Industrial Relations Commission of New South Wales CITATION: Farmakis & J & N Pty Limited Trading As Nonie Ressler Realtor [2005] NSWIRComm 1057 APPLICANT Ms Sue Farmakis PARTIES: RESPONDENT J & N Pty Limited t/as Nonie Ressler Realtor FILE NUMBER(S): 7076 of 2003 CORAM: Tabbaa C CATCHWORDS: unfair dismissal - substantive fairness - procedural fairness - summary dismissal Industrial Relations Act LEGISLATION CITED: 1996 HEARING DATES: 05/24/2004; 05/25/2004 DATE OF JUDGMENT: 05/09/2005 APPLICANT Mr John Dunn Haydon Fowler Corbett Jessop, Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr Dean Groundwater Warren McKeon Dickson DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Commissioner Tabbaa 09 May, 2005 Matter No IRC 7076 of 2003 SUE FARMAKIS and J & N PTY. LIMITED trading as NONIE RESSLER REALTOR Application by Sue Farmakis re unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996. DECISION [2005] NSWIRComm 1057 1 The applicant filed a claim under Section 84 of the Industrial Relations Act, 1996 on 11 December, 2003 alleging that the respondent had unfairly dismissed her on 26 November, 2003. The applicant contended that she had been employed from 07 March, 2002 until her dismissal as a Property Consultant pursuant to the provisions of the Real Estate Industry (State) Award. 2 The file was allocated on the same day and was set down for conference and directions on 27 January, 2004 at which time conciliation attempts failed to resolve the claim and a filing schedule was directed. 3 The matter was set down for hearing on 24 and 25 May, 2004 at which time Mr. J. Dunn, Solicitor, entered an appearance on behalf of the Applicant, and called evidence from: Sue Farmakis Applicant Mr. D. Groundwater , Solicitor, entered an appearance on behalf of the Respondent, and called evidence from: Nonie Ressler Owner/Director Jason Paul Russell Real Estate Salesperson Vanessa Leite Previous Receptionist Helen Joan Coventry Part-Time Clerk Justin Ressler Director/Agent/Valuer Background 4 The Applicant was a qualified psychiatric nurse. Nevertheless, she completed a Diploma in Business (Real Estate) in 2001 and pursued her interest in real estate sales through her employment with the Respondent with whom she commenced as a Receptionist on 07 March, 2002, subject to the successful completion of a 3-month probationary period. She was a single parent with three children, aged six, eight and twelve years. She recalled that, on at least six different occasions since October 2002, it had been suggested to her by Ms Ressler that the job was unsuitable for a single parent. 5 The Applicant alleged that the Respondent did not have targets and budgets in place until September 2003 and when they were established, she had not only met those targets, but had exceeded the budget. She acknowledged that the Respondent had a debit credit system in place, which worked on the basis that a commission statement would be debited for money she was paid each week for her regular income. That statement would be credited when she sold or listed a property. Therefore, when that system was in debit, it meant that she had been paid more than she had earned. 6 She could recall being late for work on two occasions - in January and in November 2003. The Applicant's Evidence 7 Sue Farmakis tendered a statement in the proceedings in which she contended that she had generally been a punctual employee and could recall only two significant instances of lateness. She worked Wednesday to Saturday and Mondays of each week. Her hours commenced at 6 am on Wednesdays and Saturdays putting sign up prior to going into the office at 8.30 am. On the other days, she commenced at 8 am and worked through until 9 or 10 pm. She claimed that she never arrived at the office later than 9 am unless she had an appointment outside the office. 8 The first instance of lateness occurred in January 2003 when the boat she had been holidaying on in the Whitsunday Islands became disabled and she was unable to return to work on the scheduled date. Her former husband had radio messaged the Respondent and advised her of the circumstances. She did not believe that it was a major issue as "January is a fairly quiet month in the industry" and she had enough annual leave credits to cover the additional period of leave and was able to notify her employer of her return date the following week. 9 The second instance occurred on Sunday, 23 November, 2003. She had been involved in a car accident at approximately 6 pm while on her way to the Airport on the Gold Coast. Her partner had contacted her ex-husband to make arrangements for her children and the latter was also asked to contact the Applicant's parents and the Respondent to inform them of what had happened. The Applicant stated that she had gone to "Pindari" Hospital at Southport to seek treatment for a back injury. She had been led to believe that, on the following day, her ex-husband had not only left a message with the Receptionist, but had called back to speak to Ms Ressler to ensure that the message had been communicated. 10 Monday, 25 November, 2003 was her scheduled rostered day off. 11 The Applicant returned to Sydney on the afternoon of Tuesday, 24 November, 2003. Her mother called her to alert her to the fact that the office had called her father and left a message for the applicant to call urgently as there were "Big problems". 12 The Applicant telephoned both Justin and Nonie Ressler and both had confirmed that she was required to attend a meeting at 9 am to discuss a few things but would not provide details. For that reason, she called Julie (?) to find out what the issues were. She was advised that "Inquiries have been made regarding dismissal protocol and regarding commission owing to you". She then called Jason Russell, a new Salesperson, for further details and was advised that "they were extremely angry with you and Julie had been instructed to ring hospitals on the Gold Coast to check up on you. Also, a letter of termination had been seen drafted on the office computer and there were discussions about your listings and who was going to conduct your opens on the Wednesday". 13 The Applicant had arrived at the office at approximately 8.40 am on Wednesday, 26 November, 2003 to meet with Nonie and Justin Ressler. She contended that pressure had been applied on her to resign her employment voluntarily with suggestions being made to her that she could get a part-time job with a large company, that there were many jobs advertised in the current issue of the Leader, that the Respondent would sign off on her licence and assist her in obtaining alternative employment, and she would be provided with a good reference. Despite pointing out that she was meeting targets, the Applicant was advised that the decision had been made and had actually been under consideration "for about a year now". She was given an ultimatum - resign or be terminated. 14 She recalled that she had pointed out that no warnings had been issued to her to which she received a response that the Respondent was relying on verbal discussions, which had been documented in Ms Ressler's diary. Both had simultaneously rejected her request for time to seek advice. Demands had been made for the return of her work diary and she indicated that she had to go home and get it. 15 Justin Ressler escorted her to her car and she drove to a friend's place for support, coffee and to make contact with a Solicitor to obtain legal advice. 16 On her return to the workplace at approximately 11.40 am, while still in the car park, she received a call from Ms Ressler about the diary. The Applicant told Ms Ressler that she had received legal advice and she had been advised to request two weeks' notice and eight weeks' severance payment. Ms Ressler indicated that she would seek advice from the Real Estate Employers' Federation prior to responding. 17 The Applicant took the diary upstairs where the meeting re-convened. She refused to hand over the diary until the personal papers allegedly cleared from her desk had been returned to her. She maintained her refusal to resign and telephoned her solicitor in the presence of Nonie and Justin Ressler, following which she confirmed that she would not resign. She advised that if they wanted her to leave, they would have to terminate her employment. The tone of the meeting degenerated thereafter to a slanging match. During that period, the Applicant had gone through and checked her belongings prior to handing over the diary. Ms Ressler then handed over to the Applicant her commission statement, a cheque and a letter of termination providing two weeks' pay in lieu of notice. She contended that she was still owed substantial commissions by the Respondent. 18 The Applicant contended that she had never received any warnings regarding her performance, no substantive reason had been provided to justify her dismissal, and no offer had been made of any counselling/training in order to correct any alleged problems with her work. She recalled that she had been booked to attend a motivational seminar with Ms Ressler at Homebush Entertainment Centre early in her appointment. During August 2002, Justin Ressler booked her into another Seminar and she had offered to pay for it herself but, for reasons unknown to her, he had cancelled the registration. 19 During cross-examination, the Applicant clarified that she had sent her resume to the Respondent seeking a sales position. She had been contacted at a later date with a proposal that she fill the receptionist role as a stepping-stone into the industry. Later, when a sales position became available, it had been offered to her and she had accepted it. It was her first job as a real estate salesperson. 20 She denied that Ms Ressler had advised her that it was a performance-based job or of the debit credit system of commissions stating that it was Ms Julie Payne who had advised her of those. She further denied that she had been advised that the goal was to get the commission statement into credit by the end of the 3 months of employment in that role. 21 She agreed that weekly sales meetings were held but was emphatic that they did not commence until September 2003 when another salesperson was engaged. She agreed that all prospective listings were listed on a whiteboard and the status of each of those properties and the progress she was making were discussed with her. She pointed out that it confirmed that her performance was higher than the other two salespersons. She denied emphatically that they had discussed the development of their skills or that she had held discussions with Ms Ressler immediately after those meetings to discuss her performance. 22 The Applicant stated that the Respondent was aware at the time of her interview for the position of Receptionist that she had already booked a trip to the United Kingdom scheduled for approximately three weeks after the commencement of her employment. She agreed that prior to taking that leave, she had accompanied Ms Ressler to a property at Caringbah and advised the vendor that she had a buyer for that property. That buyer had actually inspected that property in her company. She denied, however, that her action in proceeding on that leave without following up that buyer had resulted in the agency missing out on obtaining that listing. She contended that she had left the details at the office for Ms Ressler to follow up. She stated that the Respondent did not actually have a listing on that property at the time the prospective buyer was shown through it. 23 The Applicant denied that there had been any discussion about her performance with Ms Ressler at the conclusion of her probationary period. She claimed that she had listed a property at Gymea during that period although it had not translated into a sale and the listing had expired. 24 She agreed that she had accompanied Ms Ressler to a seminar at Homebush. She insisted that there had been a fair amount of interaction and they had enjoyed themselves, "...there was absolutely no indication by me that I wanted to leave early at all. In fact I was enjoying it...". 25 It was suggested to the Applicant that there were a number of instances of lateness, the effects of which were quite damaging to the Respondent. In October 2002, the Applicant was required to attend a party held by the Respondent for its clients. She agreed that she had arrived there 15 - 20 minutes late. She explained that Ms Ressler was already aware that she was seeing clients at Gymea after hours and therefore there was no need to call. That client actually attended the party. 26 On another occasion, in November 2002, the Respondent had booked a table at the Cronulla Sutherland Leagues Club and required all staff to attend the Leader Small Business Awards function as it had been nominated for an award. The Applicant denied that she had arrived late for that function. 27 She was due to return from the Christmas/New Year vacation on 06 January, 2003. She was stranded on a boat just south of the Whitsunday Islands, north of the broad water. The person she was with called his family who sent a message to her ex-husband who, in turn, rang her family. Her sister rang the Respondent to advise that the Applicant would not be back for a week. She agreed that they had used a mobile telephone to make that call and she "probably could have called her [employer]" personally to discuss where her sales and listings were up to. She had not because the Respondent had told her that no business happened until Solicitors resumed on 14 January. A call was made to tow the boat and it was towed two days' later to the nearest marina. It took a couple of hours to tow the boat. 28 The Applicant denied any knowledge that Ms Ressler had to show one of her listings at 8 pm on one of those weeknights during her absence. 29 She was shown a customer complaint from Mr. N. who had been provided an inflated figure for sale of his property and then advised in the next week and again the following week to lower the asking price. He further complained that she had ignored his property and focused on other clients who were willing to be convinced to lower their prices. Ms Farmakis stated that Mr. N. was lying. Mr. N. had further complained that it would take up to two weeks for the applicant to return his call. The applicant explained that he had travelled to Bali for two weeks and she had written to him in that period. Mr. N. also complained that the deal was that if his property did not sell, he would not be required to pay advertising costs yet he had been billed for $1300 in that regard. That deal was denied by the Applicant who pointed out that he had eventually sold the property through another agent for $3000 less than the offer she had on his property. 