McNeill v F & L Investments Pty Ltd
[2008] FMCA 615
•16 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McNEILL v F & L INVESTMENTS PTY LTD | [2008] FMCA 615 |
| INDUSTRIAL LAW – Termination of employment – dismissal – sole and dominant reason – alleged dismissal for a prohibited reason – claim to an entitlement of an industrial instrument – alleged dismissal for the making of complaints – dismissal for poor performance. |
| Workplace Relations Act1996 (Cth) Industrial Relations Act 1996 (NSW) Interpretation Act 1987 (NSW) |
| NVA v CSL [2002] FCA 513 CFMEU v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 Tristar Steering v IRC (NSW) [2007] FCAFC 50 |
| Applicant: | ANTOINETTE THERESE McNEILL |
| Respondent: | F & L INVESTMENTS PTY LTD |
| File Number: | BRG 336 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 14 February 2008 |
| Date of Last Submission: | 14 February 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 16 May 2008 |
REPRESENTATION
| The Applicant appeared on her own behalf |
| Counsel for the Respondent: | Mr Miles |
| Solicitors for the Respondent: | Booth Brown Samuels & Olney Solicitor |
ORDERS
That the Application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 336 of 2007
| ANTOINETTE THERESE McNEILL |
Applicant
And
| F & L INVESTMENTS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
In this application the Applicant, Antoinette Therese McNeill, seeks a declaration that the Respondent, F & L Investments Pty Ltd, contravened section 792(1) of the Workplace Relations Act1996 (Cth) in its dismissal of her on 10 November 2006. She seeks orders that a penalty be imposed upon F & L pursuant to section 807(1)(a) of the WR Act together with compensation pursuant to section 792(1).
Ms McNeill commenced employment with F & L on or about 3 April 2006. She was employed as a clerk. F & L is a small liquor wholesaling business conducting a liquor sales and distribution business in the central west region of New South Wales. Management of that business is vested in Frederick Paul Griffiths who is a sole director of F & L. He is assisted by his wife Lynn Griffiths and Mr Tony Dodd.
Background
At the time of her application for this employment she was in employment with Fletcher International and employed as a labourer. Prior to employing Ms McNeill she was interviewed by Mr Griffiths and Mr Dodd for the position of accounts and administration clerk which position had been advertised on At the meeting Ms McNeill presented to Mr Griffiths her curriculum vitae. Her curriculum vitae outlined her background and experience which at face value would clearly have addressed the selection criteria relevant to the position of accounts and administration. It is apparent from Ms McNeill’s curriculum vitae that she was qualified, indeed, probably over qualified, for the position sought to be filled by F & L.
In his evidence Mr Griffiths says that at the initial interview he described the duties involved with the position stating,
“The position is basically that of a grade 3 clerk. You would be required to carry out office duties including answering the phones, assisting to take orders over the phone, reconcile invoices and accounts, check customer statements, keep track of customer payments, record cash receipts and banking, follow up outstanding accounts and maintain stock control records. You will be required to assist prepare the data for payment of Fosters and Toohey’s accounts but I check and make the actual payments. You will be required to collect the data for preparing employee’s wages and then copy that data into our MYOB payroll system. The system is automated and makes all the necessary calculations. I then check the data transfer and calculations before making the actual various payments on our internet banking system.”
He said that her response to that information was, “that sounds fine”. He then informed her of the standard work hours they being 8.30am to 4.30pm with one hour for lunch between 12pm and 2.00pm and that the position would be paid at a rate of $583.68 gross per week which he noted was above the award rate. He says that Ms McNeill accepted those terms. In her evidence Ms McNeill stated that at the interview Mr Griffiths said words to the effect of “you will be paid according to the State Clerk’s Award. I don’t know how much that is, but it’s the award rate.” While there are differences between the versions provided by both Ms McNeill and Mr Griffiths (whose version is supported by Mr Dodd) nothing turns on that matter. Ms McNeill was successful in her application and offered the position which she accepted. She commenced employment on 3 April 2006. A duty statement was prepared for Ms McNeill on 3 April 2006 detailing the essential duties and responsibilities of her position including details of daily, weekly, mid month and monthly tasks. That statement was accepted by her. One of the weekly tasks identified was “reconcile hours worked by employees and update MYOB payroll, set-up for Fred to check and pay”.
