WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SUSAN ELIZABETH ANDERSON, APPLICANT v. EASTERN GOLDFIELDS MEDICAL DIVISION OF GENERAL PRACTICE, RESPONDENT CORAM COMMISSIONER A R BEECH DELIVERED FRIDAY, 21 DECEMBER 2001 FILE NO. APPLICATION 958 OF 2001 CITATION NO. 2001 WAIRC 04485 _________________________________________________________________________________________________________ Result Application alleging unfair dismissal granted. Representation Applicant Mr A. Dungey (of counsel) Respondent Mrs L. Ellery (of counsel) _________________________________________________________________________________________________________ Reasons for Decision 1 Ms Anderson was employed as office co-ordinator for the respondent from 8 January 2001 until her dismissal on 17 May 2001. The reason for her dismissal, taken from the letter of dismissal, was an inability to adjust to the organisation’s needs where it required an open flow of communication between her position and that of the CEO, Ms Duggin. It identified the main problems as an unwillingness to communicate, lack of initiative and a manner seen as abrupt. It described her attitude as defiant and recalcitrant when counselled leaving the respondent no alternative but to dismiss her. She was dismissed effective immediately with payment of four weeks’ wages in lieu of notice. 2 Ms Anderson claims her dismissal was unfair because she was not provided with definitive reasons why the respondent was unhappy with her performance, was given no opportunity to rectify the situation, Ms Duggin’s instructions were unclear and erratic and she had no idea she would be dismissed. 3 Evidence of Ms Anderson’s performance was principally given by her and Ms Duggin. The respondent also called evidence from Ms Brown, the respondent’s Health Programme Manager and from Ms Harrison, who works in clerical and administrative position for the respondent. 4 Ms Anderson’s evidence is of an extensive and satisfactory history of work in clerical, secretarial and personal assistant occupations. She was employed to work closely with Ms Duggin and that Ms Duggin has a tendency to do things herself. When Ms Duggin stated that she needed her to come in to her office more regularly, Ms Anderson suggested regular morning meetings. Her evidence is that she loved her work, found the people at work friendly and found the work easy. She believed she got on well with the staff and was happy at least until the car-cleaning incident. 5 Ms Duggin sent an email to her on April 30 (exhibit A6) requesting that Ms Anderson arrange to have the respondent’s car to be cleaned inside and out and filled with petrol. She rang two car detailers and got quotes of $144 and $33 respectively. She used the $33 detailers. Later, when Ms Duggin asked where Amanda was, Ms Anderson informed her that she had taken the car to the car detailers. Ms Duggin said words to the effect that “we are a hands-on organisation”. Ms Anderson later asked Ms Duggin what she had meant and whether she had meant that Ms Anderson was to have cleaned the car herself. Ms Anderson states that she did not receive a direct answer but that Ms Duggin stated that she was “always spending money”. Ms Anderson disagreed. She felt as though she had done something wrong, yet she had not. 6 Ms Anderson’s evidence was that she was shocked when later Ms Duggin told her that complaints had been received that she had been “rude” to doctors on the telephone. On another occasion Ms Duggin had asked her to “nip out” and get some sandwiches to be cut up for 3 people for a working lunch. Ms Anderson knew that for Board meetings sandwiches were usually obtained from a place which had gourmet fillings. Ms Duggin had stated in the past that she had liked them so she rang up and had sandwiches delivered. 7 Towards the end of her employment, however, she felt she lacked Ms Duggin’s support and things “did not quite return to normal” for her. She was very upset at the verbal warning given to her by Ms Duggin on Friday 11 May. The following Monday Ms Duggin’s door was shut and she waited for the verbal warning to be given in writing. This did not occur and she took the following two days off on medical advice (providing the appropriate certificates) and returned to work on the Thursday, when she was dismissed. Ms Anderson says she was horrified at being dismissed and that in all her work history, nothing like it had occurred to her before. 8 Ms Anderson refutes the grounds for her dismissal as given in the letter, and as contained in the respondent’s Notice of Answer. She says she took a number of initiatives. She re-organised the stationery cupboard, arranged for a particular rubber stamp to be made, purchased a windscreen reflector, arranged cleaning the outside of the building and stopped the use of a high-pressure hose for the purpose, she built upon Ms Duggins’ idea of vouchers for student packs and she shopped around to have computer carry cases included in the supply price of computer notebooks. She says she was conscious of the need to be careful with the respondent’s money. Ms Duggin signed off on all stationery orders prior to purchase and she was never told she had bought excess stationery . She set up an account with an alternate supplier, but it was not competitive. She arranged an account for petrol, without an account fee, in place of petty cash. 9 She states that she cleaned dishes in the kitchen and tidied up. She did not refuse to clean the archive shed, but it was “creepy” with spider eggs and she has a problem with spiders. She had never been told that there was to be a bush-weekend retreat she would have to attend, but she would have had no problem as long as there were no spiders. In any event, there was no such weekend for 2001. She genuinely forgot when she was employed to advise that she had already arranged for a holiday in June on a non-refundable ticket and was not being dishonest. 