Industrial Relations Commission of New South Wales CITATION: Cathryn Louise Taylor and AGnVET Services Pty Ltd [2006] NSWIRComm 1175 APPLICANT PARTIES: Cathryn Louise Taylor RESPONDENT AGnVET Services Pty Ltd FILE NUMBER(S): 2175 of 2006 CORAM: Tabbaa C Loss of lucrative contract as a result of Applicant's other employment Impartial witness to meeting CATCHWORDS: Principles in Browne & Dunn Summary dismissal Onus on Respondent to prove misconduct Industrial Relations Act 1996 LEGISLATION CITED: AWARD Shop Employees' (State) Award Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 Browne v Dunn (1894) 6 R 67 Buckman v Burdekin (1998) 85 IR 415 Franklins Limited v Webb (1997) 72 IR 257 CASES CITED: Jones v Dunkel and Others (1958-59) 101 CLR 298 Kleiberg & Churches trading as Armstrongs Solicitors [2006] NSWIRComm 1110 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71 Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 Wang v Crestell Industries Pty Ltd and Anor (1997) 73 IR 454 HEARING DATES: 18/08/2006 DATE OF JUDGMENT: 12/13/2006 APPLICANT Mr M Harmer Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr D J Hoiberg Consultant DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: TABBAA C 13 December 2006 Matter No IRC 2175 of 2006 Cathryn Louise Taylor and AGnVET Services Pty Ltd Application by Cathryn Louise Taylor re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1175 1 Ms Cathryn Louise Taylor filed a claim pursuant to Section 84 of the Industrial Relations Act 1996 on 12 April 2006 alleging that she had been unfairly dismissed by AGnVET Services Pty Ltd, the Respondent in these proceedings, on 22 March 2006. Ms Taylor contended that she had been employed from 1 March 2002 until 1 April 2005 as a casual employee and thereafter, until her dismissal, as a full time Customer Service Officer pursuant to the provisions of the Shop Employees' (State) Award. 2 Conciliation proceedings before Bishop C on 16 May 2006 and 1 June 2006 failed to resolve the claim resulting in standard directions being issued in relation to the filing and serving of evidence. 3 The matter was listed for hearing before the Commission as currently constituted on 18 August 2006. 4 Mr M Harmer, Solicitor, entered an appearance on behalf of the Applicant and called evidence from the Applicant. Mr D J Hoiberg, Consultant, entered an appearance on behalf of the Respondent and called evidence from Mr John Gerhardy, Business Manager. Background 5 The Respondent is engaged in the provision of Agricultural and Veterinary Services via 17 stores in country New South Wales, including in Wagga Wagga and Boree Creek. It stocks animal health products for sale to the general public. Its administration offices are based in the top floor of the Dubbo store and there is an IT office based in Sydney. It employs approximately 96 employees. 6 It engaged the Applicant in the position of Customer Service/Salesperson - Boree Creek, first as a casual and later as a full-time employee. The following Applicant's chronology was not disputed: 1 Mar 2002: Casual Customer Service/Salesperson - Boree Creek June 2002: Ceased work on account of the drought conditions March 2003: Sought out and re-engaged on same terms as before 1 April 2005: Converted to permanent employment 17 Nov 2005: Performance Appraisal conducted by Peter Gunn, Store Manager and Agronomist, and John Gerhardy, Product/Business Manager (Southern Stores). That appraisal included relevant comments under the following headings: Attitude : "Co-operative positive attitude to management decisions; some favourable influences"; "Recognises management's prerogatives; effectively promotes the company and its image." Relations with others: "Always congenial and helpful; good team worker"; "Goes out of way to co-operate; very helpful and tactful, excellent team worker." Communication Skills : "Speaks well, writing needs polish; keeps people informed; timely and discreet"; "Exceptionally skilful in expressing ideas and providing information both oral and written". Leadership: "Has satisfactorily led small group of subordinates to planned results - limited experience." Overall, they rated her job performance as "Excellent", "Good", her dealings with customers as "Excellent" and commented that over the 7-month period of her employment, she had retained, increased margin. Salary increased from $33,000 to $36,000 per annum 22 Nov 2005: Commenced annual leave 22 Nov 2005: Commenced seasonal engagement with GrainCorp as a Sampler Assessor 26 Nov 2005: Nominated as one of three employees for "Employee of the Year" award 5 Jan 2006: Completed engagement with GrainCorp 16 Jan 2006: Returned to AGnVET at conclusion of annual leave 22 Mar 2006: Dismissed from employment 7 The Applicant provided information that there are three major farming events in a calendar year - sowing, harvesting and shearing. Those involved in harvesting, which runs from about the second week in November through to January, may be involved in either harvesting, transporting or sampling testing, sorting and dealing with the harvested grain. The Applicant has joined in the harvesting for the last 16 years, and taken holidays and/or leave without pay from her usual position to work as an Assessor with GrainCorp. Throughout her period of employment with the Respondent, she had done so with her employer's knowledge and permission. 