Rhonda Anne Patricelli v Glenis Stephenson Trading as L. J. Hooker Real Estate [1995] IRCA 664

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Resignation by employee - whether termination at the initiative of the employer. INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170DE

Martin v City of Bunbury (IRCA No. 636 of 1995, R.D. Farrell JR, unreported) Reine v Rumpe (IRCA No. 643 of 1995, Madgwick J, unreported) Mohazab v Dick Smith Electronics Pty Ltd (IRCA 625 of 1995, Lee, Moore & Marshall JJ, unreported). RHONDA ANNE PATRICELLI -v- GLENIS STEPHENSON TRADING AS L. J. HOOKER REAL ESTATE - WI95/1674 BEFORE: R D FARRELL JR PLACE: PERTH DATE: 18 DECEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1674

BETWEEN: RHONDA ANNE PATRICELLI - Applicant AND: GLENIS STEPHENSON TRADING AS L. J. HOOKER REAL ESTATE - Respondent MINUTE OF ORDERS BEFORE: R D FARRELL JR PLACE: PERTH DATE: 18 DECEMBER THE COURT ORDERS THAT: 1. The application be dismissed. 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 ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1674

BETWEEN: RHONDA ANNE PATRICELLI - Applicant AND: GLENIS STEPHENSON TRADING AS L. J. HOOKER REAL ESTATE - Respondent BEFORE: R D FARRELL JR PLACE: PERTH DATE: 18 DECEMBER, 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Rhonda Anne Patricelli ("Ms Patricelli"), by the respondent, Glenis Stephenson trading as L. J. Hooker Real Estate ("L.J. Hooker"). Reinstatement is not sought. Ms Patricelli contends that she was dismissed, that there was no valid reason for her dismissal, contrary to Section 170DE (1) of the Act, and that in any event her dismissal was harsh, unjust or unreasonable, contrary to Section 170DE (2) of the Act. LJ Hooker contend that Mrs Patricelli resigned, and that there was therefore no termination at the initiative of the employer to which the Act can apply. The onus lies on Ms Patricelli to prove that it is more probable than not that the termination of her employment was at the initiative of L.J. Hooker. Ms Patricelli's employment was ended on Friday, 3 March, 1995 in the course of a heated telephone conversation with her recently appointed immediate superior, Mr Lindsay Orr ("Mr Orr"). The recollections of Ms Patricelli and of Mr Orr as to what was said during the telephone conversation differ. This is perhaps to be expected given that the conversation took place over 8 months ago. Ms Patricelli says Mr Orr dismissed her; it is common ground that he had the authority to do so. Mr Orr says Ms Patricelli resigned. There were no witnesses to the telephone conversation. The Telephone Conversation I am satisfied that Mr Orr contacted Ms Patricelli at the request of Mrs Glenis Stephenson ("Mrs Stephenson") in order to find out what had happened to a contract about which one of Ms Patricelli's clients, Homeswest, was enquiring. He says he left a message for her on her pager. Ms Patricelli had been on holidays for a couple of days and was about to leave Perth for a long weekend in the country. She says she contacted Mr Orr to check that everything was all right before she left, and, when he was unavailable, she left a message. It may be that she did so independently. It is not clear who returned who's call. In any event, eventually, Ms Patricelli and Mr Orr found themselves speaking on the telephone. Mr Orr was driving during the conversation and speaking on the car-phone. Ms Patricelli was at home. Mr Orr asked Ms Patricelli where the "Wisechoice" file was. "Wisechoice" was the name of the program under which home units for senior citizens were being marketed by Homeswest. Ms Patricelli asked him why he needed it. Mr Orr admits he would not say, telling her only that he had to sort something out with Prisca Taylor, who was the relevant Homeswest representative. Mr Orr did not explain this reticence. I suspect it was because he did not yet understand exactly what it was Homeswest required, and was waiting to get the file to find out. In the meantime, he did not wish to reveal his ignorance to Ms Patricelli. I am satisfied that Ms Patricelli assumed that Mr Orr wanted the file to prepare a proposal for the tender for the next set of Wisechoice units to go onto the market. Ms Patricelli's evidence was that Mr Orr actually told her this was why he wanted the file. She gave evidence in some detail of the dialogue between them on this point. Having heard the evidence of Mrs Stephenson and Prisca Taylor as to the events leading up to the phone-call, I am satisfied Ms Patricelli's recollection is wrong about this, and that the evidence as to the dialogue between her and Mr Orr on this point is erroneously reconstructed. Ms Patricelli, as Homeswest's agent, was aware that the tender was coming up. I am satisfied that, at the time, Mr Orr wasn't yet aware of the tender. She assumed he wanted the file to prepare the proposal, perhaps because it was the next thing she had to do with the Homeswest file. In fact he wanted the file to deal with Prisca Taylor's query, the details of which were not clear to him. I am satisfied Ms Patricelli had already attended to and posted the contract Prisca Taylor was enquiring about. This