10 Ms Anderson was extensively cross-examined on her evidence and I refer later to some of the evidence which arose out of that cross-examination. 128 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 11 Ms Duggin’s evidence is that Ms Anderson started her employment well and seemed interested in the job. However, Ms Anderson’s attitude declined. She preferred some tasks over others and delegated things she did not like doing. Ms Duggin informed Ms Anderson that she wanted greater support and assistance from her but states that Ms Anderson replied that she would not have accepted the job if she had known it was to be a personal assistant role. Ms Duggin says that she regularly stated she wanted a more open flow of communication between them. Ms Duggin explained that she made Ms Anderson permanent after 3 months because the job in her job description was being done. However, Ms Anderson’s attitude seemed to change after a receptionist was appointed in late March. Ms Duggin concedes she did not put anything in writing to Ms Anderson but hoped that things would improve by talking to her. Her evidence is that it did not seem to work. 12 Ms Duggin was also extensively cross-examined on her evidence and I refer later, where necessary, to that evidence. 13 Although I advised the parties when the matter was heard in Kalgoorlie that I would endeavour to issue the decision in this matter after considering it overnight, I have preferred to reserve my decision in this matter for a longer period to more fully reflect upon the evidence. 14 I have reached the conclusion that in general, where the evidence of Ms Anderson and Ms Duggin conflict, I prefer the evidence of Ms Duggin. I do so for these reasons. Ms Duggin’s evidence that Ms Anderson started well but that as time passed her attitude changed, that she liked doing some tasks and not others and tended to give a lot of things to Amanda, was supported by the evidence of Ms Brown. I have no difficulty accepting the evidence of Ms Brown and thus her evidence that Ms Anderson became reluctant to do tasks, saying some things were not her area and that Ms Anderson’s tone made her stand back, including her shock at hearing a comment made about Ms Duggin by Ms Anderson which was derogatory of Ms Duggin, is quite significant. 15 Ms Duggin’s evidence that Ms Anderson changed after the receptionist commenced and that she gave the receptionist a lot of tasks is also supported by Ms Harrison’s evidence. Ms Harrison also stated that she had been told by at least Ms Duggin and Ms Brown that Ms Anderson had been hard to get along with, which supports the evidence of Ms Duggin and Ms Brown. I found significant Ms Harrison’s evidence that while she herself did not have a problem with Ms Anderson, that was because she “has a stronger personality”. 16 Therefore, while I accept Ms Anderson’s evidence that she showed initiative in some areas, such as the stamp, windscreen reflector, cleaning the outside of the building, having computer carry cases included in the supply price, and the morning meetings with Ms Duggin, I have not been persuaded by Ms Anderson’s evidence that there is no substance to Ms Duggin’s evidence. While I accept that the suggestion of the morning meetings was positive, I find their frequency dropped off to only one or two a week. I find the reduced frequency is consistent with the evidence that Ms Anderson’s interest in the position seemed to lessen in the latter part of her employment and that she had said she would not have accepted the position if she had known it was a personal assistant role to Ms Duggin. 17 I find the evidence that Ms Anderson’s interest in the position seemed to lessen in the latter part of her employment to be made out also from her own evidence and from the emails (exhibit R2). In particular, I consider Ms Anderson’s evidence that she was looking for alternative positions, because she was still looking for the ideal job, to be significant. Her comment made in an email that she finds her job “very cruisey” is dated 19 April 2001, and the comment that it is “very cruisey and sometimes very boring”, a comment that I find is quite consistent with a growing lack of interest, is dated 20 April 2001. As she herself said, she found the work enjoyable but boring and was looking for something more stimulating or intellectually challenging. In that context, her comments in the email about “striking a blow for the government”, which in some circumstances might be an example of levity, and also for which she now apologises, in these circumstances support the respondent’s evidence that in the latter part of her employment her attitude and her regard for the respondent left a great deal to be desired. 18 I find therefore that the evidence of Ms Duggin that there was not the open flow of communication and that there seemed a fall off in Ms Anderson’s attitude, is made out over the evidence of Ms Anderson to the contrary. 