30 The Applicant admitted that she had backdated an agency agreement for a listing at Yarran Avenue resulting in a complaint being lodged in the Consumer Trader and Tenancy Tribunal (CTTT). She insisted, however, that she had done so under instructions. She was unaware that the Respondent was unable to collect its commission in relation to that property but pointed out that had it not been for her efforts, the Respondent would not have obtained that listing in the first place. 31 The Applicant insisted that she had shown up for every inspection booked with purchasers for an address in Seaview Avenue at Cronulla which was eventually sold. 32 She denied any knowledge of a disgruntled vendor of the property at President Avenue, Gymea who had accused her of lying to them. 33 The Applicant denied that she had received any counselling whatsoever, not even about those customer complaints, claiming that the letter of 27 April, 2004 was the first she had heard of any customer complaints. 34 She denied the suggestion that during 11 out of the 19 months of her employment with the Respondent she had neither listed nor sold any properties. She had listed development sites but they had eventually sold through another agent although she had sold 50% of one of those sites. 35 The Applicant stated that it was possible that her commission statement was in debit in June 2003 but it certainly was not at the time of her dismissal. 36 She was aware of the policy that staff could not take files home with them or out of the administration area but was not aware of any policy regarding her diary. She insisted that she never took files home with her but took her diary because she carried out work from home. She agreed that it was common knowledge that the Department of Fair Trading often does spot checks or audits to ensure that files are kept up to date and contained relevant agency agreements. She had kept a dummy file which she would take out to a client's property. That file would contain a contract of sale which agents are obliged to keep with them at every inspection together with a vendor security sheet which basically documented the clients coming in and out of each person's property. She pointed out that she and other agents took files they were working on out of the administration area to their desks upstairs. She had no other choice and it was the Respondent's fault for separating the administration area from the sales department. 37 The Applicant reluctantly admitted that her office hours were 9 am to 5.30 pm but pointed out that quite often she would commence at 6 am and sometimes finished at 9 or 10 pm. She would not concede that she was always late arriving at work. She stated that there were times when she attended work much earlier than her starting time and other occasions when she was late because she attended appointments prior to going into the office but she was generally not late for any other reason. She pointed out that she dropped her children off at school at 8.40 am and then drove to the office which was only about three minutes drive away. She also denied leaving the office prior to 5 pm when she did not have any appointments to attend. She denied the suggestion that there were numerous occasions where she left the office for reasons other than the conduct of the Respondent's business. She insisted that she always advised the receptionist, either verbally or in writing, where she was going, what she was doing and when she expected to be back. She later added that on two occasions she had left work prior to 5 pm to visit her father at Sutherland Hospital. She denied that there were numerous occasions, particularly Friday afternoons, when she disappeared from the office to have non-business related lunches. She repeated that she had not been counselled about any subject, let alone her time-keeping or long lunches. 38 She described as untrue the allegation that she had used offensive language in the office. She explained that on 05 November, a vendor had brought to her attention that the whole of an advertisement he was paying for had not been placed in the Guildford newspaper. She had proceeded to speak to Vanessa Leite about why a quarter page advertisement had been placed incorrectly. She contended that she had spoken to her while she still had the client on the phone. She had asked Ms Leite to ensure that the full advertisement went in the second and subsequent weeks. She denied yelling or swearing at Ms Leite, or telling her that she was hopeless or stupid or that other staff were better than her. She had indicated to Ms Leite that those types of problems had not been experienced when only one person was dealing with advertising. She intended to convey her dissatisfaction with outsourcing of clerical functions. She denied that she had reduced Ms Leite to tears. She had offered to place her own advertisements if Ms Leite was bogged down with work. She denied that she had rejected an olive branch offered by Ms Leite. She further denied making the statement that she would leave that as soon as she was able to find a place in Queensland. She rejected the suggestion that Ms Leite had sought an apology from her. She absolutely agreed that using the words attributed to her in an office environment would be totally unacceptable and ought not be tolerated by an employer who had an obligation to ensure that all its employees are not spoken to in that way. 39 Justin Ressler had talked to her about the issue. She conceded that it was highly probable that Ms Leite was crying when she went to see him about the incident but felt that it was because "she was sleep deprived, over reacting,...." and not because she had made her cry. The Applicant stated that she had told Mr. Ressler, We've got some problems, she can't deal with them. You're going to have to do something because she is on recreational drugs and it's going to affect the business. 40 On Sunday, 23 November, the Respondent had an auction planned for a property at Naranganah Avenue, Gymea Bay. The Applicant became aware of that auction during the weekly sales meeting held on the previous Monday but had not been instructed to attend there at 10 am. She added that she had not been invited to inspect the property, refer clients to it, participate in its management, or attend the auction. 41 Even though the auction was scheduled on a Sunday as opposed to the usual Saturday, and all sales staff attended it, she did not consider it to be a high profile property in relation to the Respondent firm. She disagreed that a big sales team was required to walk the floor, discuss the property with prospective buyers and encourage them to bid. She had not been specifically asked to attend, she had no knowledge of the property or of the clients attending the auction. When she held an auction on a Sunday, only Mr. Ressler had turned up to assist her.- 42 In the Applicant's statement, she had provided the excuse that she had been involved in a car accident on the Gold Coast as the reason for "the second instance of lateness .. on Sunday, 23 November, 2003...". 43 That paragraph was not intended to provide an excuse for not turning up at the auction on that day because, as far as she was concerned, she did not have to have an excuse for that event. It was to provide an excuse for the following Monday. 44 The Applicant identified a boarding ticket for a Virgin Blue flight departing Sydney at 5 pm on Saturday, 22 November (the day before the auction) and arriving in Brisbane at 5.25 pm. She returned to Sydney on Tuesday, 25 November. She had gone to visit her partner who lived in Brisbane. 45 She confirmed that she had not approached either Julie or Jason Russell to attend to collaborate her evidence as they had made it abundantly clear to her that they did not wish to become involved. 46 On 26 November, 2003, at the meeting with Nonie and Justin Ressler, she claimed that she had responded: "I didn't believe you expected me to be there" when questioned about her absence from the auction. She denied that they had discussed Ms Leite but agreed that they had raised with her the conversation that she had with Ms Leite. She argued that the nature of the conversation had not called for an apology from her. In relation to Ms Leite, she recalled saying verbatim, I'm absolutely amazed that you sit here and you believe these words of this girl as spoken. She self disclosed that she had been out the whole weekend on amphetamines, had no sleep for the weekend, down at Cronulla beach with a pack of other kids, and I come to work and I'm confronted with this, which I really don't need and you believe this. 47 She insisted that it had all been Ms Leite's fault. 48 She further confirmed saying to Mr. Ressler, a Director of the Respondent company, You are an idiot Justin, remember we both live and work in the area. 49 She said that what she meant was that it was a shame that things had worked out between them considering they lived and worked in the same area. 50 Despite being able to quote the above remarks verbatim and the fact that those words were contained in her statement of evidence, the Applicant denied saying to Mr. Ressler, "Re think that one stupid. Actually you are bloody thick and stupid". She conceded that it was not an acceptable way to talk to an employer but pointed out that she had been upset at the time and had already received a termination notice at that stage. 51 Ms Farmakis denied that, following her termination, she had contacted one of the Respondent's competitors and offered I. G. Martyn Real Estate the names and contact details of the Respondent's clients. She explained that a client of the Respondent firm telephoned her after her termination and, during a discussion about other matters, asked her for the mobile telephone number for an employee of I. G. Martyn Real Estate. She had not provided those details but telephoned that salesperson and advised him to ring that client if he had her details. The Respondent's Evidence 52 Nonie Ressler, director/owner of Nonie Ressler Realtor, tendered a statement, as amended, in the proceedings. 53 Ms Ressler confirmed that the Applicant commenced as a receptionist as there were no sales positions available at that time. Within a few days such a position did become available and was offered to, and accepted by, the Applicant. 54 She recalled advising the Applicant that it was not a 9-to-5 job. Her hours were plain and explicit like everyone else's hours. They were 9.00 am to 5.30 pm but because it was a performance based job, it was explained to her that she had to put the hours in to get the performance up. She was expected to attend sales meetings outside that time, such as at 4 pm on Saturdays, if such a meeting was organised. 55 It was further explained that it was a performance-based position, that she would be paid a base wage as an advance and those advances would be a debit as they worked on a debit and credit system. She would be required to bring her commission statement into credit within three months from her commencement date by listing and selling properties. She further recalled advising the Applicant that the commission based salesperson left after a 12-month period with little success as it was a very tough industry. She agreed that she had said words to the effect, "This is a very tough industry, you might work for a long time with little success. This isn't a 9.00 to 5.00 job, you'll have to work hard to earn your commissions." 56 She stated that she had provided the Applicant with a lot of on-the-job personal training. In addition, she had sent her to a training seminar at a cost of $400 to the Respondent. She had discussed with her sales staff latest developments in the industry obtained from the RAI Journal. They would go through case studies on a regular basis and discuss errors made by other agents. 57 Ms Ressler stated that she had monitored the Applicant's performance on a weekly basis by obtaining feedback and offering suggestions on her listings, appraisals she had conducted and leads she had followed up. The Respondent had two white boards which indicated the listings, the status of the properties, who had listed them and the expired listings. Initially, Ms Farmakis had not performed very well in comparison with herself and Justin Ressler. She denied that she had an unrealistic expectation that the applicant would get up to speed very quickly but she had expected her to get at least three listings. 58 Weekly staff meetings were held to discuss current listings, market appraisals undertaken and the price levels of the listings. The applicant was also provided with tuition in the form of role-play during those weekly sales meetings. 59 Approximately three weeks into her employment, the applicant sought, and was granted, 10 days' leave to travel to London to see her current boyfriend. Prior to proceeding on such leave, she had accompanied Ms Ressler to do a market appraisal of a property at Caringbah. The Applicant told the vendor that she had a buyer for that property and she took that buyer to inspect the property. However, she left for London without following up the buyer and without leaving behind the buyer's contact details for Ms Ressler to follow up. As a result of the Applicant's conduct, the vendor listed the property with another agent. She had been counselled about her conduct upon her resumption from leave. 60 At the conclusion of the three months probationary period, Ms Ressler stated that she had made it clear to the Applicant that she was not happy with her performance as she had neither listed nor sold any properties in that time. She reminded her that she had to get her commission statement into credit. Nevertheless, as she appeared to be trying, she would be kept on and the decision would be revisited at a later date. She recalled pointing out to the Applicant that she ought to consider increasing the number of hours she put into the job if she wanted to achieve results. She was working a five-day week and was working another job on Tuesday as compared to Ms Ressler who was putting in six days a week. 61 Ms Ressler stated that she had repeated the counselling regarding the Applicant's performance on a number of occasions during the weekly meetings as her performance had failed to improve. 