F & L assert that Ms McNeill was employed as a grade 3 clerk under the Clerical and Administrative Employee (State) Award. While there is some dispute as to her classification it is not in dispute that the appropriate rate of pay for a grade 3 clerk was a little less than $583.68 gross per week. In addition F & L also afforded a bonus carton of beer (or alcohol in lieu) to each of its employees including Ms McNeill.
Following her commencement of employment it was asserted on behalf of F & L that Ms McNeill’s performance had not been entirely satisfactory. It was alleged that she had been spoken to on a number of occasions and that in fact Mr Griffiths had in consultation with his management, resolved to terminate Ms McNeill at the end of the busy Christmas season. These matters are in dispute.
For her part Ms McNeill says her employment with F & L proceeded without difficulty until she complained about her classification under the award and took the matter up with management. She maintains that relations soured from that point. That matter is not accepted by the respondent.
Following an exchange which occurred on 10 November between Ms McNeil and Mr Griffiths, Ms McNeil‘s employment was terminated. The principal issue in this proceeding is whether that dismissal was for a prohibited reason.
Issues in Dispute
Ms McNeil says her employment was dismissed for a prohibited reason being:
a)She claimed for entitlements under an industrial instrument being wages at a level consistent with a Grade 5 employee under the Clerical and Administrative Employees (State) Award NSW and/or
b)She had made a complaint to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s right under an industrial instrument.
The Respondent denied those allegations and contended Ms McNeill was dismissed because of poor performance and no other reason.
Mr Miles for the respondent submitted there were four questions to be determined:
a)Has the Applicant proved she was entitled to the benefit of an Industrial Instrument meaning an award at the level at which she contends to be entitled;
b)Has the Applicant proved that she has made an enquiry or complaint;
c)Has the Applicant proved that the enquiry or complaint was “to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s rights under an Industrial Instrument”;
d)Has the Respondent proved the reasons for dismissing the Applicant do not include that specific reason.
Concerning procedure he submitted that the authorities are now well settled, the onus is upon the Applicant to establish the factual elements of her case: NVA v CSL [2002] FCA 513; CFMEU v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9. Those matters being:
·conduct;
·the respondent carrying out conduct for a reason would constitute a contravention of Part XIV of the Act; and
·if the relevant conduct is established then the Respondent bears an onus to establish whether or not the reason was a sole or dominant reason for the purposes of section 809.
Accordingly, he submitted, only if the Applicant alleged that conduct was carried out for a particular reason or with a particular intent and that such reason or intent would constitute a contravention of the Act there was an entitlement to the benefit of and compliance with section 809. He accepted that in that event the employer bore the onus of proving the absence of a prohibited reason. So much is plainly correct.
Implicit in the Applicant’s conduct of the application was a view that the proceeding was in the nature of one for unfair dismissal. Mr Miles submitted that this was not a case of unfair dismissal. He submitted the Court was not required to consider that matter because here the Applicant only put in issue the question of whether or not the dismissal was for a prohibited reason. I also accept this submission as such is consistent with the relief sought in the application.
The legislative framework
The Applicant seeks orders pursuant to s.807 WR Act. Relevantly it provides,
“(1) The Court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil remedy provision of this Part:
(a) an order imposing a pecuniary penalty on the defendant;
(b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;
(c) any other order that the Court considers appropriate.”
The relevant civil remedy provision relied upon is s.792(1)(a); see s.792(2).
Section 792(1)of the WR Act relevantly provides,
“792(1)[Employer must not prejudice or threaten to prejudice an employee’s position for a prohibited reason] An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
…
792(4) [Entitlement sole or dominant reason for employer’s action] An employer does not contravene subsection (1) because of paragraph 793(1)(i) unless the entitlement described in that paragraph is the sole or dominant reason for the employer doing any of the things described in paragraphs 1(a)… of this section”.
