Ms Narelle Zielke v National Hearing Centres Pty Ltd T/A National Hearing Care - [2011] FWA 1335

[2011] FWA 1335

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Narelle Zielke
v
National Hearing Centres Pty Ltd T/A National Hearing Care
(U2010/6907)

COMMISSIONER ASBURY

BRISBANE, 3 MARCH 2011

Termination of employment - arbitration - finding of valid reason for dismissal - finding that notwithstanding valid reason dismissal was unfair - compensation - amount reduced due to misconduct.

BACKGROUND

[1] This is an application to Fair Work Australia (FWA) by Ms Narelle Zielke, for an unfair dismissal remedy, under s.394 of the Fair Work Act 2009 (the Act), The respondent is National Hearing Centres Pty Ltd T/A National Hearing Care. Ms Zielke was employed in the capacity of Customer Service Officer, from 3 August 2004 until 1 March 2010, when she was dismissed.

[2] As required by s.396 of the Act, it is necessary to decide a number of initial matters before the merits of the application are considered. These matters are not in dispute. The application was made on 10 March 2010 within the time required in s.394(2). Ms Zielke is a person protected from unfair dismissal as defined in s.382 of the Act. National Hearing Care is not a small business and the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code is not relevant. The dismissal was not a redundancy.

[3] The matter was dealt with by way of a hearing, as I considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties. Ms Zielke represented herself and was assisted by her daughter, Ms Milfull. Permission was refused for National Hearing Care to be legally represented and the Company was represented by General Manager Operations, Mr Craig Stevens. Mr Dwyer, a Barrister remained at the bar table to assist Mr Stevens. Neither Ms Milfull nor Mr Dwyer played a representative role. Both were allowed to remain given that Ms Zielke and Mr Stevens were both witnesses in the proceeding and required assistance to hand up a number of documents which were put into evidence.

[4] Evidence in support of the application was given by Ms Zielke 1 on her own behalf and by Ms Lynley Jan Henderson2 and Ms Donna Berry3, formerly Customer Services Officers with National Hearing Care. A character reference provided by Ms Carol Wright, a former co-worker of Ms Zielke’s was tendered by Ms Zielke without objection.4

[5] Evidence for National Hearing Care was given by:

Mr Craig Bradley Stevens - General Manager Operations; 5

Ms Linda Susan Angela McRoberts - Customer Service State Manager (Queensland); 6

Mr Rikesh Pillai - Queensland State Manager; 7

Ms Wai Yin (Winnie) Lam - Audiologist from June 2009 to August 2010; 8

Ms Kylie Cumming - Customer Service Officer; 9 and

Ms Solveig Ligrov - Support Development Officer. 10

[6] Given that a number of incidents, detailed in evidence, involved former staff and customers of National Hearing Care, who were not involved in these proceedings, I have referred to those persons by using their initials only, or by omitting their names.

LEGISLATION

[7] By virtue of s.385 of the Act, a person has been unfairly dismissed if FWA is satisfied that the person has been dismissed, and the dismissal was harsh, unjust or unreasonable. In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the following matters as set out in s.387 of the Act:

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) and;

(b) Whether the person was notified of that reason; and

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and

(e) If the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) Any other matters FWA considers relevant.

[8] The criteria in s.387 go to both procedural and substantive matters, and FWA is required to weigh the evidence and material before it and to decide on balance whether a dismissal is harsh, unjust or unreasonable. A dismissal may be:

harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or

unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer." 11

[9] A valid reason for a dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 12 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts13, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.14 In determining whether a reason is valid:

“It is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...”. 15

REASONS FOR THE DISMISSAL

Overview

[10] National Hearing Care stated in submissions in this matter, that the reason for the dismissal was as a consequence of an accumulation of incidents of poor performance and complaints from clients and co-workers about Ms Zielke’s conduct. The particulars of the poor performance and complaints were said to be:

(i) In or about November 2007 Ms Zielke was the subject of disciplinary proceedings arising from an interpersonal conflict between her and another staff member.

(ii) An investigation conducted by National Hearing Care established that Ms Zielke had behaved in a manner contrary to the Company’s policies on workplace behaviour.

(iii) Ms Zielke was subsequently issued with a formal warning in writing in November 2007.

(iv) In May 2009 Ms Zielke was counselled generally by Ms Linda McRoberts (National Hearing Care’s Support Development Officer in Queensland) about her aggressive vocal tone and mannerisms.

(v) In May 2009 Ms Zielke was the subject of a complaint by two new employees. Ms Zielke had the responsibility of training the employees as customer service officers. The new employees complained to National Hearing Care about the manner in which Ms Zielke spoke to them during the week long training session.

(vi) As a consequence of this complaint a meeting was held with Ms Zielke and Ms McRoberts on 27 May 2009. During a discussion about the complaint at this meeting Ms Zielke demonstrated a lack of insight into the inappropriateness of her mannerisms.

(vii) Ms Zielke was consequently directed to address her behaviour. Ms Zielke was issued with a verbal “last and final” warning and advised that it would be an extremely serious matter if it were to happen again.

(viii) Complaints were received by National Hearing Care from customers on or about 24 July 2009 and again on or about 17 August 2009. In the case of each complaint the customers complained that Ms Zielke had been rude to them during their dealings with her.

(ix) In respect of the complaint made on 24 July 2009 National Hearing Care discussed it with Ms Zielke. Ms Zielke expressed disappointment at the complaint but undertook to monitor her tone and presentation with customers.

(x) In respect of the complaint made on 17 August 2009, the customer specifically asked that Ms Zielke not be informed about the specific complaint, but asked that Ms Zielke be ‘spoken to’ with regard to her customer handling skills.

(xi) On 19 August 2009 a further customer complaint was received with regard to Ms Zielke’s manner and attitude.

(xii) As a consequence of this complaint National Hearing Care’s General Manager (Craig Stevens) met with Ms Zielke to discuss the complaint and concerns about Ms Zielke’s conduct toward customers.

(xiii) Ms Zielke was given an opportunity to respond to the complaint but did not provide any response that caused National Hearing Care to dismiss the complaint as baseless.

(xiv) Following this meeting National Hearing Care issued Ms Zielke with a final written warning. The warning foreshadowed the termination of Ms Zielke’s employment in the event of further complaints of a similar nature.

(xv) On 22 January 2010 National Hearing Care received a formal written complaint from a customer. The complaint was about Ms Zielke’s “attitude”.

(xvi) The complaint was investigated by Solveig Ligorv, National Hearing Care’s Support Development Officer for Queensland.

(xvii) During the investigation the complainant customer alleged that Ms Zielke had:

(a) rudely refused to answer the customer’s queries about the cost of his attendance;

(b) failed to greet the customer when he arrived at the clinic;

(d) rudely chastised the customer for being early for his appointment.

(xviii) During the investigation Ms Zielke was also asked to respond to the complaint. Ms Zielke’s response was, in essence, that she could not recall her dealings with the customer in question.

(xix) A meeting was held with Ms Zielke and the General Manager (Craig Stevens) on 1 March 2010. Ms Zielke was allowed to (and did) bring a support person with her to the meeting.

(xx) At this meeting Ms Zielke was taken through the most recent complaint again and she confirmed that she had been given an opportunity to reply to it. She did not seek to offer any further reply at the meeting.

