Industrial Relations Commission of New South Wales CITATION: Lewer and Resolve FM Pty Limited [2005] NSWIRComm 1174 APPLICANT: Ms. Vanessa Lewer PARTIES: RESPONDENT: Resolve FM Pty Ltd FILE NUMBER(S): 347 of 2005 CORAM: Ritchie C Termination of Employment-unfair dismissal-applicant claim that termination due to cost cutting-respondent claim termination due to unsatisfactory service-evidence showed applicant had difficulty following reasonable direction from her manager-respondent through counselling sought to change applicant's attitude-Commission found that applicant had been advised of the issues that the respondent had with her-given her the opportunity to respond and the time to change but no change occured. CATCHWORDS: Commission found that the applicant was terminated for the reasons expressed by the respondent and that the termination was neither harsh,unreasonable or unjust. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 06/23/2005; 06/24/2005; 08/08/2005; 09/05/2005 DATE OF JUDGMENT: 11/02/2005 APPLICANT-self represented. LEGAL REPRESENTATIVES: RESPONDENT: Mr. A. Price of Australian Industry Group-NSW Branch. DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 2 November 2005 Matter No IRC 347 of 2005 IN THE MATTER OF: Vanessa Lewer and Resolve FM Pty Limited Application by Vanessa Lewer re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1174 1 Ms. Vanessa Lewer (the applicant) commenced employment with the respondent then known as Haden FM Pty Ltd on 17 February1995. That Company changed its name in about April 2000 to Resolve FM Pty Ltd (the respondent). The respondent was a subsidiary of Tyco International until October 2004 when the Norfolk Group of Companies bought Resolve FM. The applicant was terminated from the respondent on 14 January 2005 and filed a claim for unfair dismissal on 24 January 2005. 2 A conciliation was held on 10 February 2005 and a Report Back took place on 18 February 2005. As a consequence of no agreement being reached to settle this application a timetable for the filing and serving of evidentiary material was provided to the parties. 3 The hearing took place on 23 June, 24 June, 10 August and 5 September 2005. At the completion of proceedings the Commission reserved its decision. 4 At the hearing the applicant represented herself and Mr. A. Price of Australian Industry Group represented the respondent. Applicant's Case 5 The applicant and the following persons gave evidence and were subject to cross- examination. Mr. John Robertson Ms. Susan Riley Ms. X. Tang (by way of summons) Ms. M. Barron (by way of summons) Ms. A. Harvey (by way of summons) Mr. Z. Nassar (by way of summons). 6 The respondent had a contract with the Department of Immigration (DIMIA). At the time of termination, the applicant held the position of Area Manager and was responsible for the provision of short term accommodation of refugees in the Sydney metropolitan area. She was originally located in Lidcombe but later on moved to Penrith. Similar positions existed in Victoria, West Australia and Queensland. She originally reported to Mr. John Robertson who was the then National Manager. When that position was made redundant she reported to Mr. Garry Hogan who then became responsible for the DIMIA contract on a national basis. This change in personnel occurred around April 2004. 7 The contract required for the respondent to meet arriving refugees at the airport, transfer them to their temporary accommodation, having already inspected such accommodation making such it was appropriately furnished, stocked with food and assisted in any documentation so the refugees settlement was as smooth as possible. 8 During her employment with the respondent the applicant worked with a number of employees whilst carrying out the contract. The contract with the DIMIA was for a set period of time with no guarantees of future contracts beyond the set date. 9 One of the applicant's fellow workers was a Ms. Sarwat Hawli who also worked with the DIMIA contract. In approximately July 2003 Ms. Hawli proceeded on extended leave which became maternity leave as she became pregnant. During Ms. Hawli's absence the applicant employed persons to assist her. One of the persons was a Mr. Abdul Basit. Whilst employed this person injured himself and proceeded on workers compensation. In his absence, the applicant with approval employed her husband, on a casual basis to give her assistance. He commenced with the respondent on or about 22 March 2004 and ceased approximately 12 November 2004. 10 Around June 2004 the applicant received a communication from Mr. Hogan asking her to sign a copy of the Tyco Commercial Vehicle Policy. She refused to sign it as the policy was for a commercial vehicle. Her vehicle was not commercial 11 Around June 2004 the applicant received a pay increase. 