Miller v Executive Edge Travel and Events Pty Ltd
[2014] FCCA 1895
•8 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLER v EXECUTIVE EDGE TRAVEL & EVENTS PTY LTD | [2014] FCCA 1895 |
| Catchwords: INDUSTRIAL LAW – Allegation of adverse action against employee in contravention of s.340 of the Fair Work Act 2009 – whether complaint or proposal to make a complaint was reason or part of reason – consideration of s.361 – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 360, 361 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676 Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 Hill v Compass Ten Pty Ltd(2012) 205 FCR 94; [2012] FCA 761 Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 |
| Applicant: | SNEZANA MILLER |
| Respondent: | EXECUTIVE EDGE TRAVEL & EVENTS PTY LTD |
| File Number: | MLG 1868 of 2013 |
| Judgment of: | Judge O’Sullivan |
| Hearing dates: | 24 & 25 July 2014 |
| Date of Last Submission: | 25 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 8 September 2014 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr M. Champion |
| Solicitor for the Respondent: | Holding Redlich |
ORDERS
The application filed on 4 November 2013 be dismissed.
The respondent file and serve any application for costs, affidavits and written submissions within 14 days.
The applicant may file and serve any response, affidavits and written submissions in rely 14 days thereafter.
AND THE COURT NOTES:
(A)Any application for costs will be determined on the papers unless otherwise requested in submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1868 of 2013
| SNEZANA MILLER |
Applicant
And
| EXECUTIVE EDGE TRAVEL & EVENTS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Szezana Miller (“the applicant”) was employed by Executive Edge Travel and Events Pty Ltd (“the respondent”). The applicant commenced proceedings against the respondent in this Court on
4 November 2013. The applicant made various claims of breaches by the respondent of the Fair Work Act 2009 (Cth) (“the FW Act”).
Ultimately the applicant only relied on the workplace right in s.340(1)(c) of the FW Act. The applicant alleged that by dismissing her from her employment because or for reasons including that she had made or proposed to make complaints about her employment the respondent contravened the FW Act.
For the reasons that follow I am satisfied that the applicant’s employment was not terminated for those reasons or for reasons including those reasons. Accordingly, and for the reasons set out below, the application should be dismissed.
Background
The respondent is a licenced travel agency established in 2001.
The respondent specialises in executive luxury/travel. The respondent is a small business with approximately 24 employees. There is no dedicated human resources function and such matters are managed by each division head. The respondent’s business is divided into two divisions being leisure and corporate travel respectively. There are
3 directors. They are Mr Gary Reichenberg, Ms Yvonne Verstandig, and Ms Sally Bird.
The applicant began working for the respondent and was paid on an hourly rate from early March 2013. However, and by agreement between the parties, the applicant became a full time employee in April 2013 and continued to work as a travel consultant on that basis until her employment was terminated on 22 August 2013. The applicant worked in the respondent’s leisure division and reported to
Ms Verstandig who was the head of that division.
During the course of her employment the applicant worked with
Ms Susan Sallmann and Ms Linda Cohen who also reported to
Ms Verstandig. There was some dispute between the parties about whether the applicant’s employment was only temporary. However ultimately given the grounds the applicant relied on it is not necessary to resolve that controversy.
Whilst there was no written contract of employment the applicant’s employment was governed by inter alia the terms of the Clerks Private Sector Award 2010 (the Award) and the FW Act. The Award provided for inter alia minimum rates of pay, hours of work and meal breaks along with annual leave.
Ultimately it was not controversial that from May 2013 Ms Verstandig met with the applicant on a number of occasions to discuss what she expected of or required the applicant to do.
Ultimately it was also not controversial that following her return from an overseas business trip in August 2013 Ms Verstandig met with the applicant on 20 August 2013 to discuss concerns and in particular problems two clients had experienced that the applicant had been involved with.
This meeting ended badly according to all involved. It is however not disputed that the applicant told Ms Verstandig she wanted to make a complaint and wanted to speak with the other directors of the respondent.
The applicant’s employment was terminated at a meeting attended by the applicant, Ms Verstandig and Mr Reichenberg on 22 August 2013. At that meeting the respondent provided the applicant with written reasons for termination which were:
“22 August 2013
Dear Snowy,
As discussed in your meeting with Gary and myself today, I confirm that Executive Edge has decided to terminate your employment due to unsatisfactory performance, effective today.
· You have sent quotes to clients as a total figure rather than an itemised costing. It is a requirement that you send all quotes to clients as an itemised costing, rather than a total figure. This requirement has been explained to you on a number of occasions since you commenced in March 2013, with regard to both hotels and airfares (offering you examples of how we lay out our quotes to clients).
· On 12 August 2013 you provided a quote to a key client which was apprx $15,000 less than the actual cost. This error arose because you provided the incorrect format. I was subsequently advised by that client that he queried the low quote with you three times and you maintained that it was correct. On my return I spoke to you about the error and reminded you of the need to provide itemised costs. You were curt with me and refused to discuss the matter.
· On a number of occasions, you have interrupted my discussions with clients and provided unsolicited advice to my client. In doing so you were disrespectful to me and acted unprofessionally.
· On 15 July 2013, you failed to cancel a booking as requested by a client. The effect was that Executive Edge was required to cover the cost of the hotel booking. When trying to discuss the matter with you, you denied any responsibility.
· You have failed to process simple and straightforward bookings and paperwork in an efficient and autonomous manner, You repeatedly ask for assistance from colleagues, despite being shown on many occasions, how to complete a task.
In accordance with the Fair Work Act 2009 we will pay you 1 weeks remuneration, in lieu of notice.
Regards,
Yvonne Verstandig and Gary Reichenberg”
The applicant left the respondent’s premises that evening and didn’t return. The applicant was subsequently provided with an employment separation certificate and received payments for what was calculated to be her outstanding wages, annual leave and notice entitlements.
The applicant subsequently filed an application in the Fair Work Commission (“the FWC”) in September 2013. The FWC issued a certificate under what was then s.369 of the FW Act in October 2013.
Procedural background
The applicant commenced these proceedings by filing her application and form 2 on 4 November 2013. The respondent filed a response on 20 November 2013.
The matter was first listed in Court on 17 February 2014. On that date the applicant appeared in person and Mr McIvor, Solicitor appeared on behalf of the Respondent. The Court made the following orders:
“THE COURT ORDERS THAT:
1.The Applicant file and serve an affidavit setting out the particulars of her claim under Part 3-1 of the Fair Work Act 2009 (Cth) (“the FW Act”) within 21 days herein.
2.The Respondent file and serve an affidavit in reply to the applicant’s affidavit within 21 days of being served with the applicant’s affidavit.
3.The proceedings shall be subject to mediation to be held by 30 May 2014 though not before 7 April 2014 with the mediation to be conducted by a Registrar of the Court as mediator appointed by the Registrar of the Court.
4.The trial shall proceed on affidavit evidence with the affidavits of each witness if adopted to stand as the evidence in chief of the witness.
5.The Applicant file and serve any affidavit material and any documents upon which he intends to rely at final hearing on or before 13 June 2014.
6.The Respondent file and serve any affidavit material and any documents on which it intends to rely at final hearing on or before 20 June 2014.
7.The Applicant have until 27 June 2014 to file any further affidavit material in reply.
