WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES LORI-ANN SHIBISH, APPLICANT v. ASSOCIATED NURSERY TRADERS PTY LTD T/A TREES A GREEN GARDEN CENTRE, RESPONDENT CORAM COMMISSIONER S WOOD DELIVERED FRIDAY, 28 NOVEMBER 2003 FILE NO. APPLICATION 458 OF 2003 CITATION NO. 2003 WAIRC 10148 _________________________________________________________________________________________________________ Catchwords Termination of employment – Harsh, oppressive and unfair dismissal –Probationary employment - Industrial Relations Act 1979 (WA) s 23 & s 29(1)(b)(i) - Applicant unfairly dismissed – Reinstatement impracticable – Compensation awarded. Result Applicant dismissed unfairly; compensation awarded Representation Applicant Ms L A Shibish Respondent Mr P L Fraser of Counsel _________________________________________________________________________________________________________ Reasons for Decision 1 This is an application made pursuant to section 29(1)(b)(i) of the Industrial Relations Act, 1979 (“the Act”). The applicant, Ms Lori-Ann Shibish, states in her application that she worked as a Garden Centre Worker and Till Operator, for the respondent from 24 February 2003 to 2 April 2003. She says she was under probationary employment and worked 42.5 hours per week for a wage of $566 per week. She seeks compensation for unfair dismissal and for the harsh manner in which she says she was terminated. 2 Ms Shibish gave evidence that on 11 February 2003 she attended an interview with Mr Colin Taylor, who offered her a job and requested her to start the following day. She was unable to commence then and instead started the following Thursday and worked Friday also. She says at that time he presented her with the contract of employment [Exhibit A1] and had her sign it. There is no date on the contract. After working on 13 and 14 February she was asked by Mr Taylor to work the following week. She recalls this specifically as on 19 February she had to be dropped off as her car was in for service. On 21 February 2003 she asked to leave work early as she had a prior engagement. She worked for the respondent until Wednesday 2 April 2003. 3 The applicant says that during the week of 19 February she was given taxation forms to complete and the following week the respondent commenced deducting taxation from her pay. She worked eight and a half hours a day, 5 days a week, Monday to Friday. However, after the third week this was changed from Sunday to Thursday. Her remuneration was approximately $566 gross per week, and more on long weekends. In relation to the staff assessment form [Exhibit A4] she says of the 20 criteria, 18 were pertinent to the work and that of those 15 were marked “competent”. Specifically she refers to number 11, “Complete given tasks accurately in minimum of time”, which has been marked as competent. She says the respondent’s answer states that the reason for termination was not being able to complete tasks on time. She says this contradicts the assessment form. 4 On the day of termination, ie 2 April 2003, she brought in a mud cake for all of the staff as it was her 40th birthday. At the conclusion of the day she was called to the office where Ms Julie Garrod advised her that she had been terminated, asked her to sign for her pay and presented her with a separation certificate. She asked Ms Garrod a number of times why she had been dismissed and was advised that she was unsuitable, that she was not required to give her a reason and that she should leave. Ms Shibish says she responded by saying that it was unfair and that she was going to the labour board. She left the office and gathered her things and asked Ms Sandy Peden, her supervisor, why she had been terminated. Ms Peden advised that she could not tell her. 5 Ms Shibish telephoned the respondent the following day and spoke to one of the girls on the till and was advised that she had been dismissed as a result of talking back to Julie about the trolleys. During this conversation she obtained the address of Mr Taylor for the purposes of sending him a letter. She considers her dismissal to be unfair as she was not given a reason and was not advised there were problems with her performance that could lead to her dismissal. 6 In regards to the trolley incident on 18 March 2003, she says that while she was working on the till, Ms Garrod started yelling at her because a handle of a trolley was sticking out. They then had a conversation during which Ms Garrod advised her that she was no longer an employee. She waited to see if anything happened and asked the other girls whether she had been fired. She believes nothing occurred at that time as a result of Mr Doug Bolton being away. After Mr Bolton’s return on the Sunday her employment was terminated. 