Industrial Relations Commission of New South Wales CITATION: Thompson v Cydonia the Glass Studio Pty Ltd [2005] NSWIRComm 1184 APPLICANT Kathryn June Thompson PARTIES: RESPONDENT Cydonia the Glass Studio Pty Ltd FILE NUMBER(S): 1341 of 2005 CORAM: McLeay C CATCHWORDS: Termination of employment - unfair dismissal - architectural art glass projects manager - employment issues complicated by personal relationship - applicant's medical condition taken into account - stressful work environment - performance management and counselling given - detailed warning letter issued - dismissed by telephone message - dismissal confirmed in writing - reasons given - dismissal not harsh, unreasonable or unjust - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 D&R Commercial Pty Ltd v Flood (2002) 113 IR 344 Water Board v Water & Maritime Industry Union, IRC 1531 of 1993, 25 November 1993 Pastrycooks, Biscuit Makers and Flour and Sugar Goods Workers' Union (NSW) V Gartrell White (No.3) (1990) 35 IR 70 CASES CITED: Franklins Limited v Webb (1997) 72 IR 257 HEARING DATES: 07/25/2005; 08/15/2005; 08/29/2005; 09/28/2005; 10/06/2005 DATE OF JUDGMENT: 11/15/2005 APPLICANT Mr R Mimmo, Solicitor Industrial & Social Associates Research Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr A Silk, Solicitor Employment Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 15 November 2005 Matter No IRC 1341 of 2005 Kathryn June Thompson and Cydonia the Glass Studio Pty Ltd Application by Kathryn June Thompson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1184 1 This is an application by Kathryn June Thompson against Cydonia the Glass Studio Pty Ltd for unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Ms Thompson was employed as a Designer, Special Projects Manager with the respondent, a customised architectural art glass manufacturer, where she commenced work in December 1993 and had been employed full time since 3 December 1999. Background 2 Ms Thompson was dismissed from her employment on 14 March 2005. The applicant said the termination followed six months of anxiety, uncertainty, personal abuse, humiliation and rejection of basic requests flowing from personal illness and injury. The respondent's case was that the termination followed a lengthy period of swearing and abuse of other employees, violence towards the respondent's principal, Mr Sergio Redegalli, and attempts by Mr Redegalli to resolve the growing tension in the workplace. 3 Much of the cross-examination during the several days of proceedings in this matter was not relevant to the dismissal. For example, questions were asked about Ms Thompson's place of residence at particular times, and others about the reason for her moving out of Mr Redegalli's home. Questions about the credibility of witnesses were not resolved on the basis of this evidence. These issues were further complicated by the fact that Mr Redegalli lived above the workplace. While there is no doubt that the professional relationship between Ms Thompson and Mr Redegalli was complicated by their personal relationship, some aspects of the personal relationship are entirely separate from the termination of the employment relationship and require no comment from me. Evidence of witnesses not required for cross-examination 4 Evidence filed on behalf of the applicant was received without cross-examination from three former employees of the Studio: Paula Fornasier, an administrative employee, Anuska De Luca, a labourer and Yvette van Berkel, a glass artist. Ms Fornasier testified to a tense atmosphere at the Studio, with frequent arguments between Mr Redegalli and Ms Thompson. Ms De Luca also testified to frequent disputes, and said these were caused by Mr Redegalli undermining Ms Thomson in the workplace. Ms van Berkel said that she left her job because Mr Redegalli created "an extremely stressful work environment". She said that he would take personal issues into the workplace, undermining Ms Thompson to staff and clients. 5 The respondent filed statements from a number of witnesses who were not required for cross-examination but about whose evidence the applicant filed statements in reply. They are: Glyn Cartwright, glass craftsman, Mark Rogerson, glass craftsman, Tim Young, a computer system operator and Anthony Makk, a glass designer. 6 Glyn Cartwright said that there were often heated discussions between Mr Redegalli and Ms Thompson at work, mostly started by Ms Thompson. He said that Ms Thompson often kept other staff late at work, once or twice a week, but not on Tuesdays when Ms Thompson herself had a reason to leave on time. He said she often made mistakes with her artwork, detailing particular instances, and that she was often late with the pays. Mr Cartwright said Ms Thompson often made comments of a sexual nature at work, including accusing Mr Redegalli of wanting or having relationships with others, both male and female. Mr Cartwright referred to Ms Thompson's behaviour as "bizarre". He described her screaming at meetings, insulting Mr Redegalli, not co-operating with other staff over lunch breaks and the like, having time off for medical appointments, screaming, shouting and throwing things around the studio and frequently crying at work. At the staff meetings, Mr Cartwright said that Mr Redegalli warned Ms Thompson about her conduct. Ms Thompson's reply was to deny almost all of what was said in Mr Cartwright's statement. 