Sharyn Elizabeth Nicholas v Brown and Banks Pty Ltd [1995] IRCA 592

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - PROBATION - WARNINGS - ALLEGATION OF UNAUTHORISED ACCESS TO AND USE OF DOCUMENT - DOCUMENT NOT PUT TO EMPLOYEE - INADEQUATE OPPORTUNITY TO RESPOND - REINSTATEMENT IMPRACTICABLE - LIMITED PROSPECTS OF CONTINUED EMPLOYMENT WITH EMPLOYER Industrial Relations Act 1988, S170CC, S170DC, S170EA, S170EE CASES: Nicolson v Heaven and Earth Gallery Pty Ltd (1994) IRCR 199 SHARYN ELIZABETH NICHOLAS v BROWN AND BANKS PTY LTD No. TI-95/1112 Before: Ryan JR Place: Hobart Date: 8 November 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY Matter No TI-95/1112 B E T W E E N: SHARYN ELIZABETH NICHOLAS Applicant AND: BROWN AND BANKS PTY LTD Respondent RYAN JR MINUTES OF ORDER 8 NOVEMBER 1995 THE COURT ORDERS THAT: The respondent pay to the applicant within 21 days compensation in the sum of $5,000. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY Matter No TI-95/1112 B E T W E E N: SHARYN ELIZABETH NICHOLAS Applicant AND: BROWN AND BANKS PTY LTD Respondent COURT: RYAN JR PLACE: HOBART DATE: 8 NOVEMBER 1995 REASONS FOR JUDGMENT CLAIM OF UNLAWFUL TERMINATION OF EMPLOYMENT PRELIMINARY ISSUE - PROBATION The Court does not accept the respondent's preliminary submission that the applicant was excluded from the jurisdiction of Division 3 Part VIA because of S170CC, Regulation 30B(1)(c) and Article 2 of the Termination of Employment Convention. The respondent's practice was to offer new real estate consultants contracts of employment with a probationary period of 12 months (see Bostock and McMaster Contracts, Exhibits R1 and R5). The applicant specifically negotiated a probationary period of six months. The probationary period is stated to be six months in the first page of the contract (Exhibits R2 and R11). It is possible, perhaps likely, that the applicant's period of probation was reduced from six months and ended when her remuneration was raised to that of a confirmed real estate representative. It is also possible that a period of probation in excess of six months, or even in excess of three months, was unreasonable in the circumstances. (See Nicolson v Heaven and Earth Gallery Pty Ltd (1994) IRCR 199 at 209). However, on this occasion, this is neither here nor there. The applicant was not on probation at the date of termination. The claim is one which comes within jurisdiction. THE EMPLOYMENT The applicant was employed by the respondent as a real estate sales consultant from 30 August 1994 to 18 May 1995. The employment came to an end on 18 May. Indeed, the respondent claims that the applicant repudiated her contract of employment on 17 May and the repudiation was accepted when a letter of termination was given to the applicant at her request. The letter reads as follows: "18 May 1995 Mrs Sharyn Nicholas Warren Court HOWRAH Tas 7018 Dear Sharyn It is with sad regret we must inform you your services are no longer required by the Company. Termination of your employment as is normal in our industry is effective immediately. Commissions settled owed to you, will be forwarded to you by mail along with any ancillary payments that are required. Unsettled commission will be forwarded as they become settled. You are required to hand in your office key immediately. All buyer records and listing information together with all information contained in your computer is the property of the company and is to remain in this office. Your termination has come about due to long standing irreconcilable differences between yourself and the majority of the sales team. This has led to a total breakdown of trust and team work within the organisation. Further it has led to the resignation of a valued member of staff and if allowed to continue will lead to further resignations. Various allegations of unfair practice and behaviour unbecoming to the smooth running of the office have been levelled against you by valued members of the staff and regrettably after full consultation with them and our own investigations these allegations are proved beyond reasonable doubt. It is the Company's view that your determination to win at all costs has led to your loyalties becoming misguided, thereby severely damaging moral (sic) within the office environment. Every attempt has been made by the writer to find an alternative solution. We are deeply saddened and disturbed by recent threats of reprisals made by you and your husband against the Company and staff which have only served to show the true colours of the flag you fly and further make any future chance of reconciliation absolutely impossible. Regrettably yours Michael A Banks Director Witnessed .....S Pearce................ Date 18/5/95 Signed by Sharyn Nicholas in acknowledgment of receipt of this letter. Sharyn Nicholas" The respondent has made an alternative submission that, in the event that the Court does not accept that the applicant repudiated the contract of employment and brought the employment to an end by her own initiative, then any ending of the employment relationship at the initiative of the respondent was for valid reasons. Those reasons were expressed in general, non-specific terms in the letter of termination as: 1. "long standing irreconcilable differences...with the majority of the sales team" 2. "total breakdown of trust and teamwork" 3. "allegations of unfair practice and behaviour unbecoming to the smooth running of the office...proved beyond reasonable doubt". In a Summary of Issues filed on 30 August the respondent asserted that incidents on 9 and 14 December, 30 January, 9 and 10 February, 16 March and 16 and 17 May constituted valid reasons for the termination of employment. The respondent also asserted that these reasons were connected with the applicant's conduct. The respondent claims that the applicant disobeyed a lawful direction on 9 December and was warned in respect of her conduct on 14 December, 30 January, 9 and 10 February and 16 March. Matters seem to have come to a head on 16 May but it is convenient to deal first with the earlier incidents and the response of the applicant to each of these incidents. 