Industrial Relations Commission of New South Wales CITATION: Friar &Next Edition Pty Ltd [2006] NSWIRComm 1168 APPLICANT PARTIES: Ms China May Friar RESPONDENT Next Edition Pty Ltd FILE NUMBER(S): 944 of 2006 CORAM: Ritchie C Termination of employment-unfair dismissal-whether termination harsh, unjust or unreasonable. Respondent terminated employee within alleged probationary period as per employment contract. Applicant stated never received employment contract via email-respondent never asked for signed contract. Commission found that probationary period not determined in advance, therefore applicant not an exempt employee from Part 6 of Chapter 2. During employment process applicant completed application form and declared that it was correct. Applicant admitted that she misled the employment agency and the respondent in providing the name of her ex-manager/owner but not advising that same person was her father. CATCHWORDS: Respondent unaware of this fact until post the termination. Applicant had worked for this company for 12 years. Applicant's short period of employment of 3 months with respondent very turbulant with criticsms from respondent as to various aspects of work including relations with fellow employees and clients. Commission found that an unbiased employment check in circumstances where the applicant had spent along time in one company was critical in the employment process. Commission found that action of applicant in misleading respondent was inappropriate and should not benefit with a finding in her favour. Commission held that applicant had failed to prove termination harsh, unjust or unreasonable. Application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Byrne v Australian Airlines(1995) 185CLR410 at 430 McPhee v Simpson (1910) 10SR(NSW) 786 HEARING DATES: 02/08/06,03/08/06,05/09/06, 22/09/06, 07/011/06 DATE OF JUDGMENT: 11/24/2006 APPLICANT Self represented LEGAL REPRESENTATIVES: RESPONDENT: Mr T Fatseas DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 24 November 2006 Matter No IRC 944 of 2006 IN THE MATTER OF: China May Friar and Next Edition Pty Ltd Application by China May Friar re unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996 DECISION [2006] NSWIRComm 1168 Background 1 Ms China May Friar (the applicant) who was born in 1974, commenced employment with Next Edition Pty Ltd (the respondent) on 23 November 2005 as a National Account Manager and was terminated on 17 February 2006. Her letter of termination dated 17 February 2006 referred to her employment letter dated 22 November 2005 and stated that she had been unsuccessful in completing her probationary period. 2 The applicant filed a claim for unfair dismissal on 24 February 2006. On 20 March 2006 a conciliation of the application was attempted but was not successful. A timetable for the filing and serving of evidentiary material was provided to the parties. 3 A hearing for a Notice to Produce was held on 26 July 2006. A number of Summons to give Evidence were issued by the applicant on employees of the respondent. 4 Arbitration of the matter took place on 2 and 3 August, 5 and 22 September and 7 November 2006 when the Commission reserved its Decision. 5 In the arbitration proceedings, the applicant was self-represented and a Mr T. Fatseas of the respondent appeared for the respondent. Applicant's Case. 6 The applicant first saw the job she was hired to do on an internet site and was initially interviewed by Mr David Stuto of the recruitment agency Atomic Recruitment on 8 November 2005. On that same day she completed, signed and dated an application form, which became Ex4. Above the applicant's name and signature was the following Declaration: I certify that all statements above are true and correct to the best of my knowledge. I have read and agreed to Atomic Recruitment's Privacy Statement. 7 Included and above the Declaration in Ex 4, was a section for Professional Reference (verbal). It was completed to state: name: Richard Phone:1300360357 Company: King Poo position: owner relationship: Previous employer. 8 In cross- examination the applicant advised that Richard was her father and that she had been employed by her father's company for in total, some 12 years. Other than employment when travelling overseas, she had only worked for this one company in Australia. 9 It was the applicant's evidence during cross-examination, that she did not believe that the respondent would have changed their view on her, even if they had been aware of the relationship between Richard and herself, as Ms Rochford of the respondent, had met her on three occasions and was more than happy with how she had come across in person. The applicant saw this issue of her father giving a reference as irrelevant as Ms Rochford's personal opinion would count more than a reference. 10 On 10 November 2005 the applicant met with Ms Rochford of the respondent and had a second interview on 15 November 2005 again with Ms Rochford and Mr T. Fatseas. 11 On Friday 18 November 2005 the applicant gave a mock presentation before Ms Rochford and Mr Fatseas. Hours of work, roles and wages were discussed. The applicant's job was to sell advertising in magazines. At this meeting the applicant alleged, that Ms Rochford stated she could sell across all titles of the respondent. She was advised that the salary was $35,000 per annum plus a commission of 15% on all for the title Soap World once she had reached the target of $2000 per issue and 15 % outright commission on all advertising booked for The Wiggles title. 12 On the same day she claimed that Mr Stuto rang the applicant and advised that she had been successful and that she would commence on 23 November 2005. 13 Whilst it was the evidence of Mr Stuto that he sent to the applicant via her email address, her contract of employment and her commission basis (Ex.7 LR3) on 22/11/06 at 1613, it was the applicant's position that she did not receive a contract of employment from the respondent, be it prior to or during her employment with the respondent. The contract of employment that allegedly was sent to the applicant had an initial probationary period of four months. At no time during her employment was the applicant asked by the respondent for her signed contract for their files. 