VENN -v- WESFARMERS LIMITED [1997] IRCA 128

DECISION NO:128/97 C A T C H W O R D S INDUSTRIAL LAW - ALLEGED UNLAWFUL TERMINATION - TERMINATION OF EMPLOYMENT - whether employee given an opportunity to defend himself - whether VALID REASON for termination. Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) Ss 170DC, 170DE, 170EA, 170EDA. Victoria v The Commonwealth (1996) 138 ALR 129 Neil Robert VENN -v- WESFARMERS LIMITED WI 1130 of 1996 BEFORE: R. D. FARRELL JR PLACE: PERTH DATE: 16 April 1997

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1130 of 1996 BETWEEN: Neil Robert VENN Applicant AND: WESFARMERS LIMITED Respondent MINUTE OF ORDERS BEFORE: R. D. FARRELL JR PLACE: PERTH DATE: 16 April 1997 THE COURT ORDERS THAT: 1. The application is 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 WI 1130 of 1996 BETWEEN: Neil Robert VENN Applicant AND: WESFARMERS LIMITED Respondent REASONS FOR DECISION 16 April 1997 R. D. FARRELL JR 1. This is an application under Section 170EA of the then Industrial Relations Act 1988 (now the Workplace Relations Act 1996) ("the Act") for reinstatement or, in the alternative, compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Neil Venn ("Mr Venn"), by the respondent, Wesfarmers Limited ("Wesfarmers"). 2. Wesfarmers is a diversified Western Australian-based company which includes a Rural Division. Wesfarmers' Rural Division markets agricultural goods and services to customers - principally farmers - through a national network of branches, agents and partnerships. Its Geraldton Branch services the mid-north of Western Australia. 3. Mr Venn was employed by Wesfarmers to work as an agronomist in the merchandise section at its Geraldton Branch. An agronomist is a specialist in land and crop management. According to the Position Description document tendered by Wesfarmers, the agronomist's role at Wesfarmers' Geraldton Branch was to "provide agronomy support to the Branch and Agent network for broad-acre and horticultural chemicals, to coordinate regional based and contractual agronomists and to develop training strategies for colleagues to maximise product knowledge and sale opportunities." The Branch had not previously employed a qualified agronomist. The Branch's new capacity to offer the support and advice of an agronomist to farmers was expected to provide a marketing advantage. 4. Mr Venn's Curriculum Vitae shows that he has almost thirty years experience in crop management, agricultural chemicals and fertilisers since obtaining a Diploma of Agriculture in 1967. 5. However, after eighteen months' employment during which Wesfarmers conducted a series of reviews of Mr Venn's performance, Wesfarmers terminated Mr Venn's employment. While the termination took the form of a resignation, Wesfarmers concede that, in all the circumstances, it was a "termination at the initiative of the employer" for the purposes of the Act. 6. Section 170DE(1) of the Act provides that: "An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service." 7. Wesfarmers says the termination of Mr Venn's employment was due to shortcomings in his performance, which is a valid reason connected with his capacity and conduct. They contend, therefore, that the termination was not in breach of Section 170DE(1). 8. Mr Venn contends that his performance was satisfactory, and that there was therefore no valid reason for the termination of his employment. He also contends that the respondents were in breach of Section 170DC of the Act. That section requires that an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made (where the employer could reasonably be expected to give the employee that opportunity). Wesfarmers say they gave Mr Venn the opportunity to so defend himself. 9. Because this matter was heard before the High Court's decision in Victoria v The Commonwealth (1996) 138 ALR 129, the Court also heard submissions as to whether the termination was harsh, unjust or unreasonable for the purposes of subsection 170DE(2). Now that the High Court has held that subsection to be invalid, the Court has had no regard to those submissions for that purpose. 10. The Court heard the evidence of three witnesses. They were: · Mr Venn; · Ms Susan Obst ("Ms Obst"), the then-merchandising manager at Wesfarmers' Geraldton store to whom Mr Venn reported; and · Mr Daniel Williamson ("Mr Daniel Williamson"), a farmer and Wesfarmers client who had dealings with Mr Venn. 11. I was satisfied that each of the witnesses was doing their best to give accurate evidence. Having said that, I noted that Mr Venn did not make concessions readily. He demonstrated a tendency to initially deny propositions, only to reveal on further questioning that his denial rested upon pedantic and sometimes idiosyncratic definitions of terms used within those propositions. 