misunderstanding had significant consequences. Ms Patricelli interpreted Mr Orr's enquiry as an attempt on his part to take over one of her clients. She became defensive. Mr Orr says Ms Patricelli "went straight off her brain, about it had nothing to do with me (sic); it was her listing... I was told it was none of my f---ing business; I shouldn't be ringing Wisechoice...". Mr Orr says he then told her, on his own evidence, "It's obvious that you and me aren't going to get on. There's no point in you and me trying to work together". He says she then told him to stick the job up his "f---ing" arse, and slammed the phone down on him. Ms Patricelli has a different version. She says Mr Orr was abusive, aggressive and irritable. She says she hung up and he called her back. He says it was a single conversation and that he only became heated in response to Ms Patricelli's abuse. Ms Patricelli says that the conversation ended with Mr Orr telling her she was sacked and that she didn't have a job to come back to. She says that when she challenged his power to sack her, he responded that as sales manager he could sack anyone he wanted. She concedes that in that context, she then said "Stick your f---ing job up your arse" and hung up. The evidence of the telephone conversation is unsatisfactory. I find Ms Patricelli's evidence unreliable - not due to any lack of honesty on her part, I hasten to add. The conversation took place a long time ago and in circumstances of heightened emotion such that an accurate and dispassionate recall of what happened cannot be expected of either party. Ms Patricelli has done her best to reconstruct the conversation from such recollection as she has, but I am satisfied that her account is inaccurate in so far as it deals, for example, with the purpose of the call. I should mention at this point that there was some documentary evidence generated after the event which might be thought to support Ms Patricelli's version of events on the issue of the original purpose of the phone-call (leaving aside for the moment the issue of whether the phonecall amounted to a termination at the initiative of the employer); most notably Exhibit P9 (a Separation Certificate prepared by Jeffery Stephenson) and Exhibit P13 (a memorandum prepared some time later by Mr Orr). Ms Patricelli had considerable contact with staff at LJ Hookers after her employment had ended, including Jeffery Stephenson, and I am satisfied that he was relying on her version of events, as she understood the purpose of the call. By the time Mr Orr wrote the memorandum, in about July, he probably had no independent recollection of the original reason for the call. It was not ultimately necessary for him to do anything about Prisca Taylor's query. He would have been involved in the subsequent tender. He concedes the memorandum was carelessly prepared. He seems to have adopted what was by then the prevailing view as to the original purpose of the call, without checking with Mrs Stephenson or Prisca Taylor. Based on their evidence, I am well satisfied that Mr Orr did not want the file in order to prepare a tender proposal. In the circumstances, I am not prepared to prefer the evidence of Ms Patricelli to that of Mr Orr with respect to what was said during the telephone call and when it was said. I am satisfied that Ms Patricelli's instruction that Mr Orr "stick the job up his arse" can only be understood as a resignation. I do not accept that it should be understood merely as a request that Mr Orr "back off", as was contended on her behalf. Certainly, it was a resignation in the heat of the moment, which Ms Patricelli should have been given the opportunity to withdraw when she had calmed down. However, she did not seek such an opportunity. The Aftermath There was evidence that on previous occasions Ms Patricelli had not hesitated to go over the head of middle managers to Mrs Stephenson or her son Jeffery, usually with success. There was also evidence that she had in the past withdrawn a formal letter of resignation. She did not do so on this occasion. Ms Patricelli says she interpreted a pager message expressed to be from "The Management" which confirmed her dismissal and asked her to return LJ Hooker's things as confirmation that Mrs Stephenson had accepted the termination. In fact the message was sent by Mr Orr, who could properly describe himself as part of management. The weight placed on the pager message by Ms Patricelli as a reason not to seek the Stephensons' intervention to reverse the termination of her employment is not objectively justified. Ms Patricelli left for her trip to the country for the long weekend as planned, which is understandable. On her return, however, she still did nothing to seek to retrieve the situation. Indeed, she appears to have been intent in her dealings with LJ Hooker to assert the claim that she had resigned. While there is some dispute as to whom this claim was made, Ms Patricelli did eventually agree that "I did say to Jeff, 'He didn't sack me, I quit', or something to that effect". LJ Hooker claim that she also spoke to Mrs Stephenson in similar terms, telling her she was going to work for "the