Section 793 deals with prohibited reasons and for relevant purposes provides
“793(1) [Definition] Conduct referred to in subsection 792(1) … is for a prohibited reason if it is carried out because the employee…concerned:
(i) is entitled to the benefit of an industrial instrument, …; or
(j) has made or proposes to make any enquiry or complaint to a person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person’s right under an industrial instrument; or
…”
The onus of proof in respect of an application under s.807 is provided for in s.809(1). It provides,
“809(1) If:
(a) in an application under section 807 relating to a person’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in the proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise.”
Ms McNeill’s complaint is that in this case she was dismissed for a prohibited reason being:
a)that the dominant or sole reason of her dismissal was her claim to an entitlement of an industrial instrument, or
b)she was dismissed because she made a complaint to the New South Wales Office of Industrial Relations.
Entitlement to the benefit of an industrial instrument
Ms McNeill was employed under the Clerical and Administrative Employees (State) Award issued by the New South Wales Department of Commerce. Clause 8.3 outlined the position and indicative tasks of a grade 3 clerk. Relevantly they were,
“8.3 Grade 3
8.3.1 A grade 3 position is described as follows:
(i) the employee may work under limited supervision with the checking related to overall progress;
(ii) an employee at this grade may be responsible for the work of others and may be required to coordinate such work;
(iii) an employee at this grade applies knowledge with depth in some areas and a broad range of skills. Usually work will be performed within routines, methods and procedures where some discretion and judgment is required.
8.3.2 Indicative tasks of a grade 3 position are:
Business Financial
Reconcile accounts to balance
Prepare bank reconciliations
Document and lodge takings at bank
Receive and document payment/takings
Dispatch statements to debtors
Follow-up and record outstanding accounts
Dispatch payments to creditors
Maintain stock control records
“
The award provides in respect of a grade 5 position
“8.5 Grade 5
8.5.1 A grade 5 position is described as follows:
(i) The employee may be supervised by professional staff and may be responsible for the planning and management and evaluation of the work of others.
(ii) An employee at this grade applies knowledge with substantial depth in some areas, and a range of skills, which may be varied of highly specific. The employee may receive assistance with specific problems.
(iii) An employee at this grade applies knowledge and skills independently and non-routinely. Judgment and initiative are required.
8.5.2 Indicative tasks of a grade 5 position are:
Business Financial
Administer PAYE salary records
Process payment of wages and salaries
Prepare payroll data”
The job description provided for as an essential duty in responsibility that Ms McNeill weekly reconcile hours worked by employees and update MYOB payroll. The performance of those duties by Ms McNeill was explained to the Court. She explained that those duties were somewhat more onerous than simply entering employee hours because the MYOB system was not automatically upgraded. Accordingly calculations needed to be made manually for inputting into the system. The fact that Ms McNeill was doing payroll duties does not appear to have been in dispute. In Mr Griffiths’ evidence he stated that if doing the wages was a determinative issue then he would remove the problem by doing the wages himself.
Awards are statutory instruments being instruments made under the Industrial Relations Act1996 (NSW): Interpretation Act 1987 (NSW) s.3. However given their language they cannot be afforded the same precise construction as provided for in for example and Act or Regulation. It is quite clear by the set out of the grades that in the first paragraph dealing with grade description the award sets out the classifying qualities of the position with the second paragraph then setting out the indicative tasks. The fact that the second paragraph sets out “indicative tasks” does not necessarily mean that the performance of an indicative task establishes the requisite classification because the indicative task must also broadly satisfy the position description.
A review of the various grades provided for under the Award being grade 1 to grade 5, grade 1 is the lowest level requiring that an employee may work under direct supervision with regular checking of progress to grade 5 where the employee may be supervised by professional staff and may be responsible for planning and management and evaluation of the work of others. The breadth of the skill for a grade 1 employee is applying knowledge and skills to a limited ranged of tasks where a grade 5 employee applying knowledge to a substantial depth in some areas in a range of skills which may be varied or highly specific with the employee receiving assistance with specific problems. With a grade 1 employee the work will be performed within established routines, methods and procedures that are predictable and which may require the exercise of a limited discretion where the grade 5 employee applying knowledge and skills independently and non-routinely which judgment and initiative are required.