14 On 23 November 2005 the applicant commenced employment but on that day Ms Rochford was not in the office. 15 Included in the respondent's reply to the unfair dismissal claim were the reasons for termination. The following was expressed. 1. Miss Friar was employed under a contract with a specified probation period. Miss Friar was terminated well within the prescribed probation period. 2. Miss Friar's performance was judged to be inadequate for the following reasons :- a) Inability to take direction b) Ignoring directives from her manager c) Poaching other sales managers clients d) Threatening physical violence on a fellow employee e) Abusing employees & clients f) Endangering long standing client relationships with overzealous and/or improper behaviour & language g) Underselling pages at inappropriate discounted rates h) Unable to maintain minimum administrative standards i) Consistently late to work 3. Miss Friar had been warned on a number of occasions both verbally & by email of her inadequate performance 4. Her overall behaviour reflected poorly on our company's hard earned reputation in the marketplace affecting future business opportunities 5. Miss Friar was paid in full, she has chosen not to bank her final cheque. 16 It was the applicant's evidence that from nearly straight after commencing she was ostracised by her fellow workers. Because of her actions in "winning" some business she was told by a fellow worker that the whole sales team did not like her and definitely did not like her for selling across titles that were not her own. days of commencing the applicant received an email from Ms Rochford suggesting that she share the commission for a particular sale with other employees who had responsibility for other titles. The applicant agreed with this. The applicant also had a grievance with another employee over an email sent to other employees, which upset the applicant. 17 At the Christmas party on the night of 15 December 2005, the applicant had a conversation with a fellow employee Ms Belinda McNulty, telling her not to speak to her again other than on a business level. In cross-examination the applicant denied swearing at Ms McNulty whom she described as a malicious and spiteful person. The applicant stated that the report of the incident by another employee, Ms Helen Matsos was a fabrication. 18 The following day the applicant did not arrive for work until after midday as she was hung over from the night before. A little later she went to lunch to join fellow staff for a farewell and was late in returning back to the office where she drank from a wine bottle located on her desk. The applicant did not believe this was unacceptable, as in her view, it was unofficial behaviour after the office Christmas party the night before. She agreed that her manager Ms Rochford did approach her to go home which she did not agree to. 19 The applicant did receive an email from Ms Rochford (Ex7 annex.LR25) on the afternoon of 16 December, stating that she had already been spoken to about coming to work on time and the undertaking given by the applicant that it would not happen again. The email also raised the issue of drinking in the office, the taking of lunch on that day and the returning back late from lunch. The email ends with a comment that any further incidences of lateness in arriving at work will result in a formal warning. 20 The applicant directed a hand written note to the owner of the respondent saying she was sorry for not doing her job properly today and that it was an unpaid day. 21 On return from the Christmas break on 9 January 2006 she stated that the group bullying continued. She sought from Ms Rochford through email, that all staff be told that she had the authority to sell across all titles. This the applicant stated did not take place. 22 The applicant denied that she required approval from Ms Rochford to sell a "tester" into the magazine "Soap World". In her view as she was the national account manager for this magazine, she did not require approval with ads she put in it. 23 It was the applicant's submission that the reasons as expressed by the respondent for her dismissal were not supported by any evidence but were made up to support their action of her dismissal. 24 During her brief period of employment she submitted that she had had been treated unfairly and in her view being terminated because of her success in selling across titles ( which in her view she had the authority to do so), which upset fellow staff working on those titles who as a consequence then subjected her to a campaign of harassment. 25 She believed she was the victim of poor management by her manager Ms Rochford. 26 Since her termination the applicant submitted that she had not had any paid employment but had sought to further her education. No supporting evidence of this was supplied to the Commission. 27 The applicant summoned a number of persons to give evidence. 28 Mathew Tang stated that he had been employed by the respondent. He was questioned on his attitude towards the payment of a commission which was due days after the applicant commenced. His understanding was that this commission would be split up amongst a number of the sales staff. He also gave evidence that he was unaware of the applicant's contract with the respondent. The applicant advised him that she had the authority to sell across all titles. When he spoke with Ms Rochford she denied this and advised that the applicant could sell across her titles (Soap World/Wiggles) only and were not to go outside them. He confirmed that the applicant had arrived late for work on 16 December and was drinking at her desk both before and after lunch. He also confirmed that he saw an email originated by the applicant concerning Purina Foods that had gone "around the world". He stated that it would reflect negatively on the respondent. It was seen as a joke by outside parties. 29 Katherine Mallis is a Sales and Marketing Co-ordinator with the respondent commencing on 30 January 2006. She stated that she had never seen anyone sleeping at their desk. She also said that she had not seen the applicant act in any unacceptable behaviour whilst in the office or any of the staff drinking excessively at lunchtime. 30 Christopher Ghavinand is an account manager for the Blunt magazine commencing with the respondent in May 2005. This witness accepted that he had been warned about his punctuality and performance, and that he had on one or two occasions sold across titles. This witness identified an email that the applicant sent on 5 December 2005 to a Mr James Blashfield (Ex7annexLR15). He believed that the applicant alienated herself from the rest of the sales team by the way she conducted herself. He could not be specific as to when this alienation started. He said he felt threatened by the applicant ability to sell because she did not do it in a very professional manner and he didn't want his relationship that he had built up with his clients spoilt by the applicant. He stated that to sell advertising below what is expressed on the rate card would require the authority of Ms Rochford but this policy was put much more into effect as of late February 2006. 31 Mr Daniel Cutrone works for Universal McCann and had business contact with the applicant through the company he worked for. He said that his one contact/campaign with the applicant was carried out in a professional manner. He stated that he had previously had contact with the respondent with respect to this particular campaign in September 2005. 32 Mr Luke Mathew Simpson stated that he works for a publishing company, Emap. Prior to this he worked for the respondent up until November 2005. He had ceased working there prior to the applicant commencing with the respondent. Mr Simpson's evidence centred on the fact that he had received an email ( Ex7 annex.LR37) at his new job and sent it onto persons within the respondent's sales team. It was the applicant's view that he had acted in an unprofessional manner in sending on this email. It was this email that finally found its way back to Ms Rochford of the respondent. 33 Ms Carol Tang stated that she was in attendance at the respondent's Christmas party. She gave evidence that she did not see any argument involving the applicant on that night. She said that she was not with the applicant the whole time she was at the party. She also stated that she did not know who Belinda McNulty was. 34 The applicant did not seek reinstatement or reemployment but maximum monetary compensation. Respondent's Case. 35 The respondent provided a number of witnesses to support their case. 36 Ms Helene Katrina Matsos stated that she was in attendance at the respondent's Christmas party on the night of 15 December 2005. She said that she was talking with Belinda McNulty when the applicant, without provocation verbally abused Ms McNulty. Her comments included: "Fuck you Belinda I know that you are the ringleader in all the bullshit and politics in the office and be aware I will bring you down for all this shit that you have caused." She said both Belinda and her were shocked but did not reply and just walked away. She believed that the applicant was intoxicated and her tone was aggressive. It was not said in a joking fashion. Ms Matsos advised Ms McNulty to report this to Ms Rochford but was unaware whether she did or not. 37 Ms Teresa Fiona Barbaro stated that she had been working for the respondent for about fourteen months. On 15 December she saw Ms McNulty on the night of the respondent's Christmas party. Ms McNulty told her she was leaving the party and Ms Barbaro asked her why. Ms McNulty said that she had been threatened by the applicant. She was told she should tell someone what had happened. The following day she said that the applicant came to work about 12.15pm and later went to lunch but came back late. It was on this day that Ms Barbaro advised Ms Rochford of what she had been told the previous night by Ms McNulty. She said that Ms Rochford had advised her that she had asked the applicant to go home. Later that afternoon the applicant had still not gone home but was still at her desk, drinking wine from a bottle. On a previous occasion the applicant had told Ms Barbaro when both were running late for their weekly meeting that she had already been given a warning for being late. Ms Barbaro also stated that the applicant caused disruption with other people because she was working on their titles. She also stated that she had been spoken to by Ms Rochford about her punctuality in her performance reviews. Ms Barbaro said that if she believed a client showed interest in another magazine then such information would be passed onto the account manager for that title. There was a procedure. 38 Mr David Stuto's evidence was by way of statutory declaration and was subject to cross examination like all witnesses. Mr Stuto works as a recruitment consultant for an agency called Atomic Recruitment. His evidence varied from the applicant's. His statutory declaration was based on his case file of the employment of the applicant by the respondent in November 2005. The differences were the dates that interviews took place and whether the applicant acknowledged that she had received the contract of employment sent via email on 22 November 2005 at 1613. Mr Stuto stated that he first saw the applicant on 8 November 2005 when she completed an application form (Ex4). Ms Rochford saw the applicant on the following day. The applicant was seen again by the respondent on 18 November and then attended a final interview on 21 November. On 22 November he received the approval from Ms Rochford that he could offer the applicant the job so he verbally offered the applicant employment and sent her contract of employment via email. He stated that the applicant told him during a subsequent telephone call, that she had received the contract. 39 The following day Mr Stuto stated that he phoned the applicant to see that she had started with the respondent and if everything was okay. 40 Mr Stuto stated that at no time did the applicant tell him that she had worked for her father's company or that Richard Owen was the applicant's father, when he did an employment check on the applicant (Ex5) prior to the offer of employment. No mention of the father /daughter relationship was made by Richard Owen during that telephone employment reference check. Mr Stuto stated in evidence that the employment reference check came out glowing. The final comment made by Mr Stuto in the employment check was: "This was a very good reference. He had no problems recommending China to a future employer-he wants her back if she doesn't get the job !!" 41 Mr Stuto provided to his client, the respondent in this matter a completed Candidate Reference Check (Ex5). 42 Ms Karen Elizabeth Cornelia Carter stated that she is employed by Starcom Worldwide as a Senior Communications Executive based in Brisbane. She has been in the advertising industry for some 16 years. One of her clients is MRA Entertainment who place advertisements in some of the respondent's publications. It was her evidence that the applicant contacted MRA direct seeking business. MRA contacted Ms Carter and Ms Carter contacted the applicant and told her to send all correspondence directly to her. Notwithstanding this comment the applicant continued to send emails and phone calls directly to MRA. She said that MRA emailed the applicant to tell her to send all correspondence to Starcom. On 6 December 2005 Ms Carter received the following email from the applicant: " Hi Karen, I can't find any notes in relation to me hassling the shit out of you in the last week, so I thought I'd take this opportunity to follow up that last offer, in regards to doing some editorial next to that editorial space on Kirstie Alley. Look forward to hearing back from you China Account Manager Soap World/Wiggles ROLLING STONE On 7 December the applicant again contacted MRA direct making offers with respect to Soap World . Ms Carter then rang Ms Rochford and asked her to tell the applicant to back off. She also stated that she believed that the applicant was the representative for ROLLING STONE but was advised by Ms Rochford that this was not the case. On 12 January 2006 the applicant again contacted MRA direct and again was told the correct procedure. Notwithstanding this she sent an email to MRA, two to three hours later. MRA contacted Ms Carter and as a consequence Ms Carter rang Ms Rochford, whilst she was on holidays, and told her that she would not deal with the applicant any longer. On 16 February 2006 Ms Carter as a consequence of receiving an email (originally generated by the applicant) (Ex.7annex.LR37&38) rang Ms Rochford to notify her of this email circulating within the industry. She found the email both extremely funny and extremely embarrassing for the respondent. She had not seen anything like it before in her life as it was in her view, so unprofessional. 43 Ms. Lynette Rochford is the National Sales Director. She stated that she interviewed the applicant on the dates as expressed by the applicant. During the interviews, the witness denied making a verbal offer of employment to the applicant nor did she indicate to the applicant that she had carte blanche to sell outside of the brief of Soap World and The Wiggles. Ms Rochford said that she would not say such a thing as sales people are very protective of their territory. Some sales take six to eighteen months to process and for another person to walk in and take the sale would cause friction. Friction was caused by the applicant when she first commenced as unbeknown to Ms Rochford, she started to sell across titles. 44 During the employment interview no indication of what incentive commission would exist on these titles as it had not been finalised by the respondent at that time. Between 18 and 22 November 2005, Ms Rochford placed and received phone calls in regards to reference checks on the applicant. 45 Ms Rochford was asked the following questions in examination in chief: Q…….during the employment process of Ms Friar, and referring to a reference check that you conducted yourself. Did you in fact conduct your own reference check ? A. I did. Q. Why ? A. Somewhere in the process of the interviews, I became aware that it was a family company that China worked for, so for me to have a reference from someone from the company was probably not a very good weighted reference. So I actually went back to the recruitment agency and I said, were you aware that it was a family business, and he said no. And I said, do you know who Richard Owen is, who's the referee. And he said it was her manager. And I said are you sure, you know, it's not her -----a relative or something like that, because it was a family business. And he came back to me and said, no, I've re-checked, it's actually her manager. So I said, well, I might ring him anyway to ask some further questions, because there's a bit of a risk, I suppose, that obviously a family member is going to say a really good thing. Commissioner: Q. And did you ? A. Yes. Q. And who did you speak to ? A. Who I believed was Richard Owen, well, who was Richard Owen, the referee on the form from the recruitment agency. Fatseas: Q. Were you made aware at any time prior to conducting the reference that Richard Owen was in actual fact Richard Friar, her (sic) rather ? A. No,no. Q. Had you known that Richard Owen was in fact China's father, would you firstly have conducted the reference and if so, would you have put any weight in it ? A. I wouldn't have conducted the reference, I would have asked the recruitment agency to find some more referees. Q. What are your feelings towards Ms. Friar misrepresenting her father as a credible reference ? A. I find it unusual, because I accepted why she was leaving the family business and wanted to work for Soap World and for Next Media. So you know, she said that it was hard working so closely with family or something and she wanted to sprout out, spread her wings, I suppose, or something to that effect. So I knew that it was a family business, so I didn't understand why there was a need to camouflage, I suppose. Q. And given that she did camouflage it, as you say, or misrepresent it, would you have employed her, having known that she had done that ? A. If I had known that she did that, I'd probably think that, you know, she was covering something. So it would probably make me possibly not employ her. 46 In response to following questions by the Commission, Ms Rochford stated that Mr Owen said that he managed the applicant but made no comment during the telephone conversation that he was a blood relation to the applicant or indeed her father. Ms Rochford said that if she had found out that his real name was Richard Friar, then she would have thought they had something to lie about or cover up. She would want further references or probably have a view that maybe it wasn't the right candidate. This phone call to Mr Friar was made prior to the offer of employment. Ms Rochford used the employment agency Atomic Recruitment Candidate Reference Check (Ex,5) as her working document. Ms Rochford was quite clear that no formal offer of employment was made until 22 November 2005 because she had not received formal approval from the owner of the respondent until that date. Between the final interview of 18 November 2005 and 22 November, separate employment checks were made by the recruitment agency and Ms Rochford. 47 In cross-examination Ms Rochford said that she was unaware that the applicant was the daughter of Richard Owen. She only became aware of it post the termination of the applicant, after completing her statement but prior to giving evidence. 48 Ms Rochford did not accept the applicant's view that naming Richard as her reference was irrelevant. 49 At the point of termination of the applicant, Ms Rochford was acting on the premise that the applicant was on probation, as per her contract of employment, and that she was being paid commission in accordance with the document emailed to the applicant on the afternoon of 22 November 2005 by Mr Stuto. 50 Prior to the offer of employment Ms Rochford discussed with the owner of the business a Mr Phillip Kerr, Mr Fatseas and Mr Stuto what the offer would be. A higher base and lower commission or vice versa. Ms Rochford said she spoke with Mr Stuto on 22 November 2005 and sent to him via email the applicant's contract of employment and Commission basis with a direction to send it onto the applicant and to liaise with the applicant that she received it and if there was no questions then Ms Rochford would expect to see the applicant the next day to start work. Whilst the applicant commenced employment the following day no person from the respondent ever asked the applicant for her signed contract during her employment with the respondent. Ms Rochford accepted that this act of omission was a mistake. 51 Ms Rochford stated that on 28 November 2005, as a consequence of what she perceived as confusion on behalf of the applicant she sent an email and followed it up with a meeting stating that she was only to contact Soap World and Wiggles clients. The meeting covered the correct protocol and rules in canvassing and contacting other account manager's clients and the requirement to research well internally prior to any contact. A further email 2 days later emphasised the requirement to do the research and communicate with other account managers. 52 On 5 December an issue arose where the applicant had seemingly not been invited by other staff to go to lunch. Ms Rochford individually spoke to the staff in question and in her view the applicant had misinterpreted their actions. A subsequent email sent by the applicant to one of the staff (James Blashfield) on 5 December concerning this issue subsequently came to the attention of Ms Rochford. (Ex7annex.LR15). On the same day Ms Rochford sent an email to the applicant pointing out there being no forward bookings for a Wiggles edition. In her view this meant that the applicant was not managing her sales territory effectively. 53 On 7 December Ms Rochford received a phone call from Ms Karen Carter from Starcom with respect to the tone of an email she had received from the applicant. Ms Rochford pointed out to the applicant what she had done wrong and how this could jeopardise future advertising. The applicant was also advised to delete the Rolling Stone message off her emails as this was confusing clients and to send to her a copy of the email she had sent to James Blashfield concerning the lunch issue. 54 On 8 December Ms Rochford met with the applicant to discuss what clients to go after, the best practices and how to manage her sales territory more effectively. Also she was spoken to about her continuous lateness to work. Ms Rochford sent emails to the applicant concerning the ramifications of how she had handled a particular client and that she was not to deal with particular named persons. 55 Ms Rochford said that she became aware of an incident occurring during the Christmas party on 15 December 2005 between the applicant and Ms McNulty through a fellow employee. When she approached Ms McNulty about the incident, she was told by Ms McNulty that she did not want to take it any further. 56 On the following day the applicant arrived to work at approximately 12.15 pm. Ms Rochford had already sent a text message to the applicant asking where she was. The applicant then left for lunch at approximately 12.30pm. As she had in essence just arrived at work, Ms Rochford was surprised at the audacity of the applicant to then go to lunch. When she arrived at the hotel Ms Rochford shook her head at the applicant which resulted in the applicant directing particular comments at Ms Rochford which she did not reply to. Ms Rochford was extremely shocked at such a comment. Ms Rochford returned to the office at 1.30pm with the applicant arriving shortly after 2.00pm. Later that afternoon it came to her attention that the applicant was drinking at her desk. Ms Rochford directed an email to the applicant at 2.10pm that afternoon directing the applicant's attention to her late arrival that day, her taking lunch in such circumstances, the duration of her lunch break and the drinking of alcohol at her desk. Ms Rochford said that she sent the email because she believed she was going to have problems with the applicant and had cc: Theo Fatseas. Later that day, Ms Rochford said she approached the applicant and asked her to stop drinking and to leave the building and go home. This she did on a number of occasions with the applicant refusing to go. 57 The applicant did send an email back to Ms Rochford saying she was sorry at 2.16pm that afternoon. When asked by the Commission why she did not take any action against the applicant as a consequence of what occurred in the office that day, Ms Rochford said she felt apprehensive in any further approach to the applicant, because of the way the applicant was behaving as she believed she could become physically aggressive. 58 On 19 December 2005, Ms Rochford sent an email to the applicant outlining the protocol and best practice when dealing with clients and how the commission system works. 59 On 16 January 2006, Ms Rochford spoke with the applicant as a consequence of a complaint from Karen Carter received by Ms Rochford whilst she had been on annual leave. The issue was the applicant inappropriately contacting one of the clients. This was against an instruction given to the applicant by Ms Rochford. 60 On 20 January 2006, Ms Rochford emailed a response to the applicant's text message that she was running late for work. The email brought to the applicant's attention that she had already spoken to the applicant on a number of occasions about her punctuality. 61 Ms Rochford set up a mediation meeting between the applicant and Ms McNulty on 25 January. At this meeting the applicant raised the issue of another staff member inappropriately targeting her client. The same day the applicant sent an email to Ms Rochford withdrawing the claim stating it had been wrong of her to bring the issue up. 62 Issues of lateness by the applicant again arose on 6 February 2006 at a start up meeting and Ms Rochford sent the applicant an email. On the following Monday 13 February, the applicant missed the whole meeting. 63 On 13 February Ms Rochford emailed the applicant to advise her to correct her correspondence with respect to the frequency of Soap World publication. This magazine came out fortnightly and not bi-monthly. 64 On 16 February Ms Rochford sent an email to the applicant requiring her to blind copy her with all email correspondence to staff and clients. This was required so as Ms Rochford could make sure that the applicant was following her directive of addressing clients in a professional manner and also so as she had a true understanding of the applicant's sales skills and product knowledge. Attached to Ms Rochford's statement was a copy of an email sent to a client and a copy of an email by Ms Rochford to the applicant as to how it should have been expressed. The applicant's response disagreed with Ms Rochford's view and expressed her reasons as to why she corresponded in the style that she did. In the applicant's view, she had a unique style of expression which she believed caught the receiver's eye. 65 Ms Rochford said that on 16 February 2006 she had received a phone call from Karen Carter to say that she had received an email that had originated from the applicant. It seemed that this email plus additional comments from other persons had gone around the industry. It was Ms Carter's view that the applicant's email reflected badly on the industry and on the applicant. 66 Ms Rochford said she was in the process of issuing the applicant with a warning letter but after discussion with Mr Fatseas the respondent's Human Resources Manager it was decided that, as the applicant was still under a probationary period, then the agreed action was to terminate as there was strong doubt that investing more time would change the applicant and produce better results. 67 It was Ms Rochford's view that she sought to change the applicant's approach and tone it down. The applicant did not agree and believed that her approach was better. It was something that Ms Rochford would not have tolerated in a long term scenario. The applicant on termination was paid one weeks pay in lieu of notice in accordance with her contract of employment. 68 At no stage had Ms Rochford given the applicant the authority to run a "tester" ad for Infodial at the rate of $700. All sales representatives must approach Ms Rochford before going into the market place with those sort of rates. She said she would not have approved this "tester" ad if the applicant had approached her. In cross examination Ms Rochford said that she could not confirm that the applicant had been correct in charging this amount because it had been her view that it was for a full page advertisement and not a quarter page advertisement and she did not have the full accompanying paper work before her. 69 Ms Rochford in cross examination accepted that the applicant's base rate and commission basis was slightly different to other like type employees. The reason for the difference was the two magazines that the applicant was employed to sell. Other employees sold advertising for other magazines and therefore their base rate and commission basis was also slightly different to each other. 70 Ms Rochford stated that the respondent was critical of the way the applicant went about her job of selling advertising, rather than the result. She said that she received complaints from other employees, of the applicant contacting their clients. Sales employees are very protective of their territory. 71 Ms Rochford stated that she was dissatisfied with the way the applicant presented herself to clients through language and terminology and that she sought through discussion to try and change the applicant's ways. Comments such as " taking the piss" and "sorry about hassling the shit out of you" were unprofessional, and complaining to a prospective client about " talking while I'm talking would have to be frowned upon ! " was not how Ms Rochford wanted clients of the respondent spoken to. By her actions she endangered the business with clients as per Karen Carpenter. 