WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RABIKAH WHITE, APPLICANT v. MOTOR TRADE ASSOCIATION, RESPONDENT CORAM COMMISSIONER S J KENNER DATE MONDAY, 28 OCTOBER 2002 FILE NO/S. APPLICATION 414 OF 2002 CITATION NO. 2002 WAIRC 06864 _________________________________________________________________________________________________________ Result Application dismissed Representation Applicant Mrs R White Respondent Mr P Fitzpatrick _________________________________________________________________________________________________________ Reasons for Decision 1 The applicant in this matter claims that she was unfairly dismissed from her position as an executive officer with the respondent, on or about 19 February 2002. She brings these proceedings pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”). 2 The respondent objected to and opposed the applicant’s claim. 3 The applicant appeared in person. The respondent was represented by its executive director, Mr Fitzpatrick. 4 The facts are relatively straightforward and are as follows. The applicant commenced employment with the respondent as an executive officer, so titled, however it was common ground that the predominant if not sole responsibility of the position, was as a minute taker at the respondent’s various industry sub-group meetings. The applicant was employed pursuant to terms and conditions set out in a letter of appointment dated 17 January 2002, which letter was tendered as exhibit A1. The letter of appointment provided that the applicant’s engagement be “casual part time”. The applicant was paid $20 per hour for all hours worked. The applicant was not entitled to annual, sick, long service leave and public holidays, given her designation as “casual part time”. The applicant’s hours to be worked would vary, depending upon the schedule of meetings that the applicant was required to attend to take minutes. There existed a schedule of such meetings arranged in advance however, it was also common ground that that schedule was subject to change by reason of cancellation of meetings at relatively short notice. 5 The letter of appointment provided that either party to the agreement may terminate the employment on one weeks notice. The applicant was also subject to a probationary period on and from 4 February 2002 to 29 April 2002, during which period again, either party could terminate the employment on one weeks notice. The commencement date was specified as 4 February 2002 however it was common ground that the applicant actually started work the following week commencing 11 February 2002. The applicant gave evidence that she presented to the respondent as an experienced minute secretary and referred to previous experience in an educational position. The applicant agreed that she was offered and accepted the employment on a casual basis as required by the respondent, for the purposes of attending the required meetings. Although the applicant testified that she was told by Ms Berryman on behalf of the respondent that she was to receive 20 hours per week of work, this was inconsistent with clause 7 - hours of duty of exhibit A1, to which I have referred. 6 In the week commencing 4 February, it seems on the evidence, that the applicant spent some of her own time at the respondent’s premises, reading minutes of previous meetings, to familiarise herself with the position. 7 During the week commencing 11 February, the applicant attended at least three meetings at which she was required to take minutes and submit those to the responsible divisional manager for his or her consideration. It appears on the evidence, that all did not go well during the course of this week. It was the applicant’s evidence that she was unfamiliar with the motor vehicle trade and felt under some pressure from Ms Berryman to complete the minutes of the meetings in a short time. The applicant testified that she prepared and submitted these minutes to the responsible divisional managers. On Tuesday 19 February 2002, the applicant said she received a telephone call from Ms Berryman, who said she had “bad news”. The applicant alleged Ms 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3065 Berryman told her that she had to return the dictation machine and the respondent would write her a reference. The applicant said she was not given one weeks notice and the respondent did not warn her about problems with her work. The applicant’s complaint was she had insufficient opportunity to “learn the trade” as she put it in her evidence. It was the applicant’s evidence that she thought her minute taking was acceptable and of a good quality and her grammar, spelling and comprehension was good. 8 Since the applicant’s employment with the respondent ended, she has applied for other positions and had obtained some temporary work. 9 Copies of draft minutes taken by the applicant and given to the respondent were tendered as exhibits R1, and R3 respectively. When taken through these documents, the applicant conceded there were numerous spelling mistakes and parts of the minutes did not make sense. The applicant testified that when preparing these documents, she did not use “spell check” available in word processing, and did not check any tape recordings to confirm the content of the meetings. 10 Ms Berryman testified that at the applicant’s interview, the respondent outlined the schedule of prospective meetings and that the applicant’s hours would be variable sometimes up to 20 hours, and the position was casual in that the applicant would be only paid for hours worked. 11 Ms Berryman said that the applicant presented to her as a person qualified and capable to take minutes and was adamant she could do the job. Ms Berryman strongly denied the applicant’s evidence that the applicant was under any pressure to prepare and return the minutes to the respondent as she said. Ms Berryman testified that normally minute secretaries are given about a week to prepare and return the draft minutes from a meeting. 12 On receipt of the draft minutes, Ms Berryman forwarded them to the divisional managers concerned, Ms Simons and Mr Marsland. Ms Berryman testified that the draft minutes concerned were not up to standard and the divisional managers came to see her and said that the arrangement was totally unworkable. Both Ms Simons and Mr Marsland testified that when they received the draft minutes from the meetings at which minutes were taken by the applicant, they did not reflect accurately what was said or resolved at the meetings and contained numerous grammatical and comprehension errors. Both of them said they had to completely re-write the minutes, which were tendered as exhibits R2 and R4 respectively. They testified that the corrected minutes bore little resemblance to those produced by the applicant. In particular, Mr Marsland said that the draft minutes he received were largely nonsensical and he spent several hours reproducing them. He testified that anyone presenting as an experienced minute taker, as the applicant did to him, should be able to come into any meeting and accurately record the discussion in context, irrespective of whether they had any particular industry experience. 13 Ms Berryman testified that on Tuesday 19 February 2002 she telephoned the applicant to request that she come in to the office for a “chat”. It was Ms Berryman’s evidence that the applicant replied that she could not attend the respondent’s office. Ms Berryman said it was her intention to discuss the matter with the applicant as she had concluded that there was no prospect of the employment relationship continuing, given the magnitude of the problems with the applicant’s work. On the basis that the applicant was not able to attend the office, Ms Berryman said that she reluctantly, had no alternative but to inform the applicant of this over the telephone. She agreed to provide a reference to the applicant and also testified that the applicant agreed that there was a problem with her work. Conclusions 14 On all of the evidence I am satisfied on balance, that the applicant was employed on a casual basis, in that she would be required from time to time to attend the respondent to take minutes of meetings. Although there was a schedule of meetings prepared in advance, the evidence was that this was subject to change and indeed, it did change, according to the scheduling of meetings. The applicant’s hours of work were variable and the applicant was only to be paid for hours worked, and not for hours she was available to work. Whilst exhibit A1 is somewhat less than clear in that reference is made to “casual part time” in the letter, taking the letter as a whole, in the context of the evidence, including the applicant’s admissions in this regard, I am not persuaded the applicant was a permanent part time employee in the accepted sense. Moreover, the applicant was also subject to a probationary period of engagement. 15 I am also satisfied on the evidence and I find that at the time of the engagement the applicant represented to the respondent that she was an experienced and capable minute taker who could perform the required duties of the position with the respondent. Indeed on the applicant’s evidence in these proceedings, she appeared to maintain that position. I therefore accept and find that the respondent employed the applicant on this assurance and expected accordingly, the applicant to be able to undertake the duties as required of her, as an experienced minute taker. In this case, I am satisfied that there was an implied and express representation by the applicant that she possessed the requisite skills necessary to satisfactorily perform the duties of the position on offer by the respondent: Harmer v Cornelius (1858) 141 ER 94. 16 I have carefully considered the oral and documentary evidence tendered in these proceedings, particularly in the form of the draft minutes submitted by the applicant to the respondent’s respective divisional managers. With due respect to the applicant, those documents in my opinion, manifestly fall far short of what one would expect from an experienced minute taker. Exhibits R1 and R3 contain many basic spelling and grammatical errors. Additionally, and equally importantly, many parts of the draft minutes are simply incomprehensible. 17 The respondent submitted that the applicant was employed on a casual basis and moreover, was subject to a period of probation. It was submitted that the respondent simply had no alternative but to discontinue the employment relationship because of the very poor standard of minute taking that the applicant demonstrated during her first week of employment. The respondent’s submission was there was simply no point in continuing the arrangement given the obvious lack of capacity to take proper minutes, in the respondent’s view. I accept the respondent’s evidence that the relevant managers who gave evidence in these proceedings, had to spend considerable time re-writing the minutes largely from memory, in order to compile an accurate record of the respective meetings. This is obviously a situation that could not be maintained. I also accept the respondent’s evidence, and as a matter of common sense, that an experienced minute taker should be able to take minutes for any meeting, irrespective of industry expertise, in such a way to accurately reflect the general content of what was said in context. 18 Clearly, on any view of the evidence, the applicant’s performance in this regard fell well short of what could be reasonably expected by an employer in these circumstances. 19 Whilst exhibit A1 required the respondent to give one weeks notice to terminate the employment, it would appear from Ms Berryman’s evidence that this did not occur. However, in my opinion, in this case the circumstances supported the summary termination of the contract of employment: Harmer at 98. In this case, the circumstances were not in my opinion, on the evidence, such that there were present matters that could be remedied by further time, counselling or warning. In my view, the difficulties with the applicant’s performance went fundamentally to the root of the contract of employment, relieving the respondent from further obligations under the contract. I note in any event, that clause 10 of exhibit A1, does not provide for payment in lieu of notice for forfeiture of wages. As I have already noted, the applicant was only entitled to be paid for the time actually worked by her for the respondent. 3066 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 20 It is also the case that the applicant was subject to a period of probation: Hutchinson v Cable Sands (WA) Pty Ltd (1999) 79 WAIG 951; East v Picton Press Pty Ltd (2001) 81 WAIG 1367 at 1369. It is the case however, that a period of probation is not a licence to dismiss unfairly. In this case I am not persuaded that giving the applicant more time would have in any way affected the outcome. As I have already observed, the applicant, from her evidence and demeanour in these proceedings, still maintained she was a capable minute taker, in light of all of the evidence. Whilst the relevant principles as to probation, now elevated to statutory significance in s 23A of the Act as amended, are important, they do not derogate in my view, from the common law principles set out above as to express and implied warranties as to competence in the case of an employee who presents to an employer as an experienced and qualified person for employment. 21 Furthermore, it is not in all cases of the presence of procedural unfairness, will a dismissal be held to be unfair, if on review of the circumstances, it can be said that the employee could be justifiably dismissed in any event: Shire of Esperance v Mouritz (1990) 71 WAIG 891; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430. 22 In all of the circumstances, I am not persuaded that the applicant has been dismissed unfairly by the respondent and accordingly, this application is dismissed. _________ 2002 WAIRC 06865