Corrina Laki v Nichols Cumming Advertising Australia Pty Ltd [1995] IRCA 415

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - whether employee terminated for VALID REASON based on CONDUCT OR PERFORMANCE - whether employee accorded OPPORTUNITY TO RESPOND to allegations made - whether termination HARSH, UNJUST OR UNREASONABLE Industrial Relations Act 1988, ss. 170DE(1), 170DE(2), 170DC, 170EE CORRINA LAKI v NICHOLS CUMMING ADVERTISING AUSTRALIA PTY LTD VI 2539 of 1995 Before: PARKINSON JR Place: MELBOURNE Date: 23 AUGUST 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2539 of 1995 B E T W E E N : Corrina LAKI Applicant A N D NICHOLS CUMMING ADVERTISING AUSTRALIA PTY LTD Respondent MINUTES OF ORDER 23 August 1995 PARKINSON JR THE COURT ORDERS THAT: 1. The respondent pay to the applicant the sum of $ 1,076.00 in compensation. 2. The time for payment is 14 days from the date of this order. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2539 of 1995 B E T W E E N: Corrina LAKI Applicant A N D NICHOLS CUMMING ADVERTISING AUSTRALIA PTY LTD Respondent REASONS FOR DECISION 23 August 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant alleges that the termination of her employment by the respondent was without valid reason and was harsh, unjust and unreasonable. The applicant seeks reinstatement and compensation. The applicant was employed in June 1994 by the respondent in its advertising business as a media assistant. She was employed to provide full time assistance in the media department, in circumstances where the media manager was to be working on a part-time basis of two days per week. At the time of her employment the applicant had some limited experience in the advertising industry, although she had previously been principally employed in a secretarial and administrative capacity. The applicant was employed upon an annual salary, with provision for a bonus or incentive payment share should the agency's figures meet targets. At the employment interview she was informed that the respondent was not a company which watched the clock in terms of attendance of its employees, but rather allowed for some flexibility subject to the work required being performed. Implicit in this was an expectation that the flexibility would be mutual and that the flexibility would be respected and not abused. Thus there was apparently no set starting or finishing time and, subject to work being completed, employees clearly had a great deal of flexibility in relation to lunch times and other hours. It is clear from the evidence that the applicant together with other employees of the respondent took full advantage of the informality of the working environment offered by the respondent. In about December 1994 the applicant became ill and as a result was absent from work between 14 December 1994, recommencing work in January 1995. The applicant was paid by the respondent during the entirety of her absence notwithstanding that it appears that there was no obligation upon it to do so. Similarly, when the applicant returned to work in January she was not up to full-time attendance and so she worked for some weeks on a half-day basis. The evidence is that the applicant was paid her full wages during the entire period of her absences due to illness. The respondent's evidence was that it became concerned as to the veracity of the information given them by the applicant as to her illness and the terms of it, and that in about January 1995, as a result of continuing absences from work, the applicant was asked to produce a medical certificate in respect of the illness. Mr Lorkin's evidence was that such a request was made twice by the administrative manager of the respondent on his instruction, and that on neither occasion was it complied with. The applicant's evidence is that she was not asked to produce such a certificate until some two weeks prior to the termination of her employment, and that, whilst two requests were made, they were made within days of each other. Nevertheless her evidence is that she did not produce the certificate, nor did she take any steps at that time to arrange for its production. Her explanation for this is that the workload was such that it was not possible to take the time off work to do so. I find the evidence in relation to the applicant's illness scant and not entirely convincing in the absence of a medical certificate having ever been produced, either to the respondent or to the court. Further, whilst there is some doubt as to the timing of the requests for the certificate, I am inclined to accept the evidence of the respondent in this regard. However, I do not view the timing of the request as being of as much significance as the fact of the request itself and the failure to respond. S170DE(1) - Valid Reason The evidence was that a number of factors were relevant to the decision by the respondent to terminate the employment. The first was absenteeism on a large and persistent scale in circumstances where verification of the illness had been requested and not complied with. The second was the applicant's persistent lateness to work, which the respondent contended was extreme and unreasonable, this lateness including attendance at Monday morning meetings of operational significance. The evidence of the respondent was of a pattern of poor work performance, attendance and timeliness. The final factor which was identified by Mr Lorkin as being relevant to the decision to terminate the employment related to the applicant's alleged persistent and extreme use of bad language in the workplace. Whilst it was conceded that