8 A Sampler Assessor may reject the whole load upon an initial visual check of the grain. If it is not rejected, the second stage is to take a representative sample using a vacuum probe. The grain is then put through a number of procedures, depending on the type of grain, prior to being graded. The grade determined by the Assessor affects the price the farmer receives for the grain. Obviously, the better the grade the higher the price of the grain. Posted on a daily basis on websites and on the sampling stand were approved buyer prices. Following the grading of their produce, the growers are asked to indicate which buyer they would like to sell their grain to. 9 On or about 30 November 2005, the Applicant, whilst engaged in her role as an Assessor with GrainCorp, was involved in a dispute with a grower, Mr Steven Hargreaves, as to the grading of his product. Dispute with Mr Hargreaves 10 The Applicant stated in her written evidence that on or about 30 November 2005, GrainCorp had received complaints about the changes it had made relating to its product requirements. It was accused of "moving the goalposts". In addition, the growers had complained about that buyer's alleged constant, almost ridiculous, fault finding with their cleaved barley - a problem associated with weather damage resulting in negation of the malting process. 11 The Applicant recalled that Mr Hargreaves's crop was well over the limit of protein when she tested it during the first week of the harvest. That result had upset him and caused him to complain that he would have been $18,000 better off had he taken his crop to another grain purchaser at Oaklands. He had also complained about the truck code his crop had been allocated and he was given the option of selecting his own code. 12 On or about 30 November 2005, another employee, Ms Rachel Goldsworthy, came up with the idea of presenting Mr Hargreaves with a food hamper in an effort to lighten the tense atmosphere that existed every time he brought in a delivery to the sampling stand. He continually complained that she was "taking the food out of our mouths". The Applicant joined Ms Goldsworthy in playing a practical joke on Mr Hargreaves. 13 Mr Hargreaves, accompanied by his son Scott, arrived with a test sample on the morning of 1 December 2005. The Applicant, on presenting him with the hamper, advised him that it was to help see him through the harvest seeing as they were taking the food out of his family's mouths whereupon Mr Hargreaves denied making such a comment. When the Applicant pointed out that she had personally heard him make that remark, he conceded that he had made it the week before. Not satisfied with his response, the Applicant confirmed with Ms Goldsworthy, in his presence, that the comment was made the previous morning. Mr Hargreaves allegedly made a comment to the effect that both women were sticking up for one another. 14 The conversation had degenerated thereafter with Mr Hargreaves allegedly insinuating that other employees had been speaking to him about her performance and that her assessment of his sample the previous day had been over-ridden by another Sampler. The Applicant responded by advising Mr Hargreaves that she had not checked the sample the previous day but recalled that one of her two off-siders had determined that its moisture content was too high. When asked if the load should be turned away, the Applicant had deferred to the other Sampler who was present at the time. He decided to pass it but instructed the staff not to accept any further loads. There was an argument as to whether or not she had to take full responsibility for the sampling and she had replied that it was too onerous a responsibility and that was why she had two off-siders. 