12. Ms Obst for her part seemed concerned to justify her actions in terminating Mr Venn's employment. I note that she no longer works for Wesfarmers. She is now an agent for the Central W.A. wheatbelt regions of Pithara, Dalwallinu and Kalannie, but presumably retains important links with Wesfarmers in that capacity. Her evidence lacked detail on occasions, reflecting an understandable deterioration in her memory since the events in question. It was sometimes left unclear whether she was speaking of matters within her direct knowledge or things she had been told. It also seemed at times that she was reconstructing events rather than relying upon actual recollection. 13. Mr Williamson's evidence was brief and I accept it without qualification. Where there are inconsistencies between the evidence of Ms Obst and Mr Venn, I have reconciled those inconsistencies on a case by case basis, in the absence of any general reason to prefer the evidence of one of them over that of the other. History of Employment 14. Mr Venn began his employment with Wesfarmers on 1 September 1994; he had previously been employed by the CSIRO in Perth as an agronomist and Field Trial Manager with the Dry Land Crops and Soils Unit of its W.A. Plant Industry Division. His starting salary with Wesfarmers was $42,500 per annum. He was provided with a company car and received a rent subsidy. He was given a mobile telephone and reimbursed his home telephone expenses. There was a probation period of 3 months in his new job. Mr Venn's family relocated from Perth to join him in Geraldton after his probation period expired on 1 December 1994. 15. Mr Venn says the job required him to visit farms within a 160 kilometre radius of the Branch to inspect paddocks, and to give advice in the field or by telephone to farmers about crop management matters - chiefly concerning use of agricultural chemicals, but also concerning other matters such as tillage practices, pastures and stock. Mr Venn saw himself as a link between agricultural scientists and the farmer. 16. Mr Venn says that when he first started, he asked the then Regional Manager, Mr Hugh Harding ("Mr Harding"), for a list of Wesfarmers' clients, but the list was never provided. He says he gradually pieced together information about Wesfarmers' client base from other members of the merchandising department and began visiting farms. He did not prepare rosters or schedules of farms to visit. 17. Many of the farmers he visited were existing Wesfarmers customers; Mr Venn says they liked to see their purchases repaid with interest in their farm. He would also call on other farmers and attempt to establish a rapport which might result in new business. As part of the merchandising team he was also expected, when he was in the office, to serve at the counter on a "last call basis", ie if the other merchandising staff were already busy serving. December 1994: Probation Review 18. In September 1994, soon after beginning his employment, Mr Venn was absent on sick leave for seventeen days due to a life-threatening haemorrhage of his liver, resulting from complications in an earlier liver biopsy. After his return, he remained unwell and required ongoing treatment for six months involving a course of three injections per week. Mr Venn says that each injection was like having a dose of influenza. 19. After his probation period expired, a review of his performance was completed by Ms Obst on 16 December 1994 in accordance with the normal Wesfarmers procedure, though a little later than usual because of his illness. 20. I accept Ms Obst's evidence that the review document was completed in "a sympathetic manner". Mr Venn's "Quantity of Work" was graded as "competent", while his "Quality of Work", "Dependability" and "Compatibility to Job" were graded as "Commendable". Ms Obst says she took the view that, while Mr Venn hadn't reached expected standards of performance, his sickness had been an important factor in that outcome. She says she still believed she had been correct to employ him and she wanted to rebuild his confidence. Mr Venn agrees that it wasn't a typical six months. 21. Mr Venn does not recall being shown the assessments made by Ms Obst when he completed his probation. Ms Obst believes he was. Nothing turns on it, but I accept that, if the assessment was shown to Mr Venn, then he does not recall it, perhaps because it was not treated as significant at the time. December 1994 to June 1995 22. As part of Wesfarmers' usual management procedures, Mr Venn was asked after he finished his probation to write up goals and objectives for the period ending 30 June 1995, on the understanding that he would be measured against those goals. These goals were usually drawn up annually. Mr Venn wrote up his goals accordingly. Ms Obst says they were "soft" and easy to attain, but considered that this was not inappropriate for the first set of such goals. 