62 During October 2002, the Respondent held a party at the agency for special clients. Not only was the Applicant an hour late, she had also not telephoned to indicate that she was running late. The other staff had questioned that as they were all pitching in to help. The Applicant had merely responded that she was with neighbours trying to get a development together. She had also been counselled about her behaviour on that occasion. 63 During November 2002, Ms Ressler had again been counselled the Applicant about her behaviour in arriving late, without any explanation, for a function to mark the Leader Small Business Awards. It was a major event for the Respondent firm as it had been nominated as a finalist and a number of its clients were going to be in attendance. Ms Ressler had invited all of the staff and their partners to attend at the expense of the Respondent. On the day in question, the Applicant advised one of the junior staff that her boyfriend would not be attending. 64 Staff were due to resume on 06 January, 2003 after the Christmas/New Year shut down. A telephone call was received from the Applicant's sister who advised that the Applicant was stranded in the Whitsunday's and would not be back for a week. When she sent a message back that she needed to talk to her, Ms Ressler received a call from the Applicant who confirmed that advice but assured her that all her work was up to date. Ms Farmakis was advised that there was a problem with a client's sale. Ms Ressler later discovered from one of the secretarial staff that the Applicant had driven up to Queensland on Saturday, 04 January, 2003. 65 Ms Ressler received correspondence from Mr.N., the vendor of a property at Cronulla, on 06 January, 2003. On Friday, 17 January, she called Mr. N. who owed the Respondent $2000 in advertising costs, to inquire why the property was being withdrawn. His complaints were later set out in writing in a letter dated 27 April, 2004 and tendered in the proceedings. He alleged that the applicant had promised him the world and had not delivered. She had also allegedly assured him that he would not have to pay advertising fees if his property did not sell. A few days' later, Mr. N. listed the property with another agent. 66 A vendor of a property on President Avenue, Gymea also complained that he was not happy with the Applicant's performance and that "she is a liar". 67 Not only was the agency left short staffed during that week, Ms Ressler had to show one of her properties to a buyer at 8 pm as the Applicant was not there to look after her own listings. 68 On another occasion, the Applicant failed to show up for an appointment at 9 am to show a property in Seaview Street, Cronulla. The vendor ended up showing the purchasers through the property. The Applicant had neither telephoned them nor the office. She had been counselled about her tardiness and her failure to turn up for appointments. 69 Ms Ressler stated that in March, April and May 2003, upon querying the Applicant in relation to her listings and sales, she had been assured that the Applicant was working on obtaining a development site. She had persisted with the Applicant, despite her poor performance, in the hope that she would convert the development site to a listing. A development site may produce multiple listings which would be valuable for an agency. However, that did not eventuate. Of the 19 months between March 2002 and November 2003, the Applicant had 11 months during which she had not made any listings or sales. 70 In June 2003, Ms Ressler put the Applicant on notice that unless she put some figures on the board, she could not continue with the Respondent firm. She was not listing and selling enough properties. Her commission statement had been in debit for some time. The debit was large and was not being corrected. During that meeting, she had asked the Applicant if she was still working her second job in Wollongong and the Applicant had responded that she was not. 71 The Applicant had failed, on a number of occasions, to heed counselling in relation to not taking her diary and the property sales files out of the office. The Department of Fair Trading conducted regular audits without warning and files had to be produced for inspection during those audits. 72 The Applicant had also failed, on a number of occasions, to heed counselling about swearing and the use of inappropriate language in the presence of other members of staff. 73 Further, the Applicant had been counselled on a number of occasions about arriving late for work (at approximately 9:30 am) and leaving early (at approximately 4:30 pm) without explanation. The office hours were 9 am to 5:30 pm. It was alleged that there were often periods of unexplained absences during the day and often she would return to work after lunch on Fridays with the smell of alcohol on her breath. Ms Ressler stated that she had made it clear to the Applicant, approximately a week prior to her termination, when it was brought to her attention that the Applicant had sworn at Ms Leite, that she was never to swear at members of staff. 74 Weekly sales meetings used to be held twice weekly - one being on a Saturday afternoon. The latter proved too difficult and they reverted to one meeting a week. That used to be 8 am on Mondays but was changed to 8.30 am so that Ms Farmakis could drop her children off at school. 75 At the sales meeting held on Monday, 17 November, 2003, Ms Ressler had discussed with staff the importance of the auction of the property at Narranganna Avenue, Gymea Bay. Staff were advised that they were all to be in attendance at the auction to commence at 10 am on the following Sunday. The Applicant was present at the meeting and indicated that she would attend. The Applicant neither called to advise that she would not be attending, nor attended, the auction on 23 November, 2003. Ms Ressler and her son, Justin, another Director of the Agency, discussed the matter and decided that the Applicant's employment would be terminated if she did not provide an acceptable explanation for her absence. 76 At approximately midday on Monday, 24 November, 2003, the Applicant's husband telephoned to advise that she had been in a minor motor vehicle accident in Queensland. He indicated that was the extent of his knowledge. 77 When the Applicant telephoned on Tuesday, 25 November, 2003, Ms Ressler asked the Applicant to meet with her at the office at 9 am on Wednesday, 26 November, 2003 as she could not find one of her agency agreements on file. The Applicant did not arrive until 9:30 am. 78 Present at the meeting were Nonie Ressler, Justin Ressler and the Applicant. She had been asked why she had not attended the auction. Her consistent reply was that she did not think she had to be there. Ms Ressler told her that the figures on the board showed her performance to be substandard, she had not met any targets, and she had not addressed the issue of inappropriate language. Ms Ressler advised that the Respondent had no option but to terminate her employment but gave the Applicant an opportunity to tender her resignation to make it easier for her to obtain alternative employment. Following a telephone call to her solicitor, the Applicant advised that she would not resign. She was asked to return her diary and any other property belonging to the Respondent. Despite the fact that Ms Ressler could see the diary sticking out of the Applicant's bag, the Applicant stated that she did not have it with her. The Applicant left the premises and returned 2.5 hours later and handed it in. 79 On Thursday, 27 November, 2003, an agent working for I.G. Martyn Real Estate in Caringbah called Ms Ressler and advised that he had received a call from the Applicant. She had provided him with telephone numbers of a client of the Respondent and invited him to contact that landlord with a view to getting the management of his property. 80 Ms Ressler was also aware that the Applicant contacted two of the Respondent's vendor clients and advised them of the termination of her employment in an attempt to obtain their listings. 81 Ms Ressler confirmed that the Applicant's failure to attend the auction was the final straw but no decision had been made to terminate the Applicant until an opportunity was given to the Applicant to explain her absence. 82 During cross-examination, Ms Ressler stated that at the conclusion of the Applicant's probationary period, she had not been happy with her sales performance. She had been in debit and was not listing enough houses. In relation to her general performance, although she had received one complaint from a client, and although she had counselled her about her telephone manner to clients a couple of times, she felt that the Applicant had been trying and wanted to give her another chance. She agreed that she had seen potential in the Applicant. 83 Ms Ressler agreed that her agency dealt mainly with prestige waterfront properties. She prided herself on her record keeping. She reluctantly agreed that, during the Applicant's probation period (March - May inclusive), she had sold a property in Becton Street for $1,170,000, a townhouse at The Kingsway for $410,000 and a property at Seaview Street for $920,000. Nevertheless, the Applicant was considered to have demonstrated a poor performance over that period of time. Ms Ressler explained that selling a property was easy, obtaining a saleable listing was the name of the game. She conceded that the Applicant had listed three properties during that same period - Hutchinson Street, Gymea, Becton, and Seaview. 84 She had discussed with the Applicant that her target had to be three listings and three sales per month. Those targets equally applied to her and Justin Ressler. That target was written on the white board and circulated in a memorandum. Listings were discussed at each sales meeting and salespersons were encouraged to either meet the target or obtain the money equivalent of that. The sales staff provided a report at each meeting of their listings and sales and were provided with a monthly commission statement so that they were constantly reminded of their performance. She and Justin Ressler have never been in debit. 85 During January, March and May 2003 the Applicant had no listings or sales. In April 2003, she had one sale. In June 2003, she had listed one referral. Mrs. Ressler warned the Applicant that she could not continue if she did not put figures on the board. The Applicant promised that she would try and had indeed achieved three listings and four sales during July 2003, but none during August 2003 and one each in September and November 2003. 86 She contended that she had also been unhappy with the Applicant's behaviour. She had counselled her when she overheard her lecturing a client over the telephone. She believed that she had recorded that event in her diary. 87 The office staff were not commission based and therefore their hours were set from 9 am to 5.30 pm. Sales staff were expected to be at the office at 9 am then on the job out and about all day. At 5.30 pm they were either in the office or communication was received from them as to their whereabouts. Some five months into her employment, the Applicant often arrived late for work and although comments were made to her about being 10 minutes or so late to staff meetings, she would neither offer a reasonable explanation nor provide an apology. In most instances she did not believe the Applicant when she stated that she had been on sales related tasks. 88 She agreed that despite the fact that the Applicant was already working from 9 am to 5.30 pm and was attending Saturday afternoon sales meetings, she had asked her to put in more hours to obtain results. She pointed out that the return would have been of financial benefit to the Applicant as the industry was performance-based commission based. 89 She recalled that during one of the counselling sessions held at the conclusion of the probationary period, she had said to the Applicant words to the effect, "You're so far in debit, I've just got to look at my bottom line, you're just going to have to start doing something to make it happen." 90 She stated that Ms Farmakis had agreed to attend the Seminar at Homebush. However, she decided that she had to leave early and as Ms Ressler relied on her for a ride, they both missed the last speaker. She confirmed that she had agreed to leave early but felt that she had not been given a choice and had been disappointed at the time. 91 Ms Ressler insisted that the Applicant had not said anything to her about the trip to London until approximately a week after she had commenced employment. She had not been happy about it but had allowed her time off because she said that she had already booked the trip. She had followed up the vendors of the property but the Applicant had not left her any information on the purchasers. The information was not on her desk, in her diary or her card file as advised. They had lost the listing to another agent because, as advised by the vendors, "because that woman told them she had a buyer and then never delivered". She had counselled the Applicant to diarise everything for the future. She described herself as a keen diarist and would have diarised about 30 such counselling sessions. 92 Ms Ressler was definite that the Applicant had not called her to advise that she was running late for the party she was hosting at the office. 93 She further insisted that the Applicant and her partner, Anthony, had arrived late for the Leader Small Business Awards function in November 2002. All the Respondent's staff were seated together at a round table. 