9 DECEMBER 1994 - THE FORGERY ALLEGATION Michael Anthony Banks is described as a principal in the firm of Brown and Banks. He and his brother, Philip, seem to be the driving forces behind Brown and Banks. Michael Banks was the respondent's main witness. Philip Banks was not called as a witness. Michael Banks gave evidence of what he described as a false allegation made by the applicant that a sales manager, Mr Ricky Langford, had forged a Contract of Sale. He described this as "the most serious accusation I have ever had". The incident arose over two competing offers for a property, one taken by the applicant, the other by Mr Langford. There was said to be an office practice that in such circumstances the Commission earned on the sale should be split, irrespective of which sale went ahead. Mr Banks states that he directed the applicant not to contact any of the parties involved in the negotiations for sale until he had completed an investigation. He further states that the applicant disobeyed his direction. The applicant claims that she made inquiries of parties apparently involved in the sale before Mr Banks issued his direction and she admits that she had suspicions about the validity of the contract of sale obtained by Mr Langford. She admits that she expressed those suspicions to Mr Banks. I am prepared to accept that the applicant did, in effect, accuse Mr Langford of what Mr Banks called "faking the contract". I also accept the applicant's evidence that Mr Banks telephoned her on or soon after 9 December and told her that her conduct was "a sackable offence". It is not clear whether Mr Banks considered the accusation, which he assumed to be false, to be the sackable offence or whether it was the alleged breach of his direction (to make no contact with the parties) which was the sackable offence. Perhaps Mr Banks considered either or both were sackable offences. Mr Banks states that he took the applicant to lunch at the Sheraton Hotel on Monday 12 December and told her that "if she did anything like that again"...he would "let her go". He states that he insisted on the applicant apologising to Mr Langford and that she did apologise and that he told the Office Manager to note a warning on her employment record. In cross-examination, Mr Banks departed somewhat from this position and described the lunch at the Sheraton as being a non-confrontational warning rather than a reprimand. The applicant described the lunch as a very friendly occasion where she was praised for her productivity, told she was no longer on probation and that, while no warning was given, she was asked to "use my maturity and make it up to Ricky Langford". Leanne Jackson, Office Manager, Brown and Banks, gave evidence that, following a phone call from Mr Banks on or about 12 December, she wrote in the applicant's personal file (a one page handwritten sheet Exhibit R6) the following: "12/12/94 warning - verbal - re slanderous accusations against Rick and not following instructions as per Michael" Mr Banks admits that, while he required the applicant to apologise to Ricky Langford, the complete commission on the sale went to the applicant. He states that he took that position "to keep the peace". This does not seem consistent with a firm and vigorous warning or reprimand for what Mr Banks had described as "the most serious accusation I have ever had" and a "sackable offence". The Court simply notes that there is no evidence this incident was raised as a reason for termination at the termination meetings between the applicant and Mr Banks on 17 and 18 May 1995. 14 DECEMBER 1994 - WARNING ON LISTINGS Paragraph 3(b) of a Summary of Issues filed by the solicitors for the respondent on 30 August 1995 reads as follows: "On 14 December 1994 the applicant was formally warned that her performance in relation to her conduct to listings and buyer registration needed to improve and that she was not following the system required by the respondent". Mr Banks gave evidence as follows: "On 14 December 1994 we held our assessment meeting. I was present. My brother and Anthony Manton, a trainer, were present. The applicant was taken to task by my brother for her lack of listing, poor attendance to listings and general demeanour in the office. I caused that to be noted on her record as well." Mrs Jackson gave evidence that she made a note on the applicant's personal record (Exhibit R6) as follows: "14/12/94 warning - assessment for November re listings, attitude, teamwork" The applicant denies that she was given a warning of this nature. Mr Banks gave the following general evidence: "Sharyn was a very, very good performer from the sales point of view. There was a difficulty - no form of record keeping or registration of purchases. We had systems we expected representatives to have in place. At every assessment Sharyn was asked to show us some form of registration system as to buyers. She always had an excuse. She would say that we would not be able to understand her system. She claims she had a system but she never produced it." Again the Court notes that there is no evidence that this warning was raised as a reason for termination at the termination meetings between the applicant and Mr Banks on 17 and 18 May 1995. 