23. Mr Venn's first crop season began in about April of 1995. He explained that his role was most important at the break of the season when it began raining and the crops germinated. He says he was greatly in demand from that time for hands-on advice in the areas of seed sowing, herbicides, insecticides and crop variation. Performance Review: 8 June 1995 24. Ms Obst conducted a routine review of Mr Venn's performance on 8 June 1995. In the course of such reviews, ratings from "1" to "7" were given on the employee's performance by reference to a number of criteria both by the employee themself and by the person to whom they reported. 25. A rating of "3" was defined to mean "Met most important requirements most of the time". A rating of "4" meant "Met all important requirements most of the time" and a rating of "5" meant "Exceeded all important requirements most of the time". 26. Ms Obst gave Mr Venn an overall performance rating of "3+". This was based upon overall ratings of "3 1/2" for "Success in achieving principal job goals" and for "Business Skills" along with overall ratings of "4" for success in achieving "Personal Development goals" and for "Personal Skills". 27. Mr Venn's "strong technical knowledge - depth. Skills in research" were nominated by Ms Obst as his strengths, while his "time management, selling skills and local knowledge" were nominated as areas for improvement. 28. Mr Venn's Agreed Goals and Objectives to 30 June 1995 had specified a goal of providing "accurate, soundly based agronomic advice to clients and agents". The document provided for twice yearly measurement of Mr Venn's success at meeting this goal through a "Questionnaire to 6 customers at random, two agents and merchandise staff". 29. In the review Ms Obst gave Mr Venn a rating of "3" in relation to the goal of providing "accurate, soundly based agronomic advice to clients and agents", noting on the review form that "Local knowledge still limited". 30. It was not clear from Ms Obst's evidence what she relied upon to make this assessment. I infer from general statements in her evidence that she based the assessment on informal feedback she received from customers and agents, some of it probably second hand. As far as I can tell, none of the specific complaints referred to in Ms Obst's evidence relate to the period before this review. 31. There was no evidence that Ms Obst sent questionnaires to or even questioned random customers at any stage in Mr Venn's employment. Rather she seems to have relied on an assessment of those complaints that came to her attention, whether directly or indirectly. Ms Obst observes that it is relatively unusual for farmers to come forward and complain. More usually they say nothing and simply don't come back. I accept that this has been Ms Obst's experience in her industry and that this led her to regard the complaints seriously. However, if there were legions of customers impressed with Mr Venn's services, they did not come forward. I cannot therefore assume they didn't exist. Ms Obst's original proposal for measuring Mr Venn's effectiveness would have provided a more reliable and persuasive basis for assessing his performance. It is a pity she did not use it. 32. By the time of this review, Ms Obst says she was concerned that Mr Venn seemed to be in the office a great deal, and that he was not making enough farm visits. She says that during the busy period in the office in February and March she might expect him there for about two days a week, but from April to July she believed he should only be in the office half a day a week. She says that Mr Venn was in fact only getting out of the office for two to three days a week, and then only for part of the day. 33. Mr Venn's Agreed Goals and Objectives to 30 June 1995 had specified a target of visiting four customers a day, three days a week as a means of meeting the goal of assisting Ms Obst in sales and promotions to achieve budgeted sales targets. At the review, Ms Obst assessed this area of performace at level "4" - a satisfactory rating. Ms Obst explains that she was conscious that he had been unwell, and was concerned not to push him too hard. She says she had left him to set his own schedule, as he would best know what his health could cope with. I note also that the sales and profit targets for Ms Obst's department for the period were exceeded. 34. It should be noted that Ms Obst graded Mr Venn's "abilities in establishing and maintaining sensitive communications with others" at level "4" in this review. 35. Ms Obst resolved that Mr Venn should obtain authorisation and have arrangements made to attend Time Management and Selling courses by the end of September 1995. The courses were never organised. Mr Venn says he understood it to be Ms Obst's role to organise the courses. She did not dispute this in her evidence, saying only that there was a lack of time to attend the courses in 1995 and they would have been arranged before 30 June 1996 if Mr Venn's employment had continued. 