7 Mr Rogerson said that Ms Thompson often argued with Mr Redegalli and with other staff members, she held up other staff with their work and she accused others of making mistakes. Mr Rogerson had heard Mr Redegalli warn Ms Thompson about her behaviour on several occasions, and sometimes sent her home to calm down. Again, Ms Thompson denied most of what Mr Rogerson said. In particular, she denied ever having been sent home prior to 14 March 2005. 8 Mr Young said that Ms Thompson was often loud, rude and argumentative with staff including Mr Redegalli. He said that, in the course of his work, he saw a message which she had sent to Mr Redegalli. Mr Young found the message offensive and upsetting. He said other messages to Mr Redegalli were abusive in their tone. Ms Thompson denied most of Mr Young's evidence, suggesting that he had not read her message and was "dishonestly pretending" to have done so. 9 Mr Makk is based in the United States and has a professional relationship with the respondent. He had observed the applicant's "strange" behaviour first hand. Because of negative comments by Ms Thompson about the direction the business was taking, Mr Makk said he had work done by a different firm from April 2002 to November 2002, before returning to use the respondent's services. Over the last five years, Mr Makk said he could tell when Ms Thompson was "being difficult", describing the mood in the studio at such times as being "decidedly uncomfortable". Apart from denying the rest of Mr Makk's evidence wherever it was not in her favour, Ms Thompson said: Anthony Makk is fantasying [ sic ] as my recollections are that Sergio and I would entertain Anthony Makk and his travelling companions, Brad and Eric, regularly when they were in Sydney. I can recall no occasions where they did not enjoy such occasions. 10 The particular issues raised by these witnesses about arguments between Ms Thompson and Mr Redegalli are consistent with the applicant's evidence that she raised her voice at work in arguments with Mr Redegalli. As to whether the disputes were caused by one or the other of them, or initiated more often by one or the other, is of little consequence. I accept that there were tensions in the workplace caused by these arguments and that those tensions have ceased since the termination of Ms Thompson's employment. I am satisfied that much of the friction was caused by Ms Thompson's feelings of insecurity and uncertainty in both her professional and her personal life, such insecurities being exacerbated by her medical condition. Issues relating to the dismissal 11 Mr Mimmo submitted that the applicant was given no opportunity to respond to the claims against her. He said that Ms Thompson had no warning about what was in store for her, as the dismissal occurred in the context that she had been entrusted to run the business on behalf of Mr Redegalli during his various absences, some of which lasted for several weeks. The most recent of those periods was for approximately four weeks at Easter 2004. 12 Mr Mimmo cited the decision in D&R Commercial Pty Ltd v Flood (2002) 113 IR 344 in which the Full Bench said at [59]: That the adoption of an unfair process when making a decision to dismiss an employee may be the foundation for a finding of harsh, unreasonable or unjust is plain: see, for example, Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and Wilson v Department of Education and Training . In our view, in the circumstances of this case, the failure to provide the respondent with an opportunity to respond to the allegations levelled against her was enough to warrant the dismissal being considered unreasonable and unjust. 13 The timing of a warning letter, being given to Ms Thompson on her return to work after an absence of a number of weeks, was also an issue raised by Mr Mimmo. Mr Redegalli's explanation for the timing was that Ms Thompson's conduct when she returned from annual leave was such that he had to ask her to take some further leave. He said that it was her behaviour on that day and again when she returned to work the second time that motivated him to give her the warning letter. He had hoped to see a change in her behaviour after her period of leave over the Christmas break. 