94 On 06 January, 2004 Ms Ressler found an envelope under the door from a Mr. N. stating that he was withdrawing the property from her agency and would be listing it with another firm. He had not elaborated on the reason on that occasion. He initiated a telephone conversation with her on Friday, 17 January, 2004 to advise that he would not be paying for advertising as agreed in the agency agreement because he was not happy with the way the sale had been conducted or with the salesperson involved. His exact words to her were, "I was promised the world and Sue didn't deliver..... I always pay my bills but this time I'm not paying it, I'm so unhappy with how it's been conducted." There were only two occasions in the last 20 years in which a client had refused to pay the agreed fees. The complaint had been detailed in correspondence dated 27 April, 2004 which was received a couple of days later as it had not been addressed properly. That was the first written complaint she had received in the five years she had been operating the Respondent firm. She grudgingly admitted to having received complaints about her personally in relation to the wording of advertisements, marketing or buyers missing out on properties. She distinguished those complaints from the type received in relation to the Applicant which related to her conduct. 95 During the week commencing 06 January, 2003, Ms Ressler had to conduct a follow up visit by prospective purchasers to a property at 8 pm. She had listed that property but it was not her sale. Ms Farmakis, as the salesperson, had the obligation to follow up her purchasers as the sale was already concluded prior to Christmas and Ms Farmakis would be entitled to the seller's fee for that sale. The Applicant had not completed her obligations in that regard leaving it to Ms Ressler who had other commitments that evening. As it turned out, the sale fell through three months down the track after contracts had been exchanged and they had to return their commissions. 96 A vendor of a property on President Avenue, Gymea complained to her about the Applicant, "I am not happy with her, she is a liar." That statement was made when she dealt with the client following the termination of the Applicant. The Applicant had both listed and sold the property. 97 Ms Farmakis had listed the property at Seaview Street, Cronulla. There was no agency agreement on file and the Respondent had to obtain it afterwards. It had sold quite some time after her termination. 98 Ms Ressler could not provide any evidence that the Applicant had taken any files home although she suspected that one file may have been taken out of the office because it could not be located on the premises and it turned up later down the track. 99 She had personally advised the Applicant not to take her diary off the premises. When she used the word "documents" in her 07 February, 2003 memorandum, she had intended for the term to include the office diaries. She pointed out that a salesperson was expected to keep two diaries - a personal diary in the car and the office diary which remained in the office. She confirmed that the Department of Fair Trading have never inspected her premises. 100 She insisted that there had been numerous instances of use of, and counselling by her for, inappropriate language by the Applicant. The Applicant had used the "f..." word to Mr. Ressler when she was about to leave their employment. She could not recall in what context but the Applicant had used it a few months earlier. A vendor called and spoke to Ms Leite to complain about an advertisement. When it was relayed to the Applicant, she had responded, in the presence of Mrs. Ressler's husband, with the words, "What's that dickhead complaining for again." Her husband had commented to her at home that evening that it was not acceptable behaviour to talk about a client like that. She agreed that the Applicant had never directed such language at her. 101 The Applicant also had unexplained absences during the working day. Upon her return from a three-week trip to Canada, Adam Farrow, a reliable fellow working in the same building, expressed his concern to her that he had sighted the Applicant with a friend at the pub late in the afternoon around 4 pm on Fridays. She stated that the Applicant often came back to the office with alcohol on her breath after lunch on a Friday. Although Friday was Mrs. Ressler's day off, she would often drop in at work and often smelt alcohol on the Applicant's breath when she returned from lunch. She had no company policy on consumption of alcohol and no diary record of those instances. She pointed out that she had neither accused the Applicant of alcoholic binges nor of being intoxicated. She was personally convinced that it had an effect on her work performance. She recalled one instance was when the Applicant went to lunch with a Greek fellow. She recalled that she had counselled her in relation to her lunches but had made no mention of alcohol consumption. 102 She confirmed that Mr. Ressler told her, in the presence of Ms Farmakis, that he had found Ms Leite crying. He had asked the Applicant if she had indeed sworn at her. She had also asked the Applicant if it was true. The Applicant had made no attempt to hide it and had been cranky because of the mistake in the advertisement. She made some comment to the effect, "That bitch is on recreational drugs". Mrs. Ressler had cautioned her about the unacceptability of swearing at any time in an office environment. 103 She had given a letter to the Applicant in September setting out the sales and listing targets per month and it had taken the Applicant three days to acknowledge it. 104 Sunday auctions were not common but were held as the need arose. One such auction was the one held at 10 am on 23 November at Naranganah Avenue, Gymea Bay. It was Mrs. Ressler's listing and she had specifically advised the Applicant that one of her clients had gone through the Open House and may be attending the auction. They had a very lengthy discussion about that very important auction at the staff meeting held on the previous Monday meeting. All staff were made aware that they had to attend and the Applicant indicated that she would be present. Eighty persons had attended and it was hard to control the crowd as it was a huge home on three levels. The auction was the most important auction of the year as it was a very expensive property and the Respondent had three good contracts out on it and lots of interest. 105 She confirmed that over the period of 19 months, she had often thought about dismissing the Applicant but she had on each occasion relented and given her another opportunity. She had actually shown the Applicant her diary entries in relation to her counselling sessions on the morning of her termination. 106 The Applicant was absent from the Monday morning sales meeting. Her husband telephoned at midday while Mrs. Ressler was in a meeting. He called again to find out if she had received the message that the Applicant had been involved in a motor accident in Queensland on the Sunday evening. 107 Tuesday was the Applicant's rostered day off. When she called Mrs. Ressler, the latter refused to discuss the issue over the telephone. She told the Applicant that she would see her on Wednesday morning. She pointed out that she also wanted to discuss with the Applicant the issue of a missing agency agreement for a property they had listed. 108 The Applicant arrived at work on Wednesday morning, 26 November, 2003 limping. She explained that Darren was driving, someone had gone through a red light and there had been an accident. Ms Ressler told the Applicant that her sales and her listings were not what they should be. She had listened to the Applicant's explanation and then decided to terminate her employment. 109 The part-time Secretary worked Mondays and Tuesdays. She was very competent and had personally drafted and typed a draft of the termination letter on behalf of the Respondent. Mrs. Ressler also asked Julie, on Monday afternoon, to type up a letter of resignation on behalf of the Applicant. As she had done with the termination letter she had originally drafted in October 2003 and never given to the Applicant and was not in evidence, she had merely prepared herself in case the Applicant did not have an acceptable explanation for her absence from the auction the previous Sunday. 110 The Applicant would have received advice of her credit balance of $8,287.09 at the beginning of the month following her termination. That credit balance was incorrect because it had not been debited with what she had received on termination. When it was pointed out that the Applicant had the Respondent in cedit to the tune of approximately $8000, Ms Ressler argued that it was only the second time in twenty months that the Applicant was in credit. It was pointed out that the Applicant has since been paid what she was due but there was still a matter before the Consumer Trader and Tenancy Tribunal (CTTT) as the vendor has accused the Applicant of backdating the agency agreement in relation a property at Yarren Avenue and did not want to pay any commission. There has been two listings of the matter and the third listing was on 17 June, 2004. If ultimately the commission is not paid, then there will not be much money due to her. 111 Ms Ressler had asked Mr. Ressler to put away all property of the business lying about on the Applicant's desk as she was concerned about the reaction of the Applicant if termination did indeed occur. Her personal belongings had not been touched. 112 She denied that the Applicant had not been allowed to use the telephone to contact her solicitor. 113 During re-examination, Mrs. Ressler clarified the Applicant's sales performance during the probation period. Commission statements were tendered which revealed that the Applicant was in debit in March, April and May and which confirmed that the Applicant had not complied with her request to get her commission statement into credit in the first three months. 114 In relation to the status of the Applicant's commission statements at the time she was terminated, the commission statement for October 2003 revealed that she was in debit to the tune of $9,079. 115 Ms Ressler has been in the real estate industry since 1986 and has been employing sales staff since 1991. She was quite adamant that she had never had any employee who has had as many complaints by customers as the Applicant. 116 She clarified that her agency had received common complaints from disgruntled persons who had missed out on buying properties, underbidders at auctions, and so on but stressed that they were not clients of her agency. 117 In the application to the CTTT, the vendors had stated that "Our property was marketed to the subsequent purchasers prior to my wife and I entering into and signing the exclusive agency agreement (which itself was backdated)." On the handwritten document signed by both vendors, the husband had written," I rang Sue with my concerns and she confirmed that she backdated the agreement by one week". That was illegal as it was contrary to the Property, Stock and Business Agents Act. The Respondent believed that her business and her licence may have been put at risk as a result of the Applicant's action. 118 Mrs. Ressler confirmed that she had thought about terminating the Applicant but the final decision had not been made until she heard the Applicant's explanation as to her absence from the auction, and other matters. 119 Mr. Jason Paul Russell, real estate salesperson with the Respondent firm until March 2004, tendered a statement in the proceedings. In his statement he contended that he could not recall taking a telephone call from Ms Farmakis on Tuesday, 25 November, 2003. 120 Nevertheless, he was adamant that he had not said the words attributed to him during that alleged conversation. He denied any conversations whatsoever with the applicant on that day or subsequently regarding contact being made by the Respondent with hospitals on the Gold Coast, or her termination letter being drafted or her replacement at the opens on the Wednesday. He stated that no one at the office had discussed any of those matters with him on 25 November, 2003. 121 During cross-examination, he recalled that he had commenced on a 3-month probationary basis which was standard across the board with most agencies. He confirmed that he had been given a retainer salary each week which was described as a credit and debit system. He had also received a commission on his sales which was usually a 60:40 split. 122 He denied categorically any conversation with Ms Farmakis on or about 25 November, any knowledge of a draft letter of termination to her or any knowledge of its contents prior to giving his evidence. 123 Ms Vanessa Leite, Receptionist, tendered a statement in the proceedings in which she stated that she had been employed by the Respondent firm from August 2003 until her resignation at the end of March 2004. It was her first engagement as a real estate receptionist and had received training in that role upon her commencement. 124 In her statement, she gave evidence that on Wednesday, 05 November, 2003, while she and Ms Farmakis were checking the draft Leader advertisement via the Internet, they discovered that the Guildford advertisement was less than half the page requested by the applicant. She called the representative at the paper to correct the error and was advised that it was past the deadline for bookings. She contended that upon Ms Farmakis being advised of that fact, she had started swearing at Ms Leite and blamed her for the error stating that it was the second time it had happened. 125 Ms Leite had insisted that she had done all that was asked of her and pointed out that Ms Farmakis was always changing her mind. Ms Farmakis had called her "f...g hopeless" and commenced to compare her with the previous receptionists, blaming her for the office being disorganised since she commenced employment there. She had concluded that tirade by telling the applicant that she should not even be working there. Ms Leite said that she had commenced to cry at that point pointing out that she did not have their experience and thought that she was doing fairly well for someone who had not previously worked in a real estate agency. As she was talking, Ms Farmakis allegedly covered her ears with her hands and started to sing. She then took her hands away and told Ms Leite to stop crying and "..get over it" pointing out that she never got anything right. Ms Leite had ignored her pleas to stop talking to her like that pointing out that Ms Leite needed to hear it. That had prompted Ms Leite to tell her to place her own advertisements in future to which Ms Farmakis replied that she intended to do that as she did not want Ms Leite "to f.. it up". Ms Farmakis had walked out of the office as Ms Leite was talking. 