr Parletta would gift an additional 5% of the company shares in recognition of her contribution, and that Mr Parletta would try and sell the business within the next three years.

In around 2015, Ms D’Ortenzio had some discussions with Mr Parletta about having her shareholding paid out, Mr Parletta advised it was his intention to sell the business within two years after which she would receive payment for the value of her shares. Ms D’Ortenzio expressed concern about the time she had to wait and said ‘I am going to bring you down’. Mr Parletta states he found the comments very threatening and upsetting.

A number of meetings occurred in 2015 and 2016 about Ms D’Ortenzio’s shareholding, on some occasions Mr Minicozzi was present. Mr Parletta felt that he was being pressured to pay out the shares.

On 8 August 2016, Mr Parletta conducted a LJ Hooker Glynde shareholder meeting at the office of his Accountant. Ms D’Ortenzio attended the meeting. At this meeting Mr Parletta agreed to increase Ms D’Ortenzio’s shareholding to a total of 15%. A document recording the resolutions passed at this meeting was dated 2 September 2017.[79]

(c) Working Relationship

For the majority of the period of employment Mr Parletta and Ms D’Ortenzio shared a close and productive working relationship, notwithstanding some disagreements. Prior to 2015, Mr Parletta had complete trust in Ms D’Ortenzio and left her to manage the office whilst he took responsibility for the sales component of the business.

Mr Parletta said that Ms D’Ortenzio had a strong personality and could be forceful in the way she interacted with other staff. Ms D’Ortenzio was insistent about doing things her own way, and usually succeeded. Mr Parletta accepted this approach.

In 2015, Mr Parletta contends his relationship with Ms D’Ortenzio began to deteriorate. The arguments became more frequent and Mr Parletta believed the threats made (e.g. to leave the business) were more serious. The deterioration coincided with Ms D’Ortenzio commencing a relationship with Mr Minicozzi. Mr Minicozzi was a lawyer who had previously provided some legal services to LJ Hooker Glynde.

Mr Parletta contends that Ms D’Ortenzio reduced the time she spent in the office, was arguing with staff more than usual and would often say ‘If you don’t like it sack me.’ Mr Parletta did not do anything about his perceived changes in Ms D’Ortenzio conduct and continued to have trust and confidence in her.

In February 2016, Mr Parletta was in the office kitchen with Mr Mazzone who was both a friend and a client. Ms D’Ortenzio entered the kitchen and was yelling at Mr Parletta about wanting to sack an employee. Mr Parletta refused and a robust discussion ensued in the presence of Mr Mazzone. Mr Parletta asked Ms D’Ortenzio to stop discussing the matter in the presence of Mr Mazzone, Ms D’Ortenzio continued and he told her to ‘fuck off’ in Italian.

In April 2016, Mr Parletta met with Ms D’Ortenzio and Mr Minicozzi to discuss the shareholding issue, Ms D’Ortenzio got agitated and thumped the table when Mr Parletta did not do what she wanted. Whilst driving back to the office after the meeting in the same car, Ms D’Ortenzio called Mr Parletta a ‘Piece of shit’ and said ‘You know what I am capable of and what a good actress I am, I will bring you down.’ Having returned to the office, Ms D’Ortenzio made a number of references to Mr Parletta being nothing but a piece of shit. Mr Parletta was offended by Ms D’Ortenzio’s conduct.

In October 2016, Ms D’Ortenzio told Mr Parletta she wanted to dismiss Ms D’Angelo as a result of the loss of a large rental contract. A meeting was conducted with Ms D’Angelo where Ms D’Ortenzio was angry towards her. Mr Parletta refused to dismiss Ms D’Angelo.

On 27 January 2017, Ms D’Ortenzio gave Mr Parletta a further letter which complained about him swearing at her on 25 January 2017 and said that such conduct was indicative of the level of their relationship.[80] Ms D’Ortenzio stated that she presently would not meet with Mr Parletta because of his ‘comportment’, and suggested that ‘the best thing between us is that we communicate in writing so that there is no misunderstanding and no emotional outbursts.’ Ms D’Ortenzio said she was continuing to do her job and that ‘There are no alternatives open now to the two of us.’ Mr Parletta was upset when he read the letter, he took the letter to mean that their working relationship was becoming worse. Mr Parletta was worried about Mr Minicozzi’s influence on the working relationship which was strained to almost breaking point.

In mid-February 2017, Ms D’Ortenzio returned a key which allowed access to document storage. Mr Parletta alleged the key (together with a large bunch of other keys) was thrown onto an office desk by Ms D’Ortenzio without a word to anyone in the office.

In March 2017, an issue relating to an employee’s long service leave entitlements arose. Ms D’Ortenzio discussed the matter by email with an external service provider.[81] In the email chain, Ms D’Ortenzio advised Mr Parletta that as of 29 March 2017 she would no longer be the out of hours contact for alarm monitoring.

Ms D’Ortenzio took personal leave for numerous periods between February and May 2017.

On 13 April 2017, Mr Parletta asked Ms Conti to work in the office on Easter Sunday. Ms Conti told Mr Parletta that on Easter Saturday Ms D’Ortenzio attended the office and abused her in front of other staff to the point she cried, because Ms Conti had not told Ms D’Ortenzio she intended to work in the office on that day.

In cross-examination Mr Parletta said that it was not uncommon for him and Ms D’Ortenzio to have a heated argument about non-work related matters (e.g. who was better in the Italian language).[82]

(d) Wage Rate

Soon after the early 2015 meeting in relation to the shareholding, Ms D’Ortenzio presented Mr Parletta with a piece of paper upon which she had written notes of what she sought to receive from the business[83] ($50 per hour plus car allowance, a further 5% of the business from 1 April 2015). Mr Parletta contended that the proposal was not agreed.[84] Mr Parletta contends he only became aware that Ms D’Ortenzio had increased her wage when the HR audit was conducted. In cross-examination he conceded that he had access to information which would have revealed the change.

In April 2015, Ms D’Ortenzio had a further meeting with Mr Parletta and gave him a list of the remuneration she wanted on the back of the previous list.[85] This included the payment of a $50 per hour wage whilst removing entitlements to long service leave, annual leave loading and incentives for property management and sales referral. Mr Parletta contends that no agreement was reached.