15 The Applicant contended in her affidavit evidence that Mr Hargreaves had concluded the conversation by telling her to "shove all the grain up your arse" and that he would not be returning; that he had done everything for her, "stood up and publicly defended you on more than one occasion", that "I have plenty of influence and will make sure you are not here next year", and that if she did not return the following year "everyone in the district would be happy to hear that, they all hate you and want you to leave". 16 After Mr Hargreaves and his son departed, the Applicant and her offsiders had continued undertaking the sampling. Later that day the Applicant advised her Site Manager and the Silo Committee Chairman of the altercation with Mr Hargreaves. 17 Ms Taylor was aware that Mr Hargreaves returned to the site later that day allegedly to lobby the drivers to have her removed from her position with GrainCorp. She contended that she was told of a meeting called by Mr Hargreaves at the Boree Creek Park where he had stated that he would never set foot back on the site whilst she was employed there. The growers had expressed frustration with the black-tipped and cleaved grain. 18 It was decided with the Southern Region Manager that, in relation to the barley, only the most obvious cleaved grain would be downgraded which would result in the majority of the samples being passed. In relation to Mr Hargreaves's crop, his cleaved, black-tipped and high protein barley were graded as malt or Feed 1 quality instead of being graded as Feed 2 quality or declined. The Southern Region Manager instructed the Site Manager to spend 90 per cent of his time on the stand dealing with growers' complaints and backing up the staff. 19 Ms Taylor concluded the season with GrainCorp on 5 January 2006. Differences with Mr Hosie 20 On her first day back with the Respondent on 16 January 2006, the Applicant was advised that a new employee, Mr Justin Hosie, would be responsible for the fertiliser and she would be responsible for animal health. Mr Hosie had commenced employment with the Respondent on 3 January 2006, having previously worked with the Applicant at GrainCorp. Both were responsible for keeping the shop, back shed and yard clean and tidy. The Applicant recalled complaining to Mr Peter Gunn, the Boree Creek store manager, that Mr Hosie sat and watched her as she unloaded pallets of dog/cat/chicken feed. In addition, he had incorrectly dealt with stock, had failed to pass on messages to her, was filling her orders without her knowledge and re-directing her mail to himself. The Applicant pointed out that the client involved had complained and threatened to sue the Respondent when incorrect advice had been received from another employee, Mr Peel. Mr Gunn considered them to be minor issues and determined that they would be dealt with at branch level. 21 In his written evidence, Mr Gerhardy, the Business Manager, acknowledged that he was aware of differences between Mr Hosie and the Applicant arising from Mr Hosie's previous employment. He said that he had received complaints about the Applicant from various staff members about her relationship with Mr Hosie. These complaints were: · that the Applicant refused to speak to Mr Hosie when they travelled together to a training day in Temora · that she spoke of Mr Hosie in derogatory terms · that she was not passing on messages to Mr Hosie and that she was undermining him and the business · that the mood at the Boree Creek store was extremely tense · that she would not assist Mr Hosie with the computer system and would not pass on a folder of information to him. The complaints reported by Mr Gerhardy allegedly came from at least one staff member and one customer. 22 Mr Gerhardy said that the Applicant wrote "a string of complaints and issues" she had with Mr Hosie which she left on her desk. That list read: Doesn't do any tidying up in back shed. Leaves rubbish on floor eg Woolpacks 100 on floor 10 Bentonite 10kg on floor. Cups & Kitchen - doesn't put away - doesn't clean melted cheese off sink - why do we buy biscuits? Jumping up & serving customers didn't last 3 wks Sits there & watches me load blocks & dog food Cannot be told how to do stocktakes properly & he thinks its stupid when shortages aren't changed in computer. Wants new cup Wants new fridge - vaccine fridge isn't good enough. Reckons he knows everything about ordering. Get a/h mail sent to him & not me. Doesn't pass on messages to me - saves them all for PG. Same with faxes. Even if PG hasn't been there. All matters he will keep to himself, & has customers bypass me for him eg Jim Morgan & U30 23 The conclusion reached by Mr Gerhardy was that "these people cannot work together". 