126 Shortly after, Justin Ressler had come downstairs and inquired what was wrong with her when he noticed that she had been crying. She had reported to him what had happened. Later that day, she had gone upstairs to make amends with Ms Farmakis. She had suggested that they sort out their differences to avoid any tension between them. Ms Farmakis had responded by swearing at her. She had accused Ms Leite of getting her in trouble with Justin and Nonie Ressler and added that she did not care because, as soon as she found a position in Queensland, she would be off like a shot and they could all "f... off". Ms Leite had objected to being spoken to in that manner just because she was younger, prompting Ms Farmakis to say to her "Oh you are such a stupid girl just get over it". At that point, Ms Leite sought an apology from Ms Farmakis reminding her that: I take your kids to school as a favour to you so you can go and see Darren in QLD and this is how you talk to me not to mention when you go to Northies pub or when you left early to go to the pub with Darren when he was here or when you were still at the airport in QLD and asked me to make out to work that you were running late. I never said anything to anyone so that you wouldn't get into trouble and you talk to me like that. 127 The discussion degenerated even further and ultimately, Ms Farmakis suggested that they stay out of one another's way. After further bantering, Ms Leite walked out on her pointing out that it was obvious that the applicant did not want to sort the matter out. 128 During cross-examination, Ms Leite advised that the usual procedure was for the salesperson to compose the format for the advertisement and to advise her of the size to be placed in The Leader. Her role was to type out the provided text and send it off with the photographs and the order which had to be placed by Tuesday of each week. They had to be in by 2 pm on the Wednesday. The proofs were received on the Friday and she would print them out and get each salesperson to check their own advertisements. 129 The purpose of checking the proofs was to edit the text but the booking space was unable to be altered. Ms Farmakis had her rostered day off on the Tuesday and Ms Ressler had her rostered day off on the Friday. For the Leader advertisements, Ms Leite contended that the applicant had checked her own advertisements on a majority of occasions. In relation to the Guildford advertisements, the proofs arrived on a Thursday and whatever Ms Ressler could not check in the absence of the salespersons, Ms Farmakis would complete on the following day. She was adamant that Ms Farmakis had asked her to book a quarter page advertisement on the said occasion. 130 Ms Helen Joan Coventry gave evidence that she had commenced employment with the Respondent as a part-time casual clerk in approximately April 2002, working on Wednesdays, Thursdays and Fridays of each week. She had taken leave of absence for six (6) months from July - December 2002 and resumed work on 22 January, 2003 working on Wednesdays and Thursdays only. 131 Tendered through Ms Coventry were a number of inter office memorandums. In relation to that headed "Office Procedures - Property Listings", it had previously been issued as a loose document. It had been placed in a folder and was re-issued to all staff in late 2002 together with "Office Procedure - General", "Interoffice Memo" dated 07 February, 2003 relating to Files and Documents, 132 During cross-examination, Ms Coventry confirmed that the documents headed "OFFICE PROCEDURE-GENERAL" were already on the computer and had been issued previously. She specifically recalled Ms Ressler commenting to her that there was a necessity to re-issue them because "SF [Ms Farmakis] seemed unaware of the correct procedures." It was decided to issue them in a folder to each member of staff to avoid loose pieces of paper everywhere. There were additional plastic sheets provided to allow for the placement of any further instructions. 133 In relation to point 5 which indicated that sales meetings were to be held at 8 am on Mondays, she was aware that prior to October 2003 they were normally held on a "Wednesday and it was held later so that Sue could attend". She was also aware that there were Saturday afternoon sales meetings scheduled for 3 pm. 134 She recalled that Ms Farmakis had telephoned in and asked her to photocopy a contract for a house she had been showing. She could not find the file in the cabinet where it was supposed to be. She was aware, from the abrupt tone of her voice, that Ms Farmakis was somewhat annoyed that she had not complied with her request as the prospective buyer was going in to pick it up. She had to advise Ms Ressler that she had not done what had been requested of her because she could not leave the downstairs office unattended to go upstairs and get the file. She eventually went upstairs and located it on the applicant's desk. 135 Ms Coventry stated that Ms Ressler had told her that she had spoken to the applicant and explained to her that she could not take the Property Officer away from his duties without first clearing it with her. She explained that the Property Officer was employed to look after the rental management properties and other staff ought not to pull him away from his duties. If, at any time, the applicant wanted his assistance in helping her with her duties it was first to be cleared by Ms Ressler to whom he directly reported. 136 Mr. Justin Joseph Ressler, director of the Respondent company and a licensed agent and registered valuer, tendered a statement in the proceedings. 137 He stated that throughout her employment with the Respondent firm, Ms Farmakis was habitually late to work. She arrived at work at 9.20 am at the earliest, sometimes later and did not stay beyond 5.15 pm. Her hours had been tolerated as it was understood that she dropped her children off at school. 138 She often disappeared for a number of hours on Fridays without informing anyone of her whereabouts. On more than one of those occasions, he had detected alcohol on her breath upon her return. Ms Leite later admitted to him that she had covered up for the Applicant when she met up with her friends for lunch at Northies Pub. 139 He heard Ms Farmakis swear, frequently using the "f..." word in the office environment in front of him and other staff. 140 The Respondent firm had received numerous complaints about the Applicant's attitude and performance as an employee: 141 Whilst she was away in England, a complaint was received from vendors who had been assured that she had buyers for their property. They had not heard from her for three weeks and ultimately gave the listing to another agent. Ms Ressler had counselled Ms Farmakis upon her return to Australia. 142 Ms Farmakis was further counselled when she turned up an hour late for an office party attended by her clients in October 2002. 143 The Applicant had also turned up late and alone for the Leader's Small Business Awards Dinner for which the Respondent firm had paid $60 per head in advance. The Respondent had been a finalist and had invited all its staff and their partners to the presentation dinner. He was adamant that Ms Farmakis was not present whilst they were having pre-dinner drinks nor when they sat down at their table for dinner. 144 In January 2003, a vendor not only listed his unit with another agency but also refused to pay $2000 in advertising he owed in relation to the sale of that unit. He contacted Ms Ressler and complained that the Applicant was a poor communicator. She had promised him the world and then did not deliver and he never heard from her. Ms Ressler had counselled her in relation to that complaint. 145 In October 2003, he had received a request from a vendor whose property he had listed at Taren Point not to allow Ms Farmakis to show anyone through his property in future. She had shown some of her clients through the property and not provided the vendor with any feedback. 146 On 05 November, 2003, he had found Ms Leite visibly upset. She had been red-faced and teary. She advised him that the Ms Farmakis had called her names such as "a fucking bitch", "hopeless" and "an idiot". He had assured her that the Applicant had no right to treat her in that manner. He went back upstairs and asked the Applicant, in the presence of Ms Ressler, why she had upset Ms Leite. Ms Ressler also asked what she had said to upset Ms Leite. The response from Ms Farmakis was, "That fucking bitch is on recreational drugs up all night at clubs, then comes to work tired and makes mistakes.....and that's why she breaks down in tears all the time". Ms Ressler had counselled her in his presence. She had expressly warned the Applicant that she would not, in future, tolerate her swearing at other staff members. 147 There have been other occasions when the applicant had sworn in his presence. He contended that she had used the "f..." word at the drop of a hat. She would end her sentences with the words "f... me" or would comment at the conclusion of telephone conversations, "I can't f.....g believe that" in his presence and the presence of other staff. He had been offended by the swearing. At the time of her termination, he wanted the relationship to end on amicable terms and he also thought it was the gentlemanly thing to do to offer to carry her bag and jacket downstairs. She had responded with the words, "F... off". 148 On 23 November, 2003, all staff were required to attend a very important auction. Ms Ressler, Jason Russell and he had arrived half an hour early. There was no sign at all of Ms Farmakis. 149 Ms Farmakis was also absent from the weekly sales meeting held at 8.30 am on the following Monday, 24 November. When, by 10 am, there was still no sign of her, he had commented to Ms Ressler, "I bet Ms Farmakis is in Queensland. I heard her take a phone call on Friday afternoon from an agent in Queensland, she said that she was looking to buy a duplex development site on the Gold Coast, I'd say she is up there looking at that." 150 At approximately 11 am, Ms Ressler informed him that she had received a telephone message that the applicant had been involved in a car accident with her new boyfriend while driving to the airport. She had a sore back and had been admitted to hospital for observation. He had commented with words to the effect, "I told you she was in Queensland, I can't believe she would blatantly disregard her employer, how many times did we tell her that we needed her at the auction?" Ms Ressler had responded, "Your right, I can't afford to have employees behaving like this we will have to terminate her". 151 Ms Farmakis called him at approximately 5.20 pm on Tuesday, 25 November, 2003 and apologised for not attending work the previous day. They had discussed her accident. Mr. Ressler then asked her if she was going in to work the following day and upon receiving a positive response, asked her to go in before 9 am as "we have something important to discuss". He had declined to provide any details. 152 Ms Farmakis had arrived 20 minutes late on Wednesday, 26 November, 2003. Ms Ressler had gone straight to the point after exchanging pleasantries. Initially she advised the Applicant that the Respondent firm was to undergo a restructure and had to let her go. When the Applicant raised the issue of her absence, Ms Ressler pointed out that her performance and disregard for office protocol were not good enough, not to mention her treatment of other staff members. The Applicant had been given the option to resign with the offer of a reference and assistance in obtaining alternative employment. She argued that she should not have to leave merely because she had a car accident. At that point, Ms Ressler pointed out that she had been thinking about it since before she went to Canada (in August 2003). Mr. Ressler had brought up the subject of her absence at the auction. Her response had been that her boyfriend's father was ill and she had to travel to Queensland urgently. She denied that she had gone up to look at real estate. Ms Farmakis indicated that she wished to seek legal advice. Ms Ressler asked for her work diary pointing out that it was intellectual property. The Applicant stated that it was at home. She was asked to go back and get it and told that she would be given two (2) weeks' pay in lieu of notice. 153 Ms Farmakis returned to the office some 2.5 hours later. She stated that she did not believe that it was fair to dismiss her just because she had children to care for and was a single parent. She was assured that those issues had nothing to do with her dismissal. It was pointed out that the Respondent had accommodated her needs by putting up with her lateness, by starting sales meetings half an hour later, and by allowing her to leave at 5.15 pm instead of 6 pm. She had also been reminded that the Respondent had sponsored her son's football team. At that point, Ms Farmakis indicated that she had been advised not to sign any resignation. She further pointed out that she was entitled to three warnings. She asked to see the diarised entries of counselling Ms Ressler alleged she had given the Applicant. 154 The discussion had degenerated from that point with Ms Farmakis making allegations that the staff were gossiping about Mr. Ressler. At that point he let it be known to her that Ms Leite had seen her at 6 am at a Kings Cross night club on the same day that she had scheduled an auction at Guildford. The discussion had further degenerated with the Applicant contending that he was believing someone who used recreational drugs. In reply, he had accused her of being loaded up with amphetamines the night before the her auction instead of being with her son who was suffering from asthma. At that point, the Applicant had issued him with what he understood to be a threat. She had reminded him that they both worked and lived in the area. Asked whether she was threatening them, the Resslers were told to "Take it anyway you want". When Mr. Ressler offered to help her carry her personal belongings to her car, the Applicant had told him to "F... off!... You'll get what's coming to you!" 155 Mr. Ressler identified a document titled "Sales Exchange as at November 2003" listing four sales for a total of $27,140.36. That document, prepared by Julie Payne, contained an error - the applicant's commission should only have applied to the settled sales. That correction meant her commission was $4,160. Therefore, at the time of her termination, the applicant had a debit balance of $11,534.22. 