8.The applicant shall file and serve an outline of submissions addressing the relevant statutory considerations by 4 July 2014.
9.The respondent shall file and serve an outline of submissions addressing the relevant statutory considerations by 11 July 2014.
10.The parties shall exchange lists of objections to affidavits and grounds of objections by 18 July 2014 with copies to be sent to the Associate to Judge O’Sullivan at associate.judgeo’[email protected]
11.The parties shall file court book(s) by not later than 23 July 2014.
12.Counsel confer by 23 July 2014 in relation to any objections to affidavit material and provide one document to the Court on the first day of the hearing identifying in table format of any objections pressed.
13.The proceeding be listed for trial on 24 July 2014 at the Federal Circuit Court of Australia at Melbourne commencing at 10:00am.
14.There be general liberty to apply for both parties.”
There was an unsuccessful mediation and both the applicant and the respondent filed material broadly in accordance with the above orders.
At the trial on 24 July 2014 the applicant appeared in person and the respondent was represented by Mr Champion of Counsel.
Material relied upon
At trial the Court was told the applicant relied on:
a)application filed 4 November 2013;[1]
[1] Exhibit A1
b)form 2- statement of claim filed 4 November 2013;[2]
[2] Exhibit A2
c)affidavit filed 7 March 2014;[3]
[3] Exhibit A3
d)affidavit filed 12 June 2014;[4]
[4] Exhibit A4
e)affidavit filed 27 June 2014;[5]
[5] Exhibit A5
f)email from Gary Reichenberg to the applicant dated 30 August 2013;[6]
g)email from Maggie Fay to applicant dated 30 August 2013;[7]
h)email from applicant to Gary Reichenberg dated 22 April 2014 and email from Gary Reichenberg to applicant dated 23 April 2013;[8]
i)email from applicant to Gary Reichenberg dated 2 April 2013;[9]
j)
termination letter from the respondent to the applicant dated
22 August 2013;[10] and
k)applicant’s submissions filed 4 July 2014.[11]
[6] Exhibit A6
[7] Exhibit A7
[8] Exhibit A8
[9] Exhibit A9
[10] Exhibit A10
[11] Exhibit A11
At trial the Court was told the respondent relied on:
a)defence filed 20 November 2013;
b)affidavit of Yvonne Verstandig filed 28 March 2014;[12]
[12] Exhibit R8
c)affidavit of Gary Reichenberg filed 15 June 2014;[13]
[13] Exhibit R15
d)affidavit of Sally Bird filed 19 June 2014;[14]
[14] Exhibit R16
e)affidavit of Susan Sallmann filed 20 June 2014;[15]
[15] Exhibit R11
f)affidavit of Linda Cohen filed 20 June 2014;[16]
[16] Exhibit R12
g)further affidavit of Yvonne Verstandig filed 20 June 2014;[17]
[17] Exhibit R9
h)Court Book (“CB”);[18]
[18] Exhibit R1
i)
series of emails between the applicant and Gary Reichenberg
(CB 215-221);[19]
j)employment separation certificate;[20]
k)bundle of emails from applicant to the respondent regarding lunch breaks;[21]
l)emails from applicant to client of the respondent (CB 251-253);[22]
m)emails from Ms Cohen to Ms Verstandig (at CB 235)[23] and emails from Ms Cohen to Ms Verstandig (at CB 231);[24]
n)email from client of the Respondent “Mr K” (CB 283);[25]
o)respondent’s submissions filed 14 July 2014; and[26]
p)respondent’s further submissions filed 25 July 2014.[27]
[19] Exhibit R3
[20] Exhibit R4
[21] Exhibit R5
[22] Exhibit R6
[23] Exhibit R13
[24] Exhibit R14
[25] Exhibit R7
[26] Exhibit R17
[27] Exhibit R18
The applicant’s case
In the form 2 filed on 4 November 2013 the applicant claimed:
“Contravention alleged
Application under section 365
1)s.340(1)(a) – Contravention of Workplace Right – Right to complain in relation to employment – denied
2)s.340(1)(b) – Proposed to initiate Dispute Resolution Procedure in accordance with The Clerks-Private Sector Award 2010 or General Retail Industry Award 2010 – Denied – work to continue until resolution
3)s.351(4) Age, Religion, Social origin
4)s.344 – Undue Influence or pressure
5)s.343 – Coercion”
The applicant particularised the remedy she sought as follows:
“Remedy Sought
Compensation
Loss of income as of 22/08/2013 until dispute is resolved
$1,400 per week
Underpayment of wages by reducing hourly rate
$6,312
Penalties for overtime worked but not paid
$500
Underpayment of superannuation (Payment made into unknown superannuation fund)
$700
Underpayment of leave entitlement
$520
Knowingly or recklessly delaying payment of 1 week salary in lieu of notice 30/08/2013
$1,100
Knowingly or recklessly delaying payment of leave entitlement 12/09/2013`
$1,651
Homeless as of 25/11/2013
$2,925 per month
Unable to afford legal representation
$30,000
Knowingly or recklessly sending confidential documents to third parties instead of directly to me
$30,000
Knowingly or recklessly preparing a letter of dismissal containing false allegations and not giving an opportunity to read the contents or to complain
$30,000
Knowingly or recklessly providing false information on Employment Separation Certificate
$2,751
Knowingly or recklessly allowing other employees to view my confidential payslips and to forward these to my personal email address
$2,751
Training I was entitled to but not given
$25,000
Counselling and Performance Appraisals I was entitled to but not given
$25,000
Meal breaks I was not allowed and workspace not allocated to me causing damage to my physical and mental health
$25,000
As a result of dismissal my mental health is adversely affected and I am being counselled
$25,000
Reinstatement
Pecuniary penalty”
There were orders made on 17 February 2014 for the applicant to particularise her claim. This resulted in a narrowing of the issues raised by the applicant. In her submissions filed prior to the trial, the applicant claimed:
“1.From 18 March 2013 until 22 August 2013, I was employed by the respondent as a permanent, full time consultant reporting to Ms Yvonne Verstandig; a director of the respondent (refer annexure ‘SM1’ & ‘SM2’).
2.At all times I had a workplace right to make a complaint or an inquiry in relation to my employment within the meaning of s341(1)(c)(ii) of the Fair Work Act 2009 namely to seek compliance with the Fair Work Act and clause 9 of the Clerks- Private Sector Modern Award 2010.
3.My claim is based on an adverse action that my employer dismissed me for prohibited reasons as provided by s341(1) of the Fair Work Act namely:
A person must not take adverse action against another person:
(a) because the other person:
has a workplace right; or
has, or has not, exercised a workplace right; or
proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
4.These reasons are the “prohibited reasons”.
5.The meaning of adverse action is defined in s342(1)(a) of the Fair Work Act.
6.I allege the adverse action occasioned was because I made a complaint or inquiry regarding my employment to Ms Verstandig on 20 August 2013 and on the same day proposed to make a complaint or enquiry ion relation to my employment to Ms Bird and Mr Reichenberg to exercise my workplace right.
8.I was instantly dismissed and asked to leave the premises.
…”
At the beginning of the trial and confirming she relied on those submissions the applicant told the Court her case was about the treatment she claimed she received from Ms Verstandig, and this was what she had wanted to complain about.
The respondent’s case
In the response filed on 20 November 2013 the respondent’s position was the Court should make the following orders:
“1.The application be dismissed.