24 Mr Gerhardy emailed the Applicant about a complaint from Mr Hargreaves, on 6 March. It read: Cathy, Last week I received a formal complaint from Steve Hargreaves indicating that he has some serious issues with you which has the potential to have an impact on our overall business in Boree Creek. As soon as Peter Gunn returns from annual leave we need to sit down and discuss how you believe we can best resolve and address these, before things get any further out of hand. I will advise more details once I have spoken with Peter Gunn. In the meantime, should Steve or any of his family members come to the Boree store, please do all you can to provide them with the level of customer service and courtesy that he and all our customers are accustomed. 25 The Applicant said that, on 17 March, Mr Gunn told her that he knew Mr Hargreaves's complaint was a GrainCorp issue and had nothing to do with her work with the Respondent. She was given the opportunity to discuss her issues about Mr Hosie, and Mr Gunn agreed on certain parameters of work and undertook to speak to Mr Hosie. Photocopying mail 26 The Boree Creek store operated as the local Post Office. Each morning the Applicant sorted the mail prior to its delivery by the mail contractor. A complaint was made to Australia Post that she was copying mail. The Applicant admitted photocopying envelopes addressed to the Hargreaves after Ms Hargreaves had accused her of not delivering an item of mail. 27 The issue was raised with the Applicant for the first time at the meeting on 22 March when she explained her reason for doing so. Complaint from Mr Hargreaves 28 Mr Gerhardy stated that he had received a phone call from Mr Hargreaves about the customer service in the Boree Creek store. He emailed the Applicant about this, saying he would discuss how to resolve the issues when Mr Gunn returned from annual leave. The Applicant had agreed with Mr Gerhardy that she had been a good friend of Mr Hargreaves. 29 The Applicant stated that Mr Gunn told her that Mr Hargreaves had provided a list of 12 names of clients who would no longer shop with the Respondent while the Applicant was employed. Mr Gunn had visited each of the named clients and had found "they didn't have a problem coming into the store" while the Applicant was there. Mr Gerhardy conceded that he had not spoken to any of the people who were on the list. 30 Mr Gunn had told the Applicant that he knew the difference with Mr Hargreaves was a GrainCorp issue. Meeting on 22 March 2006 31 A meeting was held at the Wagga Wagga store on 22 March. Attending the meeting were Messrs Gerhardy, Gunn and Herring and the applicant. The Applicant had previously asked Mr Herring to be available as a witness for her but had not received a reply. The Respondent's meeting notes commence with the words: Nigel Herring attended this meeting upon the request of both Cathy Taylor & John Gerhardy as an impartial attendee. 32 During the meeting the Applicant was told that Mr Gerhardy did not want to discuss the Hargreaves issue arising at GrainCorp, but there were other issues to discuss - communication with Mr Hosie, the Applicant's partner spending time at the store and a customer service issue with the Hargreaves family. 33 The Respondent provided in evidence a typed copy of notes taken by Mr Herring during the meeting, and the Applicant provided a transcript of a recording she taped of the meeting. 34 The first issue discussed was regarding Mr Hosie. The Applicant agreed she did not want him employed, and had asked Mr Gerhardy not to employ him. Once employed, she had agreed to work with him. Mr Gerhardy put the various complaints to the Applicant in the form "One staff member advised ..." to which the Applicant responded by asking who had made the complaint. The Applicant denied the complaints against her. Specifically she suggested that making conversation while travelling was a two-way thing, she denied speaking about him in derogatory terms or not passing on messages to him, and challenged that a person working in Wagga Wagga would know what was happening in the Boree Creek store. 35 The Applicant's comments (which were not recorded in the Respondent's notes) were that: I don't think you're trying - you're not even listening to what I say. You're listening to hearsay from other people and what did you two say to me when you put Justin Hosie on - "that's hearsay and we're not taking it into account". She continually asked for the complainants to be named, or to be telephoned on speaker-phone so she could hear the allegations for herself. Regarding the trip to Temora, she said: Righto well we'll leave Steve now. Righto well there's other people OK. I can remember when I went to the Bayer Protect meeting, Justin and I hopped into the car, said a few words and then it was quiet for the trip to Temora. We don't have anything to talk about. Don't you sometimes sit in the car and not say anything? Righto, we arrived at Temora - he obviously said to everybody else there "Cathy didn't hardly talk to me on the way there" cause everyone was ribbing me up there about the quiet trip and Conrad rings up the next day and said "Ooooh how was your trip to Temora I hear it was pretty loud" and something like that, just you know mocking that it was a quiet trip. Well don't you think Temora has got anything to do with that? They're egging him on and saying "oh what's she doing" and I don't know about other comments. Well go on with the next issue. 