156 During cross-examination, Mr. Ressler admitted that both directors had responsibility for checking that document. They had not picked up that error. He agreed that even though it was a simple mistake, in hindsight, it was quite a significant error. 157 He stated that the Applicant was late on probably four out of five days because she had to drop off her children at school. The Directors had tolerated it because they were aware that she had other commitments. They had not issued her with any warnings about her late arrival at work. 158 Mr. Ressler insisted that the Applicant disappeared for two or three hours during lunchtime "pretty much every Friday" and most of the time she did not tell anyone where she was going. He stated that it was Ms Ressler's responsibility, as Senior Director, to counsel/warn her in relation to that. He confirmed that he had not done so personally. He further confirmed that Ms Ressler was not in on Fridays but that he had informed her of the Applicant's long absences and the fact that she used to return to the office smelling of alcohol. 159 He contended that the only person who swore in the office was the applicant. However, she had not sworn in the presence of Ms Ressler until the day of her dismissal. He observed that the Applicant generally swore after she got off the phone from a client who had upset her. 160 He agreed that Ms Farmakis had permission to go to London. 161 He insisted that she had been 45-60 minutes late, without explanation, for the awards dinner. 162 He could only recall one occasion when all the staff went to the Caringbah Inn after 6 pm on a Friday to farewell a departing employee. He also recalled another occasion when another employee, Anthony, had a birthday and on Melbourne Cup Day when the staff had gone to the RSL at 2 pm. He denied emphatically the allegation that the staff had met there on several occasions for a drink at 5 pm. He pointed that the office remained open until 5 pm. He admitted that he had invited staff to have a beer with him at the office, maybe once or twice at 5.30 pm. 163 He was adamant that there had been numerous complaints about the Applicant's performance and attitude but he had only documented two for fear that his statement would have been too lengthy. He was aware that during 2002, complaints had been received in April and October. During 2003, they were received in January (a major complaint about the manner in which a client had been treated by Ms Farmakis resulting in a loss to the firm of $2000 in advertising fees) and October (a complaint about lack of communication to the vendor after Ms Farmakis had shown a prospective buyer through the property) and November. He pointed out, however, that he was not the only person receiving complaints about her. 164 In relation to the auction held on 23 November, 2003, all staff had been involved in a strategy meeting regarding that auction. They had identified the prospective buyers they had for that auction and were advised during that meeting of the requirement to attend. 165 At 8.30 am on Monday 24 November, the weekly sales meeting began. The applicant was absent from that meeting. He had commented to Ms Ressler, "I bet Mrs Farmakis is in Queensland" because he had overheard a phone call on Friday afternoon at about 4 or 5 pm from an agent in Queensland, that she was going up to look at real estate. His desk was approximately two metres away from hers. She had responded to a call on her mobile telephone. He had overheard the first part of the conversation before she went outside to continue it. He contended that she had not returned to the office but even if she had, he would not have said anything to her because she had mentioned to him that she intended to buy a development site and that was her business. His suspicions had been confirmed when she did not show up for the auction. He had not mentioned the telephone call to Ms Ressler until the following Monday at which time Ms Ressler had commented, "I can't afford to have employees behaving like this we will have to terminate her." 166 He further confirmed that he had asked the Applicant to be at work at 9 am for their meeting. When she walked in, he had been on the telephone at the back of the office and would have missed approximately one minute of any discussion which may have taken place between Ms Ressler and the Applicant. He explained that he had wanted the termination to be "peaceful" and that was why he had suggested to the Applicant that she make it easy on herself by resigning and the Respondent would provide her with a reference and assist her in securing another job. 167 The lies and absenteeism he had referred to during the termination interview referred to her Friday lunches with girlfriends when she had led the Respondent to believe that she was attending appointments with clients, when she was not turning up for appointments when she said she had, and so on. She had lied about those things on a number of occasions and they had been documented in Ms Ressler's diary. He confirmed that when Ms Farmakis asked to see those entries, Ms Ressler had stated that she did not have to show her. 168 When he told Ms Farmakis that the decision had been made, he meant that Ms Ressler had made the decision then and there as the whole conversation had been leading up to one conclusion. 169 As the applicant was walking out, Ms Ressler had handed her a termination letter and pay cheque. He had read the letter at about 11.30 am while the Applicant was away fetching her diary. 170 After she had rudely declined his offer of assistance, she had gone down the stairs and proceeded to the back of the premises. He discovered that she had forgotten her keys and he had followed her to her car and handed her the keys. 171 During re-examination, Mr. Ressler clarified that all that he had overheard was a discussion with an agent about a development in Queensland. He had not overheard any plans for travel there that weekend. 172 He pointed out that, had she accepted the offer to resign and get a reference, she would have increased her prospects of obtaining alternative employment as it was a small industry and most of the agents knew one other, especially in the Sutherland Shire. 173 He contended that the applicant would have received "close to half a dozen, six or seven" oral warnings. SUBMISSIONS 174 The following arguments were made in support of the contention by the Applicant that the dismissal was unfair. Firstly, the dismissal had been procedurally unfair in that Ms Farmakis had not been provided with any prior, adequate, formal written warnings about her performance throughout the course of her employment, had not acknowledged receipt of such warnings, and had not been afforded an opportunity to correct the offending behaviour. The evidence from the Respondent's witnesses was that the counselling provided was what could be described as "advice on the run". At the point of termination, Ms Farmakis had been handed her termination letter without an opportunity to explain or discuss why she had returned late from Queensland. 175 The evidence of Ms Ressler was to the effect that the Applicant had been dismissed because of poor performance. Yet an objective examination of the evidence would reveal that the applicant's performance had exceeded expectation during her probation period. In addition, she had concluded various sales and listings and was in credit in November at the time she was terminated. 176 The Respondent complained about the alleged frequent use of foul language by the applicant. Ms Ressler had not heard the applicant use foul language. There had been no witnesses to the altercation between the Applicant and Ms Leite. There were only two occasions in 19 months when the Respondent had direct evidence that there was inappropriate language used by the applicant. No formal warnings had been given to her about the use of bad language. 177 The Respondent argued that the Applicant had been dismissed because of the disrespect shown to the employer. Yet no evidence was put before the Commission in any form confirming that contention. 178 Once again, no objective evidence was put before the Commission to indicate that the Applicant had been issued with the directions, which she was alleged to have deliberately flouted, as to the movement of files within the office and her work diary having to remain in the office. 179 The Respondent admitted to tolerating the Applicant's alleged late starts and early finishes even though the Applicant denied them. There was no mention in Ms Leite's statement that she had covered up for the Applicant's alleged unexplained absences on Fridays. In relation to the car accident in Queensland, the Respondent had not given her an opportunity to explain that absence before she was terminated. 180 No evidence had been led in relation to the allegations of lies and dishonesty. 181 The Respondent had argued that customer complaints had been received about the Applicant. It was submitted that customer complaints were hardly surprising in the real estate industry considering it was dealing with properties, values, money, and so on. Even if those complaints were conceded, there were only three complaints over a 19-month period - one made in April 2002, another made in January 2003 (four months after the event) and finally one in October 2003. Ms Ressler gave evidence that she prided herself on her administrative skills and attention to detail. Yet no tender was made of any documentation (such as diary entries of counselling sessions, written warnings, or acknowledgement of warnings) which put the Applicant on notice that if such performance persisted, it would lead to dismissal. The Applicant had not been provided with an explanation for her dismissal apart from being advised that it was because of her poor performance. The question needed to be answered as to why the Applicant had not been dismissed during her probation period if she had not performed satisfactorily? It was accepted that Ms Ressler had probably thought about it frequently but she had not conveyed those thoughts to the Applicant in writing. The Applicant should not be expected to know what was in Ms Ressler's mind. The evidence was abundantly clear - the termination letter was prepared, and dated, on 24 November. 182 Finally, the Applicant had been terminated without a warning and without being given an opportunity to provide an explanation. The Respondent's intentions were loud and clear. The Applicant had been provided with an ultimatum - neither of which involved maintenance of her employment. All of the reasons for her termination were not disclosed to her at termination. Her desk had been cleaned out prior to the termination interview. The Respondent, it was contended, was not too keen on the Applicant obtaining legal advice. Ms Ressler had, on a number of occasions during the Applicant's employment, suggested to her that she was not suited to that sort of work because she had a young family. 183 Secondly, the dismissal had also been substantively unfair because Ms Farmakis had met the sales targets and budget both at the end of the probationary period and at the time of the dismissal, albeit there were highs and lows along the way which was normal for the real estate industry. It was contended that the Respondent was in breach of s.14 of the employment contract in that the Applicant had not been provided with the necessary instruction and training bearing in mind that she had been appointed to a sales position a mere three days after her appointment as a Receptionist. 184 It was argued that there was no known conduct of habitual swearing by the Applicant that would warrant dismissal, with the exception of one or two occasions. 185 It was arguable that the employer terminated the Applicant in an effort to avoid paying commission on listings that had been made prior to termination. The Applicant had missed out on $40,000 worth of commissions as she had been dismissed prior to the contracts exchanging. 186 It was further contended that to dismiss the Applicant, who had three young children, just a month prior to Christmas was a cruel act. 187 In conclusion, it was submitted that re-instatement was not viable and that compensation ought to be awarded as damages. The Applicant had remained unemployed for a period of twelve (12) weeks as a result of her termination. She obtained new employment from 02 February to 30 April. She was unemployed for a further period of two (2) weeks from 03 May to 14 May and ultimately found permanent employment commencing from 17 May. The Applicant was seeking compensation for the initial twelve (12) weeks of unemployment calculated on the basis of $656 per week gross. 188 It was submitted on behalf of the Respondent that the body of case law does not support the Applicant's contention that there is a principle requiring that three (3) written warnings must be given before termination of an employee may be effected. It was contended that, in reality, it was more complicated than that. The Courts have acknowledged that there is no strict rule requiring that three written warnings be given. In determining what is procedurally fair or unfair, all the facts and circumstances of the case are taken into account. Oral warnings and counselling as well as the circumstances surrounding the employment and termination can be taken into account in making such a determination. 