19 I also find that Ms Duggin did raise her reservations about the open flow of communication with Ms Anderson on a number of occasions. However, while Ms Duggin expected Ms Anderson to show initiative in this regard, Ms Anderson believed she was showing initiative and expected Ms Duggin to tell her what Ms Duggin wanted, which is the very thing that Ms Duggin did not expect to have to do. I also find that towards the end of her time there, Ms Anderson was not receptive to initiating any changes. I do so because of the evidence that the frequency of morning meetings fell away, that she delegated work and that her response to criticism was to become indignant and to say, in Ms Duggin’s evidence, “that cannot be right” and asking who it was that complained about her. While I quite accept Ms Anderson’s evidence that she was very shocked at the suggestion, it did not prompt her to change anything about her attitude or manner. Ms Anderson admits that she “discounted” matters that were raised with her although she states that it was because she did not know what she was doing that was wrong. On the evidence, I find that this tends to support the respondent’s position that Ms Anderson did not accept criticism well. 20 Ms Anderson claims that Ms Duggin did not specifically tell Ms Anderson what she wanted done and for that reason her dismissal was unfair. For example, what should or should not be delegated and the manner of cleaning the car inside and out was left to Ms Anderson. I find that this is made out. Ms Duggin did leave things to Ms Anderson to be done but I have found the strength of the issue Ms Duggin’s raises goes more to Ms Anderson’s approach overall towards the end of her employment. 21 I turn to consider the fairness of the dismissal which occurred. It is significant in my view that Ms Anderson had been on probation for 3 months to 9 April 2001 and had then been confirmed as permanent in a letter that states she is confirmed with pleasure on the part of Ms Duggin, and with congratulations by Ms Duggin on Ms Anderson’s professionalism and quality of work undertaken already (exhibit A5). While that may be surprising, as Ms Brown stated, it nevertheless can only have been confirmation to Ms Anderson that how she had performed to date was most acceptable. As Ms Duggin stated in her evidence, Ms Anderson was doing the job in her job description. I therefore accept Ms Anderson’s evidence that before the warning of 11 May 2001 she had no idea she might be dismissed, and possibly no idea even on the day of dismissal. 22 For the dismissal of an employee for poor performance to be fair, the employee should, so far as practicable, be given a warning that their employment is in jeopardy and an opportunity to improve. Failure to warn, where appropriate (see Sewards v Canon Copiers Australia Pty Ltd (1983) 5 IR 227 at 232 and Willis v Western Motor Company Pty Ltd (1985) 10 IR 203) is relevant to the question of whether the employee has had “a fair go all round”; no injustice will result if the employee could be justifiably dismissed without appropriate warning, or without explanation, or if the explanation would not have made any difference (see Hocking v Public Service Association of South Australia Incorporated (1978) 45 SAIR 637 at 658, as cited in FMWU v Cat Welfare Society Incorporated (1991) 71 WAIG 2014 at 2022). In such a case it is appropriate to ask whether, if Ms Anderson had been given an opportunity to respond and an opportunity to show a change in her attitude, it could have made a difference to the outcome: see Stead v SGIO (1986) 161 CLR 141 at 145-6; 67 ALR 21 at 23. 23 It is agreed that on Friday, 11 May 2001, Ms Duggin warned Ms Anderson about at least poor communication skills and that Ms Duggin was not getting enough from Ms Anderson. I find for the reasons set out above that the warning was justified. It was given orally but it is not argued that Ms Anderson’s contract of employment required warnings to be given in writing and 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 129 therefore the oral warning was perfectly valid. However, Ms Anderson was given no practical opportunity to respond to the warning and no opportunity to improve. Although, as I find, Ms Duggin had told Ms Anderson that the warning would be confirmed in writing and she would be given an opportunity to respond to it, she changed her mind on Monday, 14 May 2001 and decided that the situation warranted Ms Anderson’s dismissal. I accept Ms Duggin’s evidence that for her things had become so untenable. 24 However, I am not persuaded that Ms Anderson’s performance and attitude had deteriorated to such an extent that it warranted what was, in effect, a dismissal without warning when on 9 April 2001, five weeks earlier, Ms Anderson had been confirmed in her position and congratulated on her professionalism and quality of her work. For the respondent to fairly dismiss her without warning, Ms Anderson’s work performance would need to have deteriorated so markedly as to show that the warning could have made no difference. There is too much of a gap between professionalism and quality of work on 9 April 2001 and such poor performance as to warrant a decision to dismiss on 14 May 2001. What is the evidence for that change from 9 April 2001? 25 There is no evidence that Ms Anderson did not attend for work during the period. She may have been punctual in attending and leaving, and in taking her lunch period, but I cannot see valid criticism for that unless it is clear that in doing so, work which needed to be done was not done. The Esperance example occurred in early February, not in this period. The car cleaning incident is not, on the evidence, an example of poor work; Ms Anderson did exactly as she was asked to do: arrange cleaning inside and out. Even if I accept that Ms Anderson did not do what she was asked to do when asked to get some sandwiches herself, the issue is trifling overall. Indeed, I find the issue of the sandwiches to be a small issue, as I suspect Ms Harrison believes it to be, and there is no evidence of Ms Anderson lying about it as suggested in the Notice of Answer and Counter Proposal. 