36 Mr Herring referred to a customer complaint about problems between the Applicant and Mr Hosie. He assured the Applicant that the complaint had not been made by Mr Hargreaves. When asked if they could work together harmoniously, the Applicant replied, "Well we are." 37 The Applicant's transcript of the meeting uses the following abbreviations: JG - John Gerhardy, CT - Cathy Taylor, NH - Nigel Herring. It reads in part: JG: It's not working, I mean we're getting continual complaints and problems from the Wagga staff all the time about Boree Creek. And it's shocking when people don't want to phone Boree Creek …(big pause) …well I'll go back to the question now, I mean do you believe that you are ever able to work with Justin Hosie? CT: The answer is yes. JG: I mean … I don't believe that I, I mean I think you have an attitude towards Justin, you have the attitude in this room here towards Justin, and basically I mean, I don't think it can be tolerated any longer, I mean your attitude towards Justin needs to change and it needs to change now. Do you think you can change your attitude towards Justin? CT: Well if you give me a list of things that you would like me to do … JG: No no no I don't want to give you a list, I want … CT: Well you have to because I think we're getting along alright and if you want me to change then you have to outline specific things that you want to see changed. JG: Well I think the only thing I can do there is that look, you know I, I, I don't want to receive another complaint from anyone, from a customer, a staff member or anyone about the issues that we have out there at Boree Creek between you and Justin. That's what it has come down to. CT: Well I can't promise that - if people want to ring up and complain to get rid of me they will won't they? JG: They just like Justin, they like you, why in the hell can't you just get along? CT: I have just said that I feel that we are. JG: Do you think, do you believe that anything can change to get along with him better? CT: You've just asked me that - what do you want me to change? JG: No I'm asking do you believe you can do anything yourself … I mean … CT: Well I need some help … no … I didn't say I can't change - I need specific things that you want to see improved and if you can't give them to me then obviously there is nothing there … JG: Why can't you treat Justin like Peter Gunn? CT: Well I've known him longer and we have different interests we can … I don't see Peter Gunn that often. JG: Alright … well I guess … from here um you you don't believe that you can do anything to change your … with Justin? CT: No - you are not phrasing it correctly - I need from you a guide, as to what you want to see changed. NH: Can it be harmonious? CT: Well yes I think it's halfway there. Can you tell me what needs to be done to make it more harmonious? NH: Communicate. Talk to people. CT: How? NH: Talk … CT: What do you want me to talk about? NH: Look Cathy you know ah … I can't tell you how to get on with someone else, I can't tell … JG: We can't do that … NH: It's uh … it's an acceptable comment .. you get along with everyone else, perfectly well within the business. I can't … CT: No I've just been told that I'm not getting along with all the staff members in Wagga and ... NH: No they're not arguing this as well, I don't know about [undecipherable] … but the main concern is between Justin and yourself and it's really … I mean it everyone else can see it - can you not? And it's not working, it's not working, that's the problem. If the relationship isn't working, then eventually gaps are going to form and this bloke (pointing to Peter Gunn) going to have to pick them up and it's not fair, it's not fair on him. 38 Although the Applicant was provided with an opportunity to raise grievances she had with Mr Hosie, she did not believe that Mr Gerhardy either took them seriously or that he had any intention to resolve them. As Mr Gunn went through the various issues with her, Mr Gerhardy proceeded to refer to them as "petty" and kept saying, "Look I think we just keep coming back to the same thing they just can't work together". 