36. The formulation of a second set of goals and objectives was addressed in the June review. Ms Obst and Mr Venn discussed possible areas which might be covered, and discussed the concept of goal-setting at length. Accordingly, Mr Venn drew up a new set of goals for the period ending June 1996. 37. Mr Venn was notified on 7 July 1995 that he had received a salary increase, and would receive a further increase in October 1995. By the time his employment ended, his salary had risen $2,600 to $45,100 per annum. Counselling Session: 14 July 1995 38. There was a counselling session on 14 July 1995, involving Mr Venn, Ms Obst and Mr Hugh Harding, the then Geraldton Regional Manager. Ms Obst says the session was called to discuss complaints from clients. It seems three issues were raised. They were: · the clarity and accuracy of Mr Venn's advice to farmers; · Mr Venn's interaction with his fellow employees; and · Mr Venn's timekeeping. 39. Mr Venn recalls being told by Mr Harding that they were pleased with his performance up to that time but that they wanted to raise a few points. Mr Venn was told that, when discussing things with farmers, he needed to focus and concentrate on the main issue, limiting himself to the specific information required. He should not try to demonstrate all his knowledge every time he visits. 40. Ms Obst says that Evan Hammersly, a sizeable and loyal client of Wesfarmers, had told Mr Harding that he would take his business away unless Wesfarmers did something about Mr Venn. 41. Ms Obst explained to the Court that Mr Hamersley was predominantly a stockman, and needed someone who could tell him very simply what he needed to do in relation to agricultural chemical use. Ms Obst says he told Mr Harding that he was uncomfortable with Mr Venn's recommendations; they were very longwinded and Mr Hamersley often couldn't understand what Mr Venn was talking about. Because of his lack of personal knowledge, he relied upon Wesfarmers for that sort of information. Ms Obst says that he ultimately went to their competitor, Elders, for that reason. 42. Mr Venn took this advice as constructive criticism and agreed to be conscious of those issues and to work on them. He explained to the Court that he believed he had been trying too hard to prove himself in the community by demonstrating the extent of his knowledge. 43. Mr Harding also asked Mr Venn, apparently without warning, when was the correct time to apply Diuron, which is a weedkiller for wheat crops. Ms Obst says she would have expected that information on that chemical would be second nature to anyone in the chemical industry. Mr Venn demonstrated that he knew the correct time and was aware of the dangers of late application. He was told that a client had called into the office who had been left with the misunderstanding that he could use Diuron much later than the "5 leaf" stage of the crop's development, which was incorrect. Mr Venn was not told the identity of the client. 44. It was clear from Ms Obst's evidence that Ms Obst held Mr Venn responsible for the misunderstanding, even if he gave the correct advice, because the fact that the client misunderstood the advice indicated that the advice had not been given sufficiently clearly. 45. Ms Obst says that at that stage their approach to any client who complained about Mr Venn was to reinforce that Mr Venn was new to the area, had a background in research and that it would take time to acquire local knowledge. She also on occasion made them aware that he had been very ill. 46. Ms Obst says they also addressed more general customer comments. She says there was: "a lot of just general chat that was coming from clients. Very few of them like to complain formally, usually they just take their business away from you, but I was starting to just get comments when I called on farm or when I saw a client about concern about Neil's knowledge..." 47. Ms Obst spoke of complaints from customers that they didn't understand Mr Venn, that he was too technical, that he gave long-winded and indirect answers to simple usage queries. 48. Ms Obst says Mr Venn was in conflict with his fellow employees, and that this was raised with him at the meeting. 49. Mr Venn says he felt he had good working relationships with all the people in the office. 50. Mr Venn recalls Mr Harding or Ms Obst also raising the proposition that he was cutting across other staff in the performance of their roles. They raised an incident where a farmer, Mr Pawelski, changed his order after speaking to Mr Venn. Mr Venn gave his account of the advice he gave Mr Pawelski. The discussion moved on to other matters. 