122 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 7 After the trolley incident there was a staff barbeque at Ms Deborah Slater’s home. Invitations were printed up and handed to all staff, however the applicant was not invited. On the following Monday employees asked her why she had not attended and she advised them it was as a result of not being invited. Some employees then spoke to Mr Taylor who did not agree with what had happened. One of the girls bought her some chocolates the following day. 8 On 19 March 2003 Ms Shibish was called into the office for her staff assessment which was performed with Mr Taylor, Ms Garrod and Ms Peden present. There were comments at the bottom of the form which caused some discussion. She felt these comments were unfair as they were not specific and no one was able to point to any specific incidents. She says that she had been given one task by a supervisor and then called off by another supervisor to complete a different task. She says Mr Taylor suggested better communication was needed and she wrote notes to that effect on the form. 9 In mitigation, on 26 May 2003 the applicant commenced employment with Ballajura Veterinary Hospital in a full time capacity working 42 hours per week for $14 per hour. Between 3 April and 25 May 2003 she received no income. She says that she actively searched for employment. The issue of mitigation was not challenged by the respondent. 10 Under cross examination Ms Shibish confirmed that she believes her dismissal to be unfair as no explanation was given and she was never told that her position was in jeopardy. In relation to not being invited to the staff barbeque she says that it had something to do with the perception that she was no longer an employee. 11 In relation to the trolley incident on 18 March 2003, she says the incident occurred at the front of the garden centre. Trolleys were parked in a line and one had a handle that was not flush with the wall. She says that Ms Garrod said to her “how many times did she have to be told”. She says she was standing at the till when this occurred and that Ms Garrod yelled at her. She does not know if Ms Peden or Ms Kraft were present. She says that during the incident she told Ms Garrod not to treat her as a child. She did not yell this out but said it very matter of factly. 12 She says that there are three main areas in the nursery, the receival bay, the undercover greenhouse and the till area. When she was working as the backup till operator it was expected that when the store became busy she would leave what she was doing and help on the tills, the same would occur when the till operators went on their lunch breaks. 13 She denies that during the review she was advised by Mr Taylor and Ms Garrod that they had received complaints from other staff and supervisors. She says that she asked for specifics, but that none could be given. She says that during the review she discussed with Mr Taylor the fact that there was a communication problem as she was being pulled off one job to do another. She reiterated that she did not accept the comments at the bottom of the staff assessment. She says that she followed supervisors’ instructions. When asked to leave one job and do another that is what she did. Immediately following the performance review she said there was an incident with Mr Taylor that highlighted the problem of her being taken from one job to another. She says that in her remaining two weeks she ensured that when she was leaving a job to go somewhere else she advised Ms Slater. 14 Ms Shibish is adamant that her recall of the dates of employment are correct. She says that after her interview with Mr Taylor she had a two day trial period and the contract was signed at the interview. She denies that her commencement date was 24 February 2003. She says that she had to ask for Friday 21 February off as her fiancé had booked them into the Rendezvous hotel so that he could propose to her. When filing the initial application she went off the information on the separation certificate supplied by the respondent. She denies that there is any confusion and says that when she filed out the application on 3 April 2003 she was angry as she had just been terminated and was writing out of anger. 15 She denies the propositions put to her by Mr Fraser that she would refuse to unload stock, that she disliked unloading La Mandra, that she was difficult to find, that messages went out over the loudspeaker enquiring of her whereabouts and that she took it upon herself to decide what tasks she would do. She says that in relation to an incident of cleaning cupboards, when Ms Garrod asked her to go work at the back of the centre she asked whether she was to finish the cupboards and was told to leave it, which she did. She denies acting aggressively to other staff who instructed her post the review. She says that she thought she was performing well in the job as other staff gave her positive feedback. She later says that she did not recall receiving any feedback from supervisors. 16 Mr Colin Taylor, the assistant manager, gave evidence that he is responsible for overseeing staff on a daily basis, ordering shelf stock and keeping things running. He interviewed the applicant and went through with her what was expected of an employee. She came in for a trial period on 13 and 14 February 2003. He says that following the trial period she was offered a position as a probationary employee. He believed that she started that position on 24 February 2003. The employment agreement [Exhibit A1] was signed on 24 February 2003 or no later than 25 February. 