39 The Applicant's partner was also the subject of discussion at the meeting. Mr Gerhardy suggested that he spent too much time at the store. The Applicant denied that he spent excessive time at the store pointing out that he would come to pick her up at the end of the day and, on occasion, would give her a hand with her work. 40 The Applicant pointed out that there had been no complaints about her in 2005. Mr Gerhardy agreed stating that everything was fine before she went away to harvest. 41 The issues with Mr Hargreaves were raised by Mr Gerhardy who commenced that aspect of the discussions by making the comment that a number of customers were concerned about coming into the store. He conceded that he had not spoken to the farmers. Mr Herring said that her actions had lost the business Mr Hargreaves' account which was worth $100,000 per annum. He wanted to know how she intended to win back that account. He referred to her work at GrainCorp. He stated that, had he known that she held such a responsible position with that organisations, he would not have permitted her to work there. Mr Herring said that the Respondent intended to make it company policy that its staff would no longer be allowed to work outside the business during harvest. 42 There followed a short break in the meeting. Upon resumption, the Applicant was told, "Based on what we spoke about earlier, we are terminating your employment". Consideration 43 A number of issues arise from the Mr Gerhardy's testimony which are addressed below. 44 Firstly, amongst the documents tendered in evidence during these proceedings was an email from Robert Moorfield of AGnVET to Mr Gerhardy, the Business Manager. It read: John, below are details as requested by you, 9/8/06 in relation to Cathy Taylor 1. On the 7/3/06 I had lunch in Wagga with Steve, Janet and Scott Hargreaves. Steve had indicated prior to this that he would discontinue to purchase product from Ag-n-Vet Services because of a dispute with Cathy Taylor while she was employed with Grain Corp. I met with Steve to attempt to negotiate a settlement between all parties. At a time shortly after this I discussed with John Gerhardy a conversation I attempted to have with Cathy Taylor where as a friend I was prepared to help her with any difficulties she was having at work in relation to Steve Hargreaves and a perceived difficulty with Justin Hosie. 2. Hargreaves Farming are the only clients who indicated they would cease trading with AgnVet Services. 45 There is no doubt, from the contents of that internal communication and the discussion on 22 March, that the Respondent's management had concerns about the possible loss of business arising from the incidents at GrainCorp. It is also clear that Mr Hargreaves was the only customer who had a problem with the Applicant arising from the incident. 46 Secondly, there is the issue of the credibility of the witnesses. Mr Gerhardy's credibility is affected by the Applicant's transcript of a discussion between herself and Mr Peter Gunn, the Manager of the Boree Creek store. The discussion took place on the same day, shortly after the termination. The transcript records that Mr Gunn had said, "They told me when you went off in the truck that John and Giffo had planned it three weeks ago." ["John" being John Gerhardy and "Giffo" being a reference to Mark Giffin, the Managing Director of the Respondent firm.] 47 In addition, the notes provided by Mr Gerhardy of the meeting held on 22 March described Mr Herring's role in the meeting as that of an "impartial attendee". That description belies the partiality which was evident in those notes which, by the way, is not surprising considering the position he holds in the firm. Nevertheless, it impacts on the credibility of the Respondent's witness. 48 Thirdly, in his testimony, Mr Gerhardy's confirmed that the Applicant had received a positive outcome from her most recent annual review. She had been awarded a nine percent rise resulting in her salary increasing from $33000 to $36000 per annum. He also agreed that there were no complaints received against the Applicant prior to 2006. It is notable that two events intervened around the same time: the Respondent employed Mr Hosie against the wishes of the Applicant and a dispute arose between Mr Hargreaves and the Applicant. Both those events resulted in Mr Gerhardy being unhappy with the Applicant, for different reasons. 49 Fourthly, Mr Gerhardy gave repeated evidence that he had no knowledge of a list of farmers who would not buy from the Respondent, apart from Mr Hargreaves. That is at odds with the reference in Mr Gunn's email to Mr Giffin on 16 March where he stated: I have had the opportunity to see a few of our main clients listed in the Hargreaves complaint and had a meeting with John G yesterday. The email was copied to Mr Gerhardy at the time it was sent to Mr Giffin. 