Mr Parletta expected that Ms D’Ortenzio would continue to receive $30 per hour. Prior to the hearing, Mr Parletta became aware that Ms D’Ortenzio had instructed the payroll provider to pay her $50 per hour on 31 March 2015. In addition, Ms D’Ortenzio continued to receive her long service leave entitlements and incentive payments.

(e) Sale of Business

From August 2016, Ms D’Ortenzio and Mr Parletta began talking to prospective purchasers of LJ Hooker Glynde.

In January 2017, Mr Parletta verbally agreed with LJ Hooker St Peters to sell the business to them. Ms D’Ortenzio was involved in those discussions. Mr Minicozzi was asked to prepare a sale agreement on behalf of LJ Hooker Glynde. Upon reviewing the draft agreement, Mr Parletta considered the agreement had been drafted to favour Ms D’Ortenzio. Mr Parletta engaged a new solicitor to draft the sale agreement.

On 25 January 2017, Ms D’Ortenzio presented a letter concerning the sale of the business.[86] Ms D’Ortenzio required that the letter be presented in the presence of Ms Conti as a witness. Mr Parletta objected to the need to have a witness present as he considered that it reflected a lack of trust in him by Ms D’Ortenzio.

On 29 June 2017, Mr Adcock contacted Mr Parletta and advised him Ms D’Ortenzio had contacted him alleging he had breached the Land Agents Act 1994 (SA). Later that day Mr Bonomi, a prospective purchaser of LJ Hooker Glynde, had been contacted by Mr Minicozzi who made similar allegations. Mr Parletta considered these actions to be an attempt to prevent the sale and had destroyed his trust and confidence in Ms D’Ortenzio.

(f) HR Room Report

In May 2017, Mr Parletta sought the assistance of a HR consultant, Ms Pentland. Ms Pentland advised of concerns with wage payments Ms D’Ortenzio had made to herself and other employees. Mr Parletta required a full HR audit be conducted.

Mr Parletta, by letter dated 12 May 2017, suspended Ms D’Ortenzio whilst the audit was conducted.[87]

In June 2017, Mr Parletta received the HR Room Report.[88] Mr Parletta was most concerned about the following findings:

· Ms D’Ortenzio was paying herself $50 per hour and a car allowance of $600 per fortnight without authorisation.
· Very few employees had written employment contracts.
· Staff had been receiving their car allowance whilst on annual leave.
· Ms D’Ortenzio had unilaterally reduced an employee’s car allowance.
· The business had not received the correct commission and fees on two transactions conducted by Ms D’Ortenzio.
· Ms D’Ortenzio had not charged commission on a sale transaction for her partner, Mr Minicozzi.

In relation to real estate transactions that Ms D’Ortenzio performed on behalf of Mr Mazzone where the commission rate was lowered, Mr Parletta’s main concern was not the lowering of the commission rate (other than the fact he was not consulted), but that the manner in which the transaction was documented had the effect of lowering the LJ Hooker franchisor’s fee, thus putting LJ Hooker Glynde in breach of its obligations to the franchisor.[89] Mr Parletta makes the same complaint in relation to Ms D’Ortenzio’s waiving of fees for services provided to Mr Minicozzi.[90]

(g) Communication to the Banks

Mr Parletta alleged that on 16 May 2017, Mr Minicozzi provided him with two letters he had sent to the Commonwealth Bank of Australia and National Australia Bank on behalf of Ms D’Ortenzio as a shareholder, employee and potential litigant against LJ Hooker Glynde, requesting copies of cheques drawn on the LJ Hooker Glynde Account.[91] Mr Parletta complains that Ms D’Ortenzio released confidential information and her actions were another example of the broken state of their relationship. On 24 May 2017, Minter Ellison on behalf of LJ Hooker Glynde wrote to Mr Minicozzi expressing concern about the request and raising issues of a breach of Ms D’Ortenzio’s obligations as an employee.[92]

(h) Other matters

On 12 May 2017, Mr Parletta advised Ms D’Ortenzio that her conduct was being investigated and advised that she would be suspended.[93] A copy of the HR Room Report was sent to Ms D’Ortenzio on 16 June 2017.

Mr Parletta unsuccessfully sought to discuss the allegations detailed in a letter dated 12 May 2017 with Ms D’Ortenzio in person.

Ms D’Ortenzio provided her responses to the allegations in writing on 23 June 2017.[94]

Mr Parletta did not accept the explanations proffered, and on 3 July 2017 determined to dismiss Ms D’Ortenzio with 5 weeks’ notice and sent her a letter setting out his reasons. [95]

Mr Parletta and Ms D’Ortenzio had further correspondence concerning the shareholding, an alleged underpayment of employee entitlements and an alleged overpayment of employee entitlements. Many of these matters are the subject of continuing litigation post dismissal.

On 3 October 2017, Mr Parletta sold LJ Hooker Glynde to LJ Hooker St Peters, but remained an employee.

Alex Humphrys

Ms Humphrys provided a witness statement and gave evidence.[96]

Ms Humphrys’ has been a Property Manager at LJ Hooker Glynde since September 2016. She received an email which contained her employment conditions but never received a formal written employment contract.

She had an arrangement with Ms D’Ortenzio where she would leave work one day early per week due to her son’s sporting commitments.

She submits that Ms D’Ortenzio managed everything to do with the pays and leave requests.

She described Ms D’Ortenzio as a moody and aggressive person to work with and thought that the Monday Property Management team meetings were horrible. During these meetings Ms D’Ortenzio would question Ms D’Angelo a lot in front of everyone else.

Ms Humphry’s did not like Ms D’Ortenzio’s style of management.

Antonietta Conti

Ms Conti provided a witness statement and gave evidence.[97]

Ms Conti was interviewed and offered a job as a Receptionist by Ms D’Ortenzio in 1996 and is currently employed as the Sales Administrator/Accounts Department at LJ Hooker Glynde. She has never received a contract of employment.

Since she commenced with LJ Hooker Glynde, Ms D’Ortenzio has been responsible for payroll and was the appropriate person to speak to if she wanted a day off.

As part of her role, and due to Ms D’Ortenzio not having the requisite computer skills, Ms Conti would type Ms D’Ortenzio’s emails and send them on her behalf. This included sending emails to new employees who Ms D’Ortenzio had interviewed.

