Gefken v Optus Communications [1995] IRCA 216

C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - complaint of unlawful termination - valid reason. Industrial Relations Act 1988, s170DE. GEFKEN v OPTUS COMMUNICATIONS - No. NI 1117 of 1994 Before: Judicial Registrar WALKER Place: Sydney Hearing Dates: 30-31 March 1995 Judgment Date: 31 March 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N0. NI 1117 of 1994

Between: PATRICIA JOY GEFKEN Applicant And: OPTUS COMMUNICATIONS Respondent Before: Judicial Registrar WALKER Place: Sydney Hearing Dates: 30-31 March 1995 Judgment Date: 31 March 1995 MINUTES OF ORDER THE COURT DECLARES: The termination of the applicant did contravene s170DE of the Industrial Relations Act 1988. AND THE COURT ORDERS THAT: The applicant be reinstated to another position on terms and conditions no less favourable than those on which the applicant was employed immediately before the termination, and that the respondent do all things necessary to maintain the continuity of the employment and pay to the applicant the remuneration lost by her because of the termination. 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 1117 of 1994

Between: PATRICIA JOY GEFKEN Applicant And: OPTUS COMMUNICATIONS Respondent Before: Judicial Registrar WALKER Place: Sydney Hearing Date: 30-31 March 1995 Judgment Date: 31 March 1995 REASONS FOR JUDGMENT - EX TEMPORE The applicant commenced employment with the respondent as a Team Assistant in March of 1992 and was initially assisting Mr Dan Garner, Manager International, at AUSSAT House, 54 Carrington Street, Sydney. This work involved general secretarial work, filing, administration, answering the telephone, making appointments, word processing and generally liaison with other members of the team. In about May of 1992, Mr Jim Whitehead, a Group Manager in charge of Business Network Services approached the applicant and asked her to join his team. It appears that the applicant had assisted Mr Whitehead with word processing and administrative matters since joining Optus and she accepted his offer. The applicant worked for Mr Whitehead until August 1993 and during this time she received two performance appraisals, the first on the 14 December 1992 and the second on the 11 June 1993. It is relevant to this matter to mention the assessment of Mr Whitehead of the applicant's performance during this period. Under the heading, Skills and Competencies Review is set out the following comments: OVERALL COMMENTS Trish's attitude and dedication to her work is excellent. Her willingness to spend long hours to getting the job done is commendable. Customer Service Dedicated to serving both internal and external customers well. (F) Team Work Has developed effective work relationship with key people across Optus. (F) Leadership Very effective at getting things done through others. (S) Communication Is clear in communications and wants to ensure everyone gets the message. (F) People Management Knows who to go to, to get things done. (S) Other Key Skills · Excellent in organising functions and events. · Excellent follow through when something needs to be followed up. · Has dedicated long hours to Optus to keep current. Ratings: Significant Strength (S); Fully Acceptable (F); Needs Development (D); and Unsatisfactory (U). Under the heading, Commitment Review, Actual Level of Achievement, are comments made in relation to the performance objectives and these are as follows: Coordinating Meetings, Conferences and Functions Outstanding in this area, makes sure all details are correct. (S) Typing Has dedicated much of her own time to stay current, despite heavy load. (F) Filing Filing has generally met standards. (F) Opening Mail, Clearing M-Mail, Diarising Appointments Has developed an excellent system to clear the mail. (F) Travel Arrangements for the Group Has taken charge of this area and set up an effective system. (F) Telephones Has the right attitude in making sure phones are answered promptly. (F) Overall Comments Trish has met or exceeded all of her commitments. Overall rating (F) The performance appraisal of the 11 June is just as glowing as the above report and further comment is not required, however as a result of her recognised good work, the applicant received a letter from the respondent, dated 1 July 1993, thanking her for her support and effort as a valued member of the Optus team and giving her an increase in salary. In about September of 1993 the applicant approached Mr Whitehead seeking a promotion and completed the appropriate forms. A position of Executive Assistant to Mr Oliver Stacey the Manager of Business Network Services became available and the applicant was confirmed in this position by letter of Mr Peter Cheel, the Human Resources Consultant of Optus on the 16 September 1993. In this letter Mr Cheel indicated to the applicant that her position had now been re-evaluated and is now to be known as Executive Assistant and the salary was to be increased, while the terms and conditions of employment remained as per her previous letter of appointment. The applicant gave evidence that the majority of her duties remained essentially the same as they were when she was working for Mr Whitehead and for the first six months Mr Stacey appeared pleased with her work. After about seven months she detected a difference in Mr Stacey's attitude towards her and as she was expecting a performance review in December, she approached Mr Stacey on numerous occasions with regard to setting a time and place to have the review. She said that on each occasion Mr Stacey had been non-committal and at other times ignored her. Mr Stacey, she said, did not complain to her that there was any problem with her work. The first time she became aware that Mr Stacey was dissatisfied with her in any way was on the 10 June 1994 when he called her in for a performance review. Mr