30 JANUARY 1995 - WARNING ON ROSTERS Paragraph 3(c) of a Summary of Issues filed by the solicitors for the respondent on 30 August 1995 reads as follows: "On 30 January 1995 the respondent warned the applicant that there were complaints about her taking listings when others were on roster. The respondent clarified the roster arrangements to the applicant." Mr Banks claimed in evidence that he took the applicant aside on 30 January in the office and told her to adhere to the roster system but that it did not seem to make any difference. The applicant specifically denied that she was warned about the roster system on 30 January or on any other date. She gave evidence which included the following: "No-one turned up for the rosters. No-one liked the night roster. I seemed to be always on roster. Good old Sharyn would do it. I would fill in for Mr Banks on the roster. He was never there. Mr Bradshaw did not like to do the Sunday roster." Again the Court notes that there is no evidence that the issue of rosters was raised as a reason for termination at the termination meetings between the applicant and Mr Banks on 17 and 18 May 1995. SALES MEETING 9 FEBRUARY 1995 & WARNING 10 FEBRUARY 1995 Paragraph 3(d) of the Summary of Issues filed by the solicitors for the respondent on 30 August 1995 reads as follows: "On 9 February 1995 at a sales meeting the applicant was rebuked for persistently mishandling the roster system and refusing to co-operate with other sales consultants. The applicant stormed out of the meeting abusing all those present. On 10 February 1995 the applicant was told that her behaviour was unacceptable and told if similar conduct happened again she would be dismissed. The applicant refused to listen and blamed everyone else for her conduct." Mr Banks gave evidence of the weekly sales meeting on 9 February 1995. He stated that he and the applicant were present and also Messrs Philip Banks, Ricky Langford and Anthony Manton. The following is a summary of his evidence: "We were half way through the meeting. Mrs Nicholas mumbled to herself. It did not sound polite. She stormed out and slammed the door. The next day I warned her that if there was a repeat of that performance I would dismiss her. She said 'they're out to get me. They are jealous. I make all the sales'. I contacted the office manager and asked that a record be placed on her file. Mrs Jackson gave evidence that she placed the following note on the applicant's personal file (Exhibit R6); '10/2/95 - warning - walking out of sales meeting'" Anthony Peter Manton, formerly a sales consultant with the respondent, also gave evidence in relation to this particular sales meeting. His evidence was generally to the effect that discussion was taking place concerning a change in the respondent's commission splitting policy. Mr Manton and Mr Langford disagreed with the change and suddenly the applicant walked out muttering and slammed the door behind her. The applicant gives a somewhat different version of the sales meeting and she denies that the next day, 10 February 1995, she was told that her behaviour was unacceptable and that she would be dismissed if there was a reoccurrence. The applicant states that she had suggested a change from the commission splitting policy to Mr Banks because commission splitting did not provide adequate incentive. She claims that Mr Banks decided to change the policy and stop the splitting of commission and that he told her not to say anything at the meeting because it was her idea. She further claims that Mr Manton implied that she was not interested in the discussion and that she was "an empty headed air head". She states that she left the room because she "needed some air". She also stated that after the meeting Mr Banks said to her "do not take it to heart. They are boys trying to be men." Again the Court notes that there is no evidence the incident of 9 February or the alleged warning of 10 February were raised as a reason for termination at the termination meetings between the applicant and Mr Banks on 17 and 18 May. Furthermore, the Court agrees with the following comment made by Counsel for the applicant in final submissions: The second incident occurred on 9 February 1995 at the sales meeting. The respondent's case is that on 10 February 1995 the applicant was told that her behaviour was unacceptable and that if similar conduct happened again, she would be dismissed. If that warning was given (which is denied) it was grossly disproportionate to behaviour which was alleged. The applicant and Mr Manton (called on behalf of the respondent) confirmed that the applicant had walked out of the meeting after a discussion concerning a change in the company's commission splitting policy. From the evidence, it can be inferred that both Mr Langford and Mr Manton were not happy with the company policy. It can also be inferred that something was said which caused the applicant to leave the meeting. Even on the best view of the evidence for the respondent a repeat of this conduct by the applicant could not justify dismissal. 16 MARCH 1995 - WARNING ON LISTINGS AND REPEAT OF WARNING 10 FEBRUARY Paragraph 3(e) of the Summary of Issues filed by the solicitors for the respondent on 30 August 1995 reads as follows: On 16 March 1995 the respondent warned the applicant about her conduct of 9 February and her continual non-compliance with the respondent's listing requirements. The following is a summary of evidence given by Mr Banks: "At the assessment meeting on 16 March Sharyn Nicholson was taken to task by myself and my brother. She was told to lift her game in respect of teamsmanship. She was told the incident of 9 February could not be tolerated. This incident was revisited again along with her general attitude to her work. She was told that there was a degree of mistrust in the office which was believed to be largely due to her." Mr Banks again indicated that he contacted the Office Manager and directed that a record be made on the applicant's personal file. Mrs Jackson gave evidence that she placed the following note on the applicant's file (Exhibit R6): '16/3/95 - warning - assessment