Ms Conti described the relationship between Ms D’Ortenzio and Mr Parletta as that of husband and wife or brother and sister, as they trusted each other and worked well together. The relationship deteriorated between Mr Parletta and Ms D’Ortenzio in 2015 around the time that Ms D’Ortenzio commenced a relationship with Mr Minicozzi.

Ms Conti was aware that Ms D’Ortenzio was a shareholder. In 2015, Ms D’Ortenzio began talking to Ms Conti about her shares and would say things like ‘I want my money’ and words to the effect that she would disrupt the office if she did not get her money. Ms Conti thought this was a matter between Mr Parletta and Ms D’Ortenzio and did not get involved.

In 2016, Mr Parletta and Ms D’Ortenzio had a big argument in relation to an employee. Ms Conti believed that Ms D’Ortenzio wanted to get rid of an employee but Mr Parletta did not. Ms Conti could hear Ms D’Ortenzio screaming from the kitchen. After this argument, Ms D’Ortenzio changed. She did not attend the office as regularly and had stopped talking to Mr Parletta. Instead, Ms D’Ortenzio would dictate emails for Ms Conti to send to Mr Parletta. Over time Ms Conti noticed that the emails she was asked to type were becoming more formal, for example instead of starting the email with ‘Hi Charlie’, Ms D’Ortenzio started to address Mr Parletta as ‘Charles’ and then ‘Mr Parletta’.

Ms D’Ortenzio’s attitude also changed. She began talking to staff in a rude and unprofessional manner. Everyone was concerned about making mistakes, as Ms D’Ortenzio would call out this behaviour in staff meetings. In particular, she targeted Ms D’Angelo because of a property management contract that was lost after the property had remained vacant for a year. Ms D’Ortenzio would put Ms D’Angelo down in front of everyone at the Property Management meetings on Monday mornings. She made it very clear that Ms D’Angelo was responsible for losing the property and would pick on her for every little thing. At the meetings, Ms D’Ortenzio also made comments that if you don’t like it you can pack your bags and leave.[98]

On more than one occasion, Ms Conti heard Ms D’Ortenzio say to Mr Parletta ‘If you don’t like it, just sack me’.

In cross-examination Ms Conti agreed that Ms D’Ortenzio was very forceful in her arguments and putting her views forward.[99]

In January 2017, Ms Conti was requested by Ms D’Ortenzio to go with her to Mr Parletta’s office so that she could witness her handing him a letter. From this point on Ms Conti noticed a change in her relationship with Ms D’Ortenzio.

Her relationship with Ms D’Ortenzio completely broke down after Easter 2017. The office is always closed on Easter Saturday, however Mr Parletta asked Ms Conti to work. On the Tuesday morning after Easter Ms D’Ortenzio berated Ms Conti for not informing her that she was working the Saturday, she said ‘You come to work on Saturday and you didn’t even let me know. You text me or ring me for stupid other things but you didn’t tell me you were working’. Ms D’Ortenzio was very angry and did not give Ms Conti the chance to respond. Ms D’Ortenzio yelled at Ms Conti ‘You are not the victim, I am the victim here’.

Ms Conti provided the relevant payroll and employment documentation to Ms Pentland in May 2017 in order for her to conduct the HR audit.

Ms Conti would not work with Ms D’Ortenzio again as she does not trust her.

Jenny D’Angelo

Ms D’Angelo provided a witness statement and gave evidence.[100]

Ms D’Angelo has been a Property Manager at LJ Hooker Glynde for approximately seven years. She was not provided with an employment contract.

Ms D’Angelo described the relationship between Ms D’Ortenzio and Mr Parletta, when she began working at LJ Hooker Glynde, as that of an old married couple. Working at LJ Hooker Glynde was like being in a family environment – there were some disputes but everyone made up.[101]

In her view, Ms D’Ortenzio had a loud, assertive personality but she was friends with Ms D’Ortenzio in the beginning.

Ms D’Angelo recalled an argument between Ms D’Ortenzio and Mr Parletta last year. The argument was over dismissing another staff member. The conversation became heated and it ended by Mr Parletta telling Ms D’Ortenzio where to go in Italian. There were other detailed incidences when Ms D’Ortenzio treated other staff members badly too.

Ms D’Ortenzio’s relationship changed with Ms D’Angelo around October 2016 after a contract for the management of a group of properties by Ms D’Angelo was lost as a result of one property being vacant for over 12 months. From that point Ms D’Ortenzio began telling the whole office about every little mistake made by Ms D’Angelo, particularly in the Property Management team meetings on Monday mornings. This made Ms D’Angelo fear Monday meetings.

In November 2016, Ms D’Angelo’s car allowance was unilaterally reduced by Ms D’Ortenzio from $200 to $150 per week.

Ms D’Angelo stated that she could not work with Ms D’Ortenzio again due to the detrimental effect she was having on her.

Sharaze Pentland

Ms Pentland provided a witness statement and gave evidence.[102]

Ms Pentland is the owner and Principal Consultant of a human resources consultancy who was contacted on 13 April 2017 by LJ Hooker Glynde’s Accountant Ms Angela Robins.

Initially Ms Pentland was asked to provide some advice concerning employee entitlements to long service leave and allowances.

Ms Pentland met with Ms Robins and Mr Parletta on 13 April 2017. At that meeting she was told that the Office Manager, Ms D’Ortenzio who normally manages HR and payroll, was on extended sick leave. It was agreed that Ms Pentland would conduct a ‘HR Health Check’ to identify how the HR and payroll functions had been operating. After taking some leave, Ms Pentland commenced this task on 5 May 2017. The task involved Ms Pentland interviewing employees, reviewing existing records, policies and procedures and then preparing a written report dated 6 June 2017.[103]

Ms Pentland expressed the view that her interviews revealed that Ms D’Ortenzio was the person who managed that human resource functions including recruitment, inductions and payroll at LJ Hooker Glynde. She also formed the impression from the interviews that staff were fearful of Ms D’Ortenzio and were worried about being punished by her.