(xxi) Ms Zielke was also taken through her entire history of counselling and warnings issued previously regarding similar conduct. Ms Zielke confirmed she was familiar with this and when invited, offered no further comment.

(xxii) Ms Zielke was informed at this meeting (and subsequently by letter) that her employment was terminated.

[11] According to Ms Zielke, the reasons for her dismissal related to four incidents, which were set out in a letter confirming her dismissal dated 5 March 2010, and summarised by Ms Zielke as follows:

Ms Zielke’s relationship with a male audiologist and a complaint in relation to that matter;

A complaint by two new staff members who said that Ms Zielke spoke down to them while conducting a training course;

A complaint by the daughter of a customer Ms H; and

A complaint by a customer Mr A.

[12] The letter of 5 March 2010 was not in evidence, and the only letter dealing with Ms Zielke’s dismissal which was in evidence is dated 1 March 2010. There is a reference to a letter dated 5 March 2010 in the Employer’s Response to Ms Zielke’s application for an unfair dismissal remedy. Appended to Mr Stevens witness statement is a file note of the meeting at which Ms Zielke was dismissed, which sets out a fifth incident on 24 July in relation to a customer named Mrs A. Ms Zielke maintained that this matter was not addressed in the termination letter dated 5 March 2010.

Conflict with staff member

[13] In relation to the matter of interpersonal conflict with another staff member, Ms Zielke said that this was not a current or legitimate reason for her dismissal, as the staff member resigned his employment in excess of two years ago and she had not worked with him. Any differences were resolved between Ms Zielke and the staff member concerned and they worked amicably together for the final 12 months of the staff member’s employment.

[14] Under cross-examination Ms Zielke agreed that she was given an opportunity to respond to this allegation, and said that she denied the allegation. Ms Zielke also said that she had been told that the allegation was baseless and frivolous. Ms Zielke also agreed that she received a warning in relation to this matter. That warning letter was in the following terms:

“Dear Narelle,

I refer to our recent meeting at the Southport clinic. I called this meeting with you to discuss the breakdown in the relationship between yourself and [name omitted]. I also discussed with you the allegation of physical assault by you on [name omitted].

With reference to the above allegation, in order to investigate the matter I interviewed all staff who were present in the clinic at that time. Upon completion of this investigation I found the allegation to be baseless and frivolous. I informed you of this at our meeting.

With regard to the ongoing broader situation in the clinic, I informed you that the behaviour of both yourself and [name omitted] was highly inappropriate, to the detriment of the successful operation of the clinic, and was creating an environment of high stress and tension for both the other staff in the clinic and for clients attending for service.

Your behaviour is clearly in breach of the company’s stated values, and our policy in relation to workplace behaviour. I remind you this policy is available on the NHC Intranet.

I stated that I could not split the blame or fault for this situation between you and [name omitted] and that I held each of you equally responsible for the situation.

At a previous meeting on the same matters earlier in this year, I informed you and [name omitted] that type of behaviour occur again then I would have no choice but to move you both to other NHC clinics.

As such I have requested that you be rostered to other NHC clinics as workload requires. I have informed Linda McRoberts of this decision.

This letter represents a formal warning regarding your behaviour in the clinic. Further indiscretions in this regard will lead to disciplinary action up to and possibly including termination of employment.

A copy of this letter has been placed on your employment file.” 16

[15] Mr Stevens said in relation to this issue that it involved arguments between Ms Zielke and the other employee which took place in front of staff members. Mr Stevens said he had telephone calls from Ms Zielke and the other employee alleging yelling on the part of the other person. Ms Zielke was moved to another clinic and the other employee produced medical evidence in relation to his inability to travel. Mr Stevens decided that both Ms Zielke and the other employee had contributed to the situation and were equally to blame. Both were issued with warnings.

Complaint by two staff members trained by Ms Zielke

[16] In relation to the complaint by the two new staff members, Ms Zielke said that the allegation was that she had “spoken down” to the staff members while training them. The complaint was made while Ms Zielke was off work for a day with a migraine headache. Ms Zielke said that she was not given a written warning in relation to this complaint but was spoken to by Ms Candutti, the Support Development Officer for National Hearing Care. Ms Candutti informed Ms Zielke that she would no longer be instructed to train staff, and Ms Zielke said that she supported this resolution because she had no formal qualifications for training. According to Ms Zielke, this reason was also not a valid basis for her dismissal, because it no longer existed and had been resolved when she agreed with Ms Candutti that she would not train new staff.

[17] Under cross-examination Ms Zielke agreed that she attended a meeting with Ms McRoberts in relation to the complaint by the staff members, and was given an opportunity to respond. Ms Zielke rejected the proposition that she was counselled about the matter, and also stated that she did not receive a written warning in relation to it. Ms Zielke agreed that she was told by Ms McRoberts that her behaviour was not acceptable and that she would no longer be training staff. Ms Zielke also agreed that this constituted a verbal warning.

[18] An email from Ms McRoberts was appended to Mr Stephens’ witness statement, setting out notes of a meeting with Ms Zielke on 27 May 2009. The email indicates that there was a discussion with Ms Zielke two weeks earlier about the same complaint. In addition to the original complaint, the meeting on 27 May 2010 discussed allegations that Ms Zielke had attempted to “coherce” two colleagues to send emails stating that Ms Zielke was not at fault. This matter was not pursued as Ms Zielke denied that she had acted in this way, and the employees concerned did not wish to pursue the allegations. The notes indicate that Ms Zielke was asked to role play the training subject of the complaint, and was told that her manner and facial expression during that role play were offensive, dictatorial and condescending. The email also states that Ms McRoberts raised the fact that she had spoken to Ms Zielke earlier in May about her tone and body language and that Ms Zielke confirmed that she had tried to be aware of these matters and was shocked and devastated by the complaints.

[19] The email states that Ms Zielke was told that this was a final warning and such behaviour would not be tolerated again. It is also stated that Ms Zielke was told that she needed to acknowledge that she could come across as being abrupt and aggressive, and although this may be unintentional, it must not be allowed to happen again. Ms McRoberts records that she suggested a self help course or some books from the library on how to improve communication skills and Ms Zielke’s approach to people, and that the meeting ended on a positive note. 17

[20] Ms McRoberts did not include any reference to this meeting or the email recording it, in the witness statement setting out her evidence in chief. Under cross-examination, Ms McRoberts said she could not recall whether she told Ms Zielke that she would not be providing training to staff again after this complaint.

Complaint by Mrs A - 24 July 2009

[21] According to Mr Stevens, a complaint was received from a customer on 24 July 2009, in relation to Ms Zielke being rude about a missed appointment. The name of the customer was Mrs A. There is an email recording the complaint being received on that date, and a request from Mr Pillai to Ms Candutti, also dated 24 July that the matter be investigated. The next email is dated 18 August 2009 and states that Ms McRoberts has raised the complaint with Ms Zielke “yesterday” ie 17 August 2009. Ms McRoberts’ email also states that Ms Zielke expressed disappointment and stated that she felt she had improved her tone and presentation to clients. 18 Ms McRoberts did not give evidence about this matter, and the email trail in relation to this complaint does not explain the delay in raising it with Ms Zielke.