12 Around May 2004 Mr. Hogan advised all state managers that he did not believe the OHS procedures in place for the contract were adequate. He therefore organised the respondent's OHS's specialist Ms. Rhonda Avery to review the situation. Both Mr. Hogan and Ms. Avery met with the applicant and discussed the requirement of having Job Safety Analysis (JSA) carried out. Later a report by Ms. Avery was critical of the respondent's OHS's compliance in carrying out the DIMIA contract and the applicant's "attitude" in relation to the audit. The applicant did not agree with the comments and emailed Mr. Hogan with her views. She stated that she had not received any OHS training whilst employed with the respondent. 13 In August 2004 the applicant was advised to contact Ms. Hawli and determine when she would be returning from maternity leave. The applicant at the same time advised Mr. Hogan of the areas of unsatisfactory work done by Ms. Hawli prior to her taking leave. The applicant contacted Ms. Hawli. Later in the month Mr. Hogan advised the applicant that he alone would speak to Ms. Hawli and that he would not be raising the issue of her unsatisfactory work as expressed by the applicant. The applicant could not believe that she was being treated like this. It was Mr. Hogan's treatment of the applicant that resulted in her feeling anxious and stressed. On her doctor's orders she took one week off work. 14 On her return from sick leave the applicant spoke with Ms. Harding, acting HR manager and a meeting was arranged with Ms. Harding and Mr. John Smith, Regional General Manager and his secretary. The meeting was to discuss Mr. Hogan's treatment of her. Later the applicant was advised that Mr. Smith was not intending to take any further action. A copy of the record of the meeting was sent to the applicant. She did not agree with its contents. 15 Whilst the return from maternity leave of Ms. Hawli was due 1 September 2004, she did not arrive for work as she was sick. Later in the day Mr. Hogan advised that she had resigned. As the applicant was short handed, she with approval had her husband work. 16 In mid September 2004 a copy of an advertisement for the position of property officer to assist the applicant in the DIMIA contract was received by the applicant. She did not agree with its contents. Later she was invited by Mr. Hogan to have an informal chat with his preferred candidate. She did not believe he was suitable. She later found out that the preferred candidate did not accept the position. The position was again advertised. The applicant sought to be involved in the employment process but Mr. Hogan wished to do it himself. 17 The applicant had issues with Mr. Hogan with respect to the move of her office from Lidcombe to Penrith. She stated that she had sought information on when the move was going to take place but she was not told. When she was told she was only given one week. She also wanted input into the selection of her assistant. 18 In late September she had another meeting with Mr. Smith who confirmed that the transfer to Penrith would go ahead and that she would be involved in the interviews. 19 Mr. Hogan carried out the interviews without the applicant. 20 On 8 November 2004 the applicant was advised by Mr. Hogan that she was required for a meeting, without being told the subject of the meeting. The next day she had a meeting with Mr. Smith, Mr. Hogan and Ms. Moffatt. It was in this meeting that the applicant was advised that her service had been unsatisfactory due to insubordination. On or about 10 November the applicant found that Mr. Hogan had accessed her computer. It was her view that the respondent was trying to get rid of her. 21 The applicant advised Mr. Hogan that she did not think that Ms. Jamie Couse was suitable for the position as she had very little experience. Later the applicant was required to meet with Ms. Couse but was directed not to ask any questions concerning her experience or her qualifications. After the meeting the applicant was spoken to by Mr. Hogan as a consequence of a complaint received from Ms. Couse. In the applicant's view that Ms. Couse had taken a comment seriously that had not meant to be. The applicant later apologised to Ms. Couse for the comment "that she must be spoilt because she is an only child." 22 The applicant was advised to terminate her husband on 12 November at the instruction of Mr. Hogan. 23 Ms. Couse started with the respondent on 15 November 2004. Ms. Couse reported to Mr. Hogan. The applicant believed it would have been more appropriate for Ms. Couse to report to her. 24 As the applicant did not have any assistance she did not fully participate in Ms. Couse's induction. 25 On or about 17 November 2004 the applicant received an email from Mr. Hogan detailing performance concerns he had with the applicant, which require her to attend a meeting on 19 November 2004. This meeting was later deferred until 25 November 2004. 