It is against those backgrounds that the indicative tasks are set.
In this case the evidence is that Ms McNeill was subject to supervision with checking related to overall progress. The preparation of wages is a case in point. The material was presented to her, collated and then submitted to Mr Griffiths for his examination. She was not responsible for the work of others and was not required to coordinate any such work. Whilst was to apply a broad range of skills, her work was performed within routines methods and procedures.
Given the essential duties and responsibilities detailed in the job description and having regard to the evidence Ms McNeill was subject to close supervision and in particular that she had no oversight responsibilities of her own and she was not called upon to apply knowledge and skills independently and non-routinely and in respect of which judgment and initiative were required she was not a grade 5 clerical employee as provided for in the Award.
I consider that her tasks were more consistent with that of a grade 3 employee, as described, particularly because she worked under limited supervision with checking related to overall progress and whilst she applied knowledge with some depth and a broad range of skills the work was performed within routines methods and procedures where only some discretion and judgment was required.
The tasks identified in respect of each of the respective grades were indicative only. Accordingly it does not follow that because Ms McNeill undertook some of the payroll tasks she was by definition a grade 5 clerk[1]. In my view she was not a grade 5 clerk and the Respondent was correct in its assessment of her job classification.
[1] The evidence was that those duties took no more than one hour per week and that payroll duties were not the principal functions of her employment.
The evidence demonstrates the Applicant was employed in accordance with the entitlements of a Grade 3 employee under the award.
Was the Industrial Instrument a NAPSA?
The relevant instrument was a New South Wales State Award made by the Industrial Relations Commission of New south Wales under the Industrial Relations Act 1996 (NSW). The respondent submitted that as it is a corporation it was therefore subject to the WR Act and been so since 27 March 2006; see Tristar Steering v IRC (NSW).[2]
[2] [2007] FCAFC50 [47] per Buchanan J.
On its face exhibit 2 noted it became a NAPSA from 27 March 2006. The Applicant commenced her employment on 3 April 2006.
Schedule 8 of the WR Act deals with the transitional treatment of State employment agreements and State awards.
Clause 31 provides for notional agreements preserving State awards to come into operation immediately if before the reform commencement the terms and conditions of employment of one or more employees in a single business unit were not determined under a State agreement and were determined under a State award.
Clause 33(2) provides that in respect of a person employed after the reform commencement and under the terms of the original State award not being subject to a preserved State agreement, that employment is subject to a notional agreement.
It was submitted that by operation of the transitional provisions as at
27 March 2006the New South Wales award became a notional agreement under Part 3 Schedule 8 of the WR Act. I accept this is the case in this action.
The effect of this transition is that since that time the New South Wales Industrial Relations Department is not a body to whom a complaint can be made under section 793(1)(j) of the WR Act.
Conduct alleged to be carried out for a prohibited purpose
The conduct complained of in this instance is the dismissal of Ms McNeill. There is no controversy surrounding that fact. However considerable controversy surrounds other matters related to the dismissal.
Claim for entitlement to benefit of an industrial instrument
By reason of my earlier determination that Ms McNeill was employed as a grade 3 clerk under the award it follows that the Applicant has not established that she was dismissed for a prohibited reason pursuant to s.793(1) being that she was dismissed for the role or dominant reason that she claimed to be entitled to benefits of an industrial instrument.
I accept she was being appropriately remunerated under the award.
Complaint to person with capacity to seek compliance with industrial instrument
I have earlier determined that the relevant industrial instrument was a NAPSA. It follows that her complaint to the NSW Industrial Commission was not a complaint to a person or body having the capacity under an industrial law to seek complain with that law or the observance of her rights under the industrial instrument.
Employer’s basis for dismissal – Unsatisfactory Performance
Notwithstanding my findings that the dismissal was not for a reason or with a particular intent that would constitute a contravention of Part 16 of Division 9 of the WR Act, I deal with the basis of dismissal for completeness in the event I am wrong in respect of my earlier findings and it was open for me to make such findings.