26 The discussion between Ms Anderson and Ms Duggin regarding complaints received about her attitude being not friendly, perhaps even rude, towards doctors were after 9 April 2001 and on the evidence Ms Anderson showed no inclination to accept criticism, but I query whether that of itself can justify her dismissal. Similarly, I have not lost sight of the mixing up of the doctor and specialist for the media presentation and the issue of spiders in the archives, nor the comment about future attendance at the bush weekend. However, the evidence does not suggest that Ms Anderson’s work was not otherwise being done and I find it difficult to conclude that fairness towards Ms Anderson does not include the opportunity to improve after the warning which was given. 27 I note Ms Duggin’s evidence that she did not think there would be any change. I have given thought to the submission from the respondent that Ms Anderson was spoken to, perhaps counselled, on many occasions yet did not show any tendency to improve towards the end of her employment. Ms Anderson admits she did discount the comments made to her. However, the very purpose of a warning is to put the employee on formal notice that unless there is some change, the employee’s employment is in jeopardy. If there is then no improvement, then it is difficult to see how the dismissal can be claimed to be unfair. I am unable to say that if Ms Anderson had been given a chance to improve after the warning had been given, it could have made no difference to the outcome. 28 The procedure followed by an employer is only one factor to be taken into account by the Commission when it assesses whether or not a dismissal is unfair. In some circumstances, the procedural steps may be an important factor. Those steps will be important if the evidence is that if the procedures had been followed it could have made a difference to the outcome. 29 I find that, if Ms Anderson had been given some time after the warning to improve, it could have made a difference to the outcome and that her dismissal on 17 May 2001 was unfair but only for that reason. 30 Having found the dismissal to be unfair, I turn to consider the remedy sought by Ms Anderson. She seeks reinstatement. It is opposed strongly by the respondent and, in my view, with good reason. I found the evidence of the altercation which ensued when Ms Duggin dismissed Ms Anderson is clear. I have no difficulty in concluding that Ms Anderson pushed Ms Duggin aside in a manner which broke Ms Duggin’s neck chain, left a mark on her neck as a result and stretched the collar of her top. I find Ms Duggin stumbled and bruised her leg as a result. Ms Duggin’s evidence is corroborated by that of Ms Harrison who was in the vicinity at the time and who assisted Ms Duggin. The photograph of the broken neck chain (exhibit R1) is compelling. Ms Anderson’s evidence that she did not grab Ms Duggin’s collar and that she did not know how the neck chain could have come to be broken is rejected. 31 While I find that both Ms Duggin and Ms Anderson found the situation stressful, Ms Anderson’s action was not warranted and I cannot see that it might be possible to reinstate the employment relationship. 32 Further, Ms Duggin’s accusation that Ms Anderson was attempting to steal the respondent’s property by putting her daily workbook, a spiral-backed writing book, in her bag shows the breakdown in the relationship was complete. Ms Anderson did put the book in her bag, although I suspect that was more due to habit than a deliberate act following her dismissal. The Commission has not been informed that there was anything written in the workbook which might have warranted it being removed by Ms Anderson, and I regard the incident as minor other than as a demonstration of the tension of the event. 33 Compensation for the unfair dismissal is for the loss and injury caused by the dismissal. I am persuaded that the only loss to Ms Anderson caused by the dismissal is the loss of an opportunity to have improved following the warning. In assessing that period of time I take into account the relatively short period of Ms Anderson’s service and that in the small office environment, any improvement would have been apparent soon. In my view, a period of two weeks is a reasonable period and Ms Anderson’s loss is measured by the wages she would have earned in a further two weeks of employment. While I have had regard to the submission that loss may encompass issues other than economic loss, I am not persuaded that the facts of this matter establish further loss. Indeed, I cannot be confident that, even if two weeks of further employment could have made a difference, Ms Anderson’s employment would have continued past that time. 34 Ms Anderson also claimed that it was a benefit under her contract that she should be paid for the unexpired portion of a fixed term of employment. However, the evidence does not show that Ms Anderson was a fixed term employee. In fact, I find she was a permanent employee and in any event, even if it could be said that the letter confirming her employment (exhibit A5) provided an end date for her employment, the balance of the contract of employment would permit a term of reasonable notice to be provided for its termination. A contract which can be terminated within its term is not a fixed term contract (Anderson v Umbakamba Community Council (1994) 1 IRCR 457 and Cooper v Darwin Rugby League (1994) 57 IR 238; and see too ALHMWU v Royal Perth Hospital (FB) (1994) 74 WAIG 1878). 35 A Minute of Proposed Order now issues. _________ 130 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 2002 WAIRC 04509