26 On the meeting of 25 November 2004 the applicant was advised that it was a formal counselling session. During the meeting she was given a written warning letter dated 9 November 2004. The applicant refuted the accusations and complaints that were made against her. 27 It was the applicant's view that it was only after Mr. Hogan commenced working in her area, that were problems with her performance and conduct. She believed she was bullied and humiliated. 28 A meeting between the applicant and Mr. Hogan took place on 17 December 2004 as part of her performance review. 29 The applicant proceeded on annual leave from 20 December 2004 until 10 January 2005. As a consequence of the arrival of a large number of migrants the applicant was directed to meet with Mr. Hogan on a daily basis. The applicant believed that this was excessive. 30 On 12 January 2005 the applicant was advised that she was required to attend a meeting on 14 January 2005. At that meeting Mr. Smith terminated the applicant due to unsatisfactory performance. A letter of termination was provided to the applicant. The letter expresses the applicant's continued inappropriate behaviour towards her fellow work colleagues. 31 It was the applicant's view that she was terminated as a cost cutting exercise. 32 Mr. John Robertson was the applicant's previous manager when he held the position of National Manager of the DIMIA contract. His evidence was the applicant followed the respondent's policies and was honest, reliable and forthright in carrying out her duties. He did state that 40% of the respondent's cars were over their mileage. He was cross examined on several issues that occurred between the applicant and other workers. He advised that there had been occasions that he had to counsel the applicant but not on a formal basis. 33 Mr. Zerly Nassar gave evidence to say that he worked for Tyco in the IT Department. He stated that he had a good working relationship with the applicant and had not seen the applicant in conflict with other staff. 34 Ms. Xuyen Tang gave evidence that she worked for Anglicare Migrant Services, which is part of the Anglican Sydney diocese. Anglicare worked with the respondent to help clients settle in Australia. She stated that she had known the applicant for about four years. There had been issues between the two bodies which had been able to be resolved with the applicant assisting in there resolution. 35 Ms. Marilyn Barron gave evidence that she worked for the Department of Immigration (DIMEA). She found the applicant not aggressive or abrasive but helpful. She had not received any complaints concerning the applicant. 36 Ms. Anne Elizabeth Harvey gave evidence that she is the Acting Executive Officer of Settlement Services International. It is also an organisation that helps to settle migrants into Australia. She also had not received any complaints concerning the applicant. Problems that arose as a consequence of the process were resolved. 37 Ms. Susan Gai Riley filed a statement to state that she was the State Migrant Services Manager for the Queensland DIMEA contract. She has known the applicant for over ten years. She stated that working on the DIMEA contract was stressful. It was her view that Mr. Hogan didn't understand what the contract was all about. She felt that she did not get the support from Mr. Hogan that she required. She also had issues with signing the Tyco vehicle policy. She had responded to Mr. Hogan's request for listing the five areas of concern but received little feedback. Respondent's Case. 38 The following persons gave evidence for the respondent. Mr. E. John Smith Mr. G. Hogan Ms. V. Yangoyan Ms. J. Couse Ms. J. Green Ms. H. Harding 39 Ms. Joy Green gave evidence that she is an account administrator with the respondent. She stated that she believed that the applicant was a good property manager but had a confrontational style who did not suffer fools gladly. In her view the applicant almost enjoyed the to and fro of a heated discussion. She stated that when Tyco took over the business they required more detailed reporting which did take some adjustment. She gave evidence of the applicant and Mr. Hogan having a forceful discussion which Ms. Green took as being confrontational. She said that Mr. Hogan had more contracts under his control than just the DIMIA contract and therefore had more employees reporting to him. She described Hr. Hogan as a reasonable bloke. 40 Ms. Hellen Harding gave evidence that she commenced as the acting Human Resources Manager for the respondent and had held that position since 1 May 2004. She has since become permanent. She had first experience with the applicant when she took over the administration of a particular workers compensation case of Mr. Abdul Basit. Alliance believed that the applicant was harassing Mr. Basit. The applicant justified her actions on the basis that she did not believe that Mr. Basit's claim was genuine. As a consequence of a meeting with Alliance on the effective management of claims Ms. Harding spoke to the applicant about the way she spoke to people, coming across as aggressive and attacking. After an injury to Ms. Couse the applicant advised Ms. Harding that OH&S was not her responsibility. 