Stacey's evidence was that he discussed deficiencies in the applicant's work with her on the 6 May 1994 and that this meeting was a formal counselling session. The applicant denies that such a meeting took place and Mr Stacey produced his log book on the second day of the hearing to substantiate his claim. The log book produced is in fact a account book that has various notes and dates listed and although the name Trish is listed under a hand written date of 5/5 there is no proof that such a meeting took place on the 6 May. Mr Stacey gave evidence that a formal meeting was also conducted on the 16 May 1994 as well, however, the applicant denies that there was a formal meeting but there was a discussion between her and Mr Stacey that had been initiated by the applicant at Mr Stacey's desk. The applicant said that the memo of Mr Stacey's dated the 15 May 1994 was the topic of discussion only. Mr Stacey has hand written on his memo, "First discussion May 6. Then May 16. Then June 6 Review," however I can place little weight on these notes as they could have been written there at any time before the affidavit was sworn. In Mr Stacey's performance appraisal of the applicant on the 6 June 1994, there is no mention of the meetings of the 6 May or the 16 May 1994. Mr Stacey's performance appraisal of the 6 June 1994, rated the applicant as generally falling short of fully competent in 4 out of 5 areas, competent in 1 and outstanding in 1. In his overall comments Mr Stacey said: "Trish needs to complete the transition from Team Assistant to Executive Assistant and provide a value add that is clear and in evidence to the whole group." The applicant said she felt these comments were without foundation as there was no significant difference between the duties that she had performed for Mr Whitehead, and that the one area in which there was a difference she had been rated by Mr Stacey as excellent. She latter responded to the performance appraisal in writing, disagreeing with most of Mr Stacey's comments, however she did agree that she needed to improve her computer skills and in fact undertook another Excel course and obtained a certificate. Subsequent to the performance appraisal the applicant received through the inter office computer system a new position description. She alleges that Mr Stacey did not discuss the job description or what was expected of her in the performance of these duties and from then on communicated with her through the computer, avoiding her as much as possible. She attempted to transfer to another position within Optus, however as her ratings were low in the performance appraisal she was not able to do so. Certain discussions took place between the applicant and Mr Stacey but the applicant gave evidence that these discussions were more of a verbal attack on her personality and performance, rather than constructive meetings. On the 22 August 1994 Mr Stacey arranged for a formal counselling session between himself the applicant and Mr Cheel the Human Resources Consultant. The applicant requested Mr Cheel to allow her to have her solicitor attend the meeting of the 22 August, and this request was denied. At the following counselling session of the 11 October 1994 the applicant requested that as she was a member of the CEPU she would like to have a representative of the union attend the session. This request was also refused. At the final counselling session of the 11 November when the applicant was terminated, she again requested that she be allowed legal representation and she gave evidence that Mr Cheel at first refused this request but later in the day advised her that she could have her legal adviser present as an observer only. Mr Stacey maintained that the applicant's legal adviser in fact took an active role in the final counselling session on the 11 November. In his evidence he said: "The solicitor took an active role... we went through the issues that were involved as far as the performance was concerned and the solicitor at that time acted, I would say, as counsel and also as representative for Patricia Gefken." Counsel for the applicant examined Mr Stacey as to what the solicitor in fact said and at the end of this discussion Counsel suggested to Mr Stacey that what was said by the solicitor would only amount to one minute of the total session, Mr Stacey said, "correct." When asked for how long the counselling session went for Mr Stacey said for about one hour. There was an allegation against the applicant concerning a telephone conversation between the applicant and a client of the respondent by the name of Mr Gibson. This allegation was considered important enough to have Mr Robert Murray file an affidavit and be called as a witness in the proceedings on behalf of the respondent. In Mr Murray's affidavit of the 22 March 1995 he alleges that the applicant was always reluctant to answer the telephone for others while they were absent from their work area. He then went on to swear that on the 16 August 1994 he was attending a training course elsewhere within the Optus building, when later on the same day he received a telephone call from John Gibson: "...who complained to me about the (in his view) unprofessional approach Optus had taken to his enquiry early in the day. His frustration related to being unable to get any assistance from the secretarial support who had taken his telephone call." Mr Murray said he made enquiries as to who had taken the call and established that the applicant had taken it. This evidence is at odds with his earlier evidence that the applicant failed to answer others' telephone calls while they were absent, however, Mr Murray's evidence is at odds with the applicant's version of the events concerning this event in any case. He says that Mr Gibson told him that he was informed that there was nobody there to take his call and that the person said, "don't