Ms Pentland’s Report[104] detailed a range of findings including concerns about the way in which the human resource function was managed. These findings included:

· Ms D’Ortenzio was in charge of all human resources functions, payroll, recruitment, inductions and her title was Property Investment Manager.
· No interview notes or references were recorded during recruitment processes.
· The Fair Work Statement, job descriptions and classifications were not given to new employees.
· Signed Contracts of Employment were held for only 3 out of 19 employees, and one of those three Contracts contained incorrect commission information.
· Only one employee had a job description.
· None of the staff were classified under an award or level.
· No rosters or timesheets were kept.
· No time in lieu of overtime records were kept.
· The standby allowance under the Real Estate Industry Award 2010 was not paid to employees who were on call.
· Employees were receiving a car allowance whilst on annual leave holidays or personal leave.
· Mr Parletta was paid $30 per hour and received a car allowance of $400 per week.
· Ms D’Ortenzio was paid for 76 hours per fortnight at $50 per hour and received a car allowance of $600 per week.
· Full time employees were paid for 75 hours per fortnight whereas the Real Estate Industry Award 2010 provided that full time employees ordinary hours were 76 per fortnight.
· One employee was paid a car allowance whilst on long service leave contrary to the advice given by the accountant.
· One employee was paid at a full time rate despite it being agreed that she could leave early on Friday’s and only working half a day on Wednesday’s.
· In October 2016 Ms D’Ortenzio unilaterally reduced an employee’s car allowance by $50 per week after a contract to manage a block of units was lost.
· Ms D’Ortenzio took unapproved bereavement and carers leave.
· No commission was charged on a rental property owned by Mr Minicozzi.
· The Commission on a property sold for Mr Minicozzi was reduced by 50%.

Ms Pentland stated that she found the personal arrangements made by Ms D’Ortenzio with employees in relation to their working hours, or entitlements, were not recorded.

Counsel for Ms D’Ortenzio cross-examined Ms Pentland in detail about the basis upon which she made her findings and Ms Pentland explained the basis upon which, in her view, the findings were justified.

Rod Adcock

Mr Adcock provided a witness statement and gave evidence.[105]

Mr Adcock is the State Manager for LJ Hooker Limited, the franchisor of LJ Hooker franchisee’s across Australia including LJ Hooker Glynde and St Peters.

On 29 June 2017, Ms D’Ortenzio telephoned him and said that whilst she regretted making this call her relationship with Mr Parletta had reached the point of no return.

Ms D’Ortenzio stated she wished to expose Mr Parletta for misconduct in respect of a number of real estate transactions which she believed was in breach of the Land Agents Act 1994 (SA). Ms D’Ortenzio believed the conduct would have serious implications on the business, Mr Parletta and the [LJ Hooker] brand.[106]

Ms D’Ortenzio offered to supply documentary proof and provided a package of documents later that day.

Mr Adcock reviewed the documents on 30 June 2017 and concluded they did not contain evidence that Mr Parletta acted improperly.

Ms D’Ortenzio contacted him at 9.30am on 30 June 2017 in a distressed state and detailed her concerns over her relationship with Mr Parletta.

At 4.00pm Mr D’Ortenzio rang again, in a calm state to confirm receipt of the documents and asked what Mr Adcock thought of them.

Mr Adcock advised there was nothing compelling in the documents and that they were inconclusive as to identifying any misconduct or breaches of the Land Agents Act 1994 (SA).

Ms D’Ortenzio asked if Mr Adcock would be prepared to talk to Mr Minicozzi.

Mr Minicozzi rang later that day. Mr Minicozzi asked what he would do about the information provided. Mr Adcock advised he would not take the matter further. Mr Minicozzi suggested that as franchisor they should be taking action or report the matter to Consumer and Business Services.

On 30 June 2017, Mr Adcock received a call from Mr Bonomi from LJ Hooker St Peters who told him the sale of the LJ Hooker Glynde business to LJ Hooker St Peters was in jeopardy as a result of information provided by Ms D’Ortenzio and/or Mr Minicozzi. Mr Adcock advised Mr Bonomi that the allegations were unproven.

In cross-examination Mr Adcock accepted that he was the appropriate person to deal with complaints of this nature against franchisees in South Australia and saw nothing improper in Ms D’Ortenzio’s approach.[107]

Consideration

Findings as to credit

Ms D’Ortenzio’s testimony varied during giving her evidence. For example, in response to the proposition that after 3 July 2017 she would do what she had to, to get back at Mr Parletta, Ms D’Ortenzio initially denied the proposition, then appeared to avoid answering the question when it was repeated, then conceded she may have made such a statement to a person who she could not remember exactly, then advised the name of the person she spoke to.[108]

Ms D’Ortenzio at times used her opportunity to give evidence as a soap box with little regard to the questions put or the subject matter of the application.[109] At times her evidence was irrelevant,[110] at others inconsistent,[111] on occasions at odds with prior statements,[112] and at times her evidence was simply not credible.[113]

The same cannot be said of Mr Parletta who made concessions when appropriate and appeared to be a witness of truth.

I have taken a cautious approach to Ms D’Ortenzio’s evidence and where it was inconsistent with others, I prefer the alternative account. For example, I do not accept Ms D’Ortenzio’s evidence that Mr Parletta agreed to increase her wage, the documentary material tendered in support of this agreement was self-serving and objectively did not represent a concluded agreement. I also reject Ms D’Ortenzio’s contention that the allegations of Mr Parletta’s misconduct provided to the Commonwealth Bank of Australia and National Australia Bank was simply the act of a concerned shareholder, and that the communications she directed towards Mr Bonomi of LJ Hooker St Peters were for any reason other than to sabotage the sale.

No findings as to credit arise in respect of the other witnesses.

Ms D’Ortenzio’s role

It appears that Ms D’Ortenzio’s role changed over the course of her employment.

Mr Parletta advised me that in two of the actions in the South Australian Employment Tribunal Ms D’Ortenzio had asserted she held the position of ‘Office Manager’. The activities Ms D’Ortenzio advised she undertook are more expansive than a sales role.

It appears to me that Ms D’Ortenzio was principally responsible for the management of the office whilst Mr Parletta concentrated on sales. That is not to suggest that Ms D’Ortenzio did not have involvement in sales or property management.

The office management component included a human resources component. Ms D’Ortenzio’s evidence recognises and accepts responsibility for some HR functions.