14 In final submissions, Mr Mimmo for the applicant said that the warning letter issued to the applicant on 6 February 2005 was clearly designed to bring about the termination of the applicant's employment. That this letter was a compilation of comments by a number of employees was in itself an act of denigration and humiliation, he said. So too was the display of a wall calendar in the workplace noting the applicant's moods. Mr Redegalli, on the other hand, said that he prepared the warning letter with the assistance of a number of employees to ensure that the message to Ms Thompson was clear and unequivocal. He said he was not able to communicate this message verbally because of Ms Thompson's emotional responses to anything he raised with her at that time. 15 As to the wall calendar, the relevant notation was so obscure as to be difficult to decipher, in my view. Even though notes may have been made on days including non-working days, they could not have caused any embarrassment to the applicant because they were unobtrusive and meaningless to anyone except Mr Redegalli. In fact, Ms Thompson's evidence was that she did not recall seeing any such notations on the wall calendar after about February 2004. 16 Ms Thompson was dismissed by way of a telephone message. The receipt of a message on a telephone recorder may be an inappropriate way of being dismissed, especially in circumstances where the relationship is one that included face-to-face contact on almost a daily basis. However, Mr Redegalli said that he had tried to make contact with Ms Thompson and it was only when she did not answer her phone a couple of times that he left the voice message. Since Mr Mimmo's letter specifically requested that the applicant not be contacted personally, it was appropriate that Mr Redegalli left a message for her rather than pursuing his attempts to speak to her. 17 The dismissal was confirmed in writing, in correspondence dated 15 March 2005. It read as follows: Following a long process of performance management, counselling, assistance in arranging psychological support and a final written warning, we regret to advise that your performance has not improved to an acceptable level and as a result, your employment with Cydonia the Glass Studio has been terminated with immediate effect. Payment of outstanding wages, holiday and leave loading entitlements will be made direct to the bank account into which your pay is usually deposited within the statutory time period and a final payslip will be posted to you. You are reminded of the contents of your non-disclosure agreement which you signed when starting with this company. 18 The reasons for the dismissal, as set out in the letter of 15 March, have all been substantiated in the evidence. I accept that Ms Thompson's performance needed to improve, that she had been given all the assistance as set out in the first paragraph of the letter, and that her conduct did not improve. Applicant's medical history 19 Ms Thompson provided in evidence a medical certificate dated 5 July 2005 from Dr Robert Lopis stating that "She was started on medication in February 2003 for mild bipolar Affective Disorder (Type 2)". Ms Thompson commenced regular visits to her doctor and psychiatrist about this time. 20 I am satisfied that Mr Redegalli took the applicant's medical condition into account in dealing with her at work: he allowed her time to attend her medical appointments; he sent her out of the office to cool down when she was over-excited; he relieved her of payroll duties and had his mother perform other administrative functions for which Ms Thompson had previously been responsible; he told other staff to allow for her condition in their dealings with her, and protected her from their criticisms; he brought in Ms Luk to mediate between them; he organised the Commonwealth Rehabilitation Service ("CRS") to assist in managing the workplace conflicts; he warned Ms Thompson frequently that her conduct was unacceptable and he detailed his concerns in writing to ensure that she understood exactly what was required of her. 21 Prior to the events of late January and early February 2005, the evidence showed that Mr Redegalli had protected Ms Thompson from potential dismissal because of his concern for her, not allowing other staff to criticise her and encouraging them to overlook her conduct. In my view, during 2004 he went to extraordinary lengths to protect her from the criticism of other staff and to ensure her continued employment. 22 In addition, throughout these proceedings Mr Redegalli acknowledged Ms Thompson's skills and her contribution to the business. He referred to her as his "right hand" and he described her as being "very talented". He said she has been difficult to replace in the business. On a commercial note, he said that a competitor would be pleased to learn about Cydonia's business from Ms Thompson. Letter from the applicant's representative 23 Prior to the applicant's dismissal, a letter dated 11 March was sent from the applicant's representative to Mr Redegalli, requesting a "mature consideration" of issues raised including payment for overtime worked over several years. Attention was drawn to the applicant's ill-health with a request that Mr Redegalli not contact her directly, but reply to Mr Mimmo by 18 March. The issues raised in the letter included demand for restoration of annual leave entitlement because the applicant had been sick during her leave period and complaints about the applicant's relationship with another employee, Ms Emrita Luk. A further complaint is that Ms Thompson's standing has been diminished by the denial of her entitlements (a reference, I think, to the demand that some annual leave entitlement should be restored). The applicant suggested that this letter triggered her dismissal. 