blame me, blame the managers who have left the area unattended." The applicant's version of the event was that she had taken a call from Mr Gibson in the afternoon after Mr Gibson had apparently "done the rounds" and was refusing to be transferred again. He was wanting to speak to someone about International Leased Lines and as Mr Stacey was overseas and Mr Murray was at a special training course she told Mr Gibson that that she would get Mr Murray to ring him back, as he and the staff were at a training course. She then attempted to locate Mr Murray but he had left the training course to attend another meeting. She also said that Mr Murray was unable to be contacted by pager as Mr Stacey had replaced the pagers with mobile phones. Messages could be sent via the mobile phone however Mr Murray did not know how to operate it. She left a message on Mr Murray's desk and when Mr Murray returned soon after he then contacted Mr Gibson. After considering Mr Murray's evidence given in cross examination I prefer to accept the applicant's evidence as to the events surrounding the matter concerning Mr Gibson. In fact there was no proper investigation conducted in relation to this matter and it appears that Mr Murray and Mr Stacey preferred to believe the customer rather than the applicant. THE COUNSELLING SESSIONS There were three official counselling sessions conducted by Mr Stacey with the applicant and Mr Cheel the Human Resources Consultant was present. At each of these sessions, the applicant's request to be represented by her lawyer or union official was refused, however, on the last session where Mr Stacey said in evidence that he had already decided to terminate her, he allowed the applicant's solicitor to be in attendance. At each of the sessions the applicant refused to generally comment as she felt that the meetings were a "kangaroo court" and she felt intimidated by the presence of the two men and felt it was two against one. Mr Cheel, she said, informed her that if she did not respond she would be digging her own grave, however she did respond to each of the first two meetings by written reply and at the last session she did participate. Mr Stacey produced a written document before each of the sessions and headed it, "Confirmation of Employee Discussion." The first meeting was held on the 22 August 1994 and the document listed seven headings: 1. Punctuality; 2. M-Mails; 3. Filing; 4. PC Skills; 5. Event Coordination; 6. Ethical Standards; 7. Customer Service. At the second session held on the 11 October 1994 the same headings were used with the exception of 6. which was changed to Conduct and a further heading added as 8. Communication. The final session of the 11 November used the same headings as the 11 October. The applicant was terminated for unsatisfactory work performance. This was the reason stated in the letter dated the 14 November and signed by Mr Cheel and in the Employment Separation Certificate dated the 14 November 1994. When I asked Mr Stacey if he terminated the applicant for not participating in the counselling sessions he replied, "yes." He then qualified this in the following evidence: "Maybe I should have rephrased that and said that the principal reason for termination was her non-performance and non-consistent performance. And that I guess what I was trying to say there by not participating in the counselling process that it was impossible to make any progress related to the issues at stake if she would not participate in discussing them." The reality is of course that the applicant did not participate to any great extent orally at the first two sessions as she was afraid that she was being set up and wanted representation. Despite this however, she did respond to Mr Stacey's allegations in writing to the first and second sessions. To then suggest that she was terminated for her lack of response to the counselling session shows the termination up to be erroneous on this ground as she did undertake the counselling procedure at the final session when she had her solicitor in attendance. It was agreed by Mr Stacey in cross-examination that he had not at any time discussed the new job description with the applicant and that at the final counselling session her punctuality had improved to the required standard. The applicant in her written replies to the first and second counselling sessions, disagreed with the assertion that she was ever late and Mr Stacey conceded in his evidence that the applicant did often arrive early and would often work late. As well as punctuality, the applicant had improved to the required standard under the heading of filing, although in her reply to the criticism in the prior session she had replied that all filing was up to date. Having improved in these areas the non-performance areas left were: M-Mails; PC Skills; Event Coordination; Conduct; Customer Service; and Communication. M-Mails Under this heading of the final counselling session Mr Stacey alleges that archive messages were not printed off regularly. Under cross-examination he conceded that this was the first time that this problem had become evident and this was the first time the applicant had been counselled in relation to it. As to the earlier sessions the applicant had replied in writing that she had noted the comments made and had experienced problems with the computer, in that, mail boxes had disappeared from it. PC Skills Because of an earlier counselling session the applicant had undertaken an Excel course in order to improve her skills in this area. The criticism by Mr Stacey at the final session was to do with the applicant's speed, particularly in relation to Mr Stacey's Amex claims. The transcript concerning his cross-examination on this point is set out hereunder: Q. Is it not the case that delays in the monthly report were often occasioned by delay in getting figures from the finance