for February - reiterate walking out of sales meeting - Ant's resignation, distrust in office and listings.' The reference to "Ant's resignation" is a reference to the resignation of Anthony Manton. Mr Banks appears to attribute the resignation to the applicant's aggressive and competitive attitude to securing sales. The applicant denied that she was given any warning at the assessment meeting on 16 March or indeed at any other assessment meeting. She stated that "listings were brought up every month but there were no warnings". She also stated that there was no referral at the assessment meeting on 16 March or at any other time to the fact that she had walked out of the meeting on 9 February. The Court notes that there is no evidence that any warning which may have been given on 16 March was raised as a reason for termination at the termination meetings between the applicant and Mr Banks on 17 and 18 May 1995. THE SANDFORD SALE - MRS GOLTZ Rodney Harris is a real estate sales consultant. He has been employed by the respondent since 26 September 1994. In March 1995 he moved from the city or western shore office to the eastern shore office. Mr Harris claims that he had problems with the applicant from the time he moved to the eastern shore office. The substance of his complaint seems to be that on several occasions he would be in the process of setting up an appointment with a client but that the applicant "would finish up selling the property". He gave as an example a property in Queen Street, Bellerive where he spoke to a potential purchaser on a Monday but was unable to arrange for an inspection of the house on the Tuesday because he himself was moving house. He claims that he offered to show the client the house on Wednesday but that when he returned to work on Wednesday the applicant had already sold the house to the client. Mr Harris admits that he did not raise this issue with the applicant. He also gave as an example a property at 13 Montague Bay Road where he spoke to a client on a Thursday at 1:30 pm and made an appointment for 5:00 pm. He was not available and passed the matter onto the applicant. She sold the property. Mr Harris states that the normal practice at that time would have been to share the Commission but that the applicant stated that he did not deserve a share of the Commission and was too lazy. Again, Mr Harris conceded that he did not raise this matter with the applicant. Mr Harris states that he became suspicious that someone was going through his papers and buyer cards in his office and that he left little traps which suggested that someone was indeed moving his papers at the weekends. Mr Harris states that on 15 May he went into the applicant's office with a fax message. He saw a small piece of paper (Exhibit R3) in the middle of the applicant's desk. He claims that he noticed his "handwriting" on the piece of paper and that he also noticed the name Christine Goltz written on the piece of paper and that that name was very familiar because he had been speaking to Mrs Goltz the previous week. Mr Harris produced a small spirax notebook (Exhibit R7). He gave evidence that "as far as I am concerned" Exhibit R3 came from Exhibit R7. There is no doubt that Exhibit R3 is a small 7.5 cm by 10.5 cm lined notebook page which appears to have been torn from a spirax type notebook similar to Exhibit R7. However, it cannot be stated with certainty that Exhibit R3 was removed from the notebook Exhibit R7. Exhibit R3 contains two separate entries. Both entries are written lengthwise across the small page and through the ruled blue lines. The first entry is in blue ink and is as follows: 0418 . 960 . 300 Immediately below and apparently in another hand there is another entry in black ink. This reads as follows: Christine Golz 028581156 Mr Harris claims that the first entry in blue ink namely the telephone number 0418960300 is in his handwriting. The applicant concedes that the second entry in black ink is in her handwriting. She claims that she has no idea when she wrote it and assumes that it would have been in her office and that the page came from one of her notepads. She claims that she had a number of these notepads and destroyed them when she left her employment with the respondent. The applicant also concedes that the entry in blue ink is in handwriting which she recognises as being that of Mr Harris. In other words, the applicant seems to identify the figures 0418960300 as being in the handwriting of Mr Harris. Mr Harris also identified a handwritten note (Exhibit R4) which reads: "Sandford over $120,000 Mrs Golz (02) 8581156" Mr Harris described Exhibit R4 as a message given to him "the previous week" (i.e. 7 to 13 May) by the receptionist. Mr Harris states that he telephoned Mrs Goltz as a result of receiving the message. Mr Harris further states that as a result of discovering Exhibit R3 on the applicant's desk he spoke to Mr Banks on Tuesday 16 May. Mr Banks confirmed the discussion which he described as taking place in a car. His evidence was that Mr Harris had accused the applicant of removing information from his personal notebook on Sunday 14 May and that he had found the note with the applicant's handwriting on it "secreted on her desk" on Monday 15 May. Mr Banks described this as "probably the worst possible thing one can do in a real estate office...things are very tough...it is vital that we act as a team...this was tantamount to thieving...to stealing his livelihood". Mr Banks also gave evidence that he had an appointment with Philip Bradshaw on Wednesday 17 May and that this was a half hour meeting in the car park at 9:00 am. The Court gained the impression that it was at this meeting on 17 May that Mr Harris gave the piece of paper "Exhibit R3" to Mr Banks. However, it is quite possible that Mr Harris gave Exhibit R3 to Mr Banks on