[22] Under cross-examination, Ms Zielke said that she had no knowledge of this complaint until she received the submissions of National Hearing Care in relation to these proceedings. Ms Zielke also denied that the matter was raised with her by Ms McRoberts and that there was a discussion in relation to it. Further, Ms Zielke maintained that this matter was not set out in the letter detailing the reasons for her dismissal dated 5 March 2010. As previously stated, that letter was not in evidence, despite an invitation from the Tribunal to the parties to tender it.

Complaint by Ms L in relation to treatment of Mrs H - 10 August

[23] According to Ms McRoberts, a further complaint about Ms Zielke was received on 19 August 2009 from a Ms L, in relation to telephone calls between Ms L and Ms Zielke in relation to Ms L’s mother Ms H. In the witness statement setting out her evidence in chief, Ms McRoberts said that the complaint was received by the Human Resources Department on or about 19 August 2009. Ms McRoberts investigated the complaint and in doing so spoke to Ms L who outlined that:

Ms Zielke did not listen to her during telephone conversations;

Ms Zielke would speak over the top of her;

Ms Zielke was frustrated and impatient when Ms L did not understand National Hearing Care’s procedures.

[24] Ms McRoberts said that she asked Ms Zielke to respond to the complaints, and Ms Zielke said that she could not remember Ms L or her conversations with her, and that Ms L did not make a large impact on her. Ms McRoberts said that she advised Ms Zielke that:

It is an important part of her job that she is conscious of her tone and mannerisms when speaking with customers;

When she speaks to people face to face Ms Zielke should be conscious of her body language and when talking on the phone she should be very careful about what she says; and

It was a very important part of her job to mask any anger or frustration she might feel and to remain friendly and courteous to customers.

[25] Under cross-examination, Ms McRoberts said that she did not give Ms Zielke a copy of a signed complaint from Ms L. In response to the proposition that it could not be proven to be a true and factual complaint unless it was signed, Ms McRoberts said that she did see the complaint and it was sent direct from Ms L. 19 However, Ms McRoberts referred to Ms L by two different, but similar names. In response to a question from the Tribunal, Ms McRoberts said that her recollection was that the complaint was in writing on a compliments and complaints form used by National Hearing Care. Ms McRoberts also said that she received the complaint by email. Ms McRoberts did not explain why the written copy of the complaint as recorded on that form, was not in evidence.

[26] A copy of an email was tendered, said to be that complaint. It is dated 19 August 2009. The email contains two versions of the complainants name and relates to her mother Mrs H. The incident is said to have occurred “late last month”. There was no explanation provided about the discrepancy in the name of the complainant, but it was first contended that this email was sent by the daughter of Mrs H. Presumably if this was the case the person making the complaint would be expected to record her name consistently within her own email.

[27] Mr Stevens then said under cross-examination that it was his understanding that the client contacted head office by telephone and that a member of head office staff documented the complaint. Mr Stevens could not say who documented the complaint, but maintained that it was genuine and disputed the suggestion put to him in cross-examination that the complaint had been manufactured.

[28] On 25 August 2009, Ms Zielke was issued with a warning letter in relation to that complaint, in the following terms:

“Dear Narelle

On the 19th August this year on behalf of her mother - Southport client [Ms H], a [Ms L] lodged a serious complaint in relation to services received at the Southport clinic; citing specifically your attitude towards the client and herself.

This complaint was lodged directly with Head Office and subsequently investigated by myself, Rakesh Pillai and Linda McRoberts. During the course of the investigation you were given the opportunity to respond and your response is noted and has been placed on file.

Unfortunately this is not the first serious complaint filed against you. An example being the complaint lodged in July 2009 in which again your customer skills were questioned. Narelle, in particular over the past twelve months you have been given every opportunity to improve you (sic) relationships with both co-workers and clients. You have been issued with several verbal and written warnings regarding the need to improve your interactions in the workplace.

This letter is to record and confirm the details of the discussions and warnings you have been issued with in the past in which you have been advised that the way in which you speak to your co-workers and clients is being perceived as abrupt and abrasive. This style of management is demoralising and frustrating to both clients and co-workers. You need to be aware that while it is definitely not your intention to be perceived in this manner; changes have to be made.

This letter is your final written warning and any further receipt of complaints of a similar nature or otherwise will lead to further disciplinary action up to and possibly including termination of your employment with National Hearing Care.

If anything about this letter is unclear please speak to me about it immediately.” 20

[29] Ms Zielke said that she told Ms McRoberts that she could not remember speaking rudely to the customer and would never have acted intentionally in that manner with a customer. Ms Zielke said that she approached Ms McRoberts to inform her that she wanted to refute the allegations and have the opportunity to defend herself. According to Ms Zielke, Ms McRoberts told her not to worry about the complaint and to move on, as National Hearing Care had to do this with all complaints.

[30] Ms McRoberts said that she had a conversation with Ms Zielke after the warning letter was given to her, but could not remember the exact date. According to Ms McRoberts Ms Zielke was upset about the warning letter, and she told Ms Zielke that when a formal complaint is made it has to be followed up and investigated. While Ms Zielke could not remember the customer in question, the customer could remember her in detail, and the company was required to act on the complaint. Ms McRoberts said that she told Ms Zielke that she needed to move forward and to make sure that this did not happen again, as Ms Zielke could not afford to have any more complaints made against her.

[31] According to Ms McRoberts, Ms Zielke said she had been working on speaking softly and being careful not to come across as abrupt. Ms McRoberts told her to keep up the good work, and Ms Zielke agreed that she would do so. Ms McRoberts concluded the conversation by telling Ms Zielke that she was available if Ms Zielke needed help. Ms McRoberts denied that Ms Zielke told her that she wanted to defend the allegations, and said that they had already been investigated at that stage, and Ms Zielke had been given an opportunity to respond to them. Ms Zielke agreed in cross-examination that this discussion occurred after she had been given an opportunity to respond to the allegation, at a meeting with Ms McRoberts and Ms Candutti, and after the warning letter was received. Ms Zielke said that she was not given an opportunity to respond to complaints in writing.

Complaint by Mr A - 19 January 2010

[32] The final incident involved an allegation by a customer Mr A. On 19 January 2010, Mr A told Ms Lam that he was not happy with service received from Ms Zielke on that date, and when he attended National Hearing Care on 30 November 2009. According to Ms Lam, Mr A said that Ms Zielke was rude to him and snatched a Government voucher for an assessment out of his hand. Mr A also told Ms Lam that Ms Zielke was rude to him on 19 January 2010 by failing to greet him and speaking to him in a tone that was not what he expected from a person in customer service. Mr A’s wife also told Ms Lam that in her opinion, Ms Zielke’s attitude was not acceptable.

[33] Mr A said that he wanted to make a complaint about Ms Zielke. Ms Lam told him that the appropriate way to make a complaint was by directing it to National Hearing Care’s HR Department and printed a complaints form and gave it to Mr A. Ms Lam also said that Mr A asked for her direct telephone number so that when he returned with the form he could deliver it directly to her without dealing with whoever was at the front desk. Ms Lam gave Mr A her direct telephone number. Mr A delivered the complaint form on 22 January 2010, when he attended at Ms Lam’s rooms. Ms Lam said that after she received the complaint she temporarily lost it, because she filed it in the wrong client folder. It took Ms Lam two or three days to find the complaint. Ms Lam sent the complaint form to National Hearing Care’s Human Resource department by facsimile.