people in your organisation? A. Yes. Q. Is it not the case that you had got behind with claims in relation to your Amex claims? A. Yes. Q. That other people other than Ms Gefken were involved in the reconciliation? A. Yes. Q. There were people in the accounts department involved in it? A. Yes. The applicant had also explained to Mr Stacey that her computer was not capable of undertaking some of the assignments that he required and in fact her computer memory had to be upgraded and a new printer installed. Considering Mr Stacey's evidence I am at a loss to understand how such a criticism could have been made at the termination on the 11 November. Event Coordination The comments made by Mr Stacey under this heading were that the daily event calendar has not been accurate with locations and times frequently incorrect or not current. The applicant admitted that she, on rare occasions had omitted to update a change. Despite this however, it is only necessary to look back to the performance appraisal of the applicant carried out by Mr Stacey on the 6 June 1993 in order to put this criticism into context. Mr Stacey said of the applicant then: "Excellent coordination of major group events, and with other groups eg. Year end powering up event." If the applicant had made some mistakes in regard to the calendar, termination of employment would hardly be reasonable. Conduct Under this heading at the final session Mr Stacey indicates that the applicant has been more professional with other staff, however he complains of an incident concerning a conversation he had with the applicant in relation to his Amex reconciliation. He suggested that her statement: "How dare you question my time" was inappropriate, at least unprofessional, and certainly confrontational. The applicant explained that this was not the statement made by her and in fact she had said, "How dare you accuse me of being dishonest" and that this statement was said in the context of a conversation where Mr Stacey had accused the applicant of not clearing the M-Mails. Owing to the deterioration of the relationship between Mr Stacey and the applicant it is understandable that there could have been some confusion concerning what was said, however having had the opportunity of observing both witnesses I prefer the evidence of the applicant. This again was the first time that this problem had arisen with regard to the applicant's conduct although there was the matter with Mr Murray and again I would favour the applicant's evidence. Customer Service Under this heading is the following statement: "Phone messages are not always accurate with correct numbers, or lacking detail. Responsive phone answering has not been evident. This performance does not meet the required standard." This again was the first time this problem had been recorded by Mr Stacey at a counselling session and was denied by the applicant in her evidence, although she did admit on one occasion where she was very busy, handing Mr Stacey a message without a number, but she corrected this immediately. Communication Mr Stacey states under this heading, "This performance does not meet the required standards, for the reasons stated above. Without interchange there can be no clear communication and you have declined to participate in the process." Of course Mr Stacey had written these words before he had attended the final counselling session so they were really not correct as the applicant did communicate at this meeting. This statement by Mr Stacey leads me to the conclusion that the real reason he was terminating the applicant's employment was that she had not participated in the counselling sessions. There can be no question that the counselling session of the 11 November was nothing more than a orchestrated sham. The decision to terminate the applicant was, according to Mr Stacey decided by him in consultation with Mr Cheel, the Human Resources Consultant on the 4 November 1994. There was a blatant disregard for the procedure as set out in the Optus Enterprise Agreement of (1994), Appendix B, and also the official Optus Guidelines entitled: "The Counselling Process." The Human Resources Consultant from all appearances gave the impression in the circumstances of this termination to be an agent of Mr Stacey rather than an independent and impartial observer. This added to the insistence by this man that the applicant be refused the benefit of a legal representative or a union official, makes the matter all the more sinister. It is quite clear that at the final counselling session of the 11 November the applicant had, according to Mr Stacey's prepared document, improved to the required standard in two of the areas under review. It is also clear that there was no real substance in any of the other matters that allegedly amounted to poor performance. In fact, several of the matters raised were new allegations and therefore would have required further counselling. I am therefore satisfied that the termination of the applicant in this matter was not for a valid reason. I order that the applicant be reinstated to another position on terms and conditions no less favourable than those on which the applicant was employed immediately before the termination, and that the respondent do all things necessary to maintain the continuity of the employment and pay to the applicant the remuneration lost by her because of the termination. I certify that this and the proceeding ten (10) pages are a true copy of the Reasons for Judgment of Judicial Registrar Walker. Associate: Kerry Harrison ______________ Date signed: 25 May 1995 Appearances Counsel for the applicant: Mr S Crawshaw Solicitor for the applicant: Ms H Mousas, Keddies, Solicitors Counsel for the respondent: Mr I Neil Solicitor for the respondent: Mr P Hayward, Minter Ellison, Solicitors Date of Hearing : 30-31 March 1995 Date of Judgment : 31 March 1995