Tuesday 16 May. Nothing much seems to turn on that but the Court does note that Mr Bradshaw was not called to give evidence. Counsel for the applicant has submitted that "the respondent did not call Mr Bradshaw to assist the Court in its determination of whether there were valid reasons for the dismissal. The applicant submits that it should be inferred that Mr Bradshaw could not advance the respondent's case that there was a valid reason for the dismissal". The Court agrees that there is substance to such an inference. Mr Banks gave evidence that he regarded this as a very serious issue indeed and one that amounted to depriving a fellow agent of livelihood and that he had discussed the whole issue with Mr Bradshaw for about half an hour on 17 May. However, a similar inference can also be drawn about the failure of the applicant to call Mr Bradshaw. The applicant states that: 1. on 17 May Michael Banks told her that he wanted to have a "strong talk" with her 2. she thought the discussion could relate to termination of employment 3. she only thought termination was a possibility because Bradshaw had put it into her head in an earlier conversation on 17 May when he said: "look Shaz I can't tell you but I have been asked what my thoughts are". Furthermore, the applicant gave evidence of discussions with Bradshaw over the sale of 13 Montague Bay Road. Indeed, she gave evidence of a suggestion she states she made to Bradshaw that the commission on the sale of the Montague Bay Road property should be split with him rather than with Rodney Harris. Of course, the commission on the sale went to the applicant. Mr Banks confirmed this. It was not split with Mr Harris or with Mr Bradshaw. Again, an inference can be drawn that the applicant did not call Bradshaw because it would not help her case. It seems to the Court that the inferences cancel themselves out and that it is open to conclude that neither party called Mr Bradshaw because neither was convinced it would be of assistance. TERMINATION MEETINGS 17 AND 18 MAY 1995 The applicant and Mr Banks give very different versions of the termination meetings on 17 and 18 May. Mr Banks states that: 1. he approached the applicant in her office late on the afternoon of 17 May and asked her to meet him at his home at 6 pm or 6:30 pm 2. the applicant kept the appointment and he noted that she was emotional but not overly distressed 3. he asked her whether she knew why she was there and she replied "I suppose so" 4. he said "Rodney has made a very serious allegation against you and I want to hear what you have to say" 5. he claimed the applicant responded by talking about the Queen Street Bellerive property and he said that this was not the complaint but rather that Rodney Harris had accused her of taking information from his office 6. he said that the applicant did not respond but said words to the effect "Rodney is only jealous. Rodney would say anything" 7. he said that the applicant was very upset and crying uncontrollably and he suggested that it might be a good idea for her to resign but that she refused 8. he said "I do not want to sack you" and she said "you are going to have to" and he said "I do not want to have to sack you, it would be better if you resigned" 9. she continued to make comments like "Rodney is out to get me. Everyone is out to get me. I cannot believe what is happening" 10. he indicated to the applicant that, in his view, she was not leaving him much option and he suggested that he would see her again in the morning and she said "Michael, you are going to have to sack me, I will not resign" 11. he said that he thought the applicant would be calmer in the morning and that he did not intend to sack her at that time In respect of a telephone conversation with the applicant's husband later in the evening on 17 May Mr Banks deposed that: 1. Mr Nicholas swore at him and asked him how he could allow his staff to convince him to sack his wife when she had done so much work for him 2. he described Mr Nicholas as having gone "off his face", yelling and swearing and insisting that he (Banks) would have to sack the applicant and that a letter of termination was required 3. he told Mr Nicholas that he would give the applicant a letter of termination when he was ready and that such a letter might be ready by midday on 18 May 4. he discontinued the telephone conversation after Mr Nicholas issued what he considered to be a threat couched in the following or similar terms: "two or three of you are going to go down for this" 5. as a result of the telephone conversation he had come to the view that he had no choice but to terminate the applicant unless she resigned. He still hoped for some reconciliation on the morning of 18 May. Mr Banks states that he went into his City office on 18 May and drew up a letter of termination (Exhibit A5) which he discussed with his Office Manager, Mrs Jackson. He stated in evidence that he knew that he had to give some reason for the termination and that he took the letter to the Eastern Shore office although at that stage he had not yet determined to give it to the applicant. He states that: 1. the applicant arrived with her husband and that her husband stayed in the waiting room while he took the applicant into his office 2. he said to the applicant words to the following effect: "isn't there some other way we can handle this? Can't you give me something?" and that the applicant said: "it is too late Michael. You are going to have to sack me." 3. he described the position as being one in which the applicant had given him nothing in respect of the accusation of taking information from Mr Harris and that she had given no explanation and that she then walked out and that he walked to the front desk after her and gave her the letter of termination. Mr Banks has stated that, since termination, sales in the