51. Mr Pawelski, a local farmer, had purchased some agricultural chemicals from Wesfarmers, on the recommendation of the person serving at the counter. The chemicals were loaded into Mr Pawelski's utility. Mr Venn met Mr Pawelski in the car park. In the course of conversation, Mr Venn gave some advice to Mr Pawelski which led him to change his order. Ms Obst saw this as Mr Venn undermining a colleague. In her view, if it continued it would mean that nobody could sell chemicals but Mr Venn, because nobody would trust the advice of the counter staff. In Ms Obst's view there was no reason why the original recommendation should have been changed. Mr Venn recalls Ms Obst or Mr Harding telling him that if the customer has been served and the advice they were given was just slightly incorrect, then he should let it be because it will perhaps do the job. Mr Venn says he did not believe that was right. He does not accept that he had done the wrong thing in his dealings with Mr Pawelski. Ms Obst contends that the original recommendation was not incorrect. 52. Mr Venn was ten to fifteen minutes late for the counselling session with Mr Harding, which had been scheduled for 8:00 am on 14 July 1996. This was raised with him immediately, and he told Ms Obst and Mr Harding that he had stopped to fuel the car up. 53. They raised a complaint from a particular farmer who rang mid-afternoon to say that Mr Venn had not arrived. Mr Venn explained he had rung the farmer and told him he would be there that afternoon, and that he in fact arrived there at 4:30 pm, before the afternoon was over. July 1995 to January 1996 54. On 11 August 1995, there was a presentation in Mullewa on pasture topping organised by Mr Johnson, Wesfarmers' agent for the region. Relevant Wesfarmers staff attended to support Mr Johnson. The presentation began at 9:00 am, which required Ms Obst to leave the Geraldton office by about 8:00 am. Ms Obst says Mr Venn arrived at about 10:30 am, when the presentation was almost complete. He explained that he got really busy at the office and that he couldn't get away. Ms Obst says she checked when they returned to the Branch and was told they weren't that busy. Ms Obst says she was embarrassed to have the Wesfarmers agronomist walk in at the end of the meeting because she believed it gave the clients the impression they weren't very important. Mr Venn does not recall this incident. I accept that the incident happened. 55. Within the merchandising section, there was a problem between Mr Venn and Mr Doug Patton, who was second in charge of the section. In August 1995, there was a verbal altercation between them when Mr Venn interrupted Mr Patton, who it seems was occupied either serving a customer or working on the computer, to ask for some information. The Court only heard Mr Venn's account of the incident. On his account, Mr Patton's outburst would appear to have been unjustified, and Mr Venn was not to blame for the incident. 56. Mr Venn left a note that day saying he would not travel with Mr Patton to the Dowerin Field Day, as had been planned. The next morning, they were counselled by Mr Harding, shook hands and got on with things. They travelled together to the Field Day as originally planned. 57. Ms Obst spoke to Mr Patton about the incident, but did not hear a full account of what had happened. 58. Agents of Wesfarmers also complained about Mr Venn's performance. There were three commission agents for the Geraldton Branch, based in Northampton, Mullewa and Morawa. 59. Mr Neil Johnson, the Mullewa agent, complained that he had lost confidence in Mr Venn's advice about agricultural chemical usage and felt he had to check its accuracy with the representatives of the chemical suppliers because he had sometimes found Mr Venn's advice to be wrong. He had complained that Mr Venn had given him wrong recommendations on three occasions, on matters which Mr Johnson did not regard as complicated. Ms Obst says Mr Johnson pointed out that if he had to check, he may as well just ring the chemical representative directly. Mr Johnson had only recently taken over the position of agent. Mr Johnson's background was as a stockman, so he had no knowledge of agricultural chemicals. Ms Obst had explained to Mr Venn that he had to support Mr Johnson because he was new. 60. Mr Johnson gave Ms Obst a specific example, where he had asked Mr Venn the percentage of "wetter" to use with a particular product and was told "2 per cent". In fact, the correct percentage is "0.2 per cent". If one were using oil rather than wetter, one would use 2 per cent. Ms Obst raised this incident with Mr Venn as soon as possible, certainly within a day. She says on such occasions he never acknowledged giving the wrong answer; in this case, she had no doubt Mr Venn knew the correct percentage. However, her view, which she conveyed to Mr Venn, was that the issue was that the client didn't know what Mr Venn had recommended; whether Mr Venn had given the right or the wrong recommendation was academic. It was important that the client understand Mr Venn's recommendation. 61. The need for clear recommendations had been discussed at the counselling session on 14 July 1994. Consideration was given to leaving recommendations in writing. 