[34] Under cross-examination, Ms Lam disputed that she did not send the complaint to head office promptly because she was reluctant to do so out of concern about the repercussions. In response to a question about why she did not ask Mr A to sign the complaints form, Ms Lam said that there was no place on the form for Mr A to sign.

[35] The complaint form 21 states Mr A’s name and address and indicates that the subject of the complaint is the attitude of Ms Zielke on three occasions. Mr A also states that Ms Zielke may be efficient but lacks people skills. The written complaint does not refer to a voucher being snatched from Mr A’s hand by Ms Zielke.

[36] Ms Lam later received a telephone call from Ms Ligrov, who told her that she was investigating the complaint. According to Ms Lam, on the same day or shortly thereafter, Ms Zielke entered Ms Lam’s room and said that Ms Lam should not have escalated the complaint and should have told her about it before reporting it to HR. According to Ms Lam, Ms Zielke also said that she would take “managerial authority” over the matter. Ms Lam said that she felt intimidated by these comments, and reported them to Mr Pillai.

[37] Mr Pillai appended a copy of an email from Ms Lam dated 18 February 2010 to his witness statement 22 reporting the complaint and the discussion initiated by Ms Zielke about it. Ms Lam also sought to be moved to another clinic due to her discomfort about Ms Zielke and the manner in which she dealt with customers. Ms Lam said that she has since left the employment of National Hearing Care to take up an opportunity in Hong Kong. Mr Stevens said that on receipt of the complaint, he delegated the investigation to Ms Ligrov.

[38] Ms Livgrov said that after discussing the complaint with Ms Lam, she held a discussion with Mr A. Ms Livgrov then held a discussion with Ms Zielke. An email summarising these discussions was attached to Ms Livgrov’s witness statement 23. That email was consistent with Ms Lam’s evidence in these proceedings. Ms Livgrov records that Mr A stated that he did not want to get Ms Zielke sacked, and reported that Ms Zielke spoke rudely to him about a voucher for services, and that when he walked in he did not feel welcomed and was not greeted. Mr A also said that when he came for an appointment, Ms Zielke spoke rudely to him about the fact he was one hour early. Ms Ligrov said that she spoke to Ms Zielke about the complaint and Ms Zielke said that she could not remember anything in particular in relation to Mr A and could only remember the day that he walked straight into Ms Lam’s room as this was unusual. Ms Zielke also expressed her disbelief at the complaint and maintained that she had been so careful since the last warning. Under cross-examination, Ms Ligrov agreed that she did not provide a written copy of the complaint to Ms Zielke. It is also the case that Ms Ligrov does not record an allegation that Ms Zielke snatched a document from Mr A’s hand.

[39] After receiving Ms Ligrov’s report, and discussing the matter with Ms Ligrov, Mr Stevens said that he was satisfied that Ms Ligrov had investigated the complaint by talking to all relevant parties and that serious concerns were raised about Ms Zielke’s performance and conduct relating to acceptable patient interaction. Mr Stevens concluded that this warranted a formal meeting with Ms Zielke, which may, subject to her response, lead to disciplinary action against her.

[40] Ms Zielke cross-examined Mr Stevens about the delay between the complaint being made and forwarded to head office. Mr Stevens said that it was his understanding that the complaint had been lost and that as soon as it was received by head office, it was dealt with.

[41] Ms Zielke said that she first heard of the allegation on 15 February 2010, when a person from head office telephoned her and asked her why the complaint had taken so long to get to head office. Ms Zielke contended that she found out later through internal staff that the delay in sending the complaint through to head office was because the audiologist was reluctant to do so, as she had not personally seen or heard the allegations taking place. Ms Zielke also said that all staff denied seeing or hearing any such incident, and pointed out that there were no witnesses to the incident. Further, Ms Zielke questioned why a complaint made in relation to an incident on 30 November 2009, was not raised with her until 15 February 2010.

[42] According to Mr Stevens, there was a meeting with Ms Zielke on 1 March 2010 to discuss the complaint from Mr A. National Hearing Care was represented at the meeting by Mr Pillai and Mr Stevens, who attended by telephone. Mr Stevens advised Ms Zielke that she could bring a support person with her, and Ms Zielke brought Ms Cumming. Mr Stevens said that he informed Ms Zielke of the complaint from Mr A, and that it had been investigated and she had been given an opportunity to respond. After reviewing the complaint and the response Ms Zielke provided, Mr Stevens gave Ms Zielke the opportunity to comment further about the complaint and Ms Zielke did not do so. The record of interview does not state that Mr A alleged that Ms Zielke snatched a document from his hand. Mr Stevens then reviewed the earlier complaints and the warnings given to Ms Zielke in relation to them, and confirmed that she had received those warnings. Mr Stevens then emphasised the parts of the warnings that indicated that further incidents may result in disciplinary action up to and including termination of employment, and asked Ms Zielke if she had anything further to add. Ms Zielke said that she did not. Mr Stevens then informed Ms Zielke that National Hearing Care had no option but to terminate her employment, and that she would receive five weeks wages in lieu of notice. A letter confirming this outcome and the payment in lieu of notice was forwarded to Ms Zielke on that date.

[43] Ms Zielke said that she was invited to bring a support person to the meeting on 1 March 2010, but was not aware that she was going to be dismissed. Ms Zielke also said that the meeting was put off at her request from the previous Friday to Monday 1 March 2010, as she had pre-approved leave on the Friday. As time did not permit Ms Zielke to find an unbiased outsider to attend the meeting, she accepted the offer of Ms Cumming attending the meeting as her support person.

[44] Ms Cumming said that at about 4.30 pm on Monday 1 March 2010, she was working at the front desk with Ms Zielke and was told by her that she had a meeting with Mr Pillai at 5.00 pm, and asked Ms Cumming to be her support person. Ms Cumming agreed to this request. Ms Cumming confirmed Mr Stevens’ version of the meeting and in particular that the complaint by Mr A was outlined to Ms Zielke; she was offered an opportunity to respond to it; and that Ms Zielke was informed that a possible outcome of the meeting could be the termination of her employment. According to Ms Cumming, Ms Zielke responded to the allegation by stating that she had worked for National Hearing Care for some time and did not think that she was rude to clients.

Other matters

[45] Ms Henderson and Ms Berry provided witness statements in the form of character references for Ms Zielke and gave examples of excellent customer service on her part. Both witnesses were highly critical of Ms McRoberts. Both also said that they were not given a copy of the Collective Agreement or the staff handbook during their period of employment. Ms Henderson referred to being required “to clear the air” with Ms Zielke in relation to certain interactions, and of “ups and downs” in the relationship. Ms Berry also spoke of falling out with Ms Zielke and “clearing the air”. Under cross-examination Ms Henderson agreed that she did not work with Ms Zielke at Southport, but maintained that she worked with Ms Zielke in Maroochydore more than once, and spoke to her regularly on the telephone. Ms Henderson also agreed that she had not witnessed any of the conduct with respect to clients Ms H, Ms A and Mr A. Ms Berry also said that she did not work with Ms Zielke at Southport on a regular basis, and was not a witness to Ms Zielke’s conduct with respect to customers who had made complaints.