The principal ground advanced by F & L for termination of Ms McNeill was her generally unsatisfactory performance over the course of her employment. In his evidence Mr Griffiths stated that following her employment he received advice from his manager Mr Dodd that Ms McNeill was not performing her administrative duties properly and that she did not seem to be able to organise herself to complete her duties as and when they were to be done. He complained that Ms McNeill was taking her lunch hour at 9.00 in the morning to do her personal business of “assessing dogs” and he believed she was mis-stating those matters to Mr Griffiths’ wife. At the trial the truth or otherwise of those assertions was not investigated nor did it need to be because of those matters were merely relative to the state of mind of Mr Griffiths at the time that he gave notice to Ms McNeill.
In any event on 25 August Mr Griffiths says he had a conversation with Ms McNeill where he noted that “we are having some problems with office procedures and the time you are getting to work”. He says they discussed the matter concerning the organising of dog shows and the taking of the lunch hour.
There was some dispute between Mr Griffiths and Ms McNeill concerning the conduct of this conservation but for reasons I have earlier outlined I consider Mr Griffiths’ evidence to be more reliable. In any event the essence of the matters complained of by him were conceded by Ms McNeill although she says the circumstances giving rise to those matters are somewhat different.
About one month later in early September 2006 there was further discussion between Mr Dodd and Mr Griffiths concerning Ms McNeill’s performance of her duties. That followed with a meeting on 12 September between Mr Griffiths and Ms McNeill where again the usual performance was raised. Mr Griffiths says that he noted to Ms McNeill that tasks were not being done when they were meant to be done and that Ms McNeill continued to be often late to work. He says that following that meeting he then presented to Ms McNeill a job description schedule which detailed in clear terms F & L’s expectations. That schedule where is annexure E to Mr McNeill’s affidavit filed 13 February 2008 is dated 12 September 2006. Ms McNeill accepted in cross examination that she was given a copy of exhibit E on that day. However despite that, she denies that she was ever warned about the performance of her duties or the fact that tasks were not being done and that she was late to work. It is difficult to accept those denials in the face of the matters contained in the schedule.
Mr Griffiths says that in about mid October 2006 he had further discussions again concerning Ms McNeill’s performance. He says that this time it was concluded internally that as it was then too close to Christmas to get a new person in she would be issued with another warning with a review after Christmas. Following that meeting between Ms McNeill and Mr Dodd a further meeting was had between Mr Griffiths and Ms McNeill in mid October 2006. On that occasion it was put to her that the company was still concerned about her being late to work and concluding her duties on time and noting that her commencement time had been adjusted to allow for difficulties she had with getting her son to school on time. It was noted that despite those adjustments she continued to be late to work. She denied that matter.
There were no independent records concerning start times. The matter is one which largely has to be resolved by reference to credit.
At about the same time Ms McNeill visited a financial planner to assist in relation to her financial affairs. Following an interview with her financial planner she became concerned about the rate of pay being paid to her by F & L. She made enquiries of the New South Wales office of Industrial Relations and says that following discussions with an operator at the Department who informed her that she was a grade 5 clerk. The basis upon which that assessment was made was her statement to that operator that she was doing the wages as part of her employment. She said the information provided to her by the operator was that her classification was at a grade 5 clerk level and that the award rate for that classification was $700.50 per week.
Ms McNeill says that she subsequently spoke to Mr Dodd and informed him that following her discussions with her financial planner she believed that she was not being paid the correct award rate. She said that Mr Dodd’s response was that it was a matter that she should take up with Mr Griffiths.
The next day, 10 November, Ms McNeill approached Mr Dodd again enquiring whether he had spoken to Mr Griffiths about her wages. Subsequently at about 11.15 that morning Ms McNeill met with Mr Griffiths. The meeting was conducted in Mr Griffiths’ office. Ms McNeill says that she asked Mr Griffiths whether she could speak to him about her wages to which he said yes. She then reported to Mr Griffiths that she had spoken to the Industrial Relations office and had been informed that she should be paid as a grade 5 clerk because she was doing the wages. She asked Mr Griffiths to check by ringing the Department to which he responded there was no need as the issue could be resolved by examining the award. The award was then obtained and produced from within the office and opened at the appropriate place for discussion. Ms McNeill says that she pointed to the relevant section which says “administer PAYG wage records” to which Mr Griffiths allegedly responded:
“Right, you don’t do the wages then. I’ll do them”.