Ms D’Ortenzio had access to external HR assistance from consultants and a real estate employer organisation.

I reject the contention that Ms D’Ortenzio’s lack of formal HR training or the lack of an agreed position description means that the HR functions are not incorporated in her role.

I find that Ms D’Ortenzio’s responsibilities included the management of the office and included responsibility for the provision of HR services with external support as required.

Ms D’Ortenzio’s contract of employment[114] specifically required that Ms D’Ortenzio use her best endeavours to diligently perform all the duties and responsibilities of the employment,[115]and further the business and reputation of the employer,[116] and not to damage or expose the property or goodwill of the employer.[117]

Key Allegations

The key allegations in respect of Ms D’Ortenzio’s conduct and/or capacity can be summarised as follows:

·The breakdown of the working relationship.
·A communication to the National Australia Bank and Commonwealth Bank of Australia whereby the Banks were advised of an impending litigation against LJ Hooker Glynde.

·The conversation with Mr Adcock of LJ Hooker concerning allegations that Mr Parletta had engaged in improper conduct.
·The communication to Mr Bonomi (LJ Hooker St Peters) advising that Mr Parletta had engaged in improper conduct.
·Failing to disclose the true nature of transactions made in the course of her sales duties on behalf of Mr Minicozzi in a manner which denied the LJ Hooker franchisor of a contractual benefit.
·The deficiencies identified by the HR Room Report.

I deal with these matters in turn.

Breakdown of the working relationship

It appears that prior to 2015 there was a harmonious working relationship between Ms D’Ortenzio and Mr Parletta, however at around the time Ms D’Ortenzio commenced a relationship with Mr Minicozzi, things began to change for the worst. This is not intended to be any reflection upon Mr Minicozzi.

It appears that the driver for the growing disharmony was Ms D’Ortenzio’s 15% shareholding and her view that she would receive the value of this shareholding upon Mr Parletta’s sale of the business. Ms D’Ortenzio appeared frustrated with the time it was taking for the sale to occur and this together with her desire to change her work life balance drove the status of her relationship with Mr Parletta from discontent to dysfunction.

I have discounted the apparent differences in Ms D’Ortenzio’s temperament which I have received evidence on and observed her demeanour to be more driven, demanding and confrontational compared to Mr Parletta’s relaxed, conciliatory, and conflict avoiding approach. I have treated the occasional instance of inappropriate language (e.g. ‘va fungula’) or statements like ‘If you don’t like it sack me’, and displays of frustration (e.g. thumping of the table, and arguments in front of Mr Mazzone) to these temperament differences.

I formed the view that at times Ms D’Ortenzio sought to downplay the conflict between her and Mr Parletta. Her evidence was inconsistent on the topic at first. In answer to the proposition that her relationship with Mr Parletta was unworkable Ms D’Ortenzio said ‘maybe not.’[118] In her statement[119] Ms D’Ortenzio contended that ‘Mr Parletta had implemented a deliberate campaign to manage her out of the business’ yet in cross-examination she sought to downplay that observation.[120] Ms D’Ortenzio’s evidence on the status of her working relationship with Mr Parletta was not credible.

When the evidence is considered, the signposts of dysfunction are omnipresent, breakdown of relationships with Ms Conti and Ms D’Angelo, the decision to require communications between her and Mr Parletta in writing, verbal threats made towards Mr Parletta the communications with the Banks and Mr Bonomi and her own evidence of the lack of trust to name a few. It is clear from the totality of the evidence that the work relationship started to deteriorate in 2015 and by the time of the dismissal was poisoned to the point of being totally dysfunctional.

Ms D’Ortenzio sought to make a distinction between the status of her relationship with Mr Parletta as a shareholder and her relationship as an employee. Ms D’Ortenzio accepted that the trust was lost in the shareholder context but appeared to contend that the employment relationship was unaffected.[121] I do not accept this distinction, it is clear that the lack of trust applied to the entire relationship.

In cross-examination, Ms D’Ortenzio agreed that she was suing LJ Hooker Glynde for unpaid commissions, had two Supreme Court actions underway, an underpayment of wages claim in the South Australian Employment Tribunal and was the respondent in a claim suit from LJ Hooker Glynde in respect of an alleged overpayment of wages.[122] This is not indicative of a working relationship.

Communications with the National Australia Bank and Commonwealth Bank of Australia

It is not in dispute that Ms D’Ortenzio instructed Mr Minicozzi to write to the Commonwealth Bank of Australia and the National Australia Bank seeking information to assist with the taking of proceedings against LJ Hooker Glynde.[123] I have no doubt that this communication would have raised questions about the conduct of the LJ Hooker Glynde business by the Banks.

I find that this communication was in breach of the specific terms of Ms D’Ortenzio’s contract of employment relating to her obligation to further the business and reputation of the employer, and not to damage or expose the property or goodwill of the employer and adversely impacted the working relationship between Ms D’Ortenzio and Mr Parletta.

Conversation with Mr Adcock of LJ Hooker concerning allegations that Mr Parletta had engaged in improper conduct

There is no dispute that Ms D’Ortenzio raised concerns with Mr Adcock that Mr Parletta had engaged in conduct which breached the requirements of the Land Agents Act 1994 (SA) on the basis that it could adversely impact the LJ Hooker brand.

Whilst I have doubt as to the real motivations of Ms D’Ortenzio, I accept Mr Adcock’s evidence that he was the appropriate person to deal with complaints of this nature and saw nothing improper in Ms D’Ortenzio’s approach.[124] I find no impropriety on Ms D’Ortenzio’s behalf in this respect.

Communication to a prospective purchaser of LJ Hooker Glynde advising that Mr Parletta had engaged in improper conduct

It is clear that Ms D’Ortenzio instructed Mr Minicozzi to contact Mr Bonomi who was the representative of a prospective purchaser of Mr Parletta’s business on or about 30 June 2017.[125] Mr Minicozzi could only have become aware of the information that he discussed with Mr Bonomi because of Ms D’Ortenzio. I believe from Ms D’Ortenzio’s evidence that she was well aware of what was to be discussed by her solicitor Mr Minicozzi. Mr Bonomi’s account of the conversation was not challenged and Mr Minicozzi was present during the hearing. I do not propose to draw an adverse inference on the basis of Mr Minicozzi not giving evidence.