17 In relation to the staff assessment form it was completed in consultation with Ms Garrod. The comments at the bottom of the document are his own. He bases these comments, namely that the applicant was not doing what she had been asked to do, on his own observation and complaints from other staff members. During the assessment it was raised with the applicant that on several occasions she had been doing things other than what she was supposed to be doing; that her priorities were moving stock from the receivals bay and working on the till. Her response was that she did not accept any of the criticisms as valid and that she was going to write on the bottom of the form to negate what had been said about her. He says that during the assessment it was raised with the applicant that she was not doing the job she had been employed to do. 18 Suggestions were made at the meeting that the applicant should listen to instructions first thing in the morning and if other instructions were given during the day she should ask which task was the priority. He says that following the review the applicant’s performance declined and her attitude when given instruction seemed to worsen. He says that both Ms Slater and Ms Kraft approached him complaining that the applicant was being given tasks to perform which were not completed. 19 Mr Taylor says in relation to the barbeque at Ms Slater’s house that it was a private function. The decision to terminate the applicant’s employment was made in conjunction with Ms Garrod and Mr Bolton. He says there was no discussion about extending the applicant’s probationary period. He says that during the initial interview, when he was queried by Ms Shibish in regards to the probationary period, he said as follows— “If you’re doing something wrong it will be pointed out to you at the time. You will also have a staff assessment. If you have not rectified the problematic behaviour then it would be brought up at the assessment and if you still fail to do the job as we ask, then there’s no point continuing”. (Transcript pg 45) 20 Under cross examination Mr Taylor says that there are guidelines used when interviewing prospective employees which he followed when interviewing the applicant. These guidelines involve informing the person of the three month probationary period and providing them with a copy of the staff agreement. He says that when a person is offered a trial position the staff agreement is usually presented. He says that the agreement could either have been signed on 11 February 2003 or at the commencement of the trial period. 21 Ms Shibish appeared at first to be suitable for the position. Her termination was a result of her being deemed no longer suitable for the position. At the interview the applicant was told that she would be employed on a probationary basis, there would be a 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 123 staff assessment and if there was anything wrong at that assessment or at any other time then her employment would be terminated. He says that during the assessment interview the applicant was advised that if her attitude did not change her employment would be terminated. In regards to why there were no written concerns on the staff assessment form he says that there was not enough room on the form. She was not told after the performance assessment of any concerns about her performance. 22 He says that he cannot recall asking the applicant to work the week following her two day trial but it may have happened. He says that he recalls the applicant raising an issue to do with being engaged. He does not recall an incident involving the applicant sitting outside the gates. 23 Ms Julie Garrod gave evidence that she has been the manager at the respondent’s business for about six years. She is responsible for overseeing the staff and the running of the nursery. She had no direct dealing with the employment of the applicant and is unaware of the exact starting date of the applicant. Her own observations of the applicant’s performance were that she was unable to focus on one job at a time and had difficulty working under supervision. There was an incident involving the cleaning of a cupboard behind the till when the applicant should have been in the receival bay. Ms Shibish was pulled up on the matter. The applicant stated that she wanted to finish cleaning the cupboard. 24 A further incident occurred in relation to a nursery trolley. Ms Garrod says that she noticed that a trolley handle was sticking out into the main aisle. Ms Shibish was coming in the door with a trolley in her hand and Ms Garrod reminded her to make sure the handle was turned in. She says that Ms Shibish flew off the handle in the presence of customers. She was loud and aggressive and a number of staff witnessed the event. Ms Garrod says that in response to Ms Shibish’s outburst she shrugged her shoulders and walked away. 25 Ms Garrod says that she completed the staff assessment forms by ticking the relevant boxes. The comments on the bottom of the form are Mr Taylor’s. Her evidence in regards to point 11 of the staff assessment is enlightening— “Okay. Now, perhaps you can just clarify one point. If I can refer you to point 11 on the form - -?---Mm hm. - - she has a tick for “Competent for complete given tasks accurately in minimum of time”?---Mm hm. Which would appear to be inconsistent with the handwritten comment at the bottom?---Mm hm. What’s your understanding in relation to how that item came to be ticked?