[46] Ms Zielke also tendered a performance review summary dated 1 May 2009. That document congratulates Ms Zielke on Key Performance Indicators that are on or above goal, and contains the following comments:

“Hearty congratulations again Narelle consistently achieving all your own individual KPIs. We recognise that NSA has been a challenge for Southport in the last quarter, but with your diligence and experience has brought it up to the required target and we now see the clinic achieving all 43 KPIs as well. Your commitment to the role of Senior CSO has enabled Southport to maintain its reputation as one of the leading centres within the NHC. Your sense of humour and friendly and courteous manner towards staff and clients alike is very well received. Your enhanced knowledge and understanding of NHS & OHS procedures are evident in your customer service delivery and your growing confidence in the role. I look forward to a mutually ongoing rewarding relationship.”

[47] Under cross-examination Ms Zielke agreed that the payment of bonus was dependent on achieving KPIs, but maintained that customer service was an important part of this.

[48] Ms McRoberts was cross-examined about the performance appraisal and said that it represented a summary of the last 13 weeks of Ms Zielke’s performance review. Ms Zielke also tendered awards and certificates of excellence given to her individually and to her work team. Those awards were for “going the extra mile” and excellence in customer service.

[49] A document entitled National Hearing Care Employee Handbook was appended to the witness statement of Mr Stevens. The Handbook contains a complaints procedure which specifically relates to complaints of sexual harassment, discrimination or workplace bullying. This procedure contains a statement that there is another procedure for handling general complaints within the workplace. This procedure does not appear to be contained in the handbook, other than in the form of a disciplinary procedure. The Handbook does not appear to deal with the issue of complaints by customers, or to provide a process for dealing with such complaints.

[50] Mr Stevens said that formal training and counselling was offered to Ms Zielke in relation to customer service. In response to a question about the form of such training, Mr Stevens said that Ms McRoberts had encouraged Ms Zielke to work on her skills and in a number of meetings Ms Zielke was offered assistance if she believed that there was anything that the Company could do. Mr Stevens agreed under cross-examination that he would not classify this as training and counselling being offered to Ms Zielke by National Hearing Care.

[51] There is a form headed “Complaints and Compliments Form (Internal Use)” which is utilised by National Hearing Care. The form is intended to record complaints and compliments about staff, received from customers of National Hearing Care. The form is not always used, and some complaints are received by telephone or email.

[52] Mr Stevens was cross-examined about the process for dealing with customer complaints and the Complaints and Compliments Form. Mr Stevens said that the procedure when this Form is received is that it is sent by facsimile to head office. The complaint is then investigated by discussion with the relevant parties involved. In response to the proposition that the facsimile copy of the complaint is not provided to the person involved, Mr Stevens said that the complaint would be brought to the attention of the person involved. In response to the proposition that Ms Zielke was not made aware of the written complaint, Mr Stevens said that she was made aware of the substance of the complaint through a discussion with Ms Ligrov. Mr Stevens agreed that Mr A’s written complaint did not include a reference to Ms Zielke snatching a document out of his hand.

[53] When asked whether employees have training in the handling of customer complaints, Mr Stevens said that the Employee Handbook now refers to customer complaints and is available to all employees on National Hearing Care’s intranet site. Mr Stevens did not indicate that this information was available at the time Ms Zielke was employed. Mr Stevens maintained that the form in relation to Mr A’s complaint was completed by Mr A and sent to head office by facsimile. Mr Stevens also maintained that National Hearing Care staff spoke to Mr A about his complaint.

[54] In response to a question about why the complainants were not called to give evidence, Mr Stevens said that it was not felt that this was necessary because the complaints were made and investigated and Ms Zielke had not called into question the fact that the complaints were made. In response to the proposition that complaints were not signed, and that some had not been put into writing, Mr Stevens said that a customer could lodge a complaint by a number of methods including filling in the Complaints and Compliments form or by telephone. Mr Stevens also said that it would be unreasonable to expect that every customer who wanted to make a complaint would put that complaint in writing. In response to the proposition that there was no actual proof that the complaints were made, or that they were true, because they were not signed, Mr Stevens said:

“We spoke to - our investigations for each of these complaints, we have spoken to the clients that made the complaints. The clients made the complaints at their own doing, they were never encouraged to make a complaint. It takes a lot for someone to complain and as part of the investigation we spoke to those clients. So unless every client complaint that we’re looking at here involves a client lying and making a complaint about something, I’m not sure what other conclusion you could draw.”

[55] Ms Zielke said that her annual income while employed by National Hearing Care was $41,500.00. Ms Zielke was paid five weeks notice on termination of her employment. Since the termination of her employment, Ms Zielke has only been able to secure a short term contract of employment for a period of 10 weeks from 24 May to 30 July 2010, for which she was paid $500 per week. Ms Zielke was 61 years of age when this matter was heard, and has no husband or partner. Ms Zielke said that the loss of her employment had been hard.

SUBMISSIONS

[56] Ms Zielke said that the complaints procedure followed by National Hearing Care was inconsistent and informally actioned. There were no signed or counter-signed records of meetings or outcomes or threatened actions. Employee records demonstrated that Ms Zielke had a record of five and a-half years as an above average Customer Service Officer.

[57] Ms Zielke also pointed to the fact that none of the alleged complaints had been signed by the complainants, and reports and investigations into those complaints had not been countersigned by Ms Zielke.

[58] It was contended for National Hearing Care that the evidence established persistent poor performance on the part of Ms Zielke. Between July 2009 and January 2010, there were four separate complaints about Ms Zielke and each alleged that she was rude in her dealings with the customer concerned. These complaints were unsolicited and the fourth complaint was received after Ms Zielke had been counselled and provided with a final written warning about her work performance. It was also submitted that this had occurred in the context of Ms Zielke having received a verbal “last and final warning” in May 2009, with respect to complaints from junior staff and a warning in November 2007 arising from interpersonal workplace conflict involving Ms Zielke.

[59] The consistent nature of the complaints, made in an unsolicited fashion by independent complainants over a relatively confined period, was said to indicate support for a finding that such conduct is likely to have occurred on the balance of probabilities. Ms Zielke had responded largely to the complaints by stating that she did not recall being rude to the various complainants. This is not a denial.

[60] It was also submitted that Ms Zielke was notified of the reason for her dismissal and given an opportunity to respond to the allegations. Although Ms Zielke claimed that she sought and was denied the right to refute the complaint of one client, this came only after the matter had been investigated and Ms Zielke had not taken the opportunity to refute the complaint, and a final warning had been issued in writing. Ms Zielke was invited to bring a support person and the meeting was rescheduled at her request to allow her to secure a support person. Ms Zielke made no serious complaint of having been disadvantaged in any way, because Ms Cumming was not her first choice of support person.

[61] The evidence supports a finding that Ms Zielke was warned about her conduct and the possibility of dismissal in the event it was repeated. These warnings were provided in writing.

CONCLUSIONS

[62] After considering the evidence and submissions, I have come to the following conclusions in relation to each of the factors in s.387 of the Act.

Was there a valid reason for the dismissal related to Ms Zielke’s conduct (including its effect on the safety and welfare of other employees)?

[63] On balance, I am satisfied that there was a valid reason for Ms Zielke’s dismissal, and that it was related to her conduct. In this regard, it is clear from the evidence that there were numerous incidents whereby Ms Zielke behaved inappropriately and was rude to co-workers and customers of National Hearing Care.