2.Pursuant to section 570(1)(a) or 570(1)(b) of the Fair Work Act 2009 (Cth), the applicant pay the respondent’s costs.”
The grounds upon which it sought those orders were:
“…
2.The Application merely alleges that sections 340(1)(a), 340(1)(b), 351, 344 and 343 of the Fair Work Act 2009 (Cth) (FW Act) have been contravened. The Application does not properly set out the grounds for the claim that the applicant was dismissed in contravention of a general protection.
3.In relation to the allegation in paragraph 1 of Part G, the Application discloses no grounds that could give rise to the allegations contained therein. The Application does not contain any allegation that the applicant was dismissed because the applicant was able to make a complaint or inquiry in relation to her employment.
4.In relation to paragraph 2 of Part G, the Application discloses no grounds that could give rise to the allegations contained therein. The applicant did not raise, or purport to raise, a dispute under either the Clerks – Private Sector Award 2010 or the General Retail Award 2010. The respondent, in any case, denies that the applicant was prevented from doing so (although the respondent does not consider that there was any basis for the applicant to raise any such dispute) or dismissed the applicant so as to prevent the applicant from doing so.
5.In relation to paragraphs 3 to 5 of Part G of the Application, the Application discloses no grounds that could give rise to the allegations contained therein.
6.The applicant was dismissed from her employment with the respondent on 22 August 2013. The real or substantial and operative reason (indeed the sole or predominant reason) for the applicant’s dismissal was her poor performance.
7.The respondent denies that it dismissed the applicant for a reason, or reasons that include, reasons proscribed by Part 3-1 of the FW Act.”
In submissions filed prior to the trial the respondent’s position was:
“…
24.The respondent does not dispute that the applicant was dismissed on 22 August 2014.
Ms Miller did not make, or propose to make, a complaint or inquiry in relation to her employment and was not prevented from doing so.
25.However, the respondent denies that the applicant made a complaint or inquiry in relation to her employment or proposed or was prevented from doing so. The applicant has not clearly or unequivocally stated what complaint or inquiry she made or wished to make in relation to her employment. Accordingly, the respondent submits that the Court should not find that the applicant has established the objective facts or circumstances that are necessary in order for the onus of proof to shift to the respondent (under section 361 of the FW Act) so as to require the respondent to establish a reasonable hypothetical alternative explanation that it dismissed the applicant for a non-prohibited reason.
Ms Miller was dismissed by reason of her poor performance.
26.Alternatively, if the respondent submits that, if the Court finds that the applicant did make a complaint or inquiry in relation to her employment (within the meaning of s 341(1)(a)(ii)) of the FW Act) or proposed to do so, the respondent submits that the objective facts and circumstances surrounding the applicant’s dismissal are that:
(a)The applicant was employed for a short period of time and was only intended to be employed on a temporary basis;
(b)The applicant was employed for less than 6 months and was not protected from unfair dismissal under the FW Act (and by extension had no rights to procedural fairness);
(c)The respondent and its employees who supervised Ms Miller believed that the applicant’s performance was poor and that she was unable to improve her performance and the respondent brought these matters to the applicant’s attention;
…”
The legislation
Section 340 of the FW Act states:
“(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.”
For the purposes of s.340(1) of the FW Act, the term ‘workplace right’ is defined in s.341(1) of the FW Act as follows:
“Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.”
For the purposes of both s.340(1) of the FW Act, the circumstances in which “adverse action” is taken by an employer against an employee is set out in s.342(1) at Item 1 as follows:
“(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
2 a prospective employer against a prospective employee the prospective employer:
(a) refuses to employ the prospective employee; or
(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
3 a person (the principal ) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor's prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor.
4 a person (the principal ) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) refuses to engage the independent contractor; or
(b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or
(c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(d) refuses to supply, or agree to supply, goods or services to the independent contractor.
5 an employee against his or her employer the employee:
(a) ceases work in the service of the employer; or
(b) takes industrial action against the employer.
6 an independent contractor against a person who has entered into a contract for services with the independent contractor the independent contractor:
(a) ceases work under the contract; or
(b) takes industrial action against the person.
7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association:
(a) organises or takes industrial action against the person; or
(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or
(c) if the person is an independent contractor--takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or
(d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).
In summary an employer can take adverse action against an employee by dismissing the employee, or by injuring the employee in his or her employment, or by altering the position of the employee to the employee’s prejudice, or by discriminating between the employee and other employees of the employer.
By virtue of s.360 of the FW Act a person takes action for a particular reason if the reasons for the action include that reason.
The FW Act provides that once an applicant has established that they have a workplace right and that they have been subject to adverse action section 361 of the FW Act operates to reverse the normal onus of proof. Section 361 provides:
“(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.”
It is also necessary to note that s.140 of the Evidence Act 1995 (Cth) deals with the question of the standard of proof in these proceedings and provides:
“(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into court in deciding whether it is so satisfied, it is to take into account;
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
Evidence
Applicant’s evidence
In her affidavit filed 7 March 2014, the applicant deposed:
“1.I Snezana MILLER am an Australian citizen aged 61 years. I have 36 years experience in the travel industry having visited 58 countries to date. Besides owning my own travel agency in Cape Town for 20 years, I have also held positions with several multi national travel companies both in Australia and overseas as a senior travel consultant.
2.I have an impeccable track record.
3.I commenced full time employment with Executive Edge Travel and Events Pty Ltd (the Respondent) on 18 March 2013.
4.At Executive Edge Travel and Events, I had an excellent rapport with clients and colleagues alike. However, during my employment I became aware of many behavioural irregularities concerning the company’s treatment of me, in particular, Ms Yvonne Verstandig, a director of the company.
5.This behaviour included but was not limited to bullying, intimidation, acts of a discriminatory nature, unilateral lowering of my salary (hourly rate) with no consultation, no rostered dates off (RDO), agreed overtime and disallowed meal breaks.
6.However, due to an inherent fear of loosing my job in the event of raising my concerns with the other two directors namely, Mr Gary Reichenberg and Ms Sally Bird, I kept these concerns to myself. I planned to raise the concerns formally at the completion of my six months of service.
7.The situation at work was getting worse by the day.
8.On 20 August 2013 Ms Verstandig in the presence of
2 other employees, Ms Linda Cohen and Ms Sue Sallman placed pressure on me to admit to a mistake I had not been responsible for. At this point I realised I could no longer tolerate her continued degradation of me in the workplace and I felt compelled to make a formal complaint to the other two directors having regard to the ongoing bullying and harassment of me by Ms Verstandig. On this occasion I also felt faint and almost passed out.
9.Ms Verstandig was annoyed at the knowledge of my intent to lodge a formal complaint with the other two directors. Her position on this was [sic] “… she pays my salary therefore, I cannot complain to them.”
10.I responded that I do not agree with this, pointing out that Executive Edge pays my salary as indicated on my pay slips. I looked around for the other 2 directors however, neither were in their offices. I asked Ms Verstandig to arrange a meeting with all 3 directors for the following day or at the earliest opportunity in order that I might make my complaints known.
11.I continued in my position until 22 August 2013.
12.At approximately 5.00 pm on 22 August 2013, I was abruptly confronted by Ms Verstandig and was summoned to the boardroom. My expectation was that the meeting I had requested two days prior with all three directors, was about to take place.