this was a workplace where it was not uncommon to hear such language, it was said that this was in a context and in appropriate circumstances. These latter matters require the exercise of personal judgement as to appropriateness, and it appears in this matter that this was lacking in the applicant. The applicant submits that there was no history of work performance problems, nor any justifiable issue as to timeliness, having regard to the practices which existed in the workplace. However, this evidence is not consistent with the evidence of Ms Sally Davey as to the difficulties she experienced in working with and supervising the work of the applicant. These difficulties arose not only in relation to actual detail of work performed but also arose out of an apparent lack of cooperation with the system of work and liaison which Ms Davey proposed to operate. This lack of cooperation particularly impacted because Ms Davey was in attendance only on a part time basis. I accept the evidence of Ms Davey as to the working relationship, and as to the attendance patterns of the applicant. In particular I am satisfied that at least by March 1995 Ms Davey had been sufficiently concerned as to the applicant's work performance and conduct not only to have raised issues with the applicant on a number of occasions, but also to have reduced her concerns to writing to discuss with Mr Lorkin, the principal (Exhibit R2). I am satisfied that the respondent, through Ms Davey, had raised various concerns as to the applicant's work performance on a number of occasions during the course of the employment and that, whilst the applicant says that she never understood that she was being counselled, I am satisfied that she did, or ought to have, clearly understood that there was a concern as to various aspects of her work performance. Further, I am satisfied that on at least one occasion the applicant was warned as to her conduct and the likely consequences of a continuation. In late March 1995 the applicant together with another employee was called into the board room of the respondent by Mr Lorkin and clearly informed that the time keeping in terms of starting times was unacceptable. The evidence is that neither employee disputed or challenged the issue with the respondent, either then or afterwards. I have carefully observed the applicant in the course of her evidence and she did not impress me as a person who would be reticent in defending herself or stating her view of a matter if she felt it was necessary to do so, or if she disagreed with what was being put to her. On no occasion was any attempt made by the applicant to dispute what was being said in relation to her performance or conduct. The event which has been described as the final straw leading to the termination of the applicant's employment occurred when the applicant failed to attend for a meeting scheduled to commence at 8.45 am on Tuesday 4 April 1995. The meeting in question was a regularly held meeting called a Work in Progress meeting, where the forthcoming weeks schedules and programme was discussed. The evidence was that it was well known and appreciated by all staff, including the applicant, that lateness for this meeting was not tolerated by the managing director, and indeed that this was the only demand as to clock-watching punctuality, to use the parties' own term, made by the respondent. The evidence of Mr Lorkin and the applicant was that the applicant had nevertheless been late for this meeting on a number of previous occasions. The WIPS meeting had originally been scheduled to take place on the previous day and had been cancelled due to the unavailability of persons necessary to the meeting. The evidence of the respondent was that the changed time and date of the meeting had been advised to parties by memorandum distributed in the workplace that day (Exhibit R4). The applicant's evidence was that she did not receive this memorandum and that she had no idea that the meeting was taking place that morning. Her evidence was that as a consequence of the warning she had received she had been attending work at 8.30am and, being late on the morning in question, had rung at approximately 8.50am to somewhat "sarcastically advise the receptionist that she was going to be one minute or so late". The respondent says that the telephone call came in the middle of the meeting at about 9.10am and that the applicant was told by the respondent not to bother to attend work that day and to present herself at work on the following day. One aspect of the applicant's evidence in this regard which troubles me is why, in circumstances when there was flexibility as to starting times, did she bother to ring if the day was an ordinary day like any other where she was to be merely one minute late on her own evidence, and where she had no knowledge of the meeting having been scheduled. She was cross-examined in this regard and her answer related to her having been in attendance early as a result of the previous warning. This however does not fit with her evidence that she was sarcastic in informing the respondent of her lateness. I prefer the evidence of Mr Lorkin as to the circumstances of the lateness and the timing of the telephone call, and I am of the view that it is unlikely, having regard to the size of the workplace, that the applicant did not see the memorandum as to the amended time of the meeting. I am satisfied that the respondent had valid reason for the termination of the employment of the applicant and that reason related to the work performance and conduct of the applicant. I turn now to consider