opposition" and even threatening defamation proceedings if they continued to assert that they had dismissed her. It is understandable that Ms Patricelli might want for reasons of pride to claim she had resigned, even if she believed she had been dismissed. It appears that initially Ms Patricelli had the expectation that she would be employed by Roy Weston - Belmont, who were rival real estate agents. This may also explain why she did nothing to try to reverse the termination of her employment. Ironically, it seems Mr Orr was claiming to other real estate staff immediately after the event that he had dismissed Ms Patricelli. I consider this evidence further below. Some correspondence from LJ Hooker also contains the claim that Ms Patricelli had been dismissed or terminated. Again, this is not necessarily conclusive. It was to rival real estate agents, to whom reference to resignation might imply poor staff morale. It is therefore also explicable as an attempt to save face. Whether Termination at the Initiative of the Employer The final matter to be considered is the relevance, in all the circumstances, of Mr Orr's evidence that he told Ms Patricelli, immediately before her resignation, that "It's obvious that you and me aren't going to get on. There's no point in you and me trying to work together". When questioned about what he meant by this, he said: "Well, in the heat of the moment obviously one of us, you know, was obviously going to have to consider going. It would have been me or her, and I didn't get to say anything else. The answer was quite instant, on the spot, straight after I said it." He confirmed, on further questioning, that he had no intention of going. It might be argued, based on Mr Orr's own evidence, that Ms Patricelli "jumped before she was pushed", and that Mr Orr procured her resignation such that it amounted in all the circumstances to a termination at the initiative of the employer. For reasons I amplify below, I do not believe it to be appropriate in the circumstances of this case to place too much weight on the exact terms of Mr Orr's evidence, rather than the general impression conveyed by him. These matters must be decided on the evidence in each particular case. Clearly there are occasions where a resignation may constitute a termination at the initiative of the employer (for example, see Martin v City of Bunbury, IRCA No. 636 of 1995, R.D. Farrell JR, unreported). On occasions the court has gone quite far in finding, viewing all the circumstances as a whole, that there has been a termination at the initiative of the employer. (See, for example, Reine v Rumpe, IRCA No. 643 of 1995, Madgwick J, unreported, and generally, Mohazab v Dick Smith Electronics Pty Ltd, IRCA 625 of 1995, Lee, Moore & Marshall JJ, unreported). For the Court to treat a termination which has genuinely been regarded by an employer as a resignation as, in fact, a termination at the initiative of the employer places the employer at a significant disadvantage in meeting the requirements of the Act, particularly where the employer's perception has not been challenged by the employee in the period shortly after the termination. It should not be done lightly and without satisfactory evidence. On balance, I am not satisfied on the evidence before me that Mr Orr procured Ms Patricelli's resignation. I have quoted Mr Orr's evidence, but I am not satisfied that it was necessarily an accurate account of exactly what he said. It had the quality of reconstruction about it. More important was the overall impression I was left with, which was that he was unhappy with the course of the exchange with Ms Patricelli. It was likely there would be consequences arising from the conversation, given it's abusive nature and Ms Patricelli's apparent uncooperativeness, which may well have resulted in her dismissal. Any ultimate dismissal may well have been effected lawfully. Mr Orr says it was not necessary to pursue it, because Ms Patricelli resigned. Ms Stewart, who worked with LJ Hooker at the time, says he told them that Ms Patricelli had abused him over the phone and that he had sacked her. She says he appeared excited and pleased with himself to the point that he was almost gloating. This behaviour on Mr Orr's part, while not admirable, is explicable on the basis that he wanted to save face, and perhaps to use Ms Patricelli's departure for crude motivational purposes among the other staff. He saw his job as achieving new levels of application from the sales staff. As I have observed, I gained the impression that Mr Orr would have been likely to ultimately seek to use the abusive and apparently uncooperative nature of the telephone conversation as a grounds for dismissal. Such a termination may have been able to have been effected lawfully. On his version of events he was not required, by reason of Ms Patricelli's resignation, to embark on that process. Conclusion Given the quality of the evidence, I am not satisfied on the balance of probabilities that there was a termination at the initiative of the employer. The onus to so satisfy me has not been met by the applicant. I will therefore order that the application be dismissed.