13.I was not given the opportunity to have a support person with me at this meeting.
14.Mr Reichenberg advised me verbally, that due to Ms Verstandig and I having “words” 2 days prior, my services were being terminated with immediate effect.
I was told to take my personal belongings, return all company property including files I was working on and keys to the premises, and leave the building immediately thereafter.
15.I expressed my extreme shock at their decision to terminate my employment for what I believed was a legal workplace right of mind; that is to lodge a formal complaint about my working conditions. I was confident I had the right to legitimately exercise my concerns in accordance with (IAW) the provisions of section 341(1)(c)(i) of the Fair Work Act 2009 (Cth) and clause 9 of the General Retail Industry Award 2010 (the Award) respectively.
16.Both directors refused to grant this request adding the only option available to me would be to resign, again with immediate effect. I pleaded with them both to allow me to remain employed until at least the dispute I was never allowed to raise, was resolved.
17.I also reminded them of my financial commitments and the consequences to me of their adverse action against me. However, they were unrelenting and proceeded to advise me it was easier for them to “dispose” of me due to my short tenure with the company as opposed to other employees with greater tenure.
18.I was handed a sealed, unmarked envelope by Ms Verstandig but was denied the opportunity to open and read its contents while still on the business premises.
19.We departed from the boardroom at approximately 5.30 pm and I handed all files I was working on to Ms Verstandig. I asked for her permission to forward all personal emails to my private email address. I began to do this but was stopped by Ms Verstandig and ordered off the premises.
20.Prior to leaving the premises, I spoke with each of the remaining staff members and advised them I was being forced to leave the business. This was at approximately 6.15 pm.
21.On 23 August 2013, I opened the letter to read it (annexure A). Not only do I disagree with the contents of the letter including the false allegations against me, it was written prior to the meeting on 22 August 2013, and not after the meeting as it states. It is therefore premeditated. At no stage was I given an opportunity to read the letter prior to being dismissed and I was given no warning of any sort to advise I was to be dismissed.
…”
In her affidavit filed 12 June 2014 the applicant deposed:
“…
4.Ms Verstandig instigated informal and inappropriate discussions and attacks on my character. At one of these discussions, which were at times held behind closed doors and between Ms Verstandig and me, I was often left feeling belittled, intimated and discriminated against. During one of these discussions, reference was made by Ms Verstandig that I reminded her of her mother in law and therefore, we would have a personality clash. This left me feeling very uncomfortable and suggested to me that she had a problem with my age.
5.Referring to paragraph 9 of previous affidavit, I knew that Ms Verstandig was angry as she ad said in front of Ms Cohen and Ms Sallman, she was “…so angry she was shaking”. I responded to this comment adding I was also shaking as she did not treat me as a human being and I left unable to tolerate this behaviour towards me any longer.
6.On 20 August 2013 and referring to paragraph 10 of previous affidavit, Ms Verstandig and I were alone at this point.
7.On 22 August 2013 and referring to paragraph 15 of previous affidavit, at the time I did not quote the Fair Work Act or the relevant award to either Mr Reichenberg or Ms Verstandig. I was however, aware I had these rights.
8.Referring to paragraph 16 of previous affidavit, Mr Reichenberg offered me a financial incentive which was conditional on my signing a document releasing them from all liability. For that I was be rewarded with an additional three (3) weeks salary. He added no other option was available to me to have my complaint(s) heard. This I understood to include Ms Sally Bird. At no time was I afforded the opportunity to resign of my own free will nor did I want to resign.
9.Referring to paragraph 17 of previous affidavit,
I informed both directors I could not afford legal advice. I felt they pressed me into a corner in denying me the opportunity to exercise my workplace right(s) in exploring my legal options while still employed, together with seeking assistance from the Human Rights and Equal Opportunity Commission (HREOC).
10.Referring to paragraph 18 of previous affidavit, at no time were the contents of the letter ever neither discussed with me nor were they any time allocated for me to open and read this letter. This denied me procedural fairness in forming any opportunity to discuss its contents.
11.Referring to paragraph 21 of previous affidavit, the letter Annexure ‘A’ was signed by both directors and is vague as to which of these two directors is making the allegations. The allegations mentioned in the six (6) dot points have never been discussed with me at any time during my employment and this was the first time I was made aware of any performance related to matter(s) having regard to my employment.
12.At no time during my employment was I ever taken aside and offered performance management or counselling. I was denied any opportunity to make improvements to my work and performance should this have been necessary.”
The applicant gave evidence and was cross examined. I shall return to the applicant’s evidence in cross examination presently.
Respondent’s evidence
Ms Verstandig
Ms Verstandig deposed in her affidavit filed 31 March 2014 that:
“16.I do not agree with what is stated at paragraph 4, 5 and 7 of the Applicant’s Affidavit:
(a)The respondent’s employees found the applicant difficult to work with. These employees included Ms Sallmann and other employees who worked with the applicant. Ms Sallmann has informed me, and I believe, that she found the applicant’s performance to be poor. Ms Sallmann frequently complained to me that the applicant was slow and lacked basic industry awareness.
(b)Some clients of the respondent were not content with the service that the applicant provided.
(c)The applicant made frequent mistakes and did not accept responsibility for her mistakes when the mistakes were brought to her attention by me, Ms Sallmann or Ms Linda Cohen (my executive assistant who works closely with me on administrative tasks but also on travel consulting matters). Ms Cohen, Ms Sallmann and I, also frequently raised with the applicant her failure to comply with the respondent’s internal processes and properly manage her workload.
(d)
I deny that I raised my concerns in an unreasonable or harsh way. I had serious concerns relating to the applicant’s performance, which were shared by Ms Sallmann and Ms Cohen as well as other employees. While I informally counselled the applicant on a number of occasions regarding her performance and mistakes, there were three occasions in particular in which I expressed my concerns to the applicant regarding her performance in a more formal way by meeting with the applicant either in the boardroom or in my office. These occasions were on 22 May 2013,
6 August 2013 and 20 August 2013. On these occasions I stated to the applicant words to the effect that I did not think that her performance was satisfactory; that I did not think that the arrangement would last; and I did not think that it was working out. The applicant pleaded with me on each occasion to keep her on stating that she would improve and, on one the first two occasions, stated that she loved working at Executive Edge. At the end of each of the above occasions, the applicant asked for a hug. I found the conduct unusual and it made me feel uncomfortable.
(e)Despite my informal counselling and my conversations with the applicant, the applicant’s performance did not improve.
(f)The applicant was paid above the rates prescribed by the applicable award.
(g)I otherwise deny the allegations in relation to my treatment of the applicant in paragraphs 4, 5 and 7 of the Applicant’s Affidavit.
17.While I do not admit that the applicant had the concerns that she attributes to herself in paragraphs 4 to 8 of the Applicant’s Affidavit, the applicant did not raise, or seek to raise, those concerns with me or anyone else at the respondent’s business.
18.In relation to paragraphs 8 to 10:
(a)I met with the applicant in my office on 20 August 2013 to formally discuss the work that Ms Miller had done on my client files during my recent absence and to discuss some of my concerns regarding her performance in relation to that work. I raised two mistakes that concerned me greatly. The first related to an error in booking a hotel, which resulted in the business having to pay for a hotel room. I also raised an issue in which Ms Miller had under-quoted a family trip by $15,000. In response to this allegation, the applicant stated words to the effect that: “Don’t you go there with me! I have racked my brains over this and I don’t need you to discuss it with me!” The manner in which the applicant said this to me was aggressive and abrupt. I did not put pressure on the applicant to admit her errors but stated that we need to talk about these matters as we all make mistakes and need to take responsibility for our mistakes and how best to avoid them in the future. Ms Miller stared at me in a hostile manner as I was speaking to her.