189 Reference was made to the evidence of Ms Ressler that she had engaged the Applicant knowing that she did not have real estate sales experience. She had been content to teach and encourage her during the period of her employment. Despite the Applicant not meeting her expectations during the probation period, she had, contrary to what most employers would have done, persevered with her. She registered her for the Homebush Seminar and conducted weekly counselling and tutoring. The Respondent kept giving the Applicant chances. It was pointed out that Ms Farmakis was the first employee terminated by Ms Ressler and it was not a job she enjoyed doing. As stated by Mr. Ressler, some issues were tolerated but the end of their tether was reached when there was a culmination of events in November 2003 - the altercation between the Applicant and Ms Leite when the former swore at the latter; the second unexplained absence of the Applicant in Queensland (the first in January 2003 having been tolerated); the absence of the Applicant from an important auction despite an instruction that she had to be in attendance. Despite all of that unsatisfactory conduct, the evidence of the Resslers was that the Applicant had been given another opportunity to explain herself. That explanation had not been acceptable. 190 The employment contract provided a number of instances where summary dismissal was applicable. 191 It was submitted that the incident involving Ms Leite was so onerous and was of such a nature that it would probably have, single-handedly, justified summary dismissal. The Respondent had not proceeded down that path. The Respondent raised the incident again with the Applicant on Wednesday 25 November to canvas her attitude. Ms Farmakis had not admitted responsibility for her actions. She remained unrepentant and continued to blame Ms Leite for her actions thereby giving the Respondent cause for some concern, particularly for its other young staff who had to be shielded from such abuse. 192 Failure to attend the very important auction would also have, single-handedly, justified summary dismissal. Once again, that decision had not been made. 193 The evidence indicated that the Applicant was late to work every day. 194 It was submitted that the Respondent had not wanted to polarise the Applicant by giving her warning letters every day. When all those incidents were considered globally, there was justification for a dismissal. 195 The Respondent had continued to attempt to assist the Applicant to the very end. A suggestion was made that she resign her employment so that her dismissal would not be reflected on her resume and prospective employers calling for a verbal reference would have her resignation confirmed to them 196 It was pointed out that the onus of proof lay fairly and squarely with the Applicant. Yet the only evidence put on by the Applicant in support of her claim was her own evidence. She had an opportunity to call evidence from Julie and from Jason Russell. Although she had made mention of Mr. Russell in her statement, she had called him to give evidence. She could have called evidence from persons who may have corroborated her evidence regarding the two Queensland trips but had failed to do so. The Commission was entitled to assume, as a matter of law, that such evidence would not have assisted the Applicant. 197 It was suggested that the Applicant had not been truthful about the matters she had put in her evidence. It was contended that the Commission could not accept the Applicant's evidence having regard to the manner in which that evidence was given. Attention of the Commission was drawn to some of those prominent examples. 198 Firstly, in relation to trip to the Whitsunday's, the Applicant would have the Commission believe that the boat, which was motoring along without any problem, broke down and that she had intended to fly back to Sydney on Sunday evening so she could be at work on Monday morning. She later suggested that she could have flown home at 6 am on the Monday morning but the evidence was that she eventually drove home from Queensland later in the week. 199 Secondly, in relation to the second Queensland trip, the Applicant produced travel documents which evidenced that she had flown to Queensland at 5 pm on the Sunday afternoon. The important auction had been held at 10 am earlier that day. Both in her statement and prior to the press for tender of that document in cross-examination, the Applicant had attempted to suggest that she had missed the auction because she had been involved in a car accident. Upon its tender, the applicant had no alternative but to admit that she had neither intended to, nor was required to, attend the auction. She then suggested that she had referred to the car accident as the excuse for non-attendance at work on the following Monday. It was suggested that, when pressed during cross-examination, that evidence had also failed. 200 Thirdly, when questioned during cross-examination about making derogatory remarks about Mr. Ressler, she had denied that suggestion. When it was drawn to her attention that she had actually included in her statement that she had said to him "...Re-think that one stupid...Actually you are bloody thick and stupid...", she had conceded that she had perhaps said that. 201 Fourthly, and most prominent, was the complete contradiction in the evidence of the Applicant and those of the independent witnesses who had previously worked for the Respondent firm, Vanessa Leite and Jason Russell. The Commission was urged to prefer their evidence for a number of reasons. They had no interest in the outcome of the proceedings, their credit had not been at issue; their demeanour and the manner in which they gave their evidence left no doubt about the veracity of their evidence. When all of the above are considered, the Commission must come to the conclusion that it cannot accept any of the Applicant's evidence. The only evidence left before the Commission which can be believed is the evidence put on behalf of the Respondent. 202 It was pointed out that there was no motivation to dismiss the Applicant. At the time of termination, she had a debit balance of $11,534. When the three properties settle, she will be entitled to $12,000 in commission, leaving an amount owing to the Applicant of $400. 203 When the Commission arrives at that conclusion, then it follows that there was no unfair dismissal, there was no procedural unfairness and no substantive error. The Commission will also arrive at the conclusion that there was insufficient or no evidence to make a finding in favour of the Applicant on the balance of probabilities. In conclusion, the Commission was asked to dismiss the claim on the basis that it was not substantially or procedurally unfair. 204 In response, Mr. Dunn pointed out on behalf of the Applicant that the Respondent did have motivation in relation to the commissions owed as the error in the figures was only discovered earlier that day. The Respondent believed, at the point of termination, that she had a credit owing of $8,287. The motivation may also be the commissions on listings not exchanged by the time termination took place. CONSIDERATION 205 The Applicant contended that her dismissal had been procedurally and substantively unfair. 206 It was argued that the Applicant had not received formal written warnings about her performance throughout the period of her employment. What counselling she had received had been made "on the run" and eventually, when she was dismissed, she had not been given an opportunity to explain her late return from Queensland. I am inclined to agree with the submission of the Respondent that there is no strict rule requiring three written warnings to be given. Oral warnings and counselling as well as other relevant matters can be taken into account in making such a determination. 207 Ms Ressler gave evidence that she had counselled Ms Farmakis with respect to her performance. That included her sales, her late arrival at work functions and for appointments with clients, her long lunches, her telephone manner, and swearing in an office environment. 208 Ms Farmakis conceded that the Resslers had spoken to her about making Ms Leite cry although the parties were in disagreement as to the reason for her tears. Nevertheless, the evidence leaves me in no doubt that the Applicant had been warned in relation to her swearing at staff. In addition, the Applicant had conceded in her statement that she had been abusive towards Mr. Ressler at the time her termination was being discussed despite the fact that she attempted to deny it during cross-examination. 209 No findings are made in relation to other warnings supposedly given to the Applicant in the absence of any evidence. Mr. Ressler gave evidence that the Applicant had sworn in his presence on numerous occasions but he had not counselled her in that regard. The Commission was advised that diary entries existed of counselling of the Applicant by Ms Ressler but such evidence was not provided in relation to her telephone manner with clients and general swearing in the office. 210 Much was made of the Applicant's late arrival at work. I accept the evidence that the Respondent bent over backwards to accommodate the fact that Ms Farmakis had a commitment to her children. The delayed staff meeting on the Monday morning and the abandonment of the Saturday afternoon meeting were to accommodate the applicant. Nevertheless, the evidence indicates that the Respondent had tolerated that her tardiness generally. 211 The Applicant conceded that she had arrived 15-20 minutes late at the Client office party held in October 2002. The Respondent contended that she was one hour late. 212 The Applicant denied that she had been late for the Leader Small Business Awards function held in November 2002. The Respondent had booked and paid for the Applicant's boyfriend only to be advised, through a junior staff member, on the day of the function that he would not be attending. The Applicant had not refuted that. The Respondent's witnesses all gave evidence that the Applicant had arrived late at the function. 213 I accept that something was said to the Applicant on both of the above occasions and I also accept that the Applicant may have taken advantage of the tolerance demonstrated by the Respondent, however, in the absence of any objective evidence to the contrary, I am inclined to agree that the counselling can best be described as "advice on the run". 214 A vendor had not only listed his property with another agent but had refused to pay advertising costs incurred by the Respondent. He set out in detail his complaint against the Applicant. The Applicant provided a response to each of his complaints. Nevertheless, the fact remains that the vendor had not paid advertising fees incurred by the Respondent to the tune of either $1300 or $2000. 215 Ms Farmakis admitted that she had backdated an agency agreement but gave evidence that she had done so under instructions. She had not elaborated on who had given her those instructions. Despite the fact that the matter was subject to proceedings before the CTTT and the Respondent had not been able to collect its commission in relation to that property, the Applicant's attitude to the whole issue was that the Respondent would not have obtained the listing had it not been for her efforts. The Applicant had completed a Diploma in Business (Real Estate) in 2001. I cannot accept that the Applicant would have complied with such an instruction if it was issued. I also cannot accept that the Respondent would have given the Applicant such an instruction in view of the fact that the Respondent's business and licence may be at risk as a result of her actions. 216 As to the assertions that other complaints had been received from clients, no objective evidence was put before the Commission either in relation to the complaints or to any counselling that had taken place in regards to them. 217 No objective evidence was put before the Commission of the assertion that the Applicant consumed alcohol during her long lunches on Fridays. In addition, the Respondent admitted that counselling had not taken place in that regard. 218 Ms Farmakis admitted that she was aware of the policy regarding files not being taken out of the office. I accept the evidence of Ms Coventry that the inter-office memorandum containing that policy had been re-issued at the request of Ms Ressler who thought it necessary to remind the Applicant of the proper procedure. Nevertheless, the Applicant had continued to take files away from the Administration area to her desk. 219 Ms Farmakis had been promoted to a Property Consultant within a few days of her commencing employment on 07 March, 2002. Irrespective of who had advised her of the debit/credit system of commissions or that it was a performance-based job, the applicant was aware of them. 220 There was a dispute between the Applicant and Ms Leite regarding the size of an advertisement placed in the Leader newspaper. Whether or not Ms Leite made a mistake is immaterial. The Applicant ought not to have reduced her to tears when the ultimate responsibility for checking the advertisements rested with the Salesperson, or Ms Ressler in their absence. I accept that the Applicant had been cautioned on that occasion. 