Industrial Relations Commission of New South Wales CITATION: Colborne and Sydney Gutter and Roof Restoration Pty Limited [2006] NSWIRComm 1148 APPLICANT Freda Colborne PARTIES: RESPONDENT Sydney Gutter and Roof Restoration Pty Limited FILE NUMBER(S): 5486 of 2005 CORAM: Patterson C CATCHWORDS: Alleged unfair dismissal followed by confrontation by applicant towards respondent's principal - "fruity" words used by applicant - respondent allegedly told to "stick" the job - applicant refused to apologise - his words interpreted as resignation - further issued raised in proceedings re alleged regular abuse of other employees, falsification of documents etc. Held: Not necessary to make finding as to dismissal or resignation in light of post-termination discovery which provides sufficient justification for dismissal - serious and wilful misconduct LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 03/05/2006, 19/06/06 DATE OF JUDGMENT: 10/09/2006 APPLICANT Mr M Schniering, Solicitor Dooley & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr R Berry, Solicitor Heazlewoods Bushby International Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Patterson C 9 October 2006 Matter No IRC 5486 of 2005 Freda Colborne and Sydney Gutter and Roof Restoration Pty Limited Application by Freda Colborne re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1148 1 This application for relief was filed on behalf of Mrs Fred Colborne who claims to have been unjustly terminated from her position of "Telemarketing Manager" with Sydney Gutter and Roof Restoration only a few days short of attaining five years service. 2 She is 64 years of age and was widowed in 2002. 3 The so-called "dismissal" had flowed from a highly audible, and apparently unrelenting, response to her discovery of an unauthorised deduction having been made to her weeks' pay on 6 October 2005. 4 The respondent submits in his reply to the application that there was no dismissal. He had cause to intervene in respect to the conduct mentioned "following an unruly outburst of bad language and offensive behaviour." Following a heated discussion at which the applicant refused to control herself she is alleged to have said, "I don't need this, you can stick your fucking job." 5 The respondent states in his reply that he "gave her until the end of the day to reconsider (by way of apology) but she refused - and left the office early without notice. 6 As she did not return to duty the following day (Friday) - and still no apology was forthcoming - he interpreted her absence as confirmation of a resignation. 7 However, the applicant did arrive on the following Monday whereupon she was informed that she was not required "to work out her notice", he then "drove her home, stayed for approximately two hours where she requested a separation certificate and asked if it could state that she was made redundant, I agreed." 8 Further to two sessions of conciliation the matter was allocated to me for arbitration to take place on 3 May 2006 based on an estimate of a single day being required. 9 However, as the material progressively became available it was apparent that further time would be necessary owing to a raft of additional issues being raised against the applicant. 10 These issues were presented as matters of concern, which came to light following the applicant's departure, and would lead to considerable increase in the volume of evidence and witnesses to be called. 11 These additional issues - which include allegations of intimidation and abuse by the applicant towards other staff, including some under her supervision, misuse of company resources and elements of dishonesty - are matters which, on the respondents submission, are sufficiently serious so as to justify dismissal. 12 The case for the respondents, therefore, gave the appearance of one where should I find the events leading up to Mrs Colborne's departure did not culminate in her "resignation" then I should not provide relief in any event based upon the evidence concerning post-dismissal discovery. THE HEARING 13 Heard over two days, 3 May and 19 June 2006, the applicant's solicitor Mr M Schniering, called evidence from witnesses: § Freda Colborne, applicant; § Edward Kelleher; former "area manager" and sub-contractor; § Michelle Sultana, former employee, telemarketer; * § Paul Koutroubas, former employee, roof/gutter inspector / estimator * * These witnesses not required for cross-examination. 14 The respondents' solicitor, Mr R Berry, called the following witnesses: § Lyle Gregory Sebastian, former employee, telemarketer; § Peter Bogojevic, "promotions manager", formerly telemarketer; § Ferial Hassiem, acting "bookkeeper/payroll officer"; § Glenn Besso, managing director; § Roman Nikolic, co-director THE EVIDENCE Background 15 Managing Director, Glen Besso, describes the company's activities as a sales and marketing business utilising a pro-active approach in promoting its products and services to the consumer. "This involves generating interest in the community by contacting individual home owners ... accomplished through telemarketing and PR (door to door). 16 "The leads and appointments are then confirmed by the telemarketing manager to ensure the prospective customer has agreed to an appointment, day and time. The confirmed leads then go to my business partner Roman (Nikolic) for issuing to the sales consultants." 17 Mr Besso describes Mrs Colborne's first entry to the business as full of tremendous "enthusiasm and passion" which led to her being swiftly promoted to telemarketing manager barely three months later in January 2001. 18 "Freda is an excellent communicator, articulate and passionate on many subjects and took to the role as naturally as a duck to water. Freda has an enquiring mind and was keen to learn as much as possible, even technical information. 19 "This could sometimes be a liability, however, as Freda could over-complicate what would otherwise be a simple task. (She) is strong and decisive and occasionally intimidating and this caused some personality conflicts between herself and (her own staff and public relations staff for whom she was not responsible)." 20 She had "total authority" to employ or dismiss personnel in her department - and had exercised her authority in respect to the latter on more than one occasion. 21 Clearly, she was a highly regarded and trusted employee by the directors and this is evidenced by their earlier considerations on March 2002 when the respondent granted her a long period of unpaid leave to care for her husband who became terminally ill. 22 Although employed on a casual status Mrs Colborne had formally worked a systematic 40-hour week over five days. Her job remained open pending her return. Sadly, approximately one month later, 28 April 2002, her husband passed away. As a consequence of her grief and related domestic impact, (which requires no discussion here), she was granted a further three months unpaid leave. In the meantime, the respondent assured her the position would remain secure pending her ability to return. 23 On 15 July, Mrs Colborne attempted to resume duty but after six or seven weeks it became apparent to both parties that she was "still coming to grips" with the loss of her husband and would require a further period of leave before she could make a complete "return to the workforce." 24 She accessed this further approved leave in the confidence that her position would continue to remain available until she was capable of return. 25 On 21 January, following an absence of a further five months, the applicant resumed duty. She continued to work a full week until sometime in February or March when the parties agreed "that due to the long hours" she had been working her week would be reduced to four days. She would have Wednesday's "off in lieu of payment for overtime." She also received a pay rise of $275 per week. 26 Since her husband had passed away Mrs Colborne has also been granted various loans from the respondent - for which no interest was incurred. 27 Each has been repaid - bar one which was still outstanding in the sum of $465 at the time of her departure - according to her own cognisance. A complete absence of formality, it would seem, which allowed her to provide instruction for the volume and pattern of deductions as she deemed her financial circumstances could sustain. The Altercation Termination 28 Early in the week of her termination one of Mrs Colborne's staff received news of the death of her brother. When she informed Roman Nikolic, Glenn Besso's partner, on Tuesday 4 October, he suggested the company send flowers. 29 They agreed it would be appropriate to send them to the home and she offered to make the arrangements through the temporary payroll officer on the following morning, her day off. 30 Mr Nikolic asked Mrs Colborne to inform him of the funeral details as he would like to attend. She agreed and asked if she could have time off to attend also and, since she does not drive, if she could attend with him. He obliged in each respect. 31 She offers in her evidence however, that whilst appreciating Mr Nikolic's consideration, she nevertheless "could not help but feel slightly aggrieved ... because at the time of my husband's death (he) did not even phone me to pass on his condolences, let alone come to his funeral despite the fact that Mr Nikolic had met my husband on a number of occasions. (He) did not contact me until two months after my husband's death" to enquire as to when she was capable of returning to work. 32 On the following morning Mrs Colborne phoned the temporary payroll officer, Ms Ferial Hassiem - whose normal duty was that of receptionist - and asked her to place the floral order as authorised by Mr Nikolic. 33 She also asked Ms Hassiem to arrange an additional, personal, order to be sent on her own behalf undertaking to reimburse the expense ($60) "in cash" on Friday. No indication was given as to whether this had been earlier approved or even discussed with Mr Nikolic. 34 As Mr Nikolic seems to have been unavailable, Ms Hassiem took the requests to Mr Besso who approved. Given her limited knowledge of the accounting system he suggested that, as she was preparing the payroll on the next day, the $60 be simply deducted from Mrs Colborne's pay. He suggested this would be much easier for her to manage and that it was "actually the best way for Freda to repay" the amount. 35 Ms Hassiem processed the orders, which bore messages of sympathy in terms earlier suggested by Mrs Colborne, with the Company accepting the delivery expense of those delivered on her personal behalf. 36 However, on the evening of Wednesday 5 October Mrs Colborne was informed by the bereaved employee that the funeral service had been cancelled with the family deciding that the body of her deceased brother would be "flown back to Croatia for burial." 37 Following a discussion as to the family's appreciation for the flowers, Mrs Colborne told the employee to take whatever leave she needed and advise when she was ready to return. She informed Mr Nikolic on the following morning. 38 When opening her payslip on the afternoon of that day she discovered the deduction. It was accompanied by a notation: "An amount of $60 has been deducted for floral arrangement sent to funeral as agreed." 39 Mrs Colborne immediately proceeded to the "pay" office being temporarily occupied by Ferial Hassiem and quietly enquired as to whether she misunderstood her undertaking to repay the amount "in cash" on Friday. 40 However, when advised that Mr Besso had approved the deduction the applicant's "whole attitude and demeanour changed" according to Ms Hassiem. "She leaned in toward me and whispered "they can fucken pay (another employee) for her time off, but they are fucken worried about a measly $60." 41 "Freda then stepped back ..... yelling ..... 'what, do they think I'm gonna run away with the fucken money, am I gonna run away with their fucken $60?' ... as Freda kept yelling and swearing about the money, she turned towards the doorway and it appeared to me that this outburst was not intended just for me to hear." 42 Mr Besso, whose office is nearby, was then drawn to the commotion and asked her to calm herself and cease "swearing." Mrs Colborne did not relent and challenged his request with words to the effect; "Why should I? Everyone else does (swear)." He reminded her that she was a manager to which she replied "am I?" 43 "In an attempt to diffuse the situation and offer some relief to Ferial" Mr Besso asked Mrs Colborne to accompany him to his office. 44 However, Mrs Colborne remained in a highly agitated state and "continued speaking in a very loud voice, shouting and using profanities." She interpreted the deduction, made without prior consultation, as demonstration of his lack of trust and questioned him so. He asked what "trust (had) to do with it", suggesting further that she calm down so he could explain. 45 He then suggested she go outside, have a cigarette and calm down. Mrs Colborne persisted and when he asked her "what is this really about?" she replied "oh, for fuck's sake!" 46 Mr Besso then said "OK that's enough. You can go now but don't come back in unless you are prepared to apologise." He states in-chief that his expectation for an apology was intended to be provided to Ferial "but I don't think I made that clear to Freda." 47 She then challenged the need for an apology "apologise ... apologise for what?" 48 Up until this stage of the evidence the parties are generally at one - the yelling, swearing and the atmosphere in which it commenced and continued is not seriously in dispute. 49 However, in respect to what next took place, the recollection of Mr Besso and Mrs Colborne is put to the test. 50 On her evidence Mr Besso told her "you've got a week (to apologise) or you're gone." As the meeting ended she asked "is that it" to which he is claimed to have replied "yes, you know what to do if you change your mind." 51 On his evidence she had said "oh, I don't need this. You can stick the fucking job. I should not be treated this way after all I have done for the company." He replied "OK then I will pay you until the end of next week. You know what to do if you change your mind." 52 Mrs Colborne denies directing any of her swearing personally at Mr Besso. It was merely a reflection of her frustration at the time with her reaction directed at the circumstances and not him. 53 She does admit, however: "Upon leaving Mr Besso's office I walked down the corridor and said aloud, to no one in particular - they can stick their fucking job, after all I have done for all these years and I have been treated in this way." 54 Shortly thereafter Ferial Hassiem visited the ladies room and "found Freda crying." Asked why, Mrs Colborne replied that she would lose her job if she did not apologise "for yelling and swearing." 55 Ms Hassiem was soon to finish for the day and the applicant accepted her offer for a lift home. Maintaining her upset along the way Mrs Colborne insisted she did not accept a need for her to apologise. Mrs Colborne agrees but claims here that she would realistically have given it further thought in the belief she had a week to do so. She accepts in cross-examination that she knew her employment to be in jeopardy. 56 Mrs Colborne did not attend her office on the following day, Friday, due to her stress, attended her doctor for assistance and received a medical certificate which, so far as I understand, was never presented to the respondent. 57 Mr Besso's evidence is that she did not notify the company of her absence and he interpreted this as confirmation of her resignation. 58 However, before leaving with Ms Hassiem, Mrs Colborne claims to have told a co-worker, Dennis Wallace, that she did not expect to be in and asked him to inform Mr Nikolic. She told Mr Wallace she would call him over the weekend. 59 But this is not corroborated by any of the witnesses and Mr Wallace was not called. 60 She claims to have learned of her "dismissal" on the weekend when she called Mr Wallace. He is claimed to have said that when he approached Mr Nikolic on the Friday morning he was informed of her "dismissal" for the reason of "swearing at a director." He is claimed to have been asked to arrange for Mrs Colborne's personal property to be gathered and "drop it off" at her home. 61 But, as stated, Mr Wallace was not called. 62 On Monday, 10 October Mrs Colborne arrived at the workplace at approximately 7.30am and shortly before the directors. When they arrived her presence was challenged, an argument ensued, and she was asked to leave. 63 Mr Besso later attempted a conciliatory approach and they both stepped outside for a cigarette where they discussed a range of things including matters which were not work-related. 64 She accepted his offer to drive her home and they continued to "chat" during the trip and for approximately two hours at her home. During this discussion he forgave the outstanding loan of $465 and they agreed upon a separation certificate which would characterise the termination as a redundancy as she did not want her family to know she had been "dismissed". 65 Of the so-called weeks' notice Mr Besso said, in offering to pay her for the week following her "resignation" he had "thought (she) may change (her) mind (and apologise) if I accepted the resignation." Additional Issues - Post Termination Discovery 66 Mr Besso describes the following weeks and months as a "revelation" as he and Mr Nikolic were progressively informed of Mrs Colborne's poor conduct towards some of her staff and field staff "while we were not looking." 67 He said when Mrs Colborne's quest for industrial compensation had "leaked out" this had become a "motivator for all those who had been unfairly treated, abused, etc. to come forward and reveal their respective experiences." He considers that "none of this would have come to light had Freda not lodged her claim." 68 "Initially, I read the staff statements in total and utter disbelief. How could this occur without me knowing it. The initial reaction was replaced with sorrow for the personnel subjected to this atmosphere for so long. Had we known about the incident described in affidavits we would have terminated the applicant's employment." 69 Acknowledging in cross-examination that her role required leadership qualities, that it was important for her to demonstrate respect for the company, its directors and other employees, and act as a role model for proper use of resources she claims to have "inspired" her own staff rather than to have threatened, abused, or intimidated them. 70 Yet, when pressed in respect of many of the allegations she makes certain admissions which portray her conduct and attitude in a different light such as to cause serious concern for any decent employer. 71 Of course, there are many denials such as the claim that she regularly denigrated the directors, Messrs Besso and Nikolic, in the company of her staff by describing them in derogatory terms. She admits, however, to saying that Mr Nikolic could be a "fucking prick ... no more than 20 times." 72 In dealing with certain of the allegations it seems sufficient to do so by way of sample only and I shall attempt to without identifying members of her own staff in order to protect them from any unnecessary future embarrassment in the workplace further to this decision being published. 73 I decide also to confine myself to a brief summary of Mrs Colborne's admissions considering this to be sufficient for my purposes. For convenience I adopt the classification arrangement provided to various forms of conduct as provided in the respondent's final submissions. Swearing - Written & Oral: 74 The following admissions are sought to be rationalised by the applicant by describing the workplace culture as such that it was commonplace for employees to use "foul language and speak abusively of others." She draws no distinction between style of expression and language which may be heard in the workshop and the office. 75 Notwithstanding her leadership role being responsible for the conduct and performance of others - "a role model" - she admits it was common for her to describe people as "fucking pricks". She rationalises this by describing such remarks as being common within the workplace for which she was "leader". 76 When the PR staff obtain a customer prospect in the sales field they generate a "lead sheet" which contains information as to the consumer's intention of replacing gutters and the like. The "lead sheet" is then passed on to the telemarketing manager who assigns them to her staff for follow-up with the potential customer. 77 Once the follow-up(s) has/have been done the "lead sheet" returns to the telemarketing manager who enters some comment before returning it to the department which originated it. 78 Five samples of "lead sheet" containing Mrs Colborne's comments on questions seeking further information were tendered in evidence. Each comment, question or "advice" has been entered in red pen. 79 I set them out below: (a) "Only God knows why I'm wasting my time with all this shit. Gutters are only eight years old! F... me dead!!" (b) "ABSOLUTELY NOTHING WRITTEN DOWN!! WHAT FOR? WASTING MY PERSONAL TIME WITH THIS BULLSHIT!" (c) "SO? What did they say?! Give the FUCKING thing away!" (d) "Fuck'n when?!?" (e) "When the FUCK for??" 80 It is clear, as submitted by the respondent that when she entered the above comments/observations she had intended her insults be directed at the employees concerned. However deficient they may have been in the course of their own enquiries - did they deserve this? 81 In answer to a question from me Mrs Colborne admits to having adopted such a practice during the last twelve months of her employment. 82 She admits also, that should any of her own staff had defaced company documents in this way she would have taken disciplinary action. 83 The applicant admits to questioning the suitability of Peter Bogojevic, a former telemarketer under her supervision, for promotion to a management position: "How the fuck did you become a manager when you don't know what you're doing?" Intimidation 84 Although attempting to qualify the emphasis of bashing her fists against her desk or the board when addressing her work team she admits to having frequently done so. 85 When certain employees have phoned in sick Mrs Colborne admits to having remarked, within earshot of her other staff, "they're lying about being sick." Misuse of Employee Labour 86 Whilst claiming that certain employees were happy to do favours it was not uncommon for her to ask them to purchase grocery items for herself as they might have had their lunch, say, in a shopping centre. 87 And she admits to having "asked" a number of them to take a company vehicle on occasions which was not within their own time - or occasions when the directors were absent from the premises. 88 In fact she admits "asking" them not to inform the directors that they had done so. 89 Examples provided includes: (a) Her "direction" of two employees to attend a store in Blacktown for the purpose of purchasing on her behalf a "lovely pair of shoes" which she had earlier seen. (b) Her "direction" of two employees to pick up her home computer and bring it to the office so that she may arrange for servicing. 90 In each of the above the applicant acknowledges, when pressed, that her actions may be seen as inappropriate and she was encouraging her staff to be deceitful. Misuse of Company Funds 91 She admits to introducing some sort of reward system for deserving staff after management have declined her repeated requests to grant them a pay increase. 92 This took the form of deserving staff (also casual employees) being granted days off with no corresponding deductions in pay. She arranged this by "directing" these employees to falsify their timesheets - to show they have worked when they had not. She then counter-signed the timesheets as being accurate. 93 The applicant admits to having no authority to enter into such an arrangement. Misuse of Authority 94 On at least one occasion the applicant admits having procured a quantity of marijuana from a former employee under her charge. She knew him to be seriously addicted to this substance. 95 After he left the company she made three attempts to source it from a less senior employee from another department who gave evidence in these proceedings. 96 He declined. Her admissions include reference to her arthritic condition for which the substance was claimed to offer some relief from the associated pain. Furthermore, she did not see this as improper as such requests took place beyond the workplace and not in work time. CONSIDERATION Dismissal or Resignation? 97 When viewed as isolated incidents it is difficult for me to understand her extreme reaction to the pay deduction being made without prior consultation or authority when she had already undertaken to repay the amount on the following day. 98 Whilst I acknowledge that her written authority should have been obtained beforehand - a requirement apparently unknown to the temporary payroll person and, it seems, Glenn Besso - the absence of formal authorisation does not seem to have been the issue in the applicant's mind. 99 The timing and process was simply an act of convenience - and since Mrs Colborne had undertaken to repay the $60 "in cash" on the following day - might have, when viewed on balance, been also convenient to herself. 100 Instead, she interpreted this otherwise simple matter to represent a direct and deliberate attack upon her integrity. How can this have reasonably been so given her history of borrowings from the company and the informal manner in which she was permitted to repay her loans according to a schedule nominated by herself according to her financial circumstances from time to time? 101 After all of the other considerations extended to her in the form of long periods of leave leading up to the passing of her husband and subsequently, I do not understand how any rational person, indeed a manager, could have reacted in the manner she did. 102 Had she truly felt the need for an explanation then this could easily have been obtained by approaching Mr Besso in courteous fashion rather than launch into a tantrum and tirade of such extreme proportions which would, in my view, have justified dismissal in itself. Offensive and unrelenting as it was she showed complete disrespect for both Ms Hassiem, and Mr Besso whose authority came under challenge. 103 I wonder how she might have reacted to such outrageous and threatening conduct being launched at her, by any staff member under her charge. 104 In this episode she embarrassed Ms Hassiem, Mr Besso, perhaps others and, of course, herself. Asked to apologise she refused, and continued to refuse, whilst persisting or pushing the envelope further and finally screamed out for anyone to hear: "You(?) or they(?) can stick the job!" 105 Well, what was Mr Besso (and others within earshot) to make of this? He recalls the statement being directed at him and understood it to mean she had resigned. 106 She recalls screeching it out in the corridor after leaving his office "for no one in particular" to hear. Given the nature of her rage I seriously doubt that her recollection of what she had said could be particularly reliable. Perhaps neither of them considering the emotional overtones in play at the time. 107 However, whatever she actually said, I have no doubt that it was intended for his ears. I do have doubts, though, that she had intended her remark to be interpreted as a resignation and this is, perhaps, reinforced by the fact that she had not retrieved her personal belongings before leaving the premises. It was the act of a prima donna. 108 Unless at the time something far more serious than a pay deduction was troubling Mrs Colborne so as to provoke her initial outburst leading to the final insults, for no mitigating factors are advanced in the evidence, the respondent would have been entitled to consider her behaviour as serious and wilful misconduct. 109 Were her conduct to be regarded as an aberration then an apology to Ms Hassiem and Mr Besso, at the very least, might have provided an opportunity for mutual retreat and a return to business as reasonably usual. But none was offered on the day of her abrupt departure, on the day following after visiting her doctor, or on the Monday when she found her attendance at the workplace to be unwelcome. And the evidence does not disclose any apology being offered whilst there, during the drive home with Mr Besso, or during the hours that they conversed in her home. 110 In my opinion her future was in her own hands and, in light of my considerations above, it requires no finding as to whether she resigned or was sacked. And the agreement for him to supply a separation certificate testifying that this had been a "redundancy" might suggest, by then, that her termination could represent a mutual displacement. Post-Employment Discovery 111 Whilst I consider it generally unnecessary to deal with these issues in detail - if at all given the above - they do appear to have some relevance in terms of the applicant's general disposition towards those under her supervision and others who may have felt vulnerable to her antics towards them. 112 I agree with the submission of Mr Berry, solicitor for the respondent that it is a well accepted principle that where an employer discovers conduct after termination of the employment contract which would have, had the employer known prior to the event of dismissal, formed a proper basis for termination, he is entitled to reply upon such matters in unfair dismissal proceedings and the Commission may accept such matters into account when considering an application for relief. 113 Mr Berry cited the High Court decision of Byrne v Australian Airlines (1995) 185 CLR 410 at 403 where the Full Bench stated: "And facts which existed at the time of the dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable." 114 In my opinion the applicant became the architect of her own demise. 115 For the reasons expressed above this application is dismissed. R J Patterson 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.