(b)Ms Miller stated that she wanted the other directors to come into my office. She did not say why she wanted them present or that she wished to make a complaint to them about me. I said words to the effect of “that’s fine” and encouraged Ms Miller to get them.
(c)Ms Miller looked for the other directors (Mr Reichenberg and Ms Sally Bird) but they were not in the office. Ms Miller returned and I said words to the effect that “Why don’t you talk it through with me? I’m the one who pays you.” Ms Miller stated words to the effect that her payslip says that the respondent pays her. My point was simply that within the structure of the respondent’s business, I have managerial responsibilities for managing her performance and, although I did not mind either way if my co-directors were present, I was not sure what purpose their presence would usefully serve.
(d)During the course of the discussion, Ms Sallmann and Ms Cohen joined us. Ms Cohen stated words to the effect that: “But Snowy [the applicant’s nickname] you have to take responsibility for your mistakes”. I referred to Ms Sallmann and said words to the effect that: “We all make mistakes. Even Sue makes mistakes. We just need to be able to talk about them”.
(e)At the end of the discussion I said words to the effect that, “I just don’t think that this is going to work until November”. Ms Miller pleaded that I keep employing her until November. At the conclusion of the meeting Ms Miller asked again for a hug (which I declined as I was uncomfortable with the request).
(f)Ms Miller did not appear to be faint or near the point of passing out when I discussed the mistake with her in the presence of Ms Linda Cohen and Ms Sue Sallmann.
(g)The applicant states in paragraph 9 that: “Ms Verstandig was annoyed at the knowledge of my intent to lodge a formal complaint with the other two directors.” I had no knowledge that the applicant wished to make a complaint or inquiry in relation to her employment.
(h)I have spoken to the two other directors and they have informed me (and I believe) that the applicant did not contact them to request a meeting following my conversation with the applicant on 20 August 2013.
(i)The applicant did not ask me to convene a meeting with the other directors. I had no knowledge of any complaint that the applicant wished to make either to me or to the other directors.
(j)The conversation that I had with the applicant was a performance discussion. While Ms Miller clearly did not agree with my concerns and indicated that she wanted other directors present:
(i) Ms Miller did not seek to convene a meeting with the other directors at a later date.
(ii) Ms Miller did not disclose to me what inquiry she wanted to make to my co-directors.
(iii) Ms Miller did not disclose to me that she wanted to make a complaint to my co-directors about me.
(iv) I did not prevent Ms Miller from contacting my co-directors (during the meeting I clearly said that it was fine if she wanted them present during the performance discussion).
(v) Following the meeting on 20 August 2013, Ms Miller did not make either a complaint or inquiry to the co-directors in relation to the performance discussion or about me.
19.…
20.In relation to the allegations in paragraphs 12 to 19 of the Applicant’s Affidavit:
(a)I was the principal decision maker in relation to the applicant’s dismissal as I was the director with responsibility for the part of the business that the applicant worked in (i.e., Leisure).
(b)I conferred with my other directors prior to dismissing the applicant. In my conversations with the other directors, I told them that I considered that the applicant’s performance was unsatisfactory. I did not tell them that the applicant wished to make a complaint or inquiry in relation to her employment — as I had no knowledge that Ms Miller wished to do so — and that she should be dismissed as a consequence.
(c)I deny that the applicant was “abruptly confronted” on 22 August 2013 as alleged.
(d)The applicant was dismissed at a meeting with me and Mr Reichenberg on 22 August 2013.
(e)While the applicant did not have a support person present at the meeting, there was no legal requirement that she have a support person (the applicant was not protected from unfair dismissal as she had been employed for less than 6 months).
(f)Mr Reichenberg did not state words to the effect that are attributed to him in paragraph 14.
(g)The applicant did not state words to the effect that she wished to lodge a formal complaint about her working conditions (as alleged in paragraph 15) or that she be allowed to remain employed until the “dispute” was resolved (as alleged in paragraph 16). However, Ms Miller did state words to the effect that she did not agree with the decision to dismiss her and wanted to continue to challenge decision to dismiss her. However, the respondent had made its decision to dismiss her prior to the meeting (the respondent provided a letter of termination at the meeting).
(h)Mr Reichenberg offered the applicant an opportunity to resign so that her reputation could be protected.
(i)I deny the allegations contained in paragraph 17.
(j)The respondent’s reasons for the applicant’s dismissal are as stated in the letter of termination. The applicant was told of these reasons at the meeting.
…”
In Ms Verstandig’s affidavit filed on 23 June 2014 she deposed inter alia:
“Discussions with Ms Miller regarding her performance
20.I met with Ms Miller on 22 May 2013, 6 August 2013 and 20 August 2013 to raise my performance concerns in a more formal manner. I also discussed Ms Miller’s performance with her in an informal manner as matters arose that troubled me.
21.On 22 May 2013, I asked Ms Miller to come to the boardroom so that we could have a more formal discussion of her work performance out of ear short of other work colleagues in fairness to her as I do when wanting to have private conversations with any team member. I discussed my concerns with Ms Miller and towards the conclusion of the meeting I stated words to the effect that I did not think that it would work out and that I was not sure that Ms Miller’s employment would last until Ms Pasmanik started. Ms Miller stated words to the effect that she loved working at Executive Edge and wanted to stay and would improve. She gave me a hug, which made me feel uncomfortable.
22.On 6 August 2013, the last day in the office before I left on my business trip, I discussed the files that I would need Ms Miller to work on while I was away on a business trip to Las Vegas. Ms Miller was argumentative when I told her what tasks I expected her to complete and which wholesalers I expected her to use. I told Ms Miller that I found her difficult to work with and that I did not need additional stress before my departure. I again stated words to the effect that I did not think that it would work out and that I was not sure that Ms Miller’s employment would last until Ms Pasmanik started. Ms Miller again stated that she considered that she could improve and stated that all would be well while I was away. Ms Miller asked me for a hug before she left work that day, which again made me feel uncomfortable.
23.On 19 August 2013, when I returned from my business trip, I met with Ms Cohen, Ms Sallmann and Ms Eustice to discuss Ms Miller’s performance during my absence. Ms Sallmann, Ms Cohen and Ms Eustice raised their concerns regarding Ms Miller’s performance. We discussed an incident involving Ms Miller under-quoting a client by $15,000.
The problem arose because Ms Miller did not follow basic processes in providing quotes — as Ms Miller did not provide an itemised quote, her error was not apparent to her. The client later told me that he had brought the matter to Ms Miller’s attention and queried the price and Ms Miller insisted that the quote was correct. We discussed how Ms Miller was difficult to work with because, when issues were raised with her, she was prone to outbursts and insisted on doing things her way (which was the wrong way). Ms Sallmann, Ms Eustice and Ms Cohen urged me to dismiss Ms Miller and stated that it was not worth keeping Ms Miller on. Despite this advice, I wanted to speak with Ms Miller to see if it would be possible to continue to work with her and to see if she could accept constructive criticisms of her performance so that she could improve. As Ms Cohen was about to go away (on 22 August 2013), I said I would have my debrief with Ms Miller over the work she did in my absence and see how she handled all the files and then make a decision as to whether it was worth keeping her on at least until Ms Cohen returned.