Eastern Shore office have remained basically similar to the level achieved while the applicant was working as a consultant but that the spread of sales was more evenly distributed and that sales had dropped somewhat in September 1995. The Court interprets this as a tacit admission that the applicant, with her aggressive approach, had been outselling her colleagues and that, with her demise, sales and commissions were evenly spread among the whole sales team. Mr Banks conceded that the applicant was a very successful sales person and that she would have easily exceeded sales targets set for her for 12 months. When cross-examined in relation to the Harris allegation that the applicant had taken information from his office, Mr Banks stated that: 1. "if the (allegation) proved correct it justified instant dismissal" 2. "in the light of no explanation from Sharyn it was proof enough for me" Again, when asked in cross-examination whether he was satisfied beyond reasonable doubt Mr Banks replied: "that is what I just said" Throughout his cross-examination Mr Banks maintained that he was reluctant to let the applicant go and definitely did not decide to terminate her employment until 18 May. There are elements of contradiction in this purported stance. At times, in his evidence, Mr Banks seemed to imply that he had made up his mind on the evening of 17 May that the applicant would be terminated if she did not resign. However, by and large, he maintained his position that he made the decision to terminate the applicant after he arrived at the Eastern Shore office on 18 May and after the applicant had failed to furnish him with what he regarded as a satisfactory explanation (for what he claimed was proof beyond doubt) that she had taken the telephone number of Mrs Goltz from the office of Mr Harris and presumably used that information to achieve the sale of the Sandford property to Mrs Goltz. The applicant was difficult to follow when giving evidence of the meeting at the home of Michael Banks on the evening of 17 May. Her evidence was discursive and at times she seemed to be referring to events on 16 May. However, her initial evidence was that Banks asked her if she knew why she was there (at his home). She claims that she indicated that she had some idea. At one stage in her evidence she indicated that she raised the conflict with Mr Harris over commission on the 13 Montague Bay Road sale and that Mr Banks indicated that this was not the issue but rather the Harris allegation about Exhibit R3, the information allegedly taken from his office. This element of evidence is consistent with Mr Banks own evidence. However, the applicant was difficult to follow. Her earlier evidence on the meeting at the home of Mr Banks did not refer at all to the allegation over Exhibit R3. At first, she stated that Mr Banks said that Ricky Langford and Rodney Harris could not work with her and that if she did not go they would. She claimed Banks asked her to resign for the harmony of the office and because otherwise he would lose his sales team. The applicant states that on several occasions she refused suggestions that she resign and that Mr Banks indicated that he would be forced to sack her. He claims the meeting only lasted 15 to 20 minutes and that she was absolutely distraught and felt as if "her stomach had been ripped out". She was crying. She claimed that Mr Banks could not give her a single reason for seeking to bring her employment to an end. The evidence of the applicant's husband, Robert Stephen Nicholas, does not appear to be entirely consistent with the evidence of his wife and this evidence certainly differs from that of Mr Banks. It is difficult to make a positive finding on the degree of inconsistency between the evidence of Mr and Mrs Nicholas although there are two clear conflicts and several other possible inconsistencies. The problem is compounded because it is difficult to assess precisely what is a reasonable conclusion to draw from the applicant's discursive evidence. Mr Nicholas claims that when his wife arrived home between 7 and 7:30 pm on 17 May she was extremely upset but was adamant that she had been instantly dismissed. He claims Mr Banks confirmed that several times in their telephone conversation later that evening. On the other hand, when pressed, he recalled that his wife had stated that she had been asked to resign but had refused and had said that she had no reason to resign. The applicant stated that her husband did say something about reporting Mr Michael Banks to the Auctioneers and Estate Agents Council in their telephone conversation on 17 May. However, Mr Nicholas denied that he made any mention of the Council in this telephone conversation. The applicant said she told her husband that Mr Banks had said that Rodney (Harris) and Ricky (Langford) could not work with her or words to that effect. Mr Nicholas gave evidence, and repeated on several occasions, that his wife made no mention of Rodney Harris or Ricky Langford. When asked by the Court, Mr Nicholas gave evidence that his wife did mention Ricky or Ant but not that night. The effect of his evidence was that: "I do recall Sharyn saying something...stated if Sharyn not go we will. I think it was the next night after seeing Mr Banks" In his final submission, Counsel for the respondent commented as follows: "The evidence of Mr Nicholas was contrary in material respects to that of the applicant. It was not a mistake that he mentioned 'Rick or Ant' as the same was repeated to the Court. At no stage was Anthony Manton mentioned in the applicant's evidence. Anthony Manton had left the employment of the respondent a good time before. There is a real risk that the applicant was constructing events and saying words were said by Mr Banks that did not happen but stating them to her husband in the days after the