221 Ms Farmakis was due to return from the Christmas/New Year vacation on 06 January, 2003. The following extract from the Applicant's cross-examination is relevant: Q. So from when the boat ceased to function it took two days to get someone out there to tow it, is that right? A. No it wasn't two days. That's how long it took for us to get back. Q. From where it was stranded, once the boat got to it and started towing it took? A. A couple of hours..... Q. So if this happened on the Monday it means you were back in the Marina on the Monday? A. Tuesday afternoon I think it was. Q. Was the boat first stranded on the Monday or Tuesday? A. Well we didn't get back until the Monday. Are you asking me about the phone call to my sister? Q. You are being very evasive about this? A. I am not being evasive. COMMISSIONER: Q. I want this matter clarified. When did you get stranded, when did you make the call, when were you towed back, when did you arrive. Those are the questions, do them in order. A. Tuesday afternoon. COMMISSIONER: Just wait, and start again. GROUNDWATER: Q. When did the boat cease to operate? A. We had problems on the Sunday night, that's when it happened, that's when the call was made, it was not our boat, to my partner's family. Q. Right? A. So it was Sunday afternoon. Q. Was it Sunday afternoon or Sunday night? A. It was late, it was in the evening, say 6 o'clock. Q. You were due back at work the next morning? A. That's right. Q. Before the boat had a problem you were out on the boat on Sunday night? A. That's right. Q. You had no intention to be at work on the Monday morning did you? A. Yes I did actually. Q. You just said you were out on a boat? A. That's right. Q. On the Sunday night and the boat had no problems? A. We would have caught a flight back. Q. What time was your flight booked on the Sunday night? A. We hadn't booked a flight. Q. Because you were not coming back on the Sunday night were you? A. Of course I was coming back on the Sunday night. If I was due back for work I would have been back at work. I mean I've never had an issue happen like this in my life before. Q. Well you have said that as of the Sunday night the boat was operational and you were out somewhere in the broad water south of the Whitsunday's. You were not intending to be on a plane on the Sunday night, were you? A. Yes I was. Q. So you want us to believe-- A. Either the Sunday night or the Monday morning, because there's a 6am flight that leaves which I've caught on a number of occasions. Q. So what you say is the boat, wherever it was south of the Whitsunday's on the Sunday night was going to get you back somewhere to a marina so you could get to a plane on the Sunday night or Monday morning? A. M'mm. Q. Where were you going to stay on the Sunday night? A. Probably on the boat. Q. So the boat lost function on the Sunday night? A. M'mm. Q. When is it you say the call was made for someone to come and retrieve the boat? A. To retrieve the boat? Q. Yes? A. Monday morning. Q. So Monday morning the call is made. When did the boat come out to tow the disabled boat? A. It came out on the Tuesday because we were anchored. Q. You were anchored, it came out a day later and the boat was then towed into port on Tuesday? A. Later in the afternoon. Q. What port was that? A. I don't know the exact marina. Q. It is not Hamilton Island? A. No. Q. Somewhere unknown. So how did you then get off that island? A. What island? Q. Whatever the port was you were towed to? A. We were picked up by Darren's mother. Q. In a car? A. In a car. Q. So it came into the mainland? A. We were in the mainland. Q. That was on the Tuesday evening or night? A. Night. Q. So there is a 6 o'clock flight. Why were you not on the 6 o'clock flight on the Wednesday morning? A. Well we'd already rang work. It was already told to me that everything was fine, don't worry, see you back at work on the following Monday. Q. I suggest no on told you it was fine? A. Well I'm telling you had they not I would have been on that next flight back. Q. The message that your sister relayed is that your boat was stranded in the Whitsunday's and that you would not be back for a week? A. I don't know what she said, I can't speak for her. Q. What message did you want your sister to convey to your employer as to when you would be back? A. Well quite frankly I didn't realise it was my sister that rang, I found that out after. Q. Right? A. Because as far as I was aware it was my ex husband that contacted them. Q. What did you tell him to say to your employer? A. I just told him what had happened and he said, "When will you be back," and I said, "Hopefully I'll be back at the end of the week." Q. At the end of the week? A. M'mm and he had actually stated to me on another phone call conversation that he had rung, actually had rung twice to ensure that the message had got through because he left the message with the front desk. He told me he was told that everything was okay and, you know, "They'll see you back when you get back." Q. I suggest that the message you wanted conveyed to your employer was that you would not be back for a week, i.e. until the next Monday. That is right is it not? A. No it isn't right. Q. That is the message that got conveyed to your employer? A. Well if that's the message that got conveyed then I didn't convey that because that's not what I said. Q. I suggest that is the message you did convey and I suggest to you that this whole excuse was never genuine because if you were genuine you would not have conveyed a message that you would not be back for a week, the message you would have conveyed would be you would be back as soon as possible? A. Which is exactly what I said. Q. When did you fly back? A. I didn't fly back from that trip. Q. When did you get back? A. I think I got back on the weekend. Q. You drove back? A. I drove back. Q. Whose car was up there? A. I have a car up there. Q. You had your car up there? A. I had a car. Q. You told us you were going to fly back? A. I could have flown back. Q. And leave your car up there? A. No, a car, I had a car. Q. That you could drive back from the Gold Coast to Sydney? A. Yes my car I have here in Sydney and I have a car that I can use on the Gold Coast. Q. Because on the Sunday night before the boat is disabled you tell us that the boat was heading back to port so that you either fly home on the Sunday night or the Monday morning, that is right is it not? A. No what I said was I could have if that had been the situation, yes I could have flown back. Q. You were due back to work Monday morning? A. Yes. Q. You said the boat was coming into port on the Sunday night so you could pick up a plane on the Sunday night? A. Which I could have done. Q. Or the Monday morning? A. That's right. Q. If we are to believe what you are saying, you say that you would have come back to Sydney at the earliest possible time and that is what you wanted conveyed to the office but in fact you do not come back to Sydney at the earliest possible time, you drive back instead of flying? A. Which was the earliest possible time in that situation. Q. The earliest possible time would have been jumping on a plane and flying back. I suggest you could have been back in the office on Wednesday? A. Had I been told to get back in the office on the Wednesday I would have been back. It had been conveyed to me that, the words were, "Well see her when she gets in." Q. We will see her when she gets in? A. Which was the Monday. Q. All the people in the office had to go on was that they had received a communication via your family from you that you were stranded on a boat and you would not be back for a week. They did not consent to you getting back a week later. They said "We'll see you when you come back." They had no control over when you got back, you did and you had no intention of coming back to work at the earliest possible time, did you? A. That was the earliest possible time that had been conveyed to me yes, bearing in mind at that time of year nobody had any work on whatsoever. Q. So you thought it was okay? A. It was annual leave. Q. You thought it was okay? A. Which I hadn't been paid for. Q. So you thought it was okay to come back a week later? A. No because they conveyed to me that they would see me when I get back, which was the Monday. Had they conveyed to me that they wanted me back on the Wednesday or Thursday, I would have been there on the Wednesday or Thursday. Q. I suggest there was no way in which they could have conveyed to you anything other than they did because what was told to your employer was that you were stranded on a boat and that you would be back in a week. They said, "See you when you get back." You were the only one that had control when you got back and I suggest to you that you had it in your mind, from what you said, that it was not important to be back, was it? A. No I'm saying to you is it wasn't an issue at the time, that's completely different. Q. I suggest this is representative of your attitude to your employment, that attitude being an attitude of just not caring. That is right is it not? A. That's totally incorrect.... Q. When did you fly up to the Whitsunday's for that trip? A. I didn't fly to the Whitsunday's. Q. When did you drive up there? A. Whatever the day was we finished work, I think it might have been Boxing Day actually. Q. So you had been up there for two weeks? A. No not quite two weeks. Q. You were out on a boat on Sunday night and you suggest to this Commission that the boat was on its way back into port so that you could perhaps pick up a plane on the Sunday night? A. Or Monday morning. Q. I suggest you had no intention of being back to work on the Monday morning, that is right is it not? A. It's very wrong actually. Q. I suggest to you that you have not been truthful with this Commission and that is a serious matter? A. I suggest that's wrong too. 222 When one filters through all of that, it would appear that the Applicant was due back at work at 9 am on Monday, 06 January. Late on the afternoon of Sunday, 05 January, at about 6 pm, the boat she was sailing on in the Whitsunday Islands was stranded. Ms Farmakis denied that she had no intention of being at work on the following morning. The boat was going to get her back to a marina that Sunday night so that she could board a flight to Sydney that night. She later added that she intended to board a flight back to Sydney either on the Sunday night or the 6 am flight on Monday, 06 January. She had not booked herself any flight at that stage despite the fact that it was peak holiday season. The call was made to retrieve the boat on Monday morning, 06 January. The boat did not come out to tow them back to shore until the afternoon of Tuesday, 07 January. The towing took approximately two hours. She could not recall where they were towed to but her boyfriend's mother picked them up in her car that Tuesday night. She had not caught the 6 am flight back to Sydney on Wednesday, 08 January, because she had already rung work and was told that everything was fine and that the Respondent did not expect her back until the following Monday. 223 The Applicant conceded that she could have borrowed a mobile telephone to call her employer direct on that Sunday night. Instead, the person she was with called his family who sent a message to her ex-husband who, in turn, rang her family. Eventually her sister rang her employer to advise that Ms Farmakis would not be back for another week. Despite the time of year, the Applicant stated that nothing happened anyway in the Real Estate Industry until the legal fraternity resumed work on or about 14 January. 224 Upon further cross-examination, Ms Farmakis stated that she did not know what her sister said to the Respondent as she could not speak for her. She actually thought that her ex-husband would ring the Respondent because she had rung him and told him what happened. During that exchange, the Applicant stated that her ex-husband had telephoned the Respondent twice to ensure that the message had filtered through. He had spoken to the "front desk". 225 Ms Farmakis stated that she had advised her ex-husband that she would be "back at the end of the week" and the person at the front desk had responded "We will see her when she gets in". The Applicant, in the next breath, stated that the message she wished conveyed to her employer was that she would be back as soon as possible. Nevertheless, she had driven up to the Gold Coast on Boxing Day and drove back to Sydney on the following weekend in her own car. She pointed out that she could have flown back had the Respondent conveyed to her that she was required back on the Wednesday or Thursday. 226 In view of the gross inconsistencies I have described above, I question the veracity of the Applicant's evidence in relation that incident. 227 The Applicant asserted in her statement that she was late at work on Sunday, 23 November, 2003 because she was involved in a car accident on the way to the Airport on the Gold Coast. Her partner had contacted her ex-husband who requested, amongst other things, for a telephone call to be made to her Employers to advise them of what was happening. Her ex-husband left a message with the Respondent's receptionist on the following Monday and the Applicant returned to Sydney on Tuesday afternoon, 25 November. The Respondent required Ms Farmakis to attend a very important auction on that Sunday. The Applicant flew up to Brisbane at 5.25 pm on the previous evening. She had no intention of attending that auction - I didn't have clients going to that property so it wasn't my auction, it wasn't my management and yes it was not for me to be there.... Three people can more than handle an auction. 228 I accept the submission of the Respondent that the Applicant intended to suggest that she had missed the auction because of the car accident. The Applicant was totally aware that her absence from the auction was the straw that finally broke the camel's back. Yet no mention of it had been provided in her statement apart from the veiled reference to being late on that Sunday. Had Mr. Groundwater not called for the tender of her Airline Ticket during cross-examination, it would not have been revealed that the Applicant never intended to attend the auction. 229 I accept the submission on behalf of the Applicant that the Respondent believed, at the point of termination, that the Applicant had a credit owing of $8,287 plus the commissions on listings not exchanged by that time. It has since been clarified that the Applicant had a debit balance of $11,534 and when three properties settle, she will have a credit owing of a mere $400. DECISION 230 Having considered all of the evidence before the Commission and considered the contradiction of evidence between that of the Applicant and the witnesses for the Respondent, I have come to the inescapable conclusion that the evidence on behalf of the Respondent is to be preferred. 231 The Respondent erred in not explicitly documenting the counselling of the Applicant on each and every one of the issues subsequently raised in these proceedings and warning her of the eventual outcome should the offending behaviour continue. Nevertheless, on balance, when all of the above incidents are considered globally, there is justification for the dismissal of the Applicant. 232 The Commission finds that, in these circumstances, it cannot be held that the termination of employment of Ms Farmakis was harsh, unreasonable or unjust. The application for relief is refused. 233 Matter No. IRC 7076 of 2003 is concluded. I. 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