24.As stated in my first affidavit. I met with Ms Miller on
20 August 2013. Further to what I stated in my first affidavit, I found the meeting very stressful and upsetting. When Ms Miller stated to me (in response to the concern that I raised regarding the $15,000 under-quoting): “Don’t you go there with me! I have racked my brains over this and I don’t need you to discuss it with me!” I then went on to discuss another issue that occurred in my absence, which was the omission of cancelling a hotel that was required and, once again, when I tried to bring it up with her, she yelled at me and stated words to the effect: “I don’t need to hear that from you as I have already been blamed for this mistake and it wasn’t my fault”. I was upset by the aggressive and abrupt manner in which Ms Miller made these statements and taken by surprise as to how a support person would address their employer when clearly she had made errors and I was only trying to work through them.
I had not raised my voice to Ms Miller. At this point I felt certain that I could no longer work with Ms Miller and told her this and once again said that I really think that we can no longer work together. I mentioned that Ms Pasmanik was due to start mid-November 2013 and that I would be fine without the extra support person for that short time. Ms Miller stated in a loud and aggressive manner that I was “verbally abusing her”. I requested that Ms Sallmann join us for the discussion because I felt uncomfortable with the manner in which Ms Miller raised her voice to me and the aggressive and defiant way in which Ms Miller glared at me.25.In response to what is stated at paragraph 5 of Ms Miller’s affidavit dated 12 June 2014 (Second Miller Affidavit), I was not shaking because I was angry but because I felt very upset by the aggression that Ms Miller displayed. I did not state words to the effect that I was shaking because I was angry. Further, Ms Miller did not state words to the effect that she was shaking because she did not treat me as a human being and that she felt unable to tolerate this behaviour any longer.
26.By way of response to what Ms Miller states in paragraph 6 of the Second Miller Affidavit, Ms Sallmann and Ms Cohen were present during the part of the meeting in which I told Ms Miller that I was the appropriate director to talk to as I was the director who employed her to support me and as Director I do pay for her salary.
27.At the conclusion of the meeting, Ms Miller stated that she would try to improve and, again, asked me for a hug, which request I refused as I felt too uncomfortable.
Termination of Ms Miller’s employment
28.Following the above meeting, I considered that it was necessary to dismiss Ms Miller due to her performance and her lack of cooperation with me in discussing her performance. While I accept that everyone makes mistakes — as I stated in the meeting with Ms Miller on 20 August 2013 — I consider that in order for performance to improve, it is necessary for employees to accept responsibility when they do make mistakes. I consider it to be unprofessional to not accept criticism and to challenge a manager or supervisor when constructive criticisms are raised.
29.As stated in my first affidavit (at paragraph 20(b)),
I consulted with Ms Bird and Mr Reichenberg the following day about my decision to dismiss Ms Miller. Both of my co-directors supported my decision to dismiss Ms Miller.
30.In relation to what is stated at paragraph 11 of the Second Miller Affidavit, I had a number of discussions with Ms Miller regarding her performance. Further, the specific performance concerns were raised with Ms Miller and I was surprised to read that Ms Miller considers that the matters that are outlined in the termination letter were not discussed with her. As discussed in this affidavit and my first affidavit, I often raised concerns with Ms Miller on a number of occasions (as did other employees).
31.As stated in my first affidavit, the reasons for Ms Miller’s dismissal are contained in the letter of termination dated 22 August 2013. Ms Miller was dismissed due to her poor performance. I categorically deny that Ms Miller was dismissed by reason of any alleged complaint or proposed complaint in relation to her employment on 20 August 2013 or subsequently (or any reason relating to her age, religion or social origin).”
Ms Verstandig gave evidence and was cross examined. Ms Verstandig’s evidence was the applicant responded when the above issues were raised with her along the following lines ‘don’t blame me, I’ve already been blamed before.’
Ms Verstandig’s evidence was she was taken back and told the applicant ‘I can’t work with you anymore.’ Ms Verstandig’s evidence was it was only then that the applicant said you’re verbally abusing me.
Ms Verstandig’s evidence was she then called in Ms Sallmann and later Ms Cohen came back to the office and joined the meeting.
Ms Verstandig’s evidence was it was at this stage that the applicant said she would like to call the other directors. Ms Verstandig’s evidence was she never said to the applicant she could not complain to the other directors. Ms Sallmann and Ms Cohen’s evidence corroborates this.
In answer to questions in cross examination Ms Verstandig maintained she had repeatedly raised performance concerns she had with the applicant and when confronted with the performance concerns on
20 August 2013, the applicant was “defiant.”
Ms Verstandig also denied she had told the applicant there was no point going to the other directors and but said she reiterated her concerns and that she was keen to discuss the issues raised by the applicant with her, as she worked with the applicant. Ms Verstandig maintained in answer to questions in cross examination she was not told the reason why the applicant wanted to see the other directors.
Ms Sallmann
Ms Sallmann is a senior travel consultant employed by the respondent in its leisure division. Ms Sallmann’s evidence in her affidavit and before the Court went to her involvement in and awareness of the concerns Ms Verstandig had with the applicant’s performance.
In her affidavit filed 20 June 2014 Ms Sallmann deposed:
“20 August 2013 meeting
22.On 20 August 2013, Ms Verstandig requested that I join her to meet with Ms Miller. Before I was asked to join the meeting I could hear Ms Miller’s raised voice coming from Ms Verstandig’s office, though I could not make out what was being said. Ms Verstandig asked me to join the meeting as she was having trouble explaining to Ms Miller that all of us make errors but we need to address these errors so they would not happen again. Ms Verstandig was clearly not comfortable with Ms Miller’s behaviour and wanted someone else in the room. Ms Cohen also joined the meeting. Ms Verstandig informed me that she had been discussing Ms Miller’s work performance with her and had brought up some issues which had occurred while she was away.
23.In response to what Ms Miller has alleged Ms Miller’s affidavit dated 7 March 2013 (First Miller Affidavit) and Ms Miller’s affidavit dated 12 June 2014 (Second Miller Affidavit) (both of which have been filed in these proceedings):
(a)At paragraph 8 of the First Affidavit, Ms Miller claims that she felt faint. At no stage did Ms Miller appear to me to be faint or complain as being unwell. As Ms Miller was angry, I do not think that it was likely that Ms Miller was faint.
(b)At paragraph 8 of the First Affidavit, Ms Miller claims that Ms Verstandig put pressure on her to admit to a mistake. During the meeting, Ms Miller would not accept responsibility for an error that she had made. Ms Verstandig, Ms Cohen and I tried to explain to Ms Miller that she had made the error and, therefore, should take some responsibility for the error. We were all trying to explain that everyone makes errors and they need to be discussed so we can learn from them so they do not re-occur. I did not put any pressure on Ms Miller during this meeting. Ms Verstandig also did not put any pressure on Ms Miller. At one point, Ms Cohen did speak loudly with Ms Miller in response to Ms Miller’s defiant attitude toward her, though I do not consider that she pressured Ms Miller to accept that she had made a mistake.