62. Mr Venn explained that generally recommendations had not been given in writing because the rates of application actually used by farmers were usually much lower than that prescribed on the label. If he wrote a recommendation lower than the label rate and there are harmful or ineffective results, then Wesfarmers would be liable. Recommendations were therefore usually given verbally. It was suggested at the meeting that Wesfarmers' legal people draw up a recommendation pad, so that recommendations could be left in writing, while Wesfarmers could be protected from legal liability. 63. Mr Rolly Flavel, a loyal Wesfarmers client, had come to Ms Obst in November 1994 and complained about Mr Venn's performance and local knowledge. Ms Obst defended him in the usual terms and said he would improve, given time. In due course, Mr Flavel shifted his agricultural chemical business, worth $100,000, to Elders because he used their agronomist, Mr Ralph Papalia. He gave Wesfarmers the rest of his business, where it was unrelated to agronomy. 64. Mr Flavel again spoke to Ms Obst in late November 1995 and asked her what she was going to do with Mr Venn. When she asked why, he pointed out that Wesfarmers' business had been affected, and that unless Wesfarmers did something about Mr Venn, he was going to have to continue giving Elders his business, because he could not use Elders' agronomist and not use them to purchase the product. Ms Obst said that the Flavels were very loyal to Wesfarmers, and that they were upset at having to take their business away. Ms Obst noted that there were few clients who would provide that sort of feedback; usually they would just say nothing and purchase elsewhere. 65. Mr Bruce Leishman, Wesfarmers' largest individual merchandise client spoke to Ms Obst when she visited his property, expressing concern about the results of the recommendations Mr Venn had made during the season. He didn't believe Mr Venn was meeting with his manager as often as he should have been and monitoring the crops. 66. In more general terms, Ms Obst was being told in conversation with Wesfarmers' clients that Wesfarmers weren't going to be able to compete in the agronomy stakes because Ralph Papalia from Elders was doing an excellent job. Special Buying Service ("SBS"), another competitor, also had two good agronomists. The inference in what she was told was that Wesfarmers couldn't compete and was going to suffer accordingly. 67. By the end of November 1995, the Geraldton Branch's three agents had each contacted Ms Obst and told her that they were not prepared to use Mr Venn in the next season in field days and in paddock inspections. The three agents generated about four million dollars in annual turnover in agricultural chemicals. The agents are not contractually tied to purchase their merchandise from Wesfarmers. 68. Ms Obst says that, because of the frequency of the complaints: "it was becoming general conversation in the district so the pub talk was Wesfarmers' agronomist and that's not the way we want to be discussed, that's for sure." Ms Obst said she would hear of this general conversation between farmers from people who were present, such as Wesfarmers livestock territory managers. 69. The Court heard evidence from Mr Daniel Williamson, a farmer and partner in G.J. Williamson and Sons, who have been and continue to be longstanding clients of Wesfarmers. 70. Mr Williamson says Mr Venn called at the main homestead on his farm about three or four times. He also saw Mr Venn a few times in the Branch at Geraldton and sometimes spoke to him on the phone. 71. Mr Williamson says the first couple of times Mr Venn called he was "feeling his way around the district, as you'd expect anybody that was new to a position to do." The next visit he gave advise on what to do about weeds in their lupin crop. They had no problems with that advice. 72. Mr Williamson says Mr Venn sounded as if he had a fair amount of knowledge behind him. He told of how Mr Venn had pulled apart a double-gee seed on one occasion to explain a point in relation to herbicide use for double-gee control. Mr Williamson had never seen an agronomist go into that much detail before. Mr Williamson thought Mr Venn may have been able to put his knowledge across to people a bit better when they got to understand him and know him a bit better. Mr Williamson does not consider himself to have a detailed knowledge of agronomy and chemicals, and he did not have a problem understanding Mr Venn. Mr Williamson has never complained about Mr Venn and was not aware of any of his brothers in the partnership complaining either. He had never known anyone to say that they had a problem with Mr Venn. 73. In November 1995, due to staff taking leave and her involvement in an internal Wesfarmers Committee, Ms Obst asked Mr Venn to help out at the office when she was away in Perth for committee meetings. It was a less important time of the year to contact clients, who were preoccupied with harvesting their crops and therefore had little immediate need or time for agronomic advice. Mr Venn says he had to attend the counter during November 1996 virtually on a full time basis. Ms Obst describes this as an exaggeration. 