WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SUSANNAH LEE MCALWEY APPLICANT -v- CHERRY INTERNET SERVICES PTY LTD RESPONDENT CORAM COMMISSIONER J F GREGOR DATE THURSDAY, 9 SEPTEMBER 2004 FILE NO APPLICATION 326 OF 2004 CITATION NO. 2004 WAIRC 12707 Catchwords Termination of employment – Unfair dismissal – Principles applied – Industrial Relations Act, 1979 s.23A, s.29 Result Dismissed Representation Applicant Mr J. McAlwey appeared on behalf of the Applicant Respondent Dr M. Weicheslbaum appeared on behalf of the Respondent Reasons for Decision 1 On 12th March 2004 Susannah Lee McAlwey (the Applicant) applied to the Commission for an order pursuant to s.23A of the Industrial Relations Act, 1979 (the Act) on the grounds that she had been harshly, oppressively and unfairly dismissed from employment with Cherry Internet Services Pty Ltd (the Respondent). 2 The Applicant had applied for employment with the Respondent following upon an advertisement she had seen for a position as a Webmaster. She had recently completed a Master’s of Science in Information Technology at Murdoch University. In addition she held a graduate qualification of Bachelor of Commerce (Marketing) from Curtain University and a Certificate in Micro-computer Technology. The curriculum vitae accompanying her application claimed that she had experience in marketing sales and recruitment and had six years commercial experience in those customer service fields. Her letter of application informed the Respondent that she had created a number of web sites using technologies such as HTML, Javascript, CSS and Photoshop. She also claimed a good knowledge of Java and SQL and she said she was creative and had excellent online research skills. 3348 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 3 The academic record for her Master of Science degree indicates a student of considerable academic prowess with her major units examination marks scoring from distinction to high distinction. It was with this academic and work background the Applicant was appointed to a position with the Respondent (see Exhibit W3). 4 On engagement the Applicant was offered an employment contract (Exhibit M1). The contract was to be fulltime commencing on 12th January 2004 with a salary of $32,000 plus superannuation. The arrangement offered a salary review to be conducted in July 2004. There was to be an ‘induction period’ of two weeks during which both the Applicant and the Respondent could opt to terminate the relationship. There was an arrangement for the withholding of 50% of the salary paid if that occurred. Finally the contract provided that two weeks notice at termination was required and all remaining leave entitlements would be paid out. There was no provision for payment of money in lieu of notice. 5 The Applicant says that her employment with the Respondent was punctuated by incidents where the Respondent’s principal, Dr Marcus Weicheslbaum, put her down in various ways. She conceded that she was not as practically qualified as other employees because her Master’s Degree was more theoretically based and strategic. The other employees who were engaged about the same time as her were TAFE graduates and had a practical bias in their training. This was significant in the early parts of her engagement because she was not as effective as they were at the application of practical skills. The Applicant says she was told not to worry about this because she had communication skills and experience and she would learn the practical skills. 6 The Applicant says she found the working environment very difficult because of the authoritarian style of Dr Weicheslbaum. This was reflected in his general demeanour towards her compared with his treatment of other employees. She claimed he would single her out. An example had happened during a training session in relation to web colours when Dr Weicheslbaum identified her as the one amongst all of the group who was struggling. This she found very difficult to cope with. 7 There were other examples where she had tried to generate better team spirit between the men and the women at the workplace. This was part of a role she thought she had as ‘employee liaison’. Dr Weicheslbaum confronted her after she sent an email to staff about a concern. She was unhappy about that situation, she admitted that Dr Weicheslbaum asked her to stay after work to talk through problems with her. He had asked her whether she was withdrawn and whether she had any personal problems. She agreed that she did, but only as ‘an easy way out’. 8 The Applicant says matters came to a head on 18th February 2004 when she was working in the office with another employee and Dr Weicheslbaum came in with one of the other programmers. In front of the programmer and another employee Dr Weicheslbaum told her that she was dismissed. Her reaction was that it was harsh and she started to cry. She remembers that there was some suggestion made to her that instead of two weeks notice which she had been given she could cease to work immediately and receive an extra week’s pay. She recalls saying that it was stated that it would be better for everyone if she left immediately and she did leave. 9 The letter of termination, formal parts omitted, is included in hereunder: “I regret to inform you that this letter serves as a notice of your termination of your position at Cherry Internet Services. Your employment ends at 5 pm, March 3rd, 2004. It has become apparent that your skills don’t match the requirements for the webmaster position. Initially you admitted to issues outside of your work environment that negatively influenced your work performance. Your performance has continued to remain below expectation, and over the course of your employment it became evident that you continue to struggle with many of the underlying concepts. You appear to find it difficult to understand and carry out the assigned tasks efficiently and thoughtfully enough to meet the company standards, to the extent where lack of attention directly impacted on the company’s performance and revenue. According to your employment contract, you are entitled to two weeks notice, and thus you will be required to continue work until 5 pm, March 3rd 2004. You have the option to cease work immediately, in which case you will receive a payment of one full week’s salary. Your superannuation entitlements will be paid out at the end of the first quarter 2004. This letter, the decision of termination and the severance pay offer are final and not negotiable. I have personally come to value and appreciate your personality and I regret to have to terminate your position. Although your skills and our work environment may not have been a perfect fit, I am certain that you have valuable traits that are useful in other employment situations.” 