(c)At paragraph 9, Ms Miller alleges that Ms Verstandig stated: “she pays my salary therefore, I cannot complain to them” and in paragraph 10 of the Second Miller Affidavit, Ms Miller claims that she pointed out that on her payslips Executive Edge pays her. In paragraph 6 of the Second Miller Affidavit, Ms Miller alleges that she and Ms Verstandig were alone at this point. I was present at the meeting while there was a discussion about who paid Ms Miller. Ms Verstandig did not state words to the effect that Ms Miller could not complain to the other directors. The context of the conversation was that Ms Verstandig was making the point that she was the director to whom Ms Miller reported and that she was the appropriate director to be discussing performance, particularly as she did not do any work for the other directors.
(d)At paragraph 5 of the Second Miller Affidavit (referring to paragraph 9 of the First Miller Affidavit), Ms Miller alleges that Ms Verstandig said that she was so angry that she was shaking. Ms Verstandig did say that she was shaking but not because she was angry.
24.During the meeting, Ms Miller asked to have the other directors in on the meeting at which time Ms Verstandig happily told her to find them as the meeting was going nowhere. Ms Miller went to find one of the other directors but both had left for the day. At no time did Ms Miller then request a follow up meeting with the directors.
25.The meeting finished virtually straight after Ms Miller could not find any other directors. At this time Ms Verstandig intimated that she would need to think about the work situation and at this time Ms Miller again asked Ms Verstandig for a hug which Ms Verstandig could not bring herself to do.
…”
Ms Sallmann gave evidence and was cross examined. Ms Sallmann in answer to questions in cross examination confirmed her recollection of the meeting on 20 August 2013, who was involved and how it ended.
Ms Sallmann’s evidence in cross examination was the applicant would not accept responsibility for and dismissed the errors she had made.
Importantly in answer to questions in cross examination Ms Sallmann corroborated Ms Verstandig’s evidence as to how the meeting ended and that the applicant had been told because of concerns about her performance as raised by Ms Verstandig whether she had ongoing employment was something Ms Verstandig had to think about.
Ms Cohen
Ms Cohen is an executive assistant employed by the respondent.
Ms Cohen works in the respondent’s leisure division and reports to
Ms Verstandig. Ms Cohen gave evidence of her involvement in and awareness of the respondent’s concerns about the applicant’s performance.In her affidavit filed on 20 June 2014 Ms Cohen deposed:
“20 August 2013 meeting
26.On 20 August 2013, I joined a meeting at which Ms Miller and Ms Verstandig and Ms Sallmann were discussing Ms Miller’s handling of Ms Verstandig’s files while she had been away and also Ms Verstandig’s performance concerns. I was not at the meeting for the full duration. I had left at 5pm to collect my daughter and drop her home and then returned to work where the three of them (Ms Verstandig, Ms Sallmann & Ms Miller) were already discussing files.
27.In response to what Ms Miller has alleged in Ms Miller’s affidavit dated 7 March 2013 (First Miller Affidavit) and Ms Miller’s affidavit dated 12 June 2014 (Second Miller Affidavit) (both of which have been filed in these proceedings):
(a)At paragraph 8 of the First Affidavit, Ms Miller claims that she felt faint. Ms Miller showed no sign of being faint. Ms Miller was angry — she spoke in an aggressive tone and stared angrily, particularly at Ms Verstandig.
(b)At paragraph 8 of the First Affidavit, Ms Miller claims that Ms Verstandig put pressure on her to admit to a mistake. At one point, I raised my voice when discussing the matter with Ms Miller as I found it very frustrating that Ms Miller could not accept that she had made a mistake in not cancelling a hotel. I do not consider that I “pressured” Ms Miller to accept that she had made the mistake — we were simply discussing the issue. Ms Verstandig, Ms Sallmann and I each had tried to explain to Ms Miller that she had made the error. Ms Verstandig did not put any pressure on Ms Miller.
(c)At paragraph 9, Ms Miller alleges that Ms Verstandig stated: “she pays my salary therefore, I cannot complain to them” and in paragraph 10 of the Second Miller Affidavit, Ms Miller claims that she pointed out that on her payslips Executive Edge pays her. In paragraph 6 of the Second Miller Affidavit, Ms Miller alleges that she and Ms Verstandig were alone at this point. Ms Sallmann and I were present when Ms Verstandig made a point about which director is responsible for paying Ms Miller’s wages. Ms Verstandig did not say to Ms Miller that she could not complain to the other directors. While Ms Miller at one point requested that other directors attend the meeting, Ms Verstandig said that she would be happy for them to be present and encouraged Ms Miller to ask them to attend the meeting. Ms Miller did not say why she wanted them present and she did not articulate any complaint. At the end of the meeting, Ms Miller did not ask Ms Verstandig to convene another meeting with the other directors. Ms Miller asked for a hug from Ms Verstandig and stated that she would improve.
(d)At paragraph 5 of the Second Miller Affidavit (referring to paragraph 9 of the First Miller Affidavit), Ms Miller alleges that Ms Verstandig said that she was so angry that she was shaking. Ms Verstandig said that she was shaking but this was not because she was so angry. Ms Verstandig appeared to me to be scared of Ms Miller who appeared to be very angry with Ms Verstandig.
Complaints by Ms Miller about her treatment by Ms Verstandig
28.As I have stated previously, I consider that Ms Verstandig was very patient and tolerant of Ms Miller. I do not agree that Ms Verstandig mistreated her. For example, I never heard Ms Verstandig raise her voice to Ms Miller. If anything, Ms Verstandig was too lenient and kept employing Ms Miller despite me and Ms Sallmann advising her that Ms Miller should be dismissed. Ms Miller did not raise any concerns with me or, as far as I am aware, anyone else regarding any mistreatment by Ms Verstandig.”
Ms Cohen gave evidence and was cross examined. Ms Cohen in answer to questions in cross examination recalled her impressions of the applicant’s behaviour at the meeting on 20 August 2013.
Ms Cohen’s evidence in cross examination was the applicant was “annoyed.”
Ms Cohen also corroborated Ms Verstandig’s evidence as to how the meeting ended and that the applicant had been told because of concerns about her performance as raised by Ms Verstandig whether she had ongoing employment was something Ms Verstandig had to think about.
Mr Reichenberg
Mr Reichenberg is one of the directors of the respondent. Mr Reichenberg gave evidence about his involvement in the termination of the applicant’s employment. In his affidavit filed on 15 June 2014, Mr Reichenberg deposed:
“Termination of employment of Ms Miller
13.During Ms Miller’s employment there were many occasions when Ms Verstandig expressed frustration with, and disappointment in, Ms Miller’s work performance. The culture and environment at Executive Edge is one of tolerance and fairness. Hence, Ms Miller was afforded many opportunities to improve performance. However, towards the middle of August 2013 it became apparent that Ms Verstandig had lost confidence in Ms Miller’s performance and it was then decided to seek guidance as to our ability to terminate her employment.
14.On 21 August 2013, Ms Verstandig met with me to discuss Ms Miller’s employment. Ms Verstandig stated that she did not consider that Ms Miller’s performance was satisfactory. Ms Verstandig stated that Ms Miller was employed to support Ms Verstandig and Ms Verstandig felt that her burden had been increased as a result of Ms Miller rather than being eased. Ms Verstandig told me that Ms Miller made a number of errors including providing a quote that was $15,000 less than the actual cost and failed to cancel a hotel booking. Ms Verstandig stated that she was frustrated with Ms Miller because she would not follow directions about Executive Edge’s processes.