event." CREDIBILITY Counsel for the respondent has submitted that this case is largely dependent upon the credit of the witnesses and especially the credit of Michael Banks, Sharyn and Robert Nicholas and Rodney Harris. He has also submitted that the divergence in evidence and the nature of certain allegations made by the applicant against Michael Banks require the evidence to be carefully scrutinised. The Court agrees with that submission. Careful scrutiny of the evidence is required in any and every case but it is particularly important in a case such as this where the applicant has alleged that on 25 September 1995 Mr Michael Banks, a director of the respondent firm, telephoned her and said: "Sharyn if you go ahead with this court action against me next week your life will be extinguished." Counsel for the respondent attacked the applicant's credit on numerous issues. He pointed out that the applicant: 1. denied receiving any form of contract in writing other than the contract of employment accepted and dated 1 September 1994 (Exhibit R2 and Exhibit R11) 2. denied she received a written contract addressed to her and similar to that addressed to Mark Bostock (Exhibit R1) 3. denied that she had any discussion at all about changing her commission structure from that in the attachment to Exhibit R1 (and forming the fifth page of Exhibit R11) to that in the attachment to Exhibit R2 4. denied that she had any discussion at all with Mrs Jackson These denials put her evidence in direct conflict with that of Mrs Jackson. The applicant has claimed that after her termination she received at least 7 anonymous deliveries of documents which were the property of the respondent. She conceded the documents were of assistance to her and states that they were always delivered at night in green envelopes and that deliveries ceased in July 1994. She said some of the documents contained original handwriting. In cross-examination, she stated that:: 1. she made no inquiries about the documents 2. she did not want to know about why or how the documents were delivered 3. she closed her mind to who was delivering or arranging the delivery of the documents 4. she never mentioned the documents to anyone except her husband, her solicitor and, on one occasion, her girlfriend. Counsel for the respondent made the following submission: "It is not credible for the applicant to have closed her mind to who was delivering the documents in such circumstances of regularity. She did know who was supplying her with documents if in fact there was anyone at all so delivering such documents. The applicant was not truthful in saying she did not know." The Court finds it difficult to accept that the seven or more deliveries of documents occurred in the circumstances described by the applicant and even more difficult to accept that if the documents were delivered as described the applicant had no knowledge of the person effecting or arranging deliveries. The applicant gave evidence that the piece of paper (Exhibit R3), identified by Mr Rodney Harris as coming from his notebook (Exhibit R7), was similar to pieces of paper from notebooks she used. Counsel for the respondent submits that: "The inference the applicant was asking the Court to draw was that Mr Harris wrote the Sydney telephone number 0418.960.300 of Mrs Golz on the piece of paper from a notebook (belonging to the applicant) and deliberately set about to injure the applicant by such conduct." The Court does not accept any inference in those terms but certainly does not accept that Exhibit R3 is a page from a notebook belonging to the applicant. There is no explanation as to how a telephone number in the handwriting of Mr Harris could have appeared on a page from a notebook belonging to the applicant. While the Court stops short of assuming that Exhibit R3 came from the notebook of Mr Harris (Exhibit R7), the Court does accept that Harris found Exhibit R3 in the applicant's office, that it contained the number 0418.960.300 in his handwriting and that it also contained the handwriting of the applicant and that it is quite possible that Exhibit R3 did come from the notebook, Exhibit R7. There are real difficulties in assessing credit because the Court is not overly impressed with the evidence of Michael Banks or Anthony Manton. However, having observed all the witnesses and the inconsistencies in the evidence of the applicant and her husband, the Court prefers the evidence of Mr Banks to that of either Mr or Mrs Nicholas and most particularly prefers the evidence of Mrs Jackson to that of Mrs Nicholas. The Court accepts Mrs Jackson as a witness of truth. VALIDITY OF THE TERMINATION However, these findings on credit do not automatically lead to the conclusion that the termination of the applicant was, in every sense, lawful, fair and reasonable. In final submissions the respondent seems to have abandoned, or at least failed to address, the initial claim that the applicant repudiated the contract of employment on 17 May by demanding, through her husband, a letter of termination and by threatening Michael Banks directly and through her husband. The respondent's position is that it terminated the applicant's employment for valid reason namely the unauthorised access and/or removal from Rodney Harris of a page of his notebook. The Court accepts that the applicant obtained by some means the little page, Exhibit R3, the property of Mr Harris. The Court accepts that when she obtained Exhibit R3 it bore a telephone number which was capable of providing contact with Mrs Goltz and that this number had been written on that page by Mr Harris. The Court accepts that on the balance of probabilities the applicant removed Exhibit R3 from the possession of Mr Harris. While it is possible that the applicant in fact removed Exhibit R3 from the notebook, Exhibit R7, and did