Industrial Relations Commission of New South Wales CITATION: Colak v Trafalgar First Aid Pty Ltd [2005] NSWIRComm 1230 APPLICANT Betul Colak PARTIES: RESPONDENT Trafalgar First Aid Pty Ltd FILE NUMBER(S): 3404 of 2005 CORAM: McLeay C CATCHWORDS: Unfair dismissal - sales executive complaints received from customers - appropriate warnings given - witness not denied - dismissal for reasons given by respondent - information discovered after dismissal relevant to questions of credibility - case not fabricated - dismissal not harsh, unreasonable or unjust - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 12/12/2005 DATE OF JUDGMENT: 12/23/2005 APPLICANT Appeared unrepresented LEGAL REPRESENTATIVES: RESPONDENT Mr T De Rooy Managing Director DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 23 December 2005 Matter No IRC 3404 of 2005 Betul Colak and Trafalgar First Aid Pty Ltd Application by Betul Colak re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1230 1 This is an application by Betul Colak (known as Jill Colak) against Trafalgar First Aid Pty Ltd for unfair dismissal from the position of Sales Executive pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Ms Colak was dismissed on 9 June 2005, having been employed by the respondent since 7 October 2002. 2 Ms Colak believed she was dismissed because she did not show appropriate remorse for any mistakes she may have made at work, as she had done at previous meetings with her employer. She said that the respondent later tried to "dig up" material to use against her, all of which was an excuse for the decision to terminate her employment. She stated that the decision to dismiss her was unreasonable. 3 Ms Colak said that she had had no problems or cause for complaint at work for her first two years of employment. It was only in the last eight months of her employment that she was "constantly getting into trouble". 4 The complaints against Ms Colak were itemised in the evidence of Mr Ray Schroeder, the General Manager of the respondent. She had been given three written warnings following discussions on each occasion. One was about her use of a company vehicle. Others followed complaints from customers about Ms Colak's conduct or performance at work. Mr Schroeder said that complaints were always treated by the respondent as the "tip of the iceberg" so were taken very seriously. 5 Ms Colak expressed concern that her work was not subject to review following the issuing of the warning letters. She said she was never reviewed. Mr Schroeder's evidence was that the several discussions initiated by Ms Colak following the first written warning displaced any further need for review, and that the meeting held on 7 June was a formal review meeting in accordance with advice set out in the letter of warning dated 10 May 2005. That letter stated, in part: Jill you will need to change the manner in which you address your customers. You can not be demanding and over pushy or forcing Work Cover Regulations upon people. Approach your clients in a non offending manner and help them to understand why you are supplying the particular items. You are not to contact either of these customers regarding these complaints. Your progress will be monitored on the issues raised today and will be reviewed in four weeks, 7th June 2005. 6 Ms Colak said she was constantly refused permission to have a witness attend meetings with her, except for the meeting when she was dismissed. Mr Schroeder gave evidence that Ms Colak did not ask for a witness to attend except once when the person she asked declined to attend and one time when he refused because it was a review meeting not a disciplinary meeting. 7 At the review meeting on 7 June Mr Schroeder described Ms Colak's behaviour as "belligerent, arrogant and argumentative". He said she interrupted other people and raised her voice at her supervisor. He described her attitude as "unbecoming" and totally different to her attitude on previous occasions when she had shown remorse and a willingness to take on board what was said to her. He described sales representative's attitude as vital to the success of the organisation. 8 It was following an assessment of Ms Colak's performance and her attitude expressed at this meeting that the decision was taken to terminate her employment. She said that she was told, at the final meeting on 9 June, that she was dismissed because she did not cry at the meeting of 7 June, as she had done at previous meetings. Mr Schroeder denied this was so. He said that it was made very clear to Ms Colak that the reason for her dismissal was the effect of her attitude on customers and her unwillingness to change. Her reminded her of the previous warnings issued and the effect on others and on the company. 9 The letter of termination read, in part, as follows: Since September 2004 we have had 3 issues regarding your performance that has required three formal warnings. Your failure to accept direction necessitates us to take the action of terminating your employment. Your position of Sales Executive with Trafalgar First Aid Pty Ltd will be terminated as of today Thursday, 9 June 2005. 10 The evidence of Mr Alex Anson supported that of Mr Schroeder in regard to the meeting of 9 June. Mr Anson had attended the meeting as a witness at the request of Ms Colak and had provided a written account of that meeting in a statement which she tendered in evidence. Mr Anson also stated that when Ms Colak threatened court action following her dismissal, she was told that it was her right to do so. 11 The respondent provided evidence about matters which came to their attention after Ms Colak was dismissed, including verbal complaints provided by a number of clients about Ms Cloak when the person who replaced her as sales representative attended the clients' premises. Ms Colak argued that none of these issues should be taken into account because they were not known to the respondent at the time of her dismissal. I find that the comments provided after the dismissal are relevant in so far as they confirm the concerns held by the respondent. They also go to the credibility of Mr Schroeder who offered the additional information that some positive comments were received about Ms Colak. 12 Mr Schroeder said that management had spent lots of time trying to assist Ms Colak and to improve her in her role as a sales representative, as well as in a personal way. He said that much of the assistance was not documented, because of the size of the business and the informal nature in which they were done. However, by June 2005, instead of making progress Mr Schroeder felt that Ms Colak's attitude was going backwards. 13 Ms Colak, on the other hand, said she had done nothing wrong, that she loved her job and was 100% loyal to the company. She disagreed with the content of warnings issued to her during the last months of her employment and felt they were an excuse to get rid of her. She said that she was "being picked on" by the General Manager and the Sales Manager. 14 The Sales Manager was not called to provide evidence. Nor was there any other evidence to support the allegation. As to the General Manager, Mr Schroeder, I saw nothing in his speech or demeanour to suggest that he would pick on anyone. Rather, the opposite is true. He presented as a gentle, respectful man and a credible witness. 15 Overall, I am satisfied that the evidence of the respondent should be accepted where it differs from that of the applicant. In particular, I accept that complaints were received about Ms Colak being pushy, unresponsive to the needs of customers and causing, in some cases, the loss of business. Her I also accept that she was not inappropriately denied witnesses at disciplinary meetings and that her behaviour at the June sales meeting was unacceptable. 16 Although Ms Colak said she believed in her heart she did nothing wrong, it is well established that the onus is on the applicant to establish that the dismissal was harsh, unreasonable or unjust. In this case, she has not done so. The evidence of the applicant was exaggerated at times. In other instances, Ms Colak simply provided a version of events which put herself in the best light. I cannot accept that all the case against her was fabricated or exaggerated to suit the respondent. The material was not "dug up", nor was she "picked on". 17 Rather, I accept that customer complaints received after the dismissal described behaviour consistent with that about which the respondent had expressed concern. Ms Colak's continued denial of any wrong-doing caused the respondent to decide to dismiss her. In all the circumstances, I find that the decision to terminate Ms Colak's employment was a reasonable one. 18 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.