[64] In my view, National Hearing Care has established, on the balance of probabilities, that all of the complaints were genuine. Notwithstanding suggestions by Ms Zielke that some of the complaints may have been fabricated, there is no basis upon which I could make such a finding. Any irregularities or inconsistencies in the recording of the complaints are not sufficient to cast doubt on their validity.

[65] Mrs Zielke’s attempts to cast doubt on the validity of the complaints were entirely unconvincing. Those attempts are also indicative that Mrs Zielke’s approach to complaints made against her was to attempt to make technical points about the form of the complaints; to put a “spin” on the substance or outcome of the complaints; or to claim inability to recall the incident.

[66] In relation to her altercations with an audiologist, Ms Zielke maintained that this is not a current or legitimate matter and stated that the allegation was found to be baseless and frivolous. The reality is that the warning letter received by Ms Zielke in relation to this matter does not exonerate her or indicate that she was blameless with respect to the situation which arose. Rather, it is clear that National Hearing Care held both Ms Zielke and the audiologist equally to blame for the inappropriate conduct and issued Ms Zielke with a warning about her part in the situation that developed.

[67] Ms Zielke’s evidence about this matter misses the point and indicates her propensity to refuse to accept that there are any issues with respect to her attitude towards other persons. It is clear from the warning letter that as well as allegations of inappropriate verbal altercations, the audiologist accused Ms Zielke of physical assault. It was this part of the allegations against Ms Zielke that were found to be baseless and frivolous. Otherwise, the allegations were found to be substantiated. Ms Zielke called no evidence to refute this finding. Accordingly I am satisfied that Ms Zielke did engage inappropriate conduct in relation to her relationship with the audiologist and that this caused disruption to other co-workers and customers.

[68] It is also clear that the complaint that Ms Zielke behaved inappropriately in conducting training for two new staff members was valid. Again Ms Zielke sought to put a gloss on the outcome of this matter by contending that it was agreed that she would no longer conduct training, because she had not been trained to do so. The reality is that Ms Zielke was a senior Customer Services Officer and it could reasonably have been expected that she would train new staff members on matters such as work systems and processes. It is also the case that Ms Zielke was taken off this work because of the inappropriate manner in which she spoke to trainees. In my view this does not relate to Ms Zielke’s skills (or lack thereof) as a trainer, but rather to her inability to interact in an appropriate manner with work colleagues. This is a further example of Ms Zielke failing to appreciate that the issue was with her conduct, and to put a “spin” on the outcome.

[69] Even the witnesses who provided references for Ms Zielke - Ms Berry and Ms Henderson made indirect references to “ups and downs” and periods when relationships with Ms Zielke were not good. Further, neither of these witnesses worked closely with Ms Zielke for any period of time. It is also the case that both witnesses demonstrated a dislike of Ms McRoberts. I was left with the distinct impression that their motives in giving evidence were as much about criticising Ms McRoberts, as they were about supporting Ms Zielke.

[70] I am also of the view that National Hearing Care has established, on the balance of probabilities, that three customers made specific complaints about the manner in which Ms Zielke dealt with them. The fact that Ms Zielke may not specifically remember the customers, or her interactions with them, does not alter the fact that the complaints were made. The reality is that three customers of National Hearing Care were so aggrieved at the manner in which they were treated by Ms Zielke that they initiated complaints against her. National Hearing Care is a service organisation, and I accept that it must take such complaints from customers seriously.

[71] There is significant documentation in relation to the complaint by Mrs A made on 24 July 2009. That documentation establishes, on balance, that the complaint was received, investigated and raised with Ms Zielke. Ms Zielke’s response is that she does not recollect the incident, and that it was not documented in a termination letter of 5 March 2010. That letter was not in evidence. The fact that the incident may not have been referred to in the letter, and Ms Zielke’s denial that it occurred, does not outweigh the evidence to the contrary. On this point, I accept that matter was investigated and raised with Ms Zielke by Ms McRoberts. This is also consistent with the warning letter to Ms Zielke dated 25 August, in relation to the complaint by Ms L in relation to her mother Mrs H. That letter also refers to an earlier complaint, which can only be the complaint of Mrs A made on 24 July 2009.

[72] I accept that on 19 August 2009, Ms L made a complaint about Ms Zielke. In my view, the inconsistencies in the recording of this complaint, including the use of two different names with reference to Ms L, is explained by the fact that the complaint was made by telephone and documented by someone in head office, who then forwarded an email setting out the complaint. Those inconsistencies, and Ms Zielke’s claim that she does not remember this incident, are not sufficient to overcome the weight of the evidence in favour of the complaint having been made, investigated and raised with Ms Zielke.

[73] I also accept that there was a complaint made by Mr A. While there were delays in the complaint being documented and advised to Ms Zielke, these were explained by a series of events including a delay between Mr A raising the matter with Ms Lam and deciding to complete a complaint form; Ms Lam temporarily losing the form; and the time taken to investigate the complaint. None of these matters outweigh the evidence that the complaint was made, investigated and raised with Ms Zielke. The inconsistency in relation to whether Ms Zielke snatching a form from Mr A’s hand was part of the complaint can also be explained by the process of documenting the complaint rather than any lack of substance in relation to the complaint itself. At the end of the day, a third customer was complaining about the manner in which Ms Zielke dealt with him. However, it should be noted that the reasons given by National Hearing Care for Ms Zielke’s dismissal include that Ms Zielke snatched a document from Mr A’s hand, and in my view this part of the allegation cannot be sustained. It is of concern that National Hearing Care relied on this aspect of Ms Zielke’s conduct as one of the reasons for her dismissal. However in the context of Ms Zielke’s conduct overall this issue does not alter the fact that Ms Zielke’s behaviour towards Mr A was otherwise inappropriate.

[74] It is also the case that Ms Zielke did not contest the evidence of Ms Lam, to the effect that she had a discussion with Ms Lam about the fact that Ms Lam had reported a client complaint to head office. That conduct on the part of Ms Zielke was a further example of her inappropriate dealings with co-workers.

[75] I accept that the cumulative effect of the complaints about Ms Zielke and her dealings with co-workers and customers, constituted a valid reason for her dismissal.

Was Ms Zielke notified of the reason for her dismissal?

[76] I am satisfied that Ms Zielke was notified of the reason for her dismissal. Considered overall, the evidence establishes that Ms Zielke was notified of each of the incidents that collectively constituted the reason for her dismissal. In reaching this conclusion, I have taken into account the record of the discussion on 1 March 2010 where Ms Zielke was informed that she was dismissed; the letter of 1 March 2010 confirming the dismissal; and the letter (not in evidence but accepted by both parties as having been sent and received) dated 5 March 2010.

[77] Whether the letter of 5 March 2010 omitted the complaint by Mrs A, and gave four or five reasons for the dismissal, is irrelevant when all of the evidence about the reasons given to Ms Zielke is considered.

Was Ms Zielke given an opportunity to respond to any reason related to her capacity or conduct?

[78] National Hearing Care is a large employer with significant resources. It has a range of staff with varying roles relating to human resource management. National Hearing Care has an enterprise agreement and an employee handbook, containing detailed provisions about complaints by staff against other staff.

