Jacqueline Feilich and Sutton City Holden [1995] IRCA 591

Industrial Relations Court of Australia New South Wales District Registry NI 95/1267 Between: Jacquiline FEILICH Applicant And: Suttons City Holden Respondent Place: Sydney Date: 6 October 1995 Before: Tomlinson JR Revised reasons for decision delivered Ex-Tempore

By application dated and filed 15 February 1995 the applicant Mrs Jacqueline Feilich sought reinstatement and compensation from the respondent. In her affidavit dated 15 May 1995 the applicant stated she commenced employment with the respondent on the 1st of June 1994 as a New Motor Vehicle Sales Consultant with the respondent at Rosebery. The applicant stated she was terminated on 6 February 1995 and that from 1 June 1994 until early December 1994 that her employment was harmonious and that during that period she received no complaints either in writing or verbally as to her sales technique or dealings with other staff. The applicant stated that no manual or documentation regarding sales practices or employment conditions were provided.

On 9 December 1994 an incident occurred involving the applicant and Mr Tony Baini arising out of a borrowed chair. The applicant stated that having borrowed the chair, she noticed Mr Baini running to her saying words to the effect:

"Where's my fucking chair?"

To which the applicant deposed she stated in reply:-

"Fuck off Tony."

The applicant stated that no clients were in earshot during this exchange and that her tone and volume did not rise above normal conversational level. Thereupon Mr Baini allegedly leaped at the applicant and physically assaulted her. The applicant was grabbed around the neck and after he released her she gasped for breath and remained seated. Allegedly Mr Baini then according to the applicant used lewd and personally vile language towards her personally and called her a "cunt". Paragraph 14 of the applicant's affidavit stated