so in the office of Mr Harris, the Court does not make and does not find it necessary to make such a finding. The Court accepts that the removal of Exhibit R3 from the possession of Mr Harris, given the information then on Exhibit R3, namely a telephone number for a client, Mrs Goltz, could constitute a valid reason for termination. However, the letter of termination makes no reference whatsoever to termination due to unauthorised access to this information. The letter refers to: (i) irreconcilable differences (ii) a total breakdown of trust and teamwork (iii) the resignation of a valued member of staff (iv) allegations of unfair practice (v) allegations of behaviour unbecoming to the smooth running of the office While it is possible to categorise the unauthorised access to Exhibit R3 as a breakdown in trust or an unfair practice,the Court finds it curious that the very issue which the respondent conceded led to the termination was never mentioned in the letter of termination. The respondent claims, in respect of the allegation of unauthorised access to Exhibit R3, that there was ample compliance with S170DC(a) because the allegation was: (i) investigated immediately it became known to management (ii) put to the employee within 24 hours of complaint (iii) unequivocally put in that "the applicant was accused of removing information from the room of Rodney Harris" (iv) was the subject of no response because the applicant deliberately chose not to respond and became seriously upset The respondent also asserts that the applicant was given one last chance on the morning of 18 May to make an explanation prior to the delivery of the letter of termination. The Court accepts that on 17 May at his home, and on 18 May at the Eastern Shore office, Mr Banks gave the applicant some limited opportunity to respond to the allegation that she had taken Exhibit R3 from Mr Harris. The Court also accepts that the applicant did not respond with a positive denial but rather by her conduct declined to deal at all with the allegation. However, Exhibit R3 and Exhibit R7 were never put to the applicant at any stage. She was never given the specific documentary evidence allegedly removed from Mr Harris. She was expected to respond to a general allegation when specific material existed and could have been put to her. Moreover, the letter of termination does not assert that the termination was on the basis of that allegation. The letter of termination does not even mention the allegation and the general matters in the letter of termination were not put to the applicant prior to termination. Furthermore, the earlier warnings in December 1994 and January, February and March 1995 were never raised again with the applicant prior to termination and no indication was given that these matters were taken into account, except to the extent that they could be said to be encompassed in the letter of termination. In my view, the termination, if based on the letter of termination, was harsh and unreasonable because these matters were never put to the applicant and she was not given an opportunity to respond and the termination was in breach of S170DC. If the termination was not based on the general matters in the letter of termination, but on the unauthorised removal of Exhibit R3, the termination was still harsh and unfair. The applicant was given some but an inadequate opportunity to respond. Again, if the termination was based on this allegation, it was in breach of S170DC. REMEDY Reinstatement is entirely impracticable for all the reasons outlined by the Chief Justice in Nicolson and Heaven and Earth Gallery (1994) 1 IRCR 199 at 210. This is a classic case of where a reinstatement order would be likely to impose unacceptable problems and embarrassments and seriously affect productivity and harmony within the employer's business. The circumstances are such as to attract modest compensation. The Court is convinced that the applicant would have had a very limited future with Brown and Banks. Mr Banks gave evidence of five warnings between 9 December 1994 and 16 March 1995. The last four of these warnings were recorded on the applicant's personal file. As a matter of prudent and fair employment practice, it would have been advisable to confirm some or all of these warnings with the applicant in writing. The Court doubts that there was much substance to the events which resulted in the warnings of 9 December and 10 February, at least in the terms in which the events were described. They were nevertheless warnings. There were also the warnings of 14 December, 30 January and 16 March. These three warnings involved listings and rosters. All in all, five warnings in four months does not suggest that the applicant had anything other than a short future with the respondent. There are also a number of areas in which the evidence of the applicant, and to a lesser extent, her husband, was not accepted. The applicant displayed obvious antipathy to Mr Manton and Mr Manton to the applicant. The applicant has made a very serious allegation against Mr Michael Banks. She repeated it on oath. The Court is not satisfied that there is substance to that allegation. The Court is convinced that the applicant would have had a very limited future indeed with the respondent. However, the applicant was undeniably a successful sales person. I have taken into account that in the 4˝ months ending 17 May 1995 the applicant earned $16,351.75 in commission payments or the equivalent of $3,634 per month. Nevertheless, as I am convinced that there would have been a speedy parting of the ways between the applicant and the respondent. I consider $5,000 to be adequate compensation on this occasion. ORDER The respondent pay to the applicant within 21 days compensation in the sum of $5,000. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate :