Industrial Relations Commission of New South Wales CITATION: Wilson & The Bathers' Pavilion Pty Limited [2006] NSWIRComm 1063 APPLICANT Lori Wilson PARTIES: RESPONDENT The Bathers' Pavilion Pty Limited FILE NUMBER(S): 6819 of 2005 CORAM: Ritchie C Claim for unfair dismissal Applicant worked in hospitality industry Applicant organised functions for the respondent. Applicant counselled both verbally and in writing. Applicant did not accept that any issues existed. CATCHWORDS: Beacause of the figures she wrote, the allegations could not be correct. At no stage did applicant accept that adjustment on her behalf was required. Respondent recognised that she had brought in income but she would not be judged on figures alone. Commission concluded that based on evidence, Respondent had reason to issue warnings and because there was no long term change in the applicant's approach towards customers or fellow staff that her termination was neither harsh, unjust or unreasonable. Application was dismissed. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 16/03/06,17/03/06 DATE OF JUDGMENT: 04/06/2006 APPLICANT: Self represented LEGAL REPRESENTATIVES: RESPONDENT: Mr M. Easton DECISION: 1 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 6 April 2006 Matter No IRC 6819 of 2005 IN THE MATTER OF: Lori Wilson and The Bathers' Pavilion Pty Limited. Application by Lori Wilson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1063 1 Ms. Lori Wilson (the applicant) filed a claim for unfair dismissal on 23 December 2005 against The Bathers' Pavilion Pty Limited (the respondent) under section 84 of the Industrial Relations Act 1996. 2 The applicant commenced employment with the respondent on 4 January 2004 in the capacity of Functions Manager and was terminated by the respondent on 13 December 2005. 3 Conciliation took place on 18 January 2006 but was unsuccessful and directions were provided to the parties for the filing and serving of evidentiary material. The hearing of the matter was held on 16 and 17 March 2006 and the decision was reserved. 4 In the proceedings the applicant was self represented and Mr. M. Easton of Counsel represented the respondent. 5 The applicant filed evidence and was subject to cross- examination. It was the applicant's evidence that she was successful in her position and it came as a great surprise to her, that on 10 August 2005 she received a first written warning. A copy of the warning signed by the proprietor Mr. Serge Dansereau, was attached to the applicant's written statement Ex. A. The reason for the warning is expressed as: "Rude and uncooperative with customer, does not accept blame, argumentative, at time create tension." Included in the warning is the statement "Not listening to previous warnings on this issue of rudeness." Attached to the warning was a letter to the applicant outlining the issue and the ramification to the applicant if there were any more complaints about her. Also expressed was the comment that "there is a pattern of rudeness to happen from time to time with me as your employer with customers and as importantly with your office colleagues as the recent case when I spoke to you on Tuesday 9 August." 6 The applicant denied the allegation from the particular customer that was named in the warning and stated that under duress she had to sign the letter. 7 The applicant received a second written warning letter on 11 November 2005. She stated that she was stunned when she received it. The following was expressed under the heading of Reason for warning: Aggressive, not a team player, condescending, rude, unevenness of approach to customers, create tension, refuse to follow advice, at times poor phone manner with customers, not flexible in changing work processes, did not participate in office discussion regarding restructuring, storming out of meeting, not providing customer service sheet for feed back as instructed, self importance in her role. No permanent improvement on most issues raised in last meeting (10/8/05). Under the heading of "Consequences of repeat of any of the points": Dismissal as judged changes are not acceptable by Lori A detailed attached letter highlighted various issues the respondent had with the applicant. It expressed a requirement by the applicant to change her attitude and that she couldn't think that she would be judged only on sales performance. "Your attitude, approach to the customer and to other staff is to me as relevant in evaluating your performance." 8 The applicant replied to this warning letter in written correspondence dated 18 November 2005. In general the applicant apologised to Mr. Dansereau for her behaviour and said that she would be pro-active in correcting the issues mentioned. Whilst the applicant made such comments at the time in her written reply, her written statement filed for these proceedings contained different views. She denied the allegations contained in the letter dated 11 November 2005. She denied being rude or aggressive towards clients or staff. She would not have written the figures she had if she had been guilty of such claims. 9 On 13 December 2005 the applicant had a meeting with Mr. Dansereau that resulted in the applicant being terminated. The letter directed to the applicant terminating her services reiterated what had been expressed in the previous warning letters and also raised the issue of complaints received from the proposed Gazal wedding. The letter also included the concern from Mr. Dansereau about the applicant trying to hide this problem from him by trying to prevent a message from Ms. Gazal being given to him. The applicant denied that she was given procedural fairness because she was not given the opportunity to explain her side. In her view her client service and her performance were beyond reproach. Prior to her leaving the premises she was paid commission on what business she had organised for 2006. This was paid notwithstanding that the events had not yet taken place. 10 During her period of employment with the respondent the applicant stated that she achieved $1.7M worth of sales in 2004, over $2M in 2005 and over $600,000 in 2006 and that the business was growing from strength to strength as a result of the measures that she had introduced and implemented. 11 The applicant said she had been terminated because she was making too much money compared to other staff. 12 The following persons gave evidence for the respondent: Ms. Kandece Miechel Mr. Serge Dansereau Ms. Ann-Maree Gazel Ms. Jo-Anne George Ms. Kristy Frawley Ms. Deborah Gill. 13 Ms. Miechel stated that as the financial controller of the respondent she believed that there were inefficiencies in the way work was being allocated and carried out. She therefore asked all employees in the administrative area to write out a list of their responsibilities and duties. A meeting was held in late October 2005 with the employees to discuss changes. The applicant was in the meeting for five minutes when she advised that she would not be changing anything about what she did. Other employees sought to explain what was being considered but the applicant left the meeting stating that she could not be bothered with it. The changes were introduced on 1 December 2005. She also stated that she overheard a telephone conversation between the applicant and Ms. Gazal on the morning of 7 December 2005. The applicant made comments such as like " I am not lying", "that is not my fault" and "it's not my problem". 14 There was a scene in the office when Deborah Gill took a call from Ms. Gazal. She wrote a message down to be given to Mr. Dansereau but the applicant intervened and sought that she be given the message. To avoid the applicant taking the message off her, Ms. Gill put the piece of paper down the front of her top. The applicant responded by describing Ms. Gill as "pathetic". 15 On 13 December 2005 Ms. Miechel stated that she was a witness to a meeting between the applicant and Mr. Dansereau. Mr. Dansereau raised the issue of the complaints received from Ms. Gazal and her aunty Ms. George. As Mr. Dansereau described what he had been told, the applicant denied it and began to get very loud and irate. A confrontation then developed where Mr. Dansereau sought for the applicant to return the respondent's master key and the applicant refusing to give it back until she had been paid commission for 2006 functions she had booked. Eventually the commission was paid and the key retrieved. It is the normal practise that commission is paid once the function has occurred and not before. 16 Mr. Serge Dansereau is the proprietor of the Bathers Pavilion. It employs 120 staff, 80 of which are full time. The applicant was employed as a Functions Manager to respond to customer enquiries about holding functions at the Bathers Pavilion. She organised quotes and liaised with customers over table plans, menus etc. The applicant had her own way in systems she put in place and was left alone to do her job. He stated that he received reports about the applicant's loud and aggressive nature in the office and how that disrupted the other employees. He also witnessed this behaviour. 17 He disagreed with the figures quoted by the applicant as to her yearly sales figures. Events that were not organised by the applicant had been placed in her figures. The applicant had been overheard to state that she was the only one that brought in any profit. Efforts to alter the applicant's approach ended in the applicant storming off creating an unpleasant atmosphere in the office. He also noted that the applicant would keep customers waiting for an average of 15 minutes. This keeping customers waiting was unacceptable and she was advised of this. Mr. Dansereau developed an apprehension of the applicant's inability to control her aggression. Any discussions about trying to change her way of dealing with customers resulted in her blaming the customer as being difficult. 18 Prior to the applicant receiving her first written warning Mr. Dansereau had verbally warned her on several occasions. He found that when he did speak to her he found the applicant not very good at listening and accepting what he was saying and he found it very frustrating. When he provided her with her first written warning on 10 August 2005, he stated that he went through each item point by point. He would no longer tolerate the applicant's condescending attitude towards the customers. After that date he continued to counsel the applicant when required. He advised her he would no longer tolerate her constantly aggressive and argumentative approach to him. He spoke to her about her aggressive attitude towards other staff, her time keeping, making customers wait and drinking alcohol during working hours. He later banned her from the bar. He also asked the applicant to raise and implement a comment sheet but this was not done. 19 He gave the applicant a second written warning, again for similar issues of aggression, condescending attitude and inflexible and an uncooperative approach. She was still too busy for customers and reduced another staff member to tears. She was asked to apologise to another employee whom she had reduced to tears, but did so by email. He came to recognise that the applicant was not a team player. Again Mr. Dansereau went through each point of the warning letter with the applicant. The letter received in reply to the second warning letter whilst conciliatory in tone lasted about two weeks and then reverted back to her previous aggressive, rude condescending attitude. 20 On 7 December 2005 Mr. Dansereau received a note to call Ms. Gazal. The applicant approached him and said that Ms. Gazal would only complain about her service in an attempt to lower the price. Mr. Dansereau rang Ms. Gazal and she proceeded to give a horror story of the applicant's difficult and un-cooperative attitude, tardiness and sheer lying. He then called her aunty Ms. George who spoke in even worse terms. 21 On 13 December he held a meeting with the applicant. It was Mr. Dansereau point of view that the applicant could make all the revenue she liked but she still could not be rude to customers. She became aggressive and stated that she was not rude. He then dismissed her and an argument ensured with Mr. Dansereau wanting the return of his master key and the applicant wanting to be paid commission for the 2006 bookings. 22 Mr. Dansereau denied that the applicant had been terminated because she was earning too much. The commission she received was discretionary. 23 Ms. Ann-Maree Gazal and her partner own a business employing 240 and in family businesses employing some thousands. Ms. Gazal stated that in August/September 2005 she, her partner and her aunty Ms. Jo-Anne George considered booking the Bathers Pavilion for her wedding. Her aunty called the respondent and spoke to the applicant. Requests were made for names of co-ordinators and dates. Nothing happened. Her aunty called again. Nothing that had been promised had been done. Further promises were made by the applicant but again nothing happened. A face to face meeting was sought but the applicant was reticent. Finally a meeting was organised and her aunty, her partner and herself were kept waiting for half an hour before the applicant appeared. No names of co-ordinators were provided as she had been too busy. Ms. Gazal sought a Saturday night but that was rejected by the applicant as not possible. A promise of more detail within a week was provided by the applicant, but nothing arrived. Ms. Gazal decided to speak to the owner of the respondent. She sent emails to the applicant seeking the phone number and or emails of the owner. No response. Finally she received a phone call from the applicant stating that she had not received the emails but when asked, would not give the contact details as sought by Ms. Gazal as Mr. Dansereau was too busy. As Ms Gazal was contemplating spending $100,000 she still wished to speak to the owner. 24 Later the same day the owner did phone back and apologised for the applicant's poor attitude. Ms. Gazal decided to take her business elsewhere as she saw the whole experience as nothing but time wasting and disappointing to say the least. 25 Ms. Jo-Anne George stated that on behalf of her niece she sought to gather information about holding a wedding at the respondent's premises in January 2006. She stated that from the first phone call contact and then over the next few months it seemed to her that the applicant was too busy to devote much attention to her or Ms. Gazal. A request for a co-ordinator was made and finally a meeting took place on site. The applicant was half an hour late without any excuse. No co-ordinator was present nor any name(s) was given. Ms. George sought a Saturday night but that was considered by the applicant as not possible. Finally she agreed to ask the owner. A quote was promised within a week. Nothing came of the promise. Requests were made, promises were made and nothing arrived. The applicant would promise "the next week", but if it didn't arrive then call me. Reasons why it didn't arrive would vary. Her niece was loosing confidence in the applicant's ability to manage the event. The applicant wanted Her niece to sign up for the wedding without any further face to face meetings. 26 She and her niece retracted their interest in holding the wedding in the respondent's establishment. They had no confidence in the applicant. A lost sale of a function worth possible $100,000. 27 Ms. Kristy Frawley stated that she worked in the administrative area for the respondent. She said that when she picked up calls from the general public she would often get disgruntled prospective customers who were waiting for information from the applicant. Because the office space of the respondent was small, Ms. Frawley could hear the applicant speaking in a condescending and belittling manner to customers. In Ms. Frawley's view the applicant would lie to customers to avoid telling them that she had not followed through with what she had promised. The applicant would request prospective customers to email her with their details rather than she writing them down. Her customers would be kept waiting downstairs for appointments. Ms. Frawley stated that she had difficulties with the applicant in releasing dates to her so she could book particular book launches. In giving evidence Ms. Frawley named several customers who had voiced their dissatisfaction with the applicant's attitude and performance. 28 Ms. Deborah Gill stated that she was an assistant to all departments within the office. She said that whilst other managers were patient with as she learned new skills the applicant treated her like an "imbecile". In her view particular work that she was required to do for the applicant was unnecessary as it was a duplication of work. Suggested modifications to the applicant would not be accepted. A meeting was held to review administrative procedures, which resulted in the applicant leaving after about 5 minutes. Ms. Gill stated that the applicant commented that she was the only person bringing in money for the respondent, she was always very busy and Ms. Gill should spend the maximum percentage of time supporting her. Ms. Gill said she received calls from customers who were not satisfied with the service of the applicant. In December 2005 Ms. Gill was on the switch when she received a phone call from a Ms. Gazal who wished to speak with Mr. Dansereau. She stated that she had to spell Ms. Gazal's name out and wrote the message down on a piece of paper which the applicant then sought to try and take out of her hand. To prevent this Ms. Gill stuck the paper down the front of her top. This resulted in the applicant yelling at Ms. Gill. Consideration and Decision. 29 In giving evidence the applicant stated that she was in shock when she received the written warnings because in her view she had a good working relationship with her fellow workers and the customers. She did not believe she had prior to the first warning, received any warnings from Mr. Dansereau. The comments made by two prospective customers Ms. Gazal and Ms. George came about because of a mix up and or a misunderstanding. As a consequence of receiving the second written warning the applicant stated that she tried to improve her relationships with her fellow employees. She denied keeping Ms. Gazal and Ms. George waiting half an hour. On occasions she may accidentally have kept customers waiting 5 to 10 minutes. She denied that Ms. Gill had to put the piece of paper down her front to stop her from taking it and that she only ever had a drink at work with the owner's approval. She denied holding back the return of the master key at the time of her termination. She believed she had a good working relationship with her fellow workers and by this application sought to be reinstated back to her previous role. 30 It became clear during the proceedings that Mr. Dansereau had sought to bring to the applicant's attention of his requirement for her to change the way she dealt with be it customers and/or fellow staff. Both written warnings express this. The applicant said she sought to change and believed she had done so. Both written warnings provided clear information on what had to be corrected by the applicant. 31 I believe it was also clear that Mr. Dansereau placed importance on the applicant treating customers in a courteous manner. It was the applicant's response to this evidence that she must have been courteous to customers because she would not have been able to write the business to the degree that she did. At no stage during the proceedings was there any recognition by the applicant that she had been at fault in her dealings with either customers or fellow staff. Her written response dated 18 November 2005 to her second warning would seem, based on her evidence in cross examination was written in a form to get Mr. Dansereau on side, rather than recognising and accepting that she was in the wrong. 32 Notwithstanding the applicant's written undertaking to seek to change, I find her interaction with Ms. Gill in seeking to try to retrieve the phone message most inappropriate. It is my finding that the applicant was aware of her failings in handling the Gazal booking and was trying to prevent Mr. Dansereau from speaking to Ms. Gazal. 33 I found the evidence of both Ms. Gazal and Ms. George compelling. Both witnesses, in a direct and clear manner told their story about their attempt to do business with the respondent and the difficulties they encountered in dealing with the applicant. Both have experience in business, were aware of difficulties one faced in day to day business life and in my view showed patience up to a point in their dealings with the applicant, when they concluded that they no longer had any confidence in the applicant. I also accept their version that the applicant kept them waiting for half an hour prior to their meeting. To do that without any apology is quite unacceptable. What came across in clear terms was the view of Ms. Gazal that the owner should be made aware of what was going on in his business. 34 From her work history the applicant was a mature aged experienced person in the hospitality industry. It is sad that a job she so coveted, she should be terminated from, but when the evidence placed before the Commission is reviewed I do not believe the respondent had any alternative. I accept the evidence of Mr. Dansereau that he sought both through verbal and written warnings to bring the failings of the applicant to her attention. At no time was there any recognition by the applicant during cross- examination that there was a requirement to change her manner in dealing with customers and or fellow staff. In accepting the evidence of Ms. Frawley, Ms. Gill and Mr. Dansereau that they had to deal with complaints from customers over the way they had been ill treated by the applicant, I find that the applicant was at fault. 35 I find that through the written detailed warnings provided by the respondent to the applicant, that the applicant was afforded procedural fairness. 36 In this case the onus falls on the applicant to prove that her termination was harsh, unjust or unreasonable. This in my view she has failed to do. I therefore dismiss her claim. 37 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.