[79] It is surprising that National Hearing Care does not (or did not at the relevant time) have a detailed procedure to document and deal with complaints made by customers against staff. The Compliments and Complaints Form is not underpinned by a procedure. This is particularly so given that National Hearing Care is a service company that takes complaints seriously. So seriously are complaints from customers considered to be, that employees who attract sufficient complaints are liable to be dismissed.

[80] The complaints as documented and presented in evidence to the Tribunal, are riddled with inconsistencies both in terms of content, and the manner in which they were documented and processed. I accept that National Hearing Care cannot dictate the manner in which customers make complaints and must accept complaints in any form, be it by telephone, filling in a form or simply informing a staff member during a consultation. I do not accept however, that complaints about Ms Zielke having been made to National Hearing Care, were appropriately documented and processed.

[81] There was no uniform system of documenting complaints. There was no uniformity about the way in which they were investigated. There were considerable delays between the date the incidents complained of occurred, and the date they were raised with Ms Zielke. While the time delays might have been unavoidable, their effect could have been minimised had complaints been documented in a standard manner and included better particulars. In my view, regardless of the way in which a customer makes a complaint, standard information should be taken from the customer to ensure that when the complaint is put to the staff member concerned, there is sufficient detail to provide a reasonable opportunity for the staff member to recall the incident and respond to the complaint. This is particularly important in an environment, such as existed at National Hearing Care, where customer service staff may deal with many hundreds of customers in the time between a complaint being made, and investigated. I am also of the view that Ms Zielke should have been provided with the option of responding in writing to a customer complaint, particularly when that complaint was in writing. For these reasons, the system by which National Hearing Care documented, processed and investigated customer complaints, was inadequate.

[82] While complaints from customers can have a detrimental impact on the business of National Hearing Care, they can have an equal if not greater impact to the detriment of an employee who may be subject to dismissal, and all of the hardship that this can entail. In the case of an employee such as Ms Zielke, whose career has been in customer or client service, the effect of a dismissal for failure in this area can be devastating. It is in my view incumbent on an employer of the size and standing of National Hearing Care, valuing customer service as it does, to have a fair and consistent mechanism for dealing with customer complaints, which is clearly articulated and promulgated in the workplace through the Employee Handbook. At the relevant time, National Hearing Care did not have such a system. The suggestions in the evidence of Mr Stevens that the Employee Handbook now deals with this issue, only adds weight to this view.

[83] While the inconsistencies in terms of content and the manner of documenting complaints are not sufficient to justify a finding that there was not a valid reason for the dismissal of Ms Zielke, they are sufficient to justify a finding that Ms Zielke did not have an opportunity to respond to the complaints. While it is unlikely that Ms Zielke would have no recollection of all of the complaints from customers, it is likely that she would not remember some of them.

[84] Quite simply Ms Zielke was entitled to have the substance of complaints against her documented in a standardised format, and with sufficient detail for her to have the opportunity to respond. In my view this was not the case.

[85] On balance, I do not accept that Ms Zielke was given an opportunity to respond to the reasons for her dismissal related to her conduct or capacity.

Was there any unreasonable refusal by National Hearing Care to allow Ms Zielke to have a support person present to assist at any discussions relating to the dismissal?

[86] National Hearing Care did not refuse to allow Ms Zielke to have a support person present to assist at the discussion relating to her dismissal, but rather advised her that she could bring a support person. It is also the case that the meeting was deferred from Friday 26 February to Monday 1 March 2010, at Ms Zielke’s request. Ms Zielke complains that she did not know that the meeting was to discuss her dismissal, and that she had insufficient time to arrange for an independent person to attend for the purpose of supporting her. As a result, Ms Zielke took Ms Cummings to the meeting as Ms Cummings was present in the workplace at the time.

[87] It would have been preferable for Ms Zielke to have been told in advance that dismissal may have been an outcome of the meeting of Monday 1 March 2010, so that she had an opportunity to arrange for a representative to assist her at that meeting. However, Ms Zielke had a representative and did not request an alternative. Accordingly there was no unreasonable refusal in this regard, on the part of National Hearing Care.

Was Ms Zielke warned about unsatisfactory performance before the dismissal?

[88] Ms Zielke was warned, both verbally and in writing, that her attitude towards, and manner of dealing with colleagues and customers, was unsatisfactory. Ms Zielke was told, in no uncertain terms, that if there was a further complaint about her attitude and manner, she would be dismissed. In all of the circumstances I am satisfied that Ms Zielke was warned that her work performance was unsatisfactory, and that warning was provided before her dismissal.

To what degree was it likely that the size of National Hearing Care’s enterprise would impact on the procedures followed in effecting the dismissal?

[89] National Hearing Care is a large employer. As previously noted, the Company has an enterprise agreement and an employee handbook. At the time of the dismissal, the systems and processes for recording and processing customer complaints so that they could be raised with employees, was inadequate. In my view, an employer of that size should have had better procedures for dealing with a significant issue that was likely to lead to disciplinary action against employees, and which lead to the dismissal of Ms Zielke.

[90] However, the size of National Hearing Care’s enterprise is not a matter that impacted on the procedures followed in effecting the dismissal.

To what degree was it likely that the absence of dedicated human resource management specialists or expertise in the enterprise would impact on the procedures followed in effecting the dismissal?

[91] There was no absence of dedicated human resource management specialists or expertise on the part of National Hearing Care. There is no likelihood that such an absence impacted on the procedures followed in effecting the dismissal. To the contrary, it would be expected that the presence of dedicated human resource management specialists would have resulted in a better system for recording customer complaints.

Other relevant matters

[92] In my view the following matters are also relevant to determining whether Ms Zielke’s dismissal was unfair. At the time she was dismissed, Ms Zielke was 61 years of age. Ms Zielke is a single person and had no partner to support her. Ms Zielke gave evidence of the hardship brought about by her dismissal and I have no reason to doubt that a 61 year old woman, dismissed from her employment, would have great difficulty obtaining an alternative position.

[93] It is also the case that in the view of managers from National Hearing Care, the conduct on the part of Ms Zielke giving rise to customer complaints, was not intentional. It was the view of managers who spoke to Ms Zielke about the customer complaints, that she was not aware of the way in which her manner was perceived. This is reflected in the record of discussion with Ms Zielke of 27 May 2009 24 and in the warning letter issued to Ms Zielke on 25 September 2009.25 The records of various discussions with Ms Zielke also indicate that she was upset at being perceived as rude and aggressive, and had believed that she had worked hard to address these issues. Although I accept that Ms Zielke was rude and aggressive to customers and colleagues, there was no suggestion that this was intentional.

[94] Ms Zielke was employed for almost six years. Although Ms Zielke had a number of warnings throughout her employment about her conduct towards other staff and customers, there was also evidence of at least one favourable performance review in May 2009, praising her efforts, including her sense of humour and courteous manner towards staff and customers. The attempts of witnesses for National Hearing Care to confine this performance review to Ms Zielke meeting KPI’s in terms of sales, cannot be sustained on the plain words of the performance review document. 26

[95] I do not accept that training and counselling were offered to Ms Zielke. This was effectively conceded by Mr Stevens. National Hearing Care is a large employer with significant resources. Training is provided to staff on systems and procedures. In my view, the Company should have been more proactive in offering training and support to Ms Zielke to address the issues associated with her demeanour and how she was perceived by colleagues and customers. Ms Zielke had a relatively lengthy period of employment and was in a senior role. It had been acknowledged on a number of occasions that Ms Zielke was not intentionally rude, and Ms Zielke’s repeated statements that she was trying to be conscious of how her manner was perceived, were well documented in the records of interview and warnings.