---It’s a very grey area. It’s not a question that can be answered by a tick. Writing the comment explained the problems that were inherent”. (Transcript pg 59) 26 She says that during the assessment she went through the points and the comments at the bottom. Ms Shibish disagreed with it all and wanted to write a comment on the bottom. She says there was discussion about how the applicant’s performance could be improved as they went through the points. A suggestion was made that Ms Shibish should focus on one job at a time and work under the direction given. 27 The decision to terminate the applicant was made in consultation between Mr Taylor, Mr Bolton and herself. Ms Garrod had the authority to terminate the applicant but she consulted Mr Taylor and Mr Bolton as it was custom and practice to do this. She advised Ms Shibish on the day of termination that she was not suitable for the nursery. She was asked by Ms Shibish to go into details but she simply repeated that she was unsuitable. She says that she did not provide further details as it was not company policy to do so. She says that following the staff assessment Ms Shibish’s performance went downhill. The applicant lacked interest in the job and did not want to take orders from anybody. 28 Under cross examination Ms Garrod says that Ms Shibish was terminated due to being unsuitable for the job. She denies that during the trolley incident she advised Ms Shibish that her services were terminated. She further denies that she mentioned termination during the staff assessment. She says that between the staff assessment and the time of termination Ms Shibish was not called in to discuss job performance or given any warnings that her termination was imminent. 29 Ms Garrod says that she was not required to give Ms Shibish a reason as to why she was being terminated. At the time of termination the applicant was on a 6 week probationary period. She says that other staff complained to her about Ms Shibish, although she did not put these complaints to the applicant because when spoken to, the applicant would always disagree and would not listen. 30 Ms Deborah Slater, a nursery hand with the respondent, gave evidence that she works in the receivals bay and is responsible for taking stock from trucks when they come in and preparing the stock for the shelves. She worked with Ms Shibish and found her performance at the beginning to be good but after a while she did not follow instruction and found other things to do. She says that on one occasion some La Mandra came in and she asked the applicant to assist. Ms Shibish went off and worked on the seedlings which were another employee’s area. Ms Slater says that if someone wanted to take Ms Shibish away from the receivals area they would ask her. She says that on another occasion, when trucks came in and it was expected that everyone would assist, Ms Shibish disappeared. Ms Slater advised her supervisor, Ms Garrod, of this. 31 She says that following Ms Shibish’s staff assessment, Ms Shibish treated other staff as if they were not there and she got worse before she left. She says that the barbeque was not a work event and invitations were printed and left at work on a table and were all taken. 32 Under cross examination Ms Slater says that it is possible that Mr Taylor had a discussion with Ms Shibish relating to him asking her to work on the seedlings. 33 Ms Karen Kraft gave evidence that she is employed as a nursery hand with the respondent and is in charge of the shade house. She worked with Ms Shibish and found that Ms Shibish did not always complete her jobs. She had to locate the applicant and get her to finish jobs. Ms Kraft never had a conversation with Ms Shibish in relation to her performance. She says that she spoke to Mr Taylor and Ms Garrod concerning Ms Shibish’s performance. 34 During the trolley incident Ms Kraft was in the shop marking stock. She says that Ms Garrod had asked Ms Shibish and the staff around not to leave trolley handles out. In response Ms Shibish flew off the handle and said she was not to be treated like a 2 year old. Ms Slater says that Ms Shibish knew the trolleys had to be turned around and she had not done it. Ms Shibish was quite loud and there were customers present. She says following Ms Shibish’s staff assessment the applicant was quite angry and was unhappy with the review. 35 Under cross examination she says that she did not know when Ms Shibish had her staff review, although all staff were reviewed at the same time. In relation to the trolley incident she says Ms Shibish yelled at Ms Garrod in the retail section of the shop and Ms Garrod had turned and walked away. 36 Mr Douglas Bolton gave evidence that he is the director/owner of the respondent. He played no part in the initial employment of Ms Shibish. He says that he relies on the feedback of his supervisors in relation to staff performance. His part in the termination of Ms Shibish was to advise that if it was not working out, and she is on probation, then to call it quits. He does not know when the probationary period commenced. 124 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 37 Under cross examination, he says he instructed RM Legal to prepare his notice of answer and counterproposal and that the statement “By oral agreement, acknowledged by the applicant, the probationary period was extended for the three month period” is accurate. 