15.At about 5:00pm on 22 August 2013, Ms Verstandig and I met with Ms Miller to inform her of Executive Edge’s decision to dismiss Ms Miller. We provided Ms Miller with a copy of a notice of termination of employment (Annexure A to the Affidavit of Yvonne Agnes Verstandig dated 28 March 2014, which has been filed in these proceedings). The letter sets out the respondent’s reasons for dismissing Ms Miller. The reason for the termination of Ms Miller’s employment was her under-performance. Our clients expect a high level of customer service and Ms Miller was not capable of providing that service.
16I categorically reject that any complaint or inquiry made by Ms Miller was a reason or in any way a factor for the decision to dismiss Ms Miller. I was not aware of any complaint or inquiry that Ms Miller had made or proposed to make in relation to her employment. Ms Miller did not contact me to express any concerns regarding her employment and, in particular, made no attempt to contact me following her meeting with Ms Verstandig on 20 August 2013. To the extent that Ms Miller alleges that her age, race, religion or other attributed protected under the general protections were a factor in her dismissal, this is denied. Ms Miller was dismissed due to her poor performance.
17.I disagree with what is stated at paragraph 14 of Ms Miller’s affidavit dated 7 March 2013, which has been filed in these proceedings (First Miller Affidavit). I did not state that Ms Verstandig had decided to dismiss Ms Miller because she and Ms Verstandig had had “words” two days prior.
18I disagree with what is stated at paragraph 15 of the First Miller Affidavit. Ms Miller did not state words to the effect that she was shocked that she was being dismissed for “lodg[ing] a formal complaint about my working conductions).” In relation to what is stated at paragraph 7 of Ms Miller’s affidavit dated 12 June 2014 (Second Miller Affidavit), I agree that Ms Miller did not quote the provisions of the Fair Work Act 2009 (Cth) or the terms of any award. Ms Miller did not mention those laws during our meeting.
19.I disagree with what is stated at paragraph 16 of the First Miller Affidavit. We did not refuse any request of Ms Miller to make a complaint. Ms Miller did not make any such request. I also disagree with what is stated at paragraph 8 of the Second Miller Affidavit — I did not state words to the effect that “no option was available for you to have your complaint(s) heard”. From the discussion, it was clear that Ms Miller did not agree with our decision to dismiss her for performance reasons and wished to challenge that decision. I did put a without prejudice offer to Ms Miller at our meeting on 22 August 2013. However, I regard that part of our discussion to be privileged.
20.In relation to what is stated at paragraph 17 of the First Miller Affidavit, Ms Verstandig and I did not use the words that are attributed to us — I categorically deny using the word “dispose”. However, it is the case that Ms Miller had not provided 6 months service as at 22 August 2014 and, therefore, did not have unfair dismissal protections.
21.I disagree with what is stated at paragraph 18 of the First Miller Affidavit and paragraph 10 of the Second Miller Affidavit. I did outline the reasons for Ms Miller’s dismissal as set out in her letter of termination of employment.”
On the evidence the first time Ms Verstandig was aware that the applicant had or wanted to complain was on 20 August 2013. Ms Verstandig’s reaction was not dismissive. I am not satisfied her reaction to the applicant’s complaint, such as it was, suggested she saw that the applicant’s behaviour in making or attempting to make a complaint was a reason or a part of the reason for her termination. The evidence points overwhelmingly to instead the real reason being the ongoing concerns held by the respondent about the applicant’s performance.
The respondent submitted that whilst the applicant had said on
20 August 2013 that Ms Verstandig was “verbally abusing her” she had only made a “mere request to get the other directors” and this was not a complaint or enquiry nor was it “founded on a source of entitlement.”
As was said in Shea:
“615.The apparent object of s 340 is to protect persons from, by prohibiting, adverse action (which, by s 342(1), includes dismissal) because the person has, or has exercised, failed to exercise or proposes either to exercise or not exercise, a workplace right; or in order to prevent a person from exercising a workplace right.”
Also as was said in Shea:
“625.In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.”
Finally as was also said in Shea:
“627.Whether an employee has made a complaint is a matter of substance, not form, which should be determined in the light of all the relevant circumstances. It does not depend solely on the words used. An employee’s communication of a grievance or accusation could amount to making a complaint within the meaning of s 341(1)(c)(ii) despite an express disavowal of any intention to complain if a reasonable observer would conclude from the employee’s words and conduct in the circumstances (including the nature and gravity of the grievance or accusation) that he or she intended to bring the grievance to the employee’s attention for consideration or other appropriate action.”
Ultimately on the evidence, and given the relevant provisions of the FW Act are “in relation to” the applicant’s employment and the subject matter of the complaint (such as it was) had potential implications for the applicant’s employment, I am persuaded the applicant has established those matters.
However it does not necessarily follow that the respondent either prevented the exercise of a workplace right or that this or any complaint or inquiry was the reason or part of the reason for the termination of the applicant’s employment.
In considering those issues I have taken into account the evidence of the respondent’s witnesses. Ms Verstandig’s evidence, which was not shaken, was consistent and to the effect that she denied that any complaint or attempt to complain was in her mind when she made the decision the applicant’s employment should be terminated.
Ms Bird and Mr Reichenberg both gave evidence that as they understood it, the applicant’s employment was terminate solely for reasons to do with the applicant’s performance. Both these witnesses gave cogent evidence for supporting the decision made by Ms Verstandig to terminate the applicant’s employment.
It is of course possible that the applicant saw the timing of the decision to terminate her employment to be coincidental with her complaints or attempt to complain and therefore possibly a reason for her termination. However on all of the evidence the timing of the decision to terminate the applicant was more likely than not due to the culmination of the long standing concerns, the respondent and in particular, Ms Verstandig had with the applicant’s performance and her failure to follow instruction and procedure.
Moreover unlike the situation that faced the applicant in Murrihy in this case I am not satisfied that the respondent took adverse action against the application because she proposed to exercise a workplace right.
The findings with respect to the reasons why I am satisfied the respondent took the action it did are set out above.
Other issues
Whilst no proper application for these issues were ever made (and in any event there was no adequate evidence they were outstanding) where they hadn’t otherwise been expressly abandoned by the applicant, the following are addressed for the sake of completeness and because the applicant appeared more interested in asking questions about these issues than the allegations she actually made.
In answer to questions in cross examination the applicant’s evidence was that she was not owed any superannuation, had never made any complaint about her salary, hourly rate, rostered day off or overtime during her employment. The applicant’s evidence was she didn’t wish to pursue any claim for annual leave and she acknowledged the evidence of the respondent that she had been paid her superannuation and took meal breaks. On that basis there was no evidence capable of making out a breach of the FW Act in relation to any other issue.
Conclusion
For the reasons set out above, the Court accepts the evidence of the respondent that the one and the only reason for the termination of the applicant’s employment was her poor performance.
Accordingly, as no aspect of the applicant’s claims have been made out the application must be dismissed.
Given s.570 of the FW Act any application for costs is to be filed and served within 14 days and any response 14 days thereafter.
Any application for costs will be determined on the papers unless the parties request otherwise.
For the reasons set out above there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Associate:
Date: 8 September 2014
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