[96] For Ms McRoberts to simply have told Ms Zielke to get some books from the library on how to improve her communication skills, was an entirely inadequate response to an issue that was viewed as being so serious, that it lead to the dismissal of Ms Zielke. In my view, an employer the size of, and with the resources of, National Hearing Care, including dedicated human resource management specialists, should have been more proactive in directing Ms Zielke to undertake formal training to assist her to improve her communication skills, and in providing her with that training. Instead, the onus was placed on Ms Zielke to seek specific assistance. In circumstances where Ms Zielke had no intention of behaving offensively, and was struggling to understand exactly what conduct on her part had caused the complaints, this was not reasonable.

[97] On balance, I am of the view that Ms Zielke’s dismissal was unfair because it was harsh. In reaching this conclusion, I have balanced the finding that Ms Zielke was guilty of misconduct, in that she was rude and aggressive to customers and colleagues, and that this was a valid reason for her dismissal, against the following factors:

that Ms Zielke did not intend to be rude and aggressive to customers and colleagues and essentially had no insight into her own behaviour and how it was perceived;

the inadequacy of the process for recording and dealing with customer complaints;

the impact of that inadequate process on Ms Zielke’s opportunity to respond to the allegations;

the failure of National Hearing Care to take proactive steps at an early stage to address concerns about Ms Zielke’s attitude towards colleagues and customers by providing training or other guidance; and

the personal situation of Ms Zielke, including her age and her prospects of obtaining other employment at this stage of her career.

REMEDY

[98] Having found that Ms Zielke’s dismissal was unfair, it is necessary to determine whether a remedy should be granted. In my view, Ms Zielke should have a remedy for her unfair dismissal. As required by s.390(1) of the Act, Ms Zielke was a person protected from unfair dismissal at the time of her dismissal, and I am satisfied that her dismissal was unfair, on the ground that it was harsh.

[99] Ms Zielke does not seek reinstatement. It is also apparent that the relationship between Ms Zielke and managers of National Hearing Care is strained. Given these factors, and the circumstances leading to the dismissal, reinstatement is not an appropriate remedy. I consider that in all of the circumstances of this case, an order for compensation should be made.

[100] The remedy of compensation is dealt with in s.392 of the Act in the following terms:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[101] Considering the factors I am required to take into account in determining an amount of compensation, as provided in s.392(2) of the Act, I have come to the following conclusions. There is nothing to suggest that National Hearing Care is not a viable business, and I am satisfied, as required by s.392(2)(a) that the Order I intend to make will not impact in this regard. Ms Zeilke was employed by National Hearing Care for almost six years, and I have taken this into account as required by s.398(2)(b).

[102] In terms of the provisions of s.392(2)(c) I am of the view that Ms Zielke’s employment would not have continued for a lengthy period. Had National Hearing Care been more proactive in offering Ms Zielke training to address her interpersonal skill levels, there is a possibility that Ms Zielke would not have availed herself of this opportunity or that training would not have addressed the problems.

[103] The pattern of behaviour exhibited by Ms Zielke during her period of employment involved rudeness and aggression to colleagues and customers - albeit unintentional - and an inability on the part of Ms Zielke to accept any responsibility for the perceptions that others had of her behaviour and attitude. Even allowing for the pressure associated with conducting her own unfair dismissal case, Ms Zielke displayed the same type of behaviour in proceedings before Fair Work Australia, and in particular in the manner in which she dealt with witnesses for National Hearing Care.

[104] In my view, had Ms Zielke not been dismissed on 1 March 2010, she would not have remained in employment for more than six months. Ms Zielke was paid five weeks notice on termination of her employment (on my calculations $3,990.50), and gained alternative employment for a period of 10 weeks, for which she earned an amount of $500 per week or $5000.00. Ms Zielke said that other than this short term contract, she had been unable to find alternative employment. It is probable that a woman of Ms Zielke’s age, who has been dismissed from her employment, would not find it easy to obtain alternative employment and there is no evidence that Ms Zielke has not taken reasonable steps to mitigate the loss of her employment.

[105] I am also satisfied that Ms Zielke’s misconduct, and her persistent refusal to accept any responsibility for the way in which her manner of dealing with colleagues and customers was perceived, contributed to her dismissal. Accordingly, the compensation which I would otherwise award, must be discounted, in accordance with s.392(3) of the Act.

[106] For the purpose of calculating compensation, I have determined that the estimated period that Ms Zielke would have remained in employment had she not been dismissed, is 26 weeks, and that Ms Zielke should be awarded an amount of compensation calculated by reference to that period. I have included consideration for contingencies - such as the possibility that training or counselling may not have addressed the issues with Ms Zielke’s attitude - in that period. From that amount, the five weeks notice paid to Ms Zielke on termination should be deducted. Although amounts paid to employees on termination of employment are not specifically referred to in the factors in s.392(2), notice on termination is technically remuneration earned from employment as specified in s.392(2)(c) or alternatively is a matter that I consider to be relevant in an award of compensation, as provided in s.392(2)(g).

[107] Ms Zielke obtained alternative employment for a ten week period, commencing on 24 May and finishing on 30 July 2010. That ten week period is entirely within the estimated 26 week period that Ms Zielke would have remained in employment, and should be taken into account.

[108] Pursuant to s.392(2) the amount of compensation I would order is $11,759.50. However, this is also a case where I am satisfied that Ms Zielke’s conduct contributed to the employer’s decision to dismiss her, and that the compensation should be reduced by an amount of 35%. Accordingly, I intend to issue an Order that National Hearing Care pay to Ms Narelle Zielke an amount of $7,643.70, taxed according to law, within 14 days of the date of release of this decision.

COMMISSIONER

Appearances:

Ms N. Zielke on her own behalf.

Mr C. Stevens on behalf of the Respondent.

Hearing details:

2010.

Brisbane:

August 23.

1 Witness Statement Exhibit 1.

2 Witness Statement Exhibit 6.

3 Witness Statement Exhibit 7.

4 Character Reference Carol Wright Exhibit 8.

5 Witness Statement Exhibit 9.

6 Witness Statement Exhibit 10.

7 Witness Statement Exhibit 11.

8 Witness Statement Exhibit 13.

9 Witness Statement Exhibit 14.

10 Witness Statement Exhibit 15.

11 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.

12 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

13 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

14 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

15 Walton v Mermaid (1996) 142 ALR 681 at 685.

16 Exhibit 4.

17 Exhibit 9 Witness Statement of Craig Stevens “CS-6”.

18 Exhibit 9 Witness Statement of Craig Stevens “CS-7”.

19 Transcript PRN 611.

20 Exhibit 9 Witness Statement of Craig Stevens.

21 Exhibit 15 “SL-1”.

22 Exhibit 12 “RP-1”.

23 Exhibit 15 “SL-2”.

24 Witness Statement of Craig Stevens “CS-6”.

25 Exhibit 5.

26 Exhibit 2.

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