The information Mr Minicozzi relayed to Mr Bonomi on Ms D’Ortenzio’s behalf had the effect of impugning not only Mr Parletta but the entire LJ Hooker Glynde office.[126] The communication had the effect of putting the sale in jeopardy.

Mr Bonomi is not in a similar position to Mr Adcock and there does not appear to be any other plausible explanation as to why Ms D’Ortenzio would orchestrate this communication other than to prevent or impede the sale of the LJ Hooker Glynde business.

I find that Ms D’Ortenzio’s conduct in instructing Mr Minicozzi to communicate the information about Mr Parletta’s alleged breaches of the Land Agents Act 1994 (SA) to Mr Bonomi was treacherous, a breach of the express terms of her employment contract and fatally damaged her working relationship with Mr Parletta.

Failing to disclose the true nature of transactions made in the course of her sales duties which denied the LJ Hooker Franchisor of a contractual benefit

There is no dispute that Ms D’Ortenzio reduced her commission on services provided to Mr Mazzone and Mr Minicozzi. There does not appear to have been any impropriety on behalf of Ms D’Ortenzio in reducing her commission. The effect of this action was, however, to reduce the franchisee fee which would have been payable by LJ Hooker Glynde. Whilst this is a breach of Ms D’Ortenzio’s obligations as an employee, I find that the impact on LJ Hooker was an unintended consequence probably due to an oversight on Ms D’Ortenzio’s behalf.

Deficiencies identified by the HR Room Report

Ms D’Ortenzio’s written response to the allegations put to her arising from the HR Room Report asserts that whilst she undertook a number of duties that fell outside her sales duties (including hiring of staff and remuneration) she was not responsible for the HR function of the business, and secondly her lack of qualifications or experience. I have rejected this position and found that Ms D’Ortenzio’s role included the HR functions with the support of external service providers.

I find that Ms D’Ortenzio unilaterally reduced Ms D’Angelo’s remuneration as a punitive response for the loss of a property management contract.

I find that Ms D’Ortenzio did not document (or cause to be documented) employment arrangements of a number of employees and did not record the provision of a Fair Work Statement to new employees as identified in the HR Room Report.

I find that Ms D’Ortenzio increased her salary without express permission from Mr Parletta.

Ms D’Ortenzio grew into her role over a long period of time. Considering her lengthy experience, she should have known that the conduct described above was not an appropriate course to take.

The other issues raised in the HR Room Report can, when considering the size and nature of the LJ Hooker Glynde business, be described as either aspirational (e.g. mapping of employee classifications to the Award, consistency of ordinary hours across classifications, rosters, retention of recruitment notes) or relatively minor (e.g. recording of TOIL, lack of documentation of flexible working arrangements). That is not to say these issues have not been correctly identified, or should not be addressed.

Was the dismissal harsh unjust or unreasonable?

Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
“387 Criteria for considering harshness etc.

(a)       whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)       whether the person was notified of that reason; and
(c)       whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)       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
(e)       if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)       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
(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
(h)       any other matters that the FWC considers relevant.”

Valid reason - s.387(a)

Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd[127] which requires the reason for termination to be “sound, defensible or well founded.”

In light of the factual findings of fact I have made, I find that there were a number of valid reasons that individually and collectively supported the dismissal of Ms D’Ortenzio available on the evidence presented.

In considering whether a break down in the working relationship can be relied upon as a valid reason for a dismissal, I have considered the following authorities.

In Blyth Chemicals Ltd v Bushnell[128] Dixon and McTiernan JJ said the following:

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal (Boston Deep Sea Fishing and Ice Co. v. Ansell; English and Australian Copper Co. v. Johnson; Shepherd v. Felt and Textiles of Australia Ltd.). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.” (citations omitted)

In McInnes v Royal Flying Doctor Service of Australia Central Operations[129] Commissioner Hampton found that ‘there was a breakdown in the employment relationship caused in large part by the applicant’s conduct to the extent that there was a valid reason for dismissal.’[130]

The applicant in the case of McInnes made allegations against various employees of differing hierarchical levels. In considering the various allegations that led to the breakdown of the working relationship, Commissioner Hampton said:

“[154] I accept that the fact that some of the allegations were made about managers not in an immediate reporting relationship is relevant. However, the making of allegations against the Chief Executive Officer and the General Managers in the manner that this was done remains a significant matter and the overall conduct of all parties is relevant to the extent that it bears upon whether there was a breakdown in the necessary foundations for the working relationship.

[155] That is, whilst the immediate reporting relationships are the most important, the capacity for the necessary trust and confidence to exist with the organisation as a whole remains an important consideration.” (original emphasis)

I also note the matter of Bellia v Assisi Centre Inc. T/A Assisi Centre Aged Care[131] where Commissioner Ryan said:

“[22] The Assisi Centre contended that the valid reason for the dismissal of Fr Bellia was because of a complete breakdown in the working relationship between Fr Bellia and both Ms Petrone and Ms Andaloro which was caused by Fr Bellia’s behaviour towards those two employees.

[23] I accept that there has been a complete breakdown in the working relationship between Fr Bellia and the two named employees. However given my consideration of the witness evidence I find that the cause of the breakdown was the conduct of the two employees and not the conduct of Fr Bellia.

[24] Whilst in some circumstances a complete breakdown in the working relationship between employees who are required to work together may constitute a valid reason for termination, that assessment must be made by considering all of the circumstances of the case.

[25] In this matter the breakdown in the working relationship between Fr Bellia and Ms Petrone was caused by Ms Petrone adopting a hostile and uncooperative attitude towards Fr Bellia because Fr Bellia challenged her over her quite inappropriate treatment of an elderly volunteer worker at the Assisi Centre.

[26] The breakdown in the working relationship occurred in mid 2007 yet the Assisi Centre only used it in January 2010 as a reason for the dismissal of Fr Bellia.