24 The applicant claimed that her employment commenced as casual or part-time from 1993 and became full-time in December 1999. The respondent claimed that Ms Thompson resigned her employment in September 1999, effective 13 November, and was paid out all her entitlements at that time. Pay records provided in evidence show that she then commenced employment in a full-time position on 3 December of that year, at a salary of $30000 per annum. 25 It was common ground that Ms Thompson's salary increased to $40,000 per annum from 20 April 2000. In June 2003 her salary was increased to $55,000 in order to assist Ms Thompson to purchase her own home. It was also agreed that she required and was given time off work on a regular basis to attend appointments with her doctor. While there was no written agreement that set out any conditions of employment, it is difficult to see the basis for Ms Thompson's overtime claim. On the contrary, the evidence suggests that she was told to go home from time to time, and was told not to attend at the business outside business hours, but chose to continue to do so. 26 There is, of course, no entitlement for annual leave to be restored in any case except where such is a specific term of an award or other employment agreement. In Ms Thompson's case, no such entitlement existed. Ms Thompson gave evidence that she had requested annual leave at that time, so it is inaccurate to say it had not been forced upon her as suggested in the letter of 11 March. Annual leave had been arranged and commenced in accordance with the applicant's request, from 17 December. 27 As to the relationship with Ms Luk, it may well have been "frosty" as set out in the letter, if Ms Thompson did not respond appropriately to Ms Luk's efforts to restore peace in the workplace. According to Mr Redegalli, part of Ms Luk's role in the business was to mediate between himself and Ms Thompson. I am satisfied that Ms Luk's relationship with the applicant had been, appropriately, both friendly and professional. 28 As to the applicant's ill-health, I have commented on that above. 29 The evidence showed that Mr Redegalli was informed of the contents of the letter from Ms Thompson's representative over the phone. He was upset by the letter which he regarded as unfounded and unwarranted. The conduct of the applicant 30 Mr Silk for the respondent submitted that the applicant's behaviour and work performance deteriorated from mid-2002 and was particularly extreme during 2004, resulting in verbal warnings being issued from about mid-2002. 31 On 17 December following the respondent's Christmas party, she assaulted Mr Redegalli outside the business premises. On returning to work on 31 January Ms Thompson was argumentative and aggressive towards staff, resulting in her being asked to take some more time off, as sick leave. Mr Redegalli's evidence was that it was Ms Thompson's behaviour on return from a long break that caused him to prepare the letter dated 6 February - the warning letter. On her return to work on 7 February there was no improvement so he decided to give her the letter. 32 The events of 14 March followed further disruptive behaviour on 14 February when Mr Redegalli sent the applicant home, providing her with paid sick leave for that day and the following day. 33 On 14 March Mr Redegalli's evidence was that the applicant became agitated, loud and abusive at a staff meeting. He said that she threw items at him that he had given her. He sent her home, warning her that he would call the police if she did not go. Ms Thompson agreed that she left only when threatened with the police being called. On the same day Mr Redegalli received telephone calls from two separate clients complaining about Ms Thompson's work. He then arrived at the decision to dismiss the applicant. 34 Mr Redegalli gave evidence that he attempted to contact Ms Thompson by telephone and when he could not do so he left the voice message informing her of her dismissal. He sent the letter confirming his decision the following day. 35 It is well established that procedural unfairness can render a termination of employment to be harsh or unfair. The Full Bench in D&R Commercial Pty Ltd and Flood (2002) 113 IR 344 at [59] said: That the adoption of an unfair process when making a decision to dismiss an employee may be the foundation for a finding of harsh, unreasonable or unjust is plain: see, for example, Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and Wilson v Department of Education and Training . In our view, in the circumstances of this case, the failure to provide the respondent with an opportunity to respond to the allegations levelled against her was enough to warrant the dismissal being considered unreasonable and unjust. 