She then says she stated,
“Okay then, that’s fine. But could I please have the pay from when I did do the wages?”
She says that in response to that Mr Griffiths jumped out of his chair, grabbed a piece of paper from his desk, screwed it into a ball and threw it across the room and told her,
“Right! That’s it! Get out! Get your things and get out right now! You’re sacked!”
Following that Ms McNeill says she picked up her personal items and left the office. Mr Griffiths’ version from that point of departure is slightly different. He says that after Ms McNeill pointed to the section of the award which stated “prepare and do payrolls” he said it was necessary to look at the criteria that a grade 5 was based on. He then says he looked at the first criterion which says to work “unsupervised” and said to Ms McNeill,
“For example, do you consider yourself supervised?”
He says Ms McNeill responded “I am supervised to within an inch of my life”. Ms McNeill denies that she said words to this effect saying she responded that she was not supervised. She disagreed for instance that Mr Griffiths took a close interest in her duties. She stated that in respect of payroll Mr Griffiths would simply check the summary sheet figures against the bank template and would check the final amount to be paid.
On Mr Griffiths’ version of events there was a further heated discussion between the parties before ultimately Mr Griffiths stated that “seeing that you (being Ms McNeill) think doing the wages is the issue about whether you are a grade 5 clerk, then I will solve the problem and do them myself to remove any confusion”. Mr Griffiths then says Ms McNeill said “Fine – but you will have to back pay me for the last nine months”.
It was following this that Mr Griffiths says he then raised it with Ms McNeill the issues that had alleged to have been previously raised concerning performance and made statements that in light of her past performance and in light of her not being up to scratch it was better that the parties part company. He said that he would pay her two weeks wages in lieu and that she might as well grab her personal items and go.
The versions of Mr Griffiths and Ms McNeill departed on a number of significant issues and in particular the basis upon which Ms McNeill was terminated. To a large extent evidence concerning the conversation had at about 11am on the morning of 10 November is critical to the resolution of that issue.
On the morning of 10 November Mr Anthony Dodd was in the vicinity of Mr Griffiths’ office. He said that he recalled walking past the office when he saw and heard Mr Griffiths and Ms McNeill having a conversation concerning her classification. At about this time his attention to that conversation was distracted by his involvement with another employee. When he returned his attention to what was happening inside the office he says he heard Ms McNeill refer to the preparation of payrolls as justifying a grade 5 classification. He says in response to that he heard Mr Griffiths refer to supervision to which he says Ms McNeill responded that she was supervised to within an inch of her life.
Significantly she heard the progress of the conversation to a point where she heard Mr Griffiths state to Ms McNeill that he considered that Ms McNeill had continually been having trouble completing her duties as required on time. Her past performance had not been up to scratch and that he was not satisfied that ultimately the parties might best part company and that he would pay her two weeks ages in lieu of notice. He then says Ms McNeill turned to him and stated to him that she had been sacked and left the area and called out “you are just an arsehole. Do you realise you have just lost me my house.”
The version of events presented by Mr Dodd largely mirror the evidence of Mr McNeill. Although the evidence of both Mr McNeill and Mr Dodd was transmitted by video link I had the opportunity to observe each of the witnesses when being questioned by Ms McNeill. I was satisfied by their demeanour that they were both being honest in the portrayal of their recollection of events of the day. I have no reason to disbelieve any of the matters stated in her affidavit.
Equally I think Ms McNeill sought to portray her recollection of events in an honest manner. However her recollection was obviously deficient. The evidence concerning a conversation immediately preceding her dismissal was devoid of particularity. On analysis the matters which were deposed to by Ms McNeill in her affidavit are broadly accepted by Mr Griffiths. However the significance of those admissions is coloured by the detail which is omitted from Ms McNeill’s statement and evidence. For instance when the terms of the conversation leading up to the dismissal were put to her by Counsel for F & L she largely agreed that the additional parts of the conversation which are alleged to have occurred were in fact stated although she did not accept she said she was supervised but rather said she was not supervised being a statement to the contrary. Significantly however Ms McNeill agreed that there were other elements of the conversation as related by Mr Griffiths which she did not recall and did not include in her initial evidence in chief. It follows that I accept the evidence of Mr Griffiths as being more reliable than that of Ms McNeill. Likewise I prefer the evidence of Mr Dodd to that of Ms McNeill as being more reliable.