The breakdown in the working relationship between Fr Bellia and Ms Andaloro was not attributed to any single incident or point of time but was expressed by the Assisi Centre to have occurred from mid 2009. The evidence in this matter clearly suggests that Ms Andaloro did not consider her role as a Pastoral Associate to be either subordinate to or even equal to that of Fr Bellia as the Senior Pastoral Worker. Rather it appears that Ms Andaloro had an exaggerated view as to her status as an employee. Not only was Ms Andaloro an employee of Assisi Centre she was also a Board Member and in that capacity Ms Andaloro was part of the body that acted as the employer of Fr Bellia. Whilst there was an obvious conflict of interest in being both an employee and part of the employer it appears that Ms Andaloro attended and exercised her vote at the Board meeting which dismissed Fr Bellia.

[27] For there to be a valid reason it must be sound defensible or well founded. In the present matter the reason for the dismissal, the breakdown in the working relationship between Fr Bellia and two other employees, was caused by the conduct of those employees and in circumstances where one of those employees was also on the body that constituted the employer. In this context the reason for the dismissal is neither sound, defensible nor well founded. It would be more apposite to describe the reason for dismissal as unsound, indefensible and unfounded.

[28] I find that there was no valid reason for the dismissal of Fr Bellia.” (citations omitted)

I have no hesitation in finding that Ms D’Ortenzio’s conduct has resulted in the complete breakdown of the working relationship between Ms D’Ortenzio and Mr Parletta at the time of the dismissal and that this was a valid reason for dismissal.

In this matter the contract of employment contained a specific term requiring Ms D’Ortenzio to further the business and reputation of the employer[132] and not to damage or expose the property or goodwill of the employer.[133]

It is clear to me that Ms D’Ortenzio’s conduct in instructing Mr Minicozzi to communicate with the Banks and Mr Bonomi was antithetical to furthering the business and reputation of LJ Hooker Glynde and would have had an adverse impact on the property or goodwill, either through loss of reputation or the cancellation or delay of the sale. I find that Ms D’Ortenzio’s conduct in this regard was a valid reason for dismissal.

Ms D’Ortenzio was a senior employee, I find that her failure to disclose the true nature of transactions made in the course of her sales duties concerning transactions on behalf of Mr Mazzone and Mr Minicozzi in a manner which denied the LJ Hooker franchisor of a contractual benefit was a valid reason for her dismissal.

Finally I find that the poor execution of her responsibilities as Office Manager, specifically the unilateral reduction of Ms D’Angelo’s remuneration as a result of a disciplinary matter, failing to appropriately document conditions of employment of personnel employed at LJ Hooker Glynde and increasing her personal remuneration absent of any express agreement with Mr Parletta was a breach of her employment obligations and which despite her lack of human resources knowledge, should have been recognised as obvious departures from the standard required.

Notification of valid reason - s.387(b)

Ms D’Ortenzio was advised of the allegations in respect of her conduct in the provided HR Room Report (as modified by the Minter Ellison correspondence dated 21 June 2017)[134] and allegations in relation to commissions concerning the properties managed for Mr Mazzone and Mr Minicozzi. The dismissal letter informed Ms D’Ortenzio of the reliance of misconduct (based on the HR Room Report) and the breakdown of the professional relationship.

Opportunity to respond - s.387(c)

Ms D’Ortenzio was invited to respond to the findings contained in the provided HR Room Report (as modified by the Minter Ellison correspondence dated 21 June 2017)[135] and allegations in relation to the commissions concerning the properties managed for Mr Mazzone and Mr Minicozzi.

A face to face meeting was scheduled but this meeting was rescheduled for 26 June 2017. The face to face meeting did not occur at the request of Ms D’Ortenzio and a written response to the allegations was provided on 23 June 2017. The provision of a written response had the effect of truncating the disciplinary process.

Ms D’Ortenzio contends that the allegations relied upon at the hearing were not put to her for her comment before the dismissal.

It appears to me that the specific allegations that she acted contrary to the interests of LJ Hooker Glynde in respect of her communications with the Bank, Mr Adcock (in his role as the South Australian Franchisee Manager) and Mr Bonomi (as a prospective purchaser of LJ Hooker Glynde) were not put to her. In addition, the allegations concerning the deterioration of her work relationship with Mr Parletta and other staff was not specifically put to her.

It is possible that had Ms D’Ortenzio attended a face to face meeting, these topics may have been discussed, however, it was open to LJ Hooker Glynde (who by this time were represented by Minter Ellison) to put in writing any further allegations not contained in the communications to date upon which they sought to rely.

Whilst it was not put to Ms D’Ortenzio that the working relationship had completely and irretrievably broken down, many of the factual allegations relied upon to reach that conclusion were put to her. However, the allegations concerning the communications with the Bank and Mr Bonomi which are of considerable force in the characterisation of the working relationship as totally dysfunctional were not.

In Crozier v Pallazo Corporation Pty Ltd (t/as Noble Park Storage and Transport)[136] the Full Bench stated:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’ However whilst the absence of procedural fairness may lead to a conclusion that the termination was harsh, unjust or unreasonable, each case turns of its facts.”

When I consider the evidence given by Ms D’Ortenzio during the hearing, there is no real contest that her relationship with Mr Parletta was totally dysfunctional by the time the dismissal occurred.

Had Ms D’Ortenzio given the explanation put forward at the hearing as to her reasons for instructing Mr Minicozzi to advise the Banks about her intentions to take proceedings against LJ Hooker Glynde and her reasons for advising a prospective purchaser of the business, that Mr Parletta had been involved in improper conduct, I do not believe it would have changed the outcome. Ms D’Ortenzio’s explanations were unconvincing and I suspect the true motive for the making of these allegations was to prevent the sale and require Mr Parletta to purchase her shares.

In respect of this element I find that the failure to put all of the allegations to Ms D’Ortenzio weighs in favour of a finding that the dismissal was unfair.

Any unreasonable refusal by the employer to allow Ms D’Ortenzio to have a support person present to assist at any discussions relating to dismissal - s.387(d)

Ms D’Ortenzio was represented and supported by Mr Minicozzi at all stages during the dismissal process. I find that there was no unreasonable refusal by LJ Hooker Glynde to allow Ms D’Ortenzio to have a support person present to assist at any discussions relating to the dismissal.

Warnings relative to unsatisfactory performance - s.387(e)

There were no warnings given in respect of Ms D’Ortenzio’s work performance.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

LJ Hooker Glynde did not have internal HR support but accessed the services of an external consultant and a law firm prior to making the decision to dismiss Ms D’Ortenzio.

