Andreas Kuellmer v Pacific Access Pty Ltd t/as Yellow Pages Australia [1995] IRCA 173

C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - complaint of unlawful termination - conduct and performance - valid reason. Industrial Relations Act 1988, S170CA, S170DE. Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh (1995) 128 ALR 353 ANDREAS KUELLMER v. PACIFIC ACCESS PTY LTD T/AS YELLOW PAGES AUSTRALIA - No. NI 0602 of 1994 Before: Judicial Registrar WALKER Place: Sydney Hearing Date: 3 February 1995 and 16 March 1995 Judgment Date: 3 May 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N0. NI 0602 of 1994 Between: ANDREAS KUELLMER Applicant And: PACIFIC ACCESS PTY LTD T/AS YELLOW PAGES AUSTRALIA Respondent Before: Judicial Registrar WALKER Place: Sydney Hearing Date: 3 February 1995 and 16 March 1995 Judgment Date: 3 May 1995 MINUTES OF ORDER THE COURT DECLARES 1. The termination of the employment of the Applicant did contravene s 170DE of the Industrial Relations Act, (the Act) 1988. AND THE COURT ORDERS THAT: 1. The Respondent is to pay to the Applicant the sum of fourteen thousand dollars. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NO. NI 0602 of 1994 Between: ANDREAS KUELLMER Applicant And: PACIFIC ACCESS PTY LTD T/AS YELLOW PAGES AUSTRALIA Respondent Reasons for Judgment 3 May 1995 JR WALKER The applicant commenced employment with the respondent on the 2 December 1991 as an Advertising Consultant (Premise), having been an insurance salesman prior to this position. His job with the respondent was to canvas advertising for the Yellow Pages telephone directory and certain incentives were offered to the employees of the respondent in order to maximise sales. During the applicant's first year employees were subject to a commission scheme known as the "net scheme," which was based on a formula of new business, plus renewals, minus cancellations which were to equal a net figure expressed in dollars. Under this scheme the applicant proved to be a very successful salesman for the respondent, in fact he was so successful that, in his Parramatta region for the overall Metro performance ranking taken from the 25 January 1993 to 13 August 1993, he came second. As a result of this performance he was rewarded with a trip to Rio De Janeiro and Buenos Aires. He was also given membership to Yellow Pages of Australia, Globe Trotters Club, and on the 17 January received a letter from Mr Ric Bierling as set out hereunder: "Dear Andy As you are aware Premise Sales Consultants may be classified as either Advertising Consultants (Premise), Senior Advertising Consultant (Premise) or Executive Advertising Consultant (Premise) and individual placement within these classifications is dependant upon meeting criteria in performance standards over the course of a year or at end of canvas period. The performance standards are set out within the position descriptions for each of the classifications concerned, with particular reference in Clause 5, Qualifications and skills required and Clause 11, Loss of title. The position descriptions are contained in Section 1 of the Sales Policies and Procedures (NSW/ACT) as previously issued. In consideration of the 1993 ranking report and your percentage to objectives which attained a 106.6 percent result, you have been classified as a Senior Advertising Consultant (Premise) for 1994. This classification will result in your salary being adjusted to a level of $30,980 per annum with such variation to apply on and from Monday 31 January 1994. All other conditions of employment previously advised remain unchanged." Having now been promoted to a Senior Advertising Consultant (Premise) the applicant completed an IDS training course and received a certificate of competence in the area of Sales Enquiry and Procedures on the 24 January 1994. It seemed that the applicant was well on the way to a successful career with Yellow Pages. Relationship with Supervisor The applicant's immediate supervisor was Mr Tony Perera and although they initially had a good relationship things began to break down in 1994. Mr Perera was the District Sales Manager at Parramatta and the applicant gave evidence that several incidents occurred between them and alleges that these incidents led to victimisation and eventually to the dismissal of the applicant. When asked if he had much to do with Mr Perera the applicant replied: "Basically you are out on the road most of the time so you really don't have that much contact. He went out with me on one occasion where every now and then they do a check to make sure, you know, you're telling the clients the right thing and, you know, presenting properly and having prepared all the documentation properly. The day that we went out together we were in the Balmain area. One of the things that happened there which I was a bit surprised, is we went to see a client and... it was Susan and Marlene Ella Bache, it's a cosmetic salon and they were clients that I'd had the previous year also, so that I knew them. We went in to see them and they were very reluctant to increase their advertising and Mr Perera became a bit agitated and even a bit aggressive with them and made some comments as to the type of advertising they should be taking out and they said, "Well, we have been here a couple of years," and he said, "Well, who knows if you'll be here next year." At that point they asked Mr Perera to leave. I felt sorry for him because I had driven that day and it was a hot day and he had to wait outside by the car until I finished the sale. Afterwards I was told not to mention that in the office." The next incident related to an attempt by Mr Perera to introduce a form as a check list at a meeting in 1994. The applicant was against its introduction as it would have added to the amount of paper work required and gave the following evidence: "We were asked for our input and I agreed with Mr Perera that the form itself was a good tool, but I thought if we just had it in laminated and then we could just, check off as we go, that would be the way to go. Mr Perera then said, "Well, you know, that's your view. Why don't we put it to the team for a vote?" Then it was voted upon and everyone voted in favour of what I had said. Mr Perera then said - I don't want to use the word - he said, "Eff it, I'm the manager, we do what I say and we'll fill them out for each and everyone." After that I just continuously had problems." When asked what sort of problems, the applicant replied: "I was constantly harassed. I couldn't communicate with him. If I went into the office to speak to him, I got remarks like, you know, "you're a pain in the..." you know just, "get lost," and I mean I realise I am not the most complacent person and neither is Tony, and I really didn't know where to go from there, so I spoke to Ric about it... then I went back to my desk and a short time later Tony Perera came up to me and said, "I want to see you in my office, now," and we went into his office and he slammed the door behind me and I sat down and then he kind of just leaned over the desk and waved his finger in my face and got all red in the face, and he said that I was stabbing him in the back and undermining his authority and if I ever disagreed with him in public again, he would make my life hell. And that is basically what happened." During the 1994 campaign the applicant took two days off to get married and when he returned he discovered that Mr Perera had taken an account off the applicant's desk and given it to another consultant. When he approached Mr Perera about the reason for this he said he was told: "Well the reason I did it was because you don't deserve new business, because you took two days off." Although this account was eventually credited to the applicant he gave evidence of a further incident concerning Mr Perera where another consultant, Ms Linda Morrow was credited with one of the applicant's sales. The applicant gave further evidence that Mr Perera attempted to get him to resign: "... I was standing at my desk on the phone, making appointments and he said, "making appointments for next week, that's pretty optimistic, you might not be here" and I said, you just can't quit, can you, and he said, "well, you won't quit either" and I said, no, and I won't resign and he said, "well, if you don't resign I'll see you in court."