36 In this case, however, Ms Thompson had been given many opportunities to respond to the particular criticisms for which she was dismissed over a period of months. She constantly denied any fault, whether in her design role or in her administrative functions. Her behaviour at work did not improve. There was no final meeting where issues were considered one by one. Nonetheless, given the small size of the business, the ongoing nature of warnings issued and opportunities to improve provided to the applicant and the witnesses present during the staff meeting on the final day of employment, I am satisfied that any additional meeting with the applicant would have had no impact on the outcome. The workplace environment 37 Ms Thompson said that the work relationship deteriorated from about mid 2004 after her intimate relationship with Mr Redegalli ceased. 38 Mr Redegalli appointed Ms Luk in August 2004. In the latter part of 2004 Ms Thompson said that she noticed staff were less likely to consult her and more likely to consult Ms Luk, leading to Ms Thompson's increased feelings of insecurity and vulnerability. She was not advised of any changes to her responsibilities, she said. I do not believe that the actions of the respondent were designed to have a negative effect on the applicant; that they did so is not disputed, but were not intentionally caused by the respondent. I am satisfied that the respondent's efforts in introducing Ms Luk to the business were designed to have a positive effect on Ms Thompson, and on the working relationships generally. 39 Ms Thompson wrote in her witness statement: I firmly believe that when Sergio received the letter from my solicitor dated 11 March 2005 it triggered his instinctive impulse to punish me and he did this by terminating me. There was nothing in the evidence or in the demeanour of Mr Redegalli during these proceedings that would suggest he was motivated by any desire to punish Ms Thompson. Rather, the opposite was true. It appeared to me that he continued to make every effort to protect Ms Thompson from any unnecessary criticism, as he had no doubt done during her employment. As to any "instinctive impulse", Mr Redegalli acted against any such alleged impulse on the many occasions when Ms Thompson's behaviour required her to be given time to cool off. Contrary to acting impulsively, he had taken a number of steps to ensure that Ms Thompson had every opportunity to conduct herself in such a way as to fit in with the requirements of the business. 40 In his written statement Mr Redegalli said: By mid October 2004 the Applicant's work performance and behaviour had become so bad that I found it almost impossible to work with her. She refused to take instructions. She refused to admit when she had made an error. She constantly blamed other employees for mistakes that she made. She refused to accept counsel or criticism about her performance and behaviour. When I counselled her about her performance or behaviour she would raise her voice, yell and scream at me. She would swear and use offensive language. In order to avoid direct conflict with the Applicant I moved my work space to my apartment. I hired Ms Luk as a consultant. I employed Ms Luk to assist with the day to day running of the business of the Respondent. I advised the Applicant of this. However, the duties that Ms Luk performed were not duties that the Applicant had been performing. I had hoped to take on Ms Luk to act as mediator between myself and the Applicant. In October 2004 I had a conversation with Ms Thompson where I said words to the effect: The business has reached a point where it is becoming unable to function. This is because of continual stress and arguments that I have to have with you. It is also due to lost productivity because of your mistakes and your disruptive attitude towards me. I'm taking on Emrita to have a hands on role in the business. I need her to defuse the situation between you and me. I also need her to assist Cydonia to find some additional support for your condition. 41 None of the behaviour outlined here represents impulsive conduct on Mr Redegalli's part. I note that Ms Thompson denied that the above conversation took place. In fact she denied all conversations that were not in her favour and she denied culpability for any error at work, blaming others. In all, I accept that a conversation to the effect related by Mr Redegalli did take place. I also accept that on or about 15 February 2005 Mr Redegalli said words to the effect: Your behaviour hasn't changed. It can't go on like this. You are out of control. I am giving you a warning. Go home or you are out of a job. 42 That is not to say that Mr Redegalli's behaviour at work was always beyond reproach. He raised his voice, talked about Ms Thompson to other staff and rebuked her in front of others. The personal nature of their relationship, the closeness of working and living together over a period of time and the necessary pressures arising from a challenging work environment would almost inevitably lead to some raised tensions. However, efforts were made to relieve the