Another matter of evidence which I think supports the overall reliability of the recollections of Mr Griffiths and Mr Dodd is the observation by them that among other things Ms McNeill said to Mr Griffiths words to the effect of “do you realise that you have just lost me my house”. On both Mr Dodd’s version and Mr Griffiths’ version there had never been any discussion between Mr Dodd and/or Mr Griffiths and Ms McNeill concerning her house or mortgage. In her evidence Ms McNeill stated that these events were precipitated by a visit by her to a financial planner. Undoubtedly her personal finances were very much at the forefront of her mind in the lead into the dispute between the parties. Given that Ms McNeill had been in employment prior to her employment with F & L it is difficult to imagine either how Mr Griffiths or Mr Dodd would have any basis to appreciate the impact of any loss of employment upon Ms McNeill’s broader financial circumstances.
This particular piece of evidence was a matter which was within the peculiar knowledge of the applicant. On the evidence of Mr Griffiths and Mr Dodd this piece of evidence was unilaterally volunteered by Ms McNeil. Ms McNeil denied ever saying it. Given Ms McNeil could have been other only source of his information Mr Griffith and Mr Dodd could only have come into this information if was volunteered by Ms McNeil. The only occasion this could have occurred was at the time alleged by both Mr Griffiths and Mr Dodd. I accept it occurred in that manner. Mr McNeill’s evidence was also unreliable on this issue overall fortifying my earlier view that her evidence was not as reliable as that of either Mr Griffiths or Mr Dodd. Where her evidence departs from that of either Mr Griffiths or Mr Dodd it is not accepted.
I find that the conversation occurred as related by Mr Griffiths in his affidavit.
I accept Mr Dodd’s evidence that the performance by Ms McNeill and her failure to punctually attend work by the appointed hour each day continued to be a problem and was the subject of commentary between himself and Mr Griffiths. Likewise I accept that at the time of these discussions the busy Christmas period was foremost in the mind of Mr Griffiths and Mr Dodd and with that matter in mind they did not at that time intend to act upon the difficulties they were having with Ms McNeill until after that rush period had passed. The events of 10 November however accelerated their need to deal with Ms McNeill’s unsatisfactory performance and served to bring matters to a head.
I am satisfied that in terminating the employment of Ms McNeill F & L was motivated principally by a history of poor work performance by the employee. There was no entitlement to additional pay under an industrial instrument but in any event the industrial instrument of itself was not the sole or dominant reason for the dismissal of Ms McNeill. A discussion of the industrial instrument was merely the catalyst. I am satisfied the employer intended to take action in relation to Ms McNeill but was hoping to do so at a time which was more convenient to it namely after Christmas rather than in the lead-up to it as in fact transpired.
Summary
In summary I am satisfied that
a)Ms McNeill was employed as a Grade 3 employee under the Clerical and Administrative Employees (State) Award NSW;
b)Despite Ms McNeill’s belief she was entitled to the benefit of an Employee at the Grade 5 level under that award she had no such entitlement;
c)The relevant industrial instrument was a NAPSA pursuant to the provisions of the WR Act at all material times;
d)Given that Ms McNeill was being appropriately remunerated under the industrial instrument she was not dismissed for the prohibited reason under s.793 (1) (i) WR Act being because of her claims for entitlements under the relevant industrial instrument
e)Given the relevant industrial instrument was a NAPSA any complaint by Ms McNeill to the NSW Industrial Relations Commission was not one to a person or body having capacity to seek the observations of Ms McNeill’s rights under the industrial instrument; and
f)Despite the above the sole or dominant reason for the dismissal of Ms McNeill was her failure to perform in her employment to a satisfactory standard.
Orders
Application dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 16 May 2008
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