72 Ms Rochford stated that she had sought to direct the applicant on what to do and not to do in managing her territory and clients. She would agree, then go off and do what she wanted to do. The applicant by the way she behaved in her view affected the reputation of the respondent. The applicant's abuse of fellow employees such as the email she sent to James Blashfield on 5 December 2005 was unacceptable. " You'll have to excuse my lack of office politics. My skills in these matters are obviously insufficient. A quick rundown will inform you : That Lynette asked me where you guys were. I said you had left for lunch. The she asked why I had not gone. I told her that I had not been invited. I realise now I should have said I did not want to go, and that you had all made me feel welcome. But I did not realise how quickly this would develop into my own and your "playground mentality", as you guys are all potential dickheads ! This is a generalization, and hope you don't take it too personally. Because this is not personal. More a combination FUCK YOU. I hope this will not effect me being excluded on a more permanent basis. I have asked Lynette not to mention this matter further. If you can find it inside yourself and your pea brain(outside of your "cool as drool" gang of dropkicks) to converse, on a one on one level, I'd be happy to say this to your face. Kind regards China" 73 Ms Rochford said that they had trouble with the applicant's files and ledgers, not receiving weekly reports on time and could not find some and others that had to be updated. Consideration and Decision. 74 In the determining of this matter, I believe it appropriate to first consider whether the applicant was the subject to a probationary period. 75 The Industrial Relations Act 1996 (the Act) exempts particular employees from Part 6-Unfair Dismissal of the Act. One such employee is under s 83(2)(b)" employees serving a period of probation or qualifying period". The regulations pertaining to the unfair dismissals in the Act, CLAUSE 6 OTHER EXEMPTIONS FROM UNFAIR DISMISSAL PROVISIONS ,6(1)(c) states: employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months-the period or the maximum duration, is reasonable having regard to the nature and circumstances of the employment, 76 The evidence of the applicant was that at no stage during the interview process was she made aware of a probationary period of any duration applying. It was not until she was terminated that it was stated by the respondent as applying. It was the respondent's evidence that the applicant was sent via email a contract of employment and commission basis, by the respondent's employment agency Atomic Recruitment, on 22 November 2005 at 1613. The contract included a probationary period of four months. Whilst I am satisfied that the documents were sent, I am not satisfied beyond the balance of probability that the applicant received same. It was the evidence of Mr Stuto, that he contacted the applicant that day after sending the email, by phone and was advised by the applicant that she had received the documents. He went onto say that he rang the applicant the next day, her first day at work with the respondent, to be told everything was fine but he did not raise the issue of the documents. I am satisfied that he made this phone call. In a question from the Commission, Mr Stuto was asked : Q. But do you know whether Ms Friar received this document? A. I don't know exactly. and later Q. So you never raised the issue did you receive the email I sent yesterday ? A. I actually did raise it, sorry. I'm sorry, I'm just recollecting everything here. During the previous day when I gave her acceptance of the position verbally etcetc..... Q. Yes ? A. The email was forwarded to me by Lynette which I forwarded to China by email and I stated here because I would have recollection of this back in the office that China did state that she received the contract because I always double check these sought of things. and Q. Did you say anything about the next step, what you would do ? A. Yes, yes. Q. What did you say? A. That I would forward you the email. I'd be getting you a letter of offer I'll be forwarded you by email and then I gave a call that afternoon to follow up and saying yes it was received and I said right can you take the contract tomorrow morning to start work. Q. So you're saying that you spoke to Ms Friar sometime after you had sent it so that would've been after 1613 in the afternoon.? A. Yes. Because I remember that afternoon it was quite frantic. I didn't leave the office till like 6.03 that evening trying to finalise everything. Q. Right. And your saying that you spoke to Ms Friar.... A. Yes Q...post 4.13 to confirm that she had received it? A. Yes. Because everything I've got documented on this statutory dec-stat dec is documented on our system back at work. 77 Notwithstanding the above comments the applicant was clear that she never received the email with the attachments. Her evidence was that prior to commencing employment with the respondent, she accessed her emails at the local library. After commencing work with the respondent, she said she was busy at work and did not have an opportunity to look at her private emails until several weeks had passed and there was no email from Mr Stuto. Her view was that it may have been transferred to her junk mail which clears in seven days. 78 I accept that the applicant was never asked for a signed copy of her contract of employment whilst employed with the respondent. This omission was accepted as an error by Ms Rochford. 79 In considering the competing views, it is clear that whilst there was an intention by the respondent to create a probationary period with respect to the appointment and employment of the applicant, I am not convinced that the probation had been established prior to the commencement of employment as required by s 83 and Regulation 6(1) (c). 80 I therefore find that the establishment of a probationary period is not made out. It would have been a simple and appropriate exercise for the respondent to require the applicant to provide a signed copy of her contract of employment on commencement. Accordingly the applicant is not excluded from the jurisdiction on this basis. 