tensions and to provide a stable working environment. These efforts, by Mr Redegalli's choosing. I am satisfied that Mr Redegalli's substantial efforts, which went well beyond the normal workplace requirements, outweighed any negative impact of his behaviour at work. 43 There were some ongoing problems with Ms Thompson's work performance. The evidence shows that payroll was late being processed on a number of occasions during the period that it fell under Ms Thompson's area of responsibility. She held up other workers when paperwork was not attended to in a timely way. The impact of her conduct at work caused tensions with fellow employees as well as with Mr Redegalli. When an appointment was made for her at CRS, Ms Thompson refused at first to attend expressing concern to Ms Luk that she did not want a record of problems at work. Although she did attend later appointments, the CRS was unable to proceed with any attempts to become involved in resolving the difficulties because Ms Thompson's doctor would not provide information and Ms Thompson would not consent to speak with the workplace. 44 There were also problems caused by Ms Thompson's behaviour. Ms Luk gave evidence about behaviour that was highly inappropriate at work. While Ms Thompson accused Mr Redegalli of not separating work and personal issues, it would appear that Ms Thompson was guilty of the same offence. Ms Luk related a number of incidents of Ms Thompson saying things to clients about her, of screaming at her, of grabbing her arm, as well as incidents when Ms Thompson's behaviour was directed towards other staff including Mr Redegalli. Ms Luk presented as a highly credible witness, not inclined to exaggeration or forgetfulness. 45 I note the comments of the Full Commission in Water Board v Water & Maritime Industry Union, IRC 1531 of 1993, 25 November 1993, as follows: Whether the circumstances of a particular dismissal are harsh, unjust or unreasonable under Part 8 of Chapter 3 of the Act, involves a consideration of all the relevant circumstances. These matters include both the position of the employee, including his employment history and the position of the employer. An employer may need to consider a particular employee's impact on other employees, as well as other matters. 46 In accordance with several witnesses, tension was evident in the workplace. Ms van Berkel gave workplace tension as a reason for leaving her employment, although her perception was that it was caused by Mr Redegalli rather than Ms Thompson. Having considered the evidence from all the witnesses, I am satisfied that Mr Redegalli's contribution to the negative atmosphere was far less than that of Ms Thompson. 47 The particular incident that occurred after the Christmas party on 17 December was sufficient to cause Ms Thompson to be dismissed. From the various reports of that incident I am satisfied that Ms Thompson physically assaulted Mr Redegalli. In accordance with the submission of Mr Silk, this would be sufficient to justify instant dismissal. That the respondent did not dismiss the applicant immediately following this incident is unsurprising, given concern he had shown for her and the lengths he had already taken to accommodate her in the workplace. 48 Ms Thompson described her behaviour at the meeting on 14 March as "calm and rational". She described Mr Redegalli as "unreasonable". This contrasts with Mr Redegalli's evidence that Ms Thompson was agitated, loud and abusive at the meeting. Inconsistencies and questions of credibility 49 On the first day of hearing, Ms Thompson gave evidence that she had been in employment "the entire time" since her termination and receiving equivalent remuneration to that which she received when she was employed by the respondent. She later revised her evidence to say that her monetary loss up to the date of giving the evidence was "In loose terms, sort of, you know, roughly number of weeks, probably about $8000." Attempts to substantiate that figure caused confusion to the applicant, to Mr Silk, and to the Commission. Ms Thompson had not applied for work in her field of expertise; she chose instead to do administrative and "some technical" work through a temporary placement agency. This evidence raises two separate issues. 50 Firstly, there is the question as to why the case was pursued through five days of hearing when there was a real potential that, even if the matter was concluded in the applicant's favour, no order would be made for compensation for loss of salary on the basis of the applicant's own evidence. I refer to the potential that it was open to me to accept the applicant's evidence as she first gave it, on face value. 51 Secondly, this evidence provided an example of the inconsistencies in Ms Thompson's evidence. There is a huge discrepancy between working every week with no loss of income and having a loss over four months in the vicinity of $8000. Unfortunately, the damage to Ms Thompson's credibility was not remedied by later evidence. 