50 Fifthly, Mr Gerhardy had not responded to any of the issues raised by the Applicant in regard to Mr Hosie, except to describe them as "petty". Those issues included heavy lifting - which, considered objectively, is not petty. The evidence disclosed that the lifting involved 20 kg bags of dog and cat food and 20 litre chemical drums, as well as 40 kg bags and 110 litre drums to be manipulated onto a forklift and/or across the back of a utility truck. 51 As a result of considering the issues outlined above, I cannot accept that Mr Gerhardy was a totally truthful witness. I am satisfied on the evidence that he was strongly motivated by the loss of the Hargreaves account and that he used the differences the Applicant had with Mr Hosie and the Applicant's responses during the meeting on 22 March as an excuse to terminate her employment in order to win back that account. 52 Emails exchanged between Mr Giffin and Mr Gunn on 16 March set out a plan of action appropriate to the circumstances. The options set out by Mr Giffin were further discussion, fire, warning where needed, to be determined after the scheduled meeting. It was at the meeting of 22 March, however, that a strong bias against the Applicant became evident, with an unwillingness to consider her side of the story or to follow upon suggestions for further information which may have clarified the situation for both parties. 53 The evidence revealed that the Respondent took a one-sided approach to the complaints against the Applicant. It further revealed that, for her part, the Applicant showed no serious offer to come to terms with the possibility that she should work on developing a more positive relationship with her work colleague. 54 As to her relationship with Mr Hargreaves, the Applicant made two fundamental errors. Firstly, she offered him a food basket as a joke while she was working at GrainCorp. That idea was initiated by a fellow employee at GrainCorp but was carried out by the Applicant, who should have known better than to do that. Secondly, she photocopied mail addressed to him and/or his family. That is an intrusion into his privacy, to say the least. However, the first of those occurred away from her workplace with the Respondent and, on its face, did not relate to her primary employment. The second could have been dealt with by instructing her not to do it. Certainly, she did not deny it when it was raised with her. It is surprising that the matter of photocopying envelopes was not raised with her immediately with a view to ceasing that practice, instead of it being reported to Australia Post. I am satisfied that this issue was a one-off matter and did not have a substantial influence on the decision to dismiss the Applicant from her position. 55 Mr Gerhardy, on the other hand, was motivated by the loss of an account (potentially in the vicinity of $100,000 per annum) as well as the loss of a friendship with Mr Hargreaves of twenty-three years standing. 56 It has been well established that, as the termination of the Applicant's employment was by way of summary dismissal, the onus is on the Respondent to prove the misconduct: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71; Franklins Limited v Webb (1997) 72 IR 257. In particular, in Wang v Crestell Industries Pty Ltd and Anor (1997) 73 IR 454 it was said at 463: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299 . 57 In the present proceedings, the termination was described by Mr Harmer as being summary in fashion, although one month's pay in lieu of notice was given. The Employment Separation Certificate issued by the Respondent offered no reason for the dismissal. 58 The Full Bench in Franklins Ltd v Webb cited with approval the decision of the former Industrial Commission in Court Session in Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 at 2 as follows: Some argument took place about the admission of character evidence relating to previous good character. We consider that in this class of case, such evidence should be received as tending to prove that the employee should be believed on her oath and that an inference of dishonesty should less readily be inferred against her. Of course, the weight given to any such evidence may vary widely and its effect is always a matter falling within the discretion of the tribunal. 