41 She stated that the pay increase granted to the applicant was given to all employees and the bonus paid to the applicant was as a consequence of an administrative error. The formal warning letter given to the applicant at the meeting on 25 November 2004 was originally intended to be given to the applicant at a meeting on 9 November, but due to the applicant not being advised that she was able to bring a witness, the meeting held on 9 November was an informal discussion. By error the letter given on 25 November retained the 9 November date. 42 Ms Harding believed that the respondent's counselling process was followed. The applicant had previously be spoken to on 23 August 2004 and on 9 November 2004. The applicant had been advised of the specific performance or conduct, discussion followed and the applicant had the opportunity to express her point of view. She accepted that the applicant was not given a copy of the procedures but did not think that this was fatal to the process. The letter given to the applicant had clearly been prepared prior to the meeting on 25 November, contrary to the procedures. The letter was given to the applicant because in Ms. Harding's view the meeting had deteriorated. If there had been a change to her attitude or performance the letter would not have been given. The final meeting of 14 January 2005 had been held and again the applicant was advised of the issues but because the meeting broke down it never proceeded through all the steps. In her view almost everyone who came in contact with the applicant was intimidated and preferred not to deal with her. Ms. Couse was talking resignation, and Mr. Hogan had sought to be taken off the DIMIA contract. The DIMIA contract was very important to the respondent. Ms. Harding believed that the applicant was given natural justice in the process that led up to her termination. 43 Ms. Harding stated that Mr. Hogan had spoken to her about problems he was experiencing with the applicant and how best to handle them. In general was his complaint that the applicant refused to comply with simple requests. Ms. Hogan had spoken to various employees to come to her conclusion that Mr. Hogan was a good manager. She felt she had exhausted her counselling of the applicant but could not change the applicant's attitude. 44 The applicant was not immediately replaced as the respondent had lost another contract so therefore Mr. Hogan had the capacity to work on and better understand the DIMIA contract. 45 Mr. E. John Smith gave evidence that he was the Regional General Manager for the respondent. In March 2004 he became aware of a complaint made against the applicant from the IT help desk. The claim was the applicant had been rude to several people. The applicant refused to apologise unless the IT did as well. 46 After reviewing the DIMIA contract Mr. Smith retrenched Mr. Robertson , around April 2004 as he concluded it was not a full time role, and appointed Mr. Hogan. It was Mr. Smith evidence that he became aware of difficulties that Mr. Hogan was experiencing in managing the applicant. Mr. Hogan sought to introduce change. He had also sought to broker a truce between the applicant and the IT employees on the basis that the applicant sign the respondent's Guide to Ethical Conduct. She would not sign unless the IT employees sign. He stated that this pattern of behaviour by the applicant of denying all responsibility, fault find on minute failures of procedure, stonewall negotiations, and harass management with emails until they run out of steam he saw repeated many times. 47 He had participated in the meeting of 9 November 2004 and had clearly advised the applicant that her performance was unsatisfactory due to insubordination. He also felt that the applicant had not accepted her responsibility with respect to OH&S. 48 On 12 January 2005 Mr. Smith received an email from Mr. Hogan expressing his concerning about the applicant's views on the daily meetings. Mr. Hogan had required the applicant to meet with him on a daily basis so as to update him on the arrival of a large group of families. Mr. Hogan also noted that Ms. Couse was complaining about the applicant's treatment of her. 49 In the interests of the business and taking into consideration the level of time investment spent on the applicant, it was decided to terminate the applicant. 50 Ms. Vicki Yangoyan provided OH&S advice to the respondent. She stated that she provided OH&S training to the respondent in September 2004. The applicant attended such training. She described the applicant as a challenging student who did not seem to accept that she as a manager had responsibilities in this area and that the respondent had responsibilities with respect to subcontractors. She seemed set in her ways and found change difficult. MsYangoyan sought to answer and clarify the applicant's questions concerning subcontractors. 