Other matters considered relevant - s.387(h)

Ms D’Ortenzio has had a long and successful work history with LJ Hooker Glynde which until 2015 was without adverse comment. Ms D’Ortenzio is 58 years old and has extremely limited IT skills which may detract from her ability to seek employment. Ms D’Ortenzio was suffering from stress and anxiety in the later stages of her employment.

Conclusion

The Explanatory Memorandum to the Act[137] explains the approach of the Commission in considering the elements of s.387 of the Act:

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”

In Byrne and Frew v Australian Airlines Pty Ltd,[138] the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Ms D’Ortenzio’s employment was not harsh, unjust or unreasonable.

An Order[139] reflecting this decision will be issued.

COMMISSIONER

Appearances:

D Blairs of counsel on behalf of the Applicant.

A Short of counsel on behalf of the Respondent.

Hearing details:

2017.
Adelaide:
29 and 30 November.

[1] Exhibit A1

[2] Exhibit A2

[3] Exhibit A3

[4] Exhibit R1

[5] Transcript PN177

[6] Exhibit A1 attachment MD2

[7] Exhibit A1 attachment MD2

[8] Exhibit A1 attachment MD4

[9] Exhibit A1 attachment MD5

[10] Transcript PN775

[11] Transcript PN178

[12] Transcript PN179

[13] Transcript PN181, PN183

[14] Transcript PN187

[15] Transcript PN1258-1262

[16] Exhibit A1 attachment MD7

[17] Exhibit A1, attachment MD6

[18] Transcript PN762-767

[19] Transcript PN893-908

[20] Transcript PN832

[21] Transcript PN211-212

[22] Transcript PN217

[23] Transcript PN864-879

[24] Transcript PN873, 877

[25] Transcript PN846-850

[26] Transcript PN844

[27] Transcript PN493-498

[28] Transcript PN568-591

[29] Transcript PN598

[30] Transcript PN604-614

[31] Transcript PN618

[32] Transcript PN471-758

[33] Exhibit A5

[34] Transcript PN223-225

[35] Transcript PN226-227

[36] Transcript PN243

[37] Transcript PN873-879

[38] Exhibit A1 attachment MD13

[39] Exhibit R1 attachment MD14

[40] Exhibit A1 attachment MD14

[41] Exhibit R1 attachment MD16

[42] Exhibit R1 attachment MD18

[43] Exhibit R1 attachment MD19

[44] Exhibit R1 attachment MD20

[45] Exhibit R1 attachment MD21

[46] Exhibit R1 attachment MD22

[47] Transcript PN192-193

[48] Exhibit R1 attachment MD24

[49] Transcript PN1057-1079

[50] Transcript PN1308-1416

[51] Transcript PN201

[52] Transcript PN203

[53] Transcript PN218-222

[54] Exhibit A2, para 48,49

[55] Transcript PN50

[56] Transcript PN1456-1465

[57] Transcript PN1401

[58] Exhibit A5

[59] Transcript PN1936

[60] Transcript PN1963-1966

[61] Transcript PN1971

[62] Exhibit A4

[63] Transcript PN1875

[64] Transcript PN1877

[65] Exhibit A6

[66] Transcript PN2117

[67] Transcript PN2122

[68] Transcript PN2116

[69] Transcript PN2124

[70] Exhibit A7

[71] Transcript PN2232

[72] Transcript PN2236-2239

[73] Transcript PN2234

[74] Exhibit R2 including attachments

[75] Exhibit R3 including attachments

[76] Transcript PN2332-2345, 2379-2382, 2618-2625

[77] Exhibit R2 attachment CSP2

[78] Exhibit R2 attachment CSP1

[79] Exhibit R2 attachment CSP7

[80] Exhibit R2 attachment CSP10

[81] Exhibit R2 attachments CSP11, CSP12

[82] Transcript PN2362-2369

[83] Exhibit R2 attachment CSP4

[84] Transcript PN2656-2672

[85] Exhibit R2 attachment CSP5

[86] Exhibit R2 attachment CSP9

[87] Exhibit R2 attachment CSP17

[88] Exhibit R4 attachment SMP4

[89] Transcript PN2277-2295

[90] Transcript PN2277-2307

[91] Exhibit R2 attachment CSP24

[92] Exhibit R2 attachment CSP25

[93] Exhibit A1 attachment MD13

[94] Exhibit R2 attachment CSP23

[95] Exhibit R2 attachment CSP26

[96] Exhibit R5

[97] Exhibit R6

[98] Transcript PN3813

[99] Transcript PN3844-3850

[100] Exhibit R7

[101] Transcript PN3985-3988

[102] Exhibit R4 including attachments

[103] Exhibit R4 attachment SMP-4

[104] Exhibit R4 attachment SMP-4

[105] Exhibit R8 including attachments

[106] Transcript PN4103

[107] Transcript PN4075-4085, 4133

[108] Transcript PN218-221

[109] Transcript PN248-253

[110] Transcript PN249-251

[111] Transcript PN218-221

[112] Transcript PN457-465

[113] Transcript PN493-511

[114] Exhibit R2 attachment CSP1

[115] Clause 32.2(a)

[116] Clause 32.2(b)

[117] Clause 18.3(d)

[118] Transcript PN448

[119] Exhibit A2

[120] Transcript PN452-470

[121] Transcript PN211-217, 230

[122] Transcript PN432-436

[123] Exhibit R2, attachment CSP24

[124] Transcript PN4075-4085, 4133

[125] Transcript PN1463

[126] Transcript PN1873

[127] (1995) 62 IR 371 at 373

[128] (1933) 49 CLR 66

[129] [2013] FWC 657

[130] McInnes v Royal Flying Doctor Service of Australia Central Operations[2013] FWC 657, [158]

[131] [2011] FWA 1504. I note that this decision was appealed but only on the basis of remedy, see [2011] FWAFB 5249 and [2011] FWAFB 5944

[132] Clause 32.2(b)

[133] Clause 18.3(d)

[134] Exhibit A1, annexure page 123

[135] Exhibit A1, annexure page 123

[136] (2000) 98 IR 137

[137] Explanatory Memorandum to the Fair Work Bill 2008

[138] Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24

[139] PR600448

Printed by authority of the Commonwealth Government Printer