52 As an example, Ms Thompson admitted she slammed a holepunch on a table, but then described her action as having "put it down a bit heavily". Mr Cartwright had given evidence that Ms Thompson had thrown the holepunch across the office. The truth of any of these versions of events is incidental, except in so far as it assists in determining credibility. The Commission was not assisted in this regard by the evidence about the holepunch. 53 Other parts of the evidence were more readily able to be tested on objective standards. For example, Mr Cartwright claimed that the pays were often late when they were Ms Thompson's responsibility. Ms Thompson denied this was so. The bank records provided in evidence showed a number of occasions when the pays were processed late, essentially supporting Mr Cartwright's version of events. 54 When asked whether she was jealous of Mr Redegalli, Ms Thompson replied that she "never actually used to comment about it to anyone". This is contrary to the evidence of Mr Young, Mr Cartwright, Ms Luk and Mr Redegalli. 55 Mr Cartwright, Mr Rogerson, Ms Luk and Mr Redegalli all gave evidence that Ms Thompson had been warned about her conduct and behaviour, which Ms Thompson continually denied. 56 The above examples of the discrepancies between the evidence of the applicant and that of a range of other witnesses is meant to be illustrative rather than exhaustive. I do not believe it is necessary to detail each of the available instances. 57 Apart from denying so much of the evidence of other witnesses, Ms Thompson described Mr Young as dishonest, Mr Makk as fantasising, Ms Luk as frosty and Mr Redegalli as having an instinctive impulse to punish her. None of these assertions had any basis in the evidence provided in the proceedings before me. 58 Taking all of the above factors into account, I have to prefer the evidence of the respondent's witnesses where it is inconsistent with that of Ms Thompson. Onus of proof 59 It is well established that the onus is on the respondent to prove that summary dismissal was substantiated. In Pastrycooks, Biscuit Makers and Flour and Sugar Goods Workers' Union (NSW) v Gartrell White (No.3) (1990) 35 IR 70 at 83-84, Hungerford J, said: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital Crown Street [1947] AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949] AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 and Homebush Abattoir [1966] AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 at 552, 553; North v Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. 60 To justify summary dismissal, the respondent is required to show that he was satisfied after careful and proper examination that the applicant had committed such conduct to support his decision: Franklins Limited v Webb (1997) 72 IR 257. In this case, that onus has been fulfilled. Conclusion 61 It was submitted that the respondent was calculating and prepared to besmirch the applicant and to make false allegations against her. The evidence does not provide any grounds for this submission. Nor do I accept the submission that the applicant was taken by surprise, or that she did not have an opportunity to respond to the reasons for dismissal. The clear warnings given verbally over a long period and specifically clarified in writing prior to her dismissal gave her ample opportunity to respond. Instead, she chose to attack her employer through what was essentially a letter of demand for a range of matters of which at least some, if not all, had no foundation. 62 The decision to dismiss Ms Thompson was based on her conduct, as outlined in the letter of 15 March. The reasons have all been substantiated in the evidence. I accept that Ms Thompson needed to improve her conduct at work, that she had been given all the assistance as set out in the first paragraph of the letter, and that her conduct did not improve. Further, I am satisfied that the conduct had sufficient detrimental effect on the business to justify summary dismissal. 63 In the context of the practice of Mr Redegalli and Ms Thompson to communicate frequently by a range of means including telephone and text messages, the advice received from Ms Thompson's representative not to contact her personally, and the timely confirmation of the dismissal with reasons provided, I am satisfied that the procedural aspects of the dismissal were not such as to give rise to a finding that the dismissal was harsh, unreasonable or unjust. 64 A minor factor influencing the timing of the dismissal was the letter from Ms Thompson's representative, which removed the dispute from a personal level and took it into a different arena. While difficulties had existed in the workplace for a long time, Mr Redegalli had given priority to the personal relationship and his feelings for Ms Thompson. In instructing Mr Mimmo to write to Mr Redegalli, Ms Thompson in effect gave away the protection she had been receiving at work. 65 I am satisfied that the applicant's dismissal was not harsh, unreasonable or unjust, either substantially or procedurally. The application is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.