51 Ms. Jamie Couse commenced employment with the respondent on 15 November 2004. At the time of the hearing Ms. Couse was 21 years of age. A pre commencement meeting was held with Mr. Hogan and the applicant. During this meeting the applicant when told that Ms. Couse was an only child made a comment of " so you are a little spoilt then ?". Ms. Couse found this comment off-putting and wounding as her mother had kept miscarrying. At the end of the meeting she spoke to Mr. Hogan and advised that she did not wish to take up the job as she found the applicant unfriendly. She was convinced by Mr. Hogan to take up the role. On her first day at work she commenced an induction programme with Mr. Hogan. The applicant said she was too busy to attend but did arrive a quarter way through it, then left to make a phone call then came back then left again not to return. Later the applicant apologised for her comment but Ms. Couse felt that it was without feeling as if someone had told her to do it. In carrying out her job, Ms. Couse found it very difficult working with the applicant who gave her minimal information and support. Ms. Couse injured her shoulder when assisting a carter delivering a mattress. When asked by Hr. Hogan whether the applicant had given her a safety induction she advised in the negative. The applicant was unhappy that Ms. Couse had advised Hr. Hogan. 52 When the applicant returned from annual leave on 10 January 2005 Ms. Couse found her treatment by the applicant impossible. That day in preparation for a meeting she asked the applicant what she should bring and was advised: "A brain cell might help." Ms. Couse reported this and other problems to Mr. Hogan. This comment was denied by the applicant. Ms. Couse produced some hand written notes of issues she had experienced when the applicant returned from annual leave including one that she was considering resigning as a consequence of the applicant's attitude towards her. 53 Mr. Garry Hogan is the General Manager of the respondent and has worked with the respondent since 1989. He took up his present role in September 2003 and acquired the responsibility for the DIMIA contract nationally on 3 May 2005. The responsibilities of this contract differ between Queensland, Victoria, New South Wales and Western Australia. As he was new to this contract he had to learn the detail. As part of the learning process he emailed to a number of managers asking them to list their five main concerns. The response he received from the applicant contained in his view some sarcastic remarks. 54 Mr. Hogan at the direction of his supervisor in June 2004 sent emails to various employees outlining the companie's view of fair wear and tear of company vehicles. He objected to the applicant's response of "Very droll. Is this your idea of a sense of humour…". 55 In July 2004 Mr. Hogan emailed the applicant inquiring why Mr. Simon Lewer (the applicant's husband) was working more than 38 hours. The applicant responded including the comment that she found this type of inquiry "insulting". 56 Again in July Mr. Hogan sought for Mr. Lewer to complete a weekly time sheet. The applicant sought an explanation from Mr. Hogan prior to instructing Mr. Lewer "to complete this time consuming and unnecessary time sheet". 57 Mr. Hogan had given clear instructions to the applicant when they were to speak to Ms. Couse collectively for the first time not to ask particular questions. The applicant had one style of interviewing and Mr. Hogan another. Notwithstanding this instruction she asked questions that went contrary to what she was instructed. 58 Post the applicant's official counselling on 25 November 2004 Mr. Hogan organised weekly review sessions with her. The first meeting was held on 3 December which in Mr. Hogan's view the applicant showed little improvement. The second meeting was to be held on 10 December but had to be cancelled as Mr. Hogan wanted to confirm statements with Ms. Couse which he was unable to do. The next meeting was held on 17 December where some improvement was noted. 59 On her return from annual leave Mr. Hogan requested that the applicant and she meet on a daily basis due to the arrival of 16 families on 18 January 2005. Mr. Hogan stated that 10 January 2005 was the deadline for interested parties to quote for a new DIMIA contract and Mr. Hogan wanted to make sure that the respondent could not be up for any criticism. The applicant declined this request and argued when reasons for the request were made. Later the applicant denied that she had refused to have the daily meetings. 