38 Ms Shibish was a good witness; clear and consistent in her evidence and unaltered under cross-examination. Mr Taylor’s recall of events and dates is less clear. He does remember Ms Shibish mentioning something about an engagement. This is relevant as there is a difference between the parties concerning Ms Shibish’s start date. In her application she says 24 February 2003. However, she says that she took this from the separation certificate and filled out the application when angry. It is common evidence that she worked 13 and 14 February 2003 under a trial period. She says she then started the following week and remembers clearly working that week as she had to drop her car off for service and had to finish early on the Friday as she had a prior engagement. Mr Taylor, who employed her, is less sure and concedes that it is possible Ms Shibish started the week after her trial period. Mr Bolton says that Ms Shibish’s probationary employment was extended. This appears in the respondent’s notice of answer and counterproposal. There were no pay advices tendered by either party to indicate what days the applicant had been paid. The respondent says that notwithstanding that Ms Shibish’s probation was extended to 3 months, her services were terminated within the initial 6 week period. I favour the evidence of Ms Shibish as more certain and less contradictory and find that she was employed with effect from 17 February 2003 and was terminated within her period of probation being 3 months. Her probationary employment was then due to finish on 16 May 2003. She was dismissed on 2 April 2003 and hence missed out potentially 6 weeks and 2 days of probationary employment. 39 I need to say something further about my general impression of the evidence given. It is my view that Ms Shibish was a good, consistent and coherent witness who had a clear recall of events and was undiminished in cross-examination. I have already indicated that Mr Taylor’s recall of events was in my opinion not as clear. Ms Shibish, in cross-examining witnesses, did a very good job. Having said that the witnesses for the respondent maintained their respective views that, in summary, Ms Shibish did not properly follow instruction, and was at times found wanting in that she would not complete the tasks expected of her. Ms Shibish, in summary, would have the Commission believe that she was a conscientious worker, who was sometimes given conflicting instructions and who was excluded from a work function, leading to a suspicion that she was not liked by some person or persons of the workplace. I must say that when I weigh all the evidence and I add that to the impressions gained at hearing of the respective evidence for the applicant and respondent, I have greater confidence in the applicant’s evidence and where there is conflict, I would favour her evidence. 40 In saying this I am particularly guided by certain events. It is common ground that Ms Shibish underwent her performance review on 19 March 2003 [Exhibit A4]. A simple reading of that review would suggest that Ms Shibish was performing competently. She received this rating on 15 out of the 18 issues upon which she was assessed. Relevantly the issue of “process routine instructions and respond accordingly” was assessed as “needs further instruction”. That assessment is backed by the comment at the bottom of the form which reads, “You appear to have an inability to follow instructions from supervisors. You tend to wander to other jobs instead of completing one task at a time.” Ms Shibish disagreed with this and says that in effect she was tasked with competing priorities, that Mr Taylor accepted it was an issue requiring better communication and that a case in point arose following the performance review interview. 41 Certainly the complaint of the respondent noted in the performance assessment is consistent with one of their overall complaints about Ms Shibish. However, she is not rated as “not competent” and the assessment is generally good. More importantly, however, there is evidence on behalf of both parties, that Ms Shibish and Ms Garrod were involved in an incident the day prior to the performance review. Ms Shibish was questioned about the date of this incident and I find that it occurred on 18 March 2003. Ms Garrod complained that the handle of the trolley had not been positioned properly and that when challenged Ms Shibish yelled at her and that Ms Garrod walked away. It would seem that the incident occurred in the presence of customers. That is the evidence of Ms Kraft and Ms Peden. Ms Shibish says instead that it was Ms Garrod who yelled at her and reprimanded her in an inappropriate way. I would have expected commonsensically that if a probationary employee had yelled at a supervisor in a challenging manner, and in front of customers, that she would have been reprimanded. There is no evidence this occurred and no suggestion in the performance review that this was a problem. Indeed there are several customer related criteria in the performance assessment, yet no mention of this incident or Ms Shibish’s alleged behaviour. 42 There are some differences in the evidence concerning Ms Shibish being excluded, on her evidence, from a staff function out of hours. Ms Shibish became suspicious that something was amiss as a result of this. Ms Slater says that the invitations were left on a table. The inference being that it was open to all staff. Ms Slater says also that it was not a work event, so seemingly it was a private function; but invitations were left on the table for staff to take. Importantly no one says that there were other staff who did not attend. 43 Further Ms Garrod’s evidence about the staff assessment, as quoted previously, was equivocal and unconvincing. There is also a uniform view that Ms Shibish’s performance worsened after her performance review. However, Ms Kraft was not involved and was not clear when the review occurred. 44 These issues have bearing for me in assessing the credibility of the evidence and as I say I favour the evidence of Ms Shibish. It is common ground that the applicable award is the Horticulture (Nursery) Industry Award no. 30 of 1980. Clause 7 of that award provides for probationary employment of not longer than three months and termination by either party within the probationary period of one day’s written notice or one day’s pay in lieu. The applicant was not paid for the day’s notice. She was simply dismissed at the end of the day’s work. 45 It is Ms Shibish’s unchallenged evidence that she was dismissed without reason on her 40th birthday. She had brought in cake that day for her fellow employees, as was custom, and at the end of the day, without any warning or earlier indication, was dismissed, given her separation certificate, advised that she was unsuitable for the work and that the manager, Ms Garrod, did not need to give her a reason. Ms Garrod confirmed this later in her evidence and this statement appears also in the respondent’s notice of answer and counterproposal. 46 It is the case that approximately two weeks after receiving what I view as a reasonable performance assessment, Ms Shibish’s services were terminated. Her termination was without notice and that is in itself an aspect of unfairness. However, there is no reliable or specific evidence, in my view, that Ms Shibish was warned that her performance needed to improve or that her employment would not continue. Certainly it is clear that Ms Shibish was surprised by her dismissal. She had celebrated her birthday with fellow staff that day and nothing had been said to her to suggest that she was to be dismissed, or that her probation was ending. She was simply called in at the end of the day’s work and dismissed without any reason being given. That too is an aspect of unfairness. The respondent acted suddenly as if Ms Shibish’s probationary employment period was about to end. This, as I have found, was wrong and is not consistent with the respondent’s notice of answer and counter proposal. 47 It is the case that probationary employment is but a step in the selection process and should be distinguished from permanent employment (Charles William Westheafer v Marriage Guidance Council of W.A. 65 WAIG 2311). However, a probationary employee is still entitled to be advised when their performance is not adequate and given instruction and a chance to improve. 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 125 This is also part of probationary employment in my view. More importantly however Ms Shibish’s performance overall would seem to have been adequate. I suspect strongly that a personality clash led to the demise of her employment. 48 For the reasons stated I do not consider that Ms Shibish was somehow an employee who, by virtue of her inadequate performance and inability to follow instructions, was unsuitable for that type of work. This is the only reason indicated on the Separation Certificate [Exhibit A5]. Ms Shibish says that she was told by a fellow employee after her dismissal that her services were terminated due to the trolley incident. Ms Shibish says they chose to wait until Mr Bolton, the owner returned to the state. On the evidence before me I consider that it is open to infer that this was indeed at least a factor in Ms Shibish’s dismissal. Having said that, and having preferred Ms Shibish’s version of events concerning that incident, then I do not consider there to be a reason for her dismissal arising from her performance. It may be the employer thought that Ms Shibish would not fit into the workplace. If that be the case then in my view she was entitled to be advised of this and given the opportunity to address the employer’s complaint. 49 In all the circumstances I do not consider that she has received a fair go all round (Undercliffe Nursing Home –v- Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch 65 WAIG 385). I find that she was dismissed unfairly on 2 April 2003. Reinstatement is not practicable in my view. The loss suffered by Ms Shibish is the income she could have gained from the remainder of her probationary employment. This is a further 6 weeks and 2 days employment at the unchallenged rate of $566 per week. This amounts to a total of $3,622.40 which is the amount I would order be paid to the applicant by way of compensation, less any taxation payable to the Commissioner for Taxation. The payment to be made within 7 days of the order. _________ 2003 WAIRC 10228