74. Mr Venn also had a low level of contact with farmers in December 1995. Mr Venn says that in December, he was quite keen to go out to farmers and promote some campaigns from chemical companies but Ms Obst told him not to, because the farmers were still busy harvesting. There had been delays in the harvest due to rain and she said she was concerned they were getting a bit "cranky". 75. Ms Obst says that Mr Aaron Gould, a trainee employee, complained to her at about this time that he felt he was being undermined at the counter by Mr Venn, because when he was serving Mr Venn would come to the counter and take over, making it look like he didn't know what he was talking about. Mr Gould conceded that his knowledge was limited, but said he knew what he didn't know, and said that if he needed help he would ask for it. Ms Obst believes she spoke to Mr Venn about it. 76. Mr Tom Wrightstone, a Wesfarmers employee responsible for maintaining the orders for product to be delivered to Wesfarmers complained to Ms Obst that Mr Venn would try and place orders, making it difficult for him to keep control of the ordering process. The normal structure of the Branch was that one person did the ordering. 77. By early December 1995, Ms Obst was beginning to receive complaints from all departments, including outside the merchandising team. There are twenty employees in all in the Geraldton office. Many of the complaints were over small matters of annoyance, which were not unusual in a big staff. Ms Obst considered them personality issues, which she found difficult to deal with; she did not talk to Mr Venn about them. 78. She was also told by the new Area Branch Manager, Mr Craig Williamson, that Mr Venn had interfered in social club issues, taking it on himself to tell the liquor store that he was taking over the buying of alcohol and either he would purchase it or an order number would be given by someone in the Branch. Mr Williamson, was the next person to go down to the liquor store for Wesfarmers, where he was told he couldn't buy without an order number. Mr Williamson returned to the office and told Mr Venn he was to have nothing to do with the alcohol purchasing. Mr Venn denies that he gave the liquor store any instruction. 79. Ms Obst told Mr Venn at the 29 January meeting that people in the staff had been finding him difficult to work with. 80. Mr Venn took two weeks leave in January, 1996. Performance Review: 29 January 1996 81. On 29 January 1996, when Mr Venn got back from leave, Ms Obst told him that they needed to have a meeting to get his goals sorted out. He was struck by what he perceived to be a change in her attitude towards him. She appeared less friendly throughout the ensuing process; Mr Venn described her as more aloof and stern than usual. 82. Ms Obst went on to conduct a review of Mr Venn's performance for the period from 1 July 1995 to 31 January 1996. It was a general review which Ms Obst considered was required because of Mr Venn's performance throughout the previous year. 83. Ms Obst told the Court she had discussed the need for such a review with Wesfarmers' National Human Resources Manager in December 1995, when she had become very concerned with Mr Venn's performance. She says she felt there were serious issues involved and sought advice as to the best way to approach the review to get results and to improve Mr Venn's performance. In accordance with the advice she received, the review was delayed until both Mr Venn and Ms Obst returned from leave so that there would be a set period of time following the review during which his performance could be measured. 84. Ms Obst agreed that her manner toward Mr Venn may have appeared different. She explained she hadn't been looking forward to the review because of some of the difficult matters she would have to raise with Mr Venn. 85. The review document completed on 29 January 1996 for the period from 1 July 1995 to 31 January 1996 has gradings only in relation to the "Business Skills" and "Personal Skills" criteria. There were no overall gradings. The gradings were filled in by Mr Venn and Ms Obst in the course of the review, and discussed between them as they went along. The gradings were as follows: BUSINESS SKILLS Leader's Estimates Colleague's Estimates (i) Knowledge necessary for fulfilling job responsibilities 2 4 (ii) Providing service to clients 2 4 (iii) Establishing and maintaining priorities 2 4 (iv) Using foresight and creative thinking to plan and complete goals 2 - (v) Maintaining procedure and standards 3 4 (vi) Organising work 1 3