59 Mr Harmer submitted that the Applicant had not been provided with procedural fairness in that she had neither been warned about, nor provided with given an opportunity to improve, her performance (Kleiberg & Churches trading as Armstrongs Solicitors [2006] NSWIRComm 1110.) Reliance was had on the decision in Buckman v Burdekin (1998) 85 IR 415 wherein the Full Bench said: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter, which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. 60 The failure to issue proper warnings and provide an opportunity for performance to improve were matters which added to the unfairness in these proceedings, albeit they were relatively incidental to the substantive issues. 61 Other matters affecting these proceedings generally included the fact that only one witness was called for the Respondent. The failure to call other relevant witnesses is significant. The Respondent was obliged to substantiate its claims that complaints were indeed made against the Applicant. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 wherein the principle established in Browne and Dunn was cited with approval, Hunt J said: It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67. 62 The decision of the High Court in Jones v Dunkel and Others (1958-59) 101 CLR 298 made it clear that if there is a witness who could support a particular case who is not called, the presumption must be drawn that they would not have assisted that case. 63 Much of the Respondent's case centred on complaints allegedly made by staff members who were not called to give evidence. Mr Gerhardy was unable to shed any light as to why the alleged complainants were not called to give evidence, "I can't answer that, I don't know why." Accordingly, the presumption may be drawn that their evidence would not have assisted the Respondent's case. The same may be said in regard to alleged complaints by customers. 64 In most instances, the Applicant was not provided with the names of those who had lodged complaints against her. She was therefore precluded from calling evidence for the purpose of refuting the alleged complaints. 65 The Applicant's evidence relating to Mr Gunn, the Boree Creek Store Manager, was not effectively refuted by the Respondent. It is insufficient to merely state that the Applicant changed from "an excellent employee" to "a totally different person" when she returned from holidays, as suggested by Mr Gerhardy in his oral testimony. 66 The Applicant, on the other hand, provided written references from a number of customers in support of her case. Those references were not challenged by the Respondent. 67 No serious response was given by the Respondent to issues raised by the Applicant. In addition, in determining the outcome of the difficulties experienced by the Respondent in terms of the loss or potential loss of business, the Respondent appears to have not taken into account the Applicant's employment history including her very recent nomination as Employee of the Year. It appears that other alternatives to dismissal from employment, were not considered. For example, the option of transferring her to another of the Respondent's stores was not considered. Conclusion 68 On the evidence, it is clear that the primary focus of the Respondent's management team was on the loss of a substantial amount of business as a result of the loss of the Hargreaves account. In an attempt to avoid a potential claim for unfair dismissal, a decision was made to focus on the relationship between the Applicant and Mr Hosie. Yet, at the meeting on 22 March, Mr Gerhardy failed to deal appropriately with the in-store relationship between those two employees. He had ignored the grievances raised by the Applicant and chose, instead, to use the differences between them as an excuse to dismiss the Applicant, an otherwise excellent employee. 69 I am satisfied that the dismissal of the Applicant was unjust and unreasonable. 70 Following her dismissal, the Applicant was diagnosed with depression. She commenced counselling two weeks after the termination of her employment by the Respondent. She remained unemployed at the time of the hearing. 71 The Applicant gave evidence that her annual salary was $36000. That was expressed as $692.31 per week in her section 84 claim. 72 On the basis of the findings set out above, and having observed the demeanours of the witnesses in the above matter, I make the following orders. ORDERS 1. The Respondent, AGnVET Services Pty Ltd, is to pay to the Applicant, Cathryn Louise Taylor, an amount of $6923.10, taxed appropriately. That sum is calculated on the basis of ten weeks' pay at the rate of $692.31 per week. 2. The amount set out in Order (1) above is to be paid within 21 days of today's date. _______________________________ 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.