the operation of S170DC and S170DE(2) of the Act. S170DC and S170DE(2) In this matter I am also satisfied that the respondent, in accordance with the culture operating in the workplace to which the applicant was attuned and which I am satisfied she well understood, provided adequate and sufficient guidance and counselling in relation to the performance of the applicant's work and her conduct. The evidence reveals that the applicant suffers under no disability and is articulate and confident. In my view she is quite capable of understanding the nature of the discussions held with her by the respondent's manager Ms Davey and their import, and I am satisfied that she did so understand. Further, I am satisfied that Mr Lorkin made absolutely clear at the meeting held approximately one week prior to the termination of employment that he was dissatisfied as to the applicant's attendance levels and timeliness, and that the applicant well understood this. In this regard the applicant was informed of this dissatisfaction by way of letter read at that meeting. That letter is Exhibit R3 in the proceedings. Whilst the termination of the employment was based upon individual matters which, if viewed individually, might suggest harshness, I am not satisfied having regard to the persistent conduct and concerns as to the work performance that, when the matters are regarded cumulatively, the termination of the employment could be characterised as harsh, unjust or unreasonable on substantive grounds. As to procedural grounds, it is apparent from the evidence that the reasons for the termination were not clearly spelt out to the applicant at the meeting which occurred to effect the termination and whilst, it is likely that the applicant understood the import of the reasons, nevertheless it is clear that no opportunity was accorded her to respond in a sensible manner to the allegations as to her conduct or work performance at the time of the termination of the employment. It is not sufficient for the purposes of compliance with the requirements of S170DC of the Act to simply inform an employee that "we're letting you go and you should know why". On any view of the evidence as to the circumstances of the termination meeting, it is not put any higher than that. I am satisfied that there has been a failure to comply with the requirements of S170DC of the Act in that the respondent failed to give the applicant an opportunity to defend herself. In those circumstances the applicant is entitled to a remedy. I turn now to consider the nature of that remedy. Remedy - S170EE The applicant sought an order for reinstatement. The respondent submitted that such an order would be impracticable having regard to the circumstances of the respondent, it having engaged an alternative full-time senior employee and rearranged the manner in which the work was performed due to the changed circumstances of the former part-time manager Ms Davey. In my view those bona fide circumstances of change having occurred since the date of the termination are relevant for consideration as to the practicability of an order for reinstatement. Further, in this matter the applicant's evidence suggested she was antagonistic towards the respondent, and I detected a total lack of recognition of any blameworthiness on her part in relation to her performance or conduct in any respect. Further, aspects of her evidence was designed to cast aspersions upon the conduct and work performance of her supervisor Ms Davey and on Mr Lorkin. She was in my view ambivalent about the capacity to re-establish a working relationship, preferring to address this matter by suggesting there would have to be "long discussions" between the managing director and herself to resolve the issues between them. I am satisfied that in this matter an order for reinstatement would be impracticable. I turn now to consider the question of compensation. Whilst for the purposes of determining whether there has been a failure to comply with section 170DC the question whether the opportunity to be heard would have changed anything is not relevant, in my view it is relevant when considering the quantum of compensation to be ordered to consider the likely length of the employment continuing but for the termination. In this matter I am not satisfied that the employment was likely to have continued for any significant length of time at all. The evidence in the proceedings established that the applicant was not amenable to changing the manner in which she performed her duties or her conduct. The evidence which I accept was that there were difficulties with her work performance and conduct within a very short time after she commenced employment. In my view it is likely that the employment would have terminated validly within weeks of the date it actually did. In view of this and my conclusions as to reinstatement, I am of the view that an amount of no more than the equivalent of an additional two weeks wages is an appropriate amount of compensation in these circumstances, and that is the amount I propose to order. The orders of the court shall be: 1. That the respondent pay to the applicant the sum of $ 1,076.00 in compensation. 2. That the time for payment is 14 days from the date of this order. I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson. Associate: Dated: 23 August 1995 Solicitors for the applicant: Holding Redlich Counsel appearing for the applicant: Ms M Young Solicitors for the respondent: Hall & Wilcox Counsel appearing for the respondent: Mr N Rattray Date of hearing: 21 August 1995 Date of judgment: 23 August 1995