10 The Applicant says that as a result of the dismissal she had lost all of her self confidence, had to seek counselling and is still receiving it. She was unemployed for a total of 20 weeks and although she did apply for work she was unable to obtain any. 11 The Applicant was cross examined by the Respondent. Amongst other things she agreed that in a conversation with Dr Weicheslbaum during a journey out of the office she admitted that she might not fit the position because she did not have the practical skills. She also admitted that during the third week of her employment that Dr Weicheslbaum made it clear that he was concerned about how she was progressing. She also conceded that on one occasion he took 30 minutes to explain to her he had concerns with her performance. Again later, while she would not admit that she had thought her job was in jeopardy, that it was clear that the Respondent was concerned about her attitude and performance. There were also issues raised in cross examination concerning the Applicant’s use of certain email applications and she admitted that she could have used the email in contrary to the office guidelines and code of conduct (Exhibit W2). She denied that she often went to sleep in her car or that she slept in her chair. 12 She also admitted that during her exit interview there was a discussion concerning alleged negligence or inattention that led to web site malfunction and a loss of revenue. She also admitted that it was put to her by Dr Weicheslbaum during the exit interview that she could cease work immediately and get an extra week’s pay or work on, she chose to cease immediately and get the extra week’s pay. She did concede she was aware that the Respondent was not happy with her work. She also conceded that Dr Weicheslbaum did train employees to improve their communication skills and that she found that training useful. 13 That is sufficient recitation of the Applicant’s evidence for the purposes of these Reasons for Decision. 14 The Applicant called no further witnesses and evidence was then taken from Dr Weicheslbaum. He strongly rejected the claim of harsh, oppressive or unfair dismissal saying that nothing about the termination could possibly be construed that way. The dismissal was a consequence of a lack of performance, ability and skills. When the allegations about lack of performance, ability and skills were put to the Applicant she did not dispute them. The dismissal was procedurally correct and there were two witnesses to protect both the Applicant and the Respondent. After the termination discussion the Applicant left the office in accordance with arrangements reached concerning the termination meeting. 15 The Applicant was provided with a warning and advice that her performance and skills were not up to the Respondent’s expectations. These occurred in the third week of her employment when she was approached by Dr Weicheslbaum and told 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3349 her performance was inadequate. She was asked whether anything could be done by the Respondent to improve the situation. Dr Weicheslbaum gave evidence that the Applicant frequently appeared to be absent minded and found it difficult to follow instructions. He told her, amongst other things, that she needed to be more thorough when completing tasks. In response to a question from him she had said she had private issues to deal with which were reflecting her work performance but she thought she could get over those. 16 The Respondent says that the Applicant was hired because she had extremely good technical qualifications but the qualifications did not translate into skilled practical application. 17 Dr Weicheslbaum told the Commission that he is skilled in areas of communication and connection between the brain and body and any kind of social interaction. He holds a PhD from the University of Western Australia in medical science in the discipline of neuro science and had worked for many years teaching science students at Sir Charles Gairdener Hospital. He thought with those skills he was well aware of how to deal with the Applicant and to seek to assist her to make the grade. He denied he was authoritarian at all and called evidence from other members of staff to assist him to establish this claim. 18 The first member of staff he called was Sophie Snedden. Ms Snedden told the Commission that she had undergone training given by Dr Weicheslbaum. The training was pitched at a level which allowed employees to understand the concepts. The Applicant had trouble and contrary to the Applicant’s suggestion there was not a large delay in the web colour class to allow her to understand the concepts, Ms Snedden believed the Dr Weicheslbaum had been very patient with the Applicant. Her workmates also tried to help her as much as they could but she had deficiencies in areas such as SQL where she needed help consistently to apply the concepts. The Applicant often used to cry at work. Ms Snedden remembered a day when the Applicant spent the whole day crying. The Applicant used to look as though she was sleep deprived and was often leaning back in her chair with her eyes closed. On occasions during her lunch time she would go out and sleep in her car. Even though the Applicant was appointed as ‘employee liaison’ she really did not know what to do. Ms Snedden felt that Dr Weicheslbaum was patient and helpful and tried to teach his staff everything they needed to know. 19 The Commission also heard evidence from Zanetta Ellis, she confirmed that the Applicant had difficulty with the web colour exercise. Ms Ellis thought at the beginning it was complex but Dr Weicheslbaum explained it in a way which became quite simple. All of the employees were treated the same way and Ms Ellis did not recollect anyone being put down. The Applicant appeared to Ms Ellis to be having difficulties so much so that she would ask herself or Sophie. Alternatively she would hide tasks that she could not do from Dr Weicheslbaum. Ms Ellis thought that Dr Weicheslbaum made an effort to ensure that tasks were understood and would sit down with staff and explain what needed to be done to them. Ms Ellis also recalled the Applicant being sleepy. 20 Evidence was also taken from Jason Playne. He was present at the so called exit interview when the Applicant was told her services were terminated. Mr Playne recalled that Dr Weicheslbaum went through the letter and the Applicant was asked if she had any questions. He was aware that Dr Weicheslbaum had been concerned about her performance and had expressed that concern to him from time to time. He was also told that Dr Weicheslbaum was going to have a talk with the Applicant and that he was planning to take that action because he wanted to assist the Applicant if that was possible. Dr Weicheslbaum had reported to Mr Playne that he was concerned about the Applicant’s performance and that she did not seem focussed. After the meeting Dr Weicheslbaum had related what happened in the conversation and how he had expressed to the Applicant his concern about her ability to perform. Mr Playne could not recall any incident at all where there was any behavioural inappropriateness on behalf of Dr Weicheslbaum to any employee. 21 The preceding is a sufficient summary of the evidence for the purpose of these Reasons for Decision. The Commission is to make findings on credibility of witnesses. I carefully listened to the evidence of the Applicant. I have no doubt that she told the Commission her version of the events truthfully, that is, I believe that she did think she was being put down. She seemed to be a nervous person and I have no doubt she formed and believes the views that she has articulated to the Commission. She is a credible witness to that extent. 22 Dr Weicheslbaum on the other hand gave strong, logical and clear evidence. There is no reason to conclude that he did not tell the Commission the truth of the matter and the actions he took to try and assist the Applicant to become a useful member of the Respondent’s staff. 23 The two principal witnesses have substantially different versions of events. There are both credible. I need to distinguish whose evidence is most likely to be true on the balance of probabilities and I do so by taking into account the evidence of Ms Snedden, Ms Ellis and Mr Playne. 24 Each of those witnesses were subject to cross examination by Mr McAlwey who appeared for the Applicant. None of them were shaken in their stories and there is no reason for me to conclude that the stories they gave were not truthful recollections. That being the case I am bound to find that where the evidence of the Applicant differs from the evidence submitted on behalf of the Respondent that I am compelled to accept the evidence of the Respondent. 25 In deciding a case like this the Commission is to apply the test set out in Undercliffe Nursing Home v Federated Miscellaneous Workers Union (1985) 65 WAIG 385. That requires that there be a ‘fair go all round’. When the Commission reviews dismissals of this nature it is not to interfere with the right of the employer to dismiss unless that right has been abused in that there has been harsh or unfair conduct on behalf of the employer. It is for the applicant to establish that there has been unfairness such that the Commission should interfere with an employer’s right to terminate. 26 Having considered the evidence and having made findings about the credibility of witnesses I conclude that the Applicant was hired by the Respondent, she is an extremely talented person academically and had high qualifications in an academic sense. 27 It appears though that the job she was hired to do required a blend of skills which included practical skills. It is clear from the evidence that she was unable to meet the standards required in those practical skills. It is also clear from the evidence that early in the relationship the Respondent was aware of difficulties she was having and raised them with her. The Applicant concedes this in her examination in chief and cross examination. The Applicant says that she did not think that her job was in jeopardy however it is open to conclude from the evidence before the Commission that she knew that there was dissatisfaction from the Respondent’s point of view with the way she was performing and that she knew she had to do better. The employment relationship was very early in its term when the dismissal took place but not inside the probation period. The Respondent, it can be found, took every reasonably step to ensure that the Applicant knew how to do the job. It is open to conclude and I do that notwithstanding the Applicant’s memory to the contrary that she had a number of conduct issues such as going to sleep and personal issues which were at least apparent to her workmates and to her employer. 28 I think those were far more serious than she was prepared to admit in evidence and they were contributory to the Respondent reaching the conclusion that in the best interest of both parties it should bring the employment relationship to an end. 3350 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 29 It is open to conclude on the evidence that Dr Weicheslbaum was not authoritative and inflexible as the Applicant suggests. The overwhelming evidence is that is not the way he approached work with his employees and this would be consistent with his long background as a teacher and with his specific skills from his academic and medical science background. 30 As for the termination itself the Applicant was given the opportunity of having witnesses present. It can be said that no termination is a comfortable process for either party and it would be even more uncomfortable for the Applicant in the circumstances where, because of her fine academic record, she had every reason to believe that she should have been able to do the type of job that was being asked of her. Yet there were people telling her that she was unable to do so. This would no doubt have caused her distress. 31 That is not to say though the Respondent has acted unfairly. The overwhelming evidence is that there has been no unfairness upon the tests which are to be applied and for that reason I conclude that the Applicant has not established that the conduct of the Respondent was harsh and unfair to the extent that the Commission is justified in interfering with the termination and for that reason the application will be dismissed. 2004 WAIRC 12706