60 Later in the week Mr. Hogan sent a letter to Mr. Smith requesting that the applicant report to someone else as he could not manage her any longer. Subsequent to the letter he received correspondence from Ms. Couse complaining of the applicant's treatment of her. Mr. Hogan stated that he had never come across anyone so difficult to manage. Considerations and Decision. 61 The applicant had been a long term employee of the respondent having commenced nearly ten years previously. Witnesses for the applicant spoke of her professionalism and her ability to produce results. It would seem the concerns about the applicant arose when there was a change of management in May 2004. The new manager Mr. Hogan took over the national responsibility of the DIMIA contract. As well as that contract he also had the responsibility for other contracts held by the respondent. 62 After reading all the material marked as exhibits in this matter and listening to the witnesses it is clear to me that whilst the applicant had the confidence of outside people with which she had professional conduct with, the same could not be said with persons who worked for the respondent. 63 It is clear that the arrival of Mr. Hogan came with it a change in management style. Mr Hogan arrived with no practical knowledge of the DIMIA contract and therefore had a steep learning curve to get up to speed. He sought to learn by speaking to his interstate managers. The applicant's response to a first email from her new manager set the tone for the rest of their relationship. 64 The volume of communication by email between the applicant and Mr. Hogan was remarked upon by the Commission. Mr. Hogan stated that he avoided face to face meetings with the applicant as he found them futile. The applicant would not accept what he would say and arguments would occur. It was in his view a waste of time so he communicated by way of email. 65 It was also clear that the applicant wanted to be actively involved in the interview process for the position taken up by Ms. Couse. It was also clear that she did not agree that Ms. Couse was suitable for the position. That Ms. Couse was selected for the position should have resulted in the applicant accepting management's decision and then she should have made the young person welcome and given her maximum assistance. I believe and find that this did not occur and Ms. Couse suffered as a result. I find that the applicant did make the inappropriate comment "that a brain cell might help." Such a comment would do nothing for the confidence of this young fellow worker. 66 From the evidence, the applicant was spoken to in both August and twice in November 2004 by management concerning her attitude. Management sought to change the way she dealt with fellow workers. It is clear that she had a great deal of difficulty accepting the decisions of Mr. Hogan even when Mr. Hogan was doing no more than communicating management decisions from above. 67 What was requested by Mr. Hogan of the applicant be it accepting the respondent's car replacement policy, getting Mr. Lewer to complete weekly time sheets or meeting on a daily basis were all reasonable requests. Such requests should not have been the subject of extensive protesting emails. 68 It is my finding that the respondent identified to the applicant what problems that they believed she had and sought to draw a line in the sand and progress from there. It is also my finding that the respondent gave the applicant the opportunity to adjust. From the evidence that adjustment sought by the respondent was not forthcoming. No adjustment will ever take place if a person does not believe that an adjustment is required. 69 Around the time of the termination of the applicant, the respondent had submitted a bid for a new DIMIA contract. The then current contract ceased in June 2005. The respondent advised that they had not sought to replace the applicant until they had been advised that they had been successful in winning the new four year contract. The respondent has since been advised that they have been successful in winning the DIMIA contract and have therefore commenced proceedings to replace the applicant. 70 As previously expressed the applicant saw her termination as a result of a cost cutting exercise by the respondent. I do not accept this submission. I believe it only logical and sensible business for the respondent in the situation that they were in, not to automatically replace the applicant until they confirmed that they were successful in their bid for the DIMIA contract. 71 It is my finding that the applicant was terminated for the reasons expressed by the respondent in this matter. Based on the evidence that came before the Commission, it is my finding that the termination was neither harsh, unreasonable or unjust. 72 I therefore dismiss the application. This matter is now concluded. D. RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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