81 An examination of Ex.4 (the completed Application Form-Atomic Recruitment) shows that the applicant described her father as Richard and as the owner and as her Previous Employer. Neither Mr Stuto or Ms Rochford who I accept both separately carried out employment checks through Richard, were aware of the true family relationship between the applicant and the named person. The applicant in completing, signing and dating the Application Form declared that all the statements above were true to the best of her knowledge. 82 This is obviously false and accepted by the applicant in final submissions as misleading. In final submissions the applicant was asked by the Commission her views with respect to Ex 4. She responded ; Applicant. Yes, because like, my step-mum says, like, I'm a Scorpio, the thing is... Commission. I'm sorry, could you start that again ? Applicant. I do believe it, but that has been said that that is a bad point of my character, because if I don't outrightly say I'm lying, if I don't disclose certain information, I don't feel that I am lying, which I didn't disclose that Richard was my dad, but for me, I feel like if I could get through the referee process and into an interview, because this is like my main job that I've had. So to have -I could have picked someone else from the company to be my referee that would have been just as glowing, but he's the owner, so I thought..... 83 An examination of Ex.5 (the Atomic Recruitment-Candidate Reference Check), compiled by the recruitment agency as a consequence of speaking to Richard shows a glowing report with the words "excellent " and "very good" in abundance. It is expressed in the document that the applicant's major strength was in customer relations with her sales ability second to none, excellent quality of work, no areas requiring improvements, personal presentation, flexibility and initiative/self motivation stated at the highest level as very good with attendance and technical aptitude satisfactory. It states that her ability to work as part of a team and ability to work unsupervised was excellent and she was very likable and friendly. 84 I accept the evidence of Ms Rochford that she was unaware of the true relationship between the applicant and Richard until after the applicant had been terminated. 85 I note the comments in Byrne v Australian Airlines(1995)185CLR410 at430: "...and facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable." and in McPhee v Simpson(1910)10SR(NSW)786 stated: " A prospective employee is frequently asked questions either on an application form or in interview. False answers given in response to such questions can render the person liable to dismissal if he is employed and the truth emerges. Such dismissal will be justified if the falsity was material to the making of the contract, or, again, if it manifests an absence of the warranted degree of skill." 86 The applicant had worked only for her father's company since leaving school in 1992 other than for approximately two and one half years overseas, working in a variety of jobs. It is therefore understandable that an employment check on a company that the applicant had worked for such a long period in her working career would be important to the respondent. 87 It was the applicant's view that her misleading the respondent in completing the application form as she did was irrelevant, because she was interviewed by Ms Rochford on three occasions and therefore Ms Rochford's impression would be of greater value. 88 Ms Rochford disagreed with this view as I do also. It is my view that an unbiased employment check, where a prospective employee had worked for such a lengthy period with one employer, was critical in the employment process. Ms Rochford believed it was of such importance that she also carried out a check. 89 The applicant's period of employment with the respondent was for less than three months. During that period it is clear from the evidence that came before the Commission that it was a somewhat turbulent time for both the applicant and the respondent. It was obvious that Ms Rochford had great difficulties in correcting the style of the applicant. The language found in emails directed to either fellow employees or clients could never be found to be acceptable. The inability of the applicant to understand and accept what she could and could not do in selling was an ongoing situation. Whilst there was a difference in evidence as to what actually happened at the Christmas party on the night of 15 December 2005,and I draw no conclusion, there was no doubt as to the completely inappropriate behaviour that the applicant displayed on the following day at work. Whilst the actions of the applicant on this day were surprisingly not a reason for her subsequent dismissal, it did in my view, give an indication as to the difficulties the respondent did experience. I accept both from the written and verbal evidence given by Ms Rochford, that she had attempted to bring to the applicant's attention various work issues including lateness to work. I also understand that during this period, Ms Rochford was working under the misapprehension that the applicant was under a period of probation and if that wasn't the case, may have been a bit more direct and forceful in her communications with the applicant. 90 It is my finding that it was incumbent on the applicant to have completed her application with Atomic Recruitment in a truthful, accurate and forthright fashion disclosing all relevant information, and then taken her chances in the employment process. That she did not, was wrong and fatal in this application, and I accept the submission from Mr Fratseas that she should not benefit from such a misleading statement that she declared was true. 91 In this case, the onus falls on the applicant to prove that her termination was harsh, unreasonable or unjust and in consideration of all the evidence, this I find, she has failed to do. 92 In conclusion, it is therefore my finding that the termination of the applicant was neither harsh, unreasonable or unjust. 93 This matter is now concluded. D. RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.