T10226
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Sharyl Anne Featherstone and Sprinta Print Pty Ltd
Industrial dispute - termination of employment - non-payment of commission - alleged breach of award - whether termination at the initiative of the employer - application dismissed REASONS FOR DECISION [1] On 31 May 2002, Sharyl Anne Featherstone, (the applicant), applied to the President, pursuant to s.29 (1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Sprinta Print Pty Ltd (the respondent) arising out of an alleged unfair termination of employment and an alleged breach of an award. [2] A hearing was set down for Monday 1 July 2002 at the Supreme Court, Cameron Street, Launceston, Tasmania. There were further hearing days on 22 July, 23 July, 19 August and 20 August 2002. [3] Ms D Butler appeared for the applicant, and Mr J Hargrave appeared for the respondent, together with (at different times), Mr M Bailey, Mr D Peck, Mr E Mallinson and Mrs J Peck. [4] At the conclusion of the first day's hearing, it was agreed that the alleged breach of award would not be proceeded with and that the only aspect of the application that would be dealt with was the alleged unfair dismissal. [5] The amount of unpaid commission allegedly owed to Ms Featherstone is not as a consequence of an award or registered agreement of the Tasmanian Industrial Commission, and therefore is not within my jurisdiction. It is open to Ms Featherstone to pursue that part of her claim in an appropriate jurisdiction. Background [6] The background to this dispute, as established through the evidence, is as follows: [7] Ms Sharyl Featherstone was employed by a company known as A T & M (Andrews, Thomas & Mallinson Pty Ltd), as a full time sales representative from 23 February 2000. A T & M merged with another company, Sprinta Print Pty Ltd in July 2001 and in August 2001 the staff of A T & M moved into Sprinta Print premises, taking with them their accrued entitlements. Ms Featherstone was one such employee. When she had been with A T & M her role had been confined to selling tourism publications and advertising. After the merger her role was expanded to include the sale of print products. [8] The terms of her employment were that she was on a base salary of $35,000 plus a car allowance of $150 per week, plus commission on sales. It seems that there is no award that applies to the work performed by Ms Featherstone. [9] At the instigation of the employer, there was a meeting with Ms Featherstone on 3 April 2002, at which a number of aspects of her performance were raised, including alleged failure to meet budgeted sales targets, errors in relation to internal procedures, an unacceptable work rate and time wasting. It was agreed that Ms Featherstone would complete a daily time sheet showing how her time was spent, which was to be given to Mr Michael Bailey, Account Director, at the end of each day. All activities were to be logged on this sheet, including private telephone calls. A further review meeting was to take place three weeks later. [10] There was a further performance review meeting on 26 April. On that occasion Ms Featherstone was accompanied to the meeting by her lawyer, Mr John Palermo. A further review period was set, to finish on Wednesday 15 May 2002. [11] On 30 April 2002, Ms Featherstone gave notice of her intention to terminate her employment, effective from Friday 10 May 2002, therefore giving one and a half weeks' notice. She worked until that date. [12] As at the date of the termination of her employment, Ms Featherstone alleges she was owed an amount of $4148.29 for commission on sales. That amount was never paid to her. I indicated to the parties during the hearing that the question of the payment or otherwise of commission was only relevant insofar as it related to the circumstances surrounding the dismissal. Contentions [13] Ms Butler, for the applicant, contended that:
Mr Hargrave contended that:
The Evidence [14] Evidence was taken from the following witnesses: Ms Sharyl Anne Featherstone, the applicant Ms Featherstone's Evidence [15] Ms Featherstone testified that before she moved across to the Sprinta Print premises in August 2001 she believed that she would be performing the same duties as she had at A T & M. This had been told to her by David Peck. She was given a position description which she felt was aimed at a print product salesperson, and not an advertising salesperson as she had been at A T & M.1 [16] She said that before the move she had been told by David Peck and Michael Bailey that each person would have a computer on their desks. When she arrived at the new premises there was only one computer on a sales staff member's desk and one on Michael Bailey's desk. The promised computers never did arrive. During cross-examination Ms Featherstone agreed that none of the sales representatives had exclusive use of a computer. She also agreed that there were two computers in the sales area, they were be shared between five people. [17] There was some training on the use of the computer provided by Michael Bailey but it took place at his desk, the training sessions were interrupted by telephone calls, and there was no manual available to take away and study, she said. On the issue of training generally, Ms Featherstone said that there was some training provided by people external to Sprinta Print, as part of the quality assurance program, but there were only two half hour sessions. She received a certificate to say that she had undertaken the training. [18] After the move on 1 August, she was very busy with a project concerning a brochure on the Tamar Valley and once that was completed she went straight into selling the Tasmanian Visitors' Guide. At that stage, she said, she was offered a list of dormant clients to canvass for print product sales. Ms Featherstone agreed that there were a substantial number of names on the list. [19] Following a discussion with Mr Bailey on 26 October 2001, Ms Featherstone was given a letter, signed by him, and dated 29 October 2001. The letter said, inter alia:
[20] Ms Featherstone said that she felt threatened after receiving the letter, she said:
[21] On 23 November 2001 Ms Featherstone was informed by Michael Bailey that she was to attend a meeting which was to take place on that day. She was not told what was to be discussed at the meeting. She was not given the opportunity to have a representative. Michael Bailey and David Peck were in attendance at the meeting. The outcome was that she was to start working on print clients. There were also discussions about her budget and she was asked to set her own budgets. Ms Featherstone said that she told them she had no experience of print product sales so would need to be guided by them as to what was a fair budget for print sales. During cross-examination Ms Featherstone agreed that the discussion had centred around her reaching a sales revenue target of $35,000 per month that a planned approach was to be formulated to help her to achieve that target. [22] Ms Featherstone had taken a client list with her from A T & M to Sprinta Print. She said that she was not given continuing access to those clients, examples of which were the Launceston Country Club Casino and the Hobart Casino. Later, she was told that she was not to continue to deal with the Abt Railway or the Aquarius Roman Baths because, she was told, they had taken a long time to pay their accounts. She was not allowed to deal with Grindelwald for any other advertising placements or print sales. She was only able to deal with Cradle Mountain Lodge in relation to the Visitors' Guide. In cross-examination Ms Featherstone agreed that the Federal Group (Hobart and Launceston casinos) had been managed by Mr Peck for a considerable number of years. [23] The launch of the Tamar Valley Tourism brochure was very upsetting for her, she said. The job had been obtained as a result of her own contacts, she had liaised with the West Tamar tourism officer and had been involved since day one. The invitations to the launch of the brochure were sent to Sprinta Print and she was told by Michael Bailey that she probably wouldn't be going to it because he didn't want too many people from the company going. Eventually he relented, and she went there on her own in her car. When cross-examined Ms Featherstone said that her husband went with her in the car. [24] On 3 April 2002 at 9.30 Michael Bailey told Ms Featherstone that he wanted to meet with her at 4.30pm, she said. He told her that she would need to have a witness and that the meeting was to review her performance, but not to worry, because she would not be getting the sack. David Peck was also present at the meeting. She was told that her work performance was unsatisfactory and that she was wasting time and not making [sales] budget. The figures used at the meeting had only referred to print product sales. [25] Ms Featherstone responded to the allegations and the outcome of that meeting was that for the next three weeks she was to complete a time sheet, showing everything that she did in a day. It was to include time spent making drinks and going to the toilet, as well as time spent making telephone sales calls, face-to-face calls and administrative work. The time sheet was to record six-minute blocks and was to be handed in to Michael Bailey each night. [26] Ms Featherstone testified that she was crying during the meeting and was under so much stress that she signed the record of interview in the incorrect place. She said that she was humiliated because she was crying so much that her nose was running, and she did not have a handkerchief or tissue. The record of interview had been typed up before the interview and she had to sign it there and then. It said, inter alia:
[27] Ms Featherstone said that during the nine months she spent there she did not see any other sales representatives filling out a time sheet. It was very time-consuming and she felt very uncomfortable completing it, but she had agreed to do so to keep the peace. She found it to be very stressful because she was being watched from all areas and any mistakes were going to be noticed. [28] The review meeting was to take place on 24 April 2002. She was on annual leave that day but agreed to come in for the meeting. When questioned by Mr Hargrave, Ms Featherstone agreed that the day of the meeting was the only day that her representative was available, and that she had requested that it be held on that date. She received a letter from Michael Bailey in relation to that meeting. It said:
[29] She was given a record of the meeting, which, initially, she refused to sign, on advice from Mr Palermo, a lawyer who attended as her witness. She was then given a revised record of interview, which she signed on her final day of employment, 10 May 2002. The document she signed reads:
[30] Ms Featherstone said that the reasons she signed the revised record [even though she had resigned and it was her last day] was that she had been told by Michael Bailey that it was necessary in order to keep the paperwork tidy. [31] She had reported feeling stressed to a Susan Byron, who had given her a brochure about workplace bullying, she said. She had shown the brochure to her lawyer, Mr John Palermo. She had been to the doctor, who said that her blood pressure was up. She was feeling anxious all the time, she had knots in her stomach and headaches and was suffering from loss of sleep because she was worried about her situation at work, she said. [32] On the day that she decided to resign, she and with Michael Bailey, attended a meeting at the National Trust. Michael Bailey was present because he had said that he would come on all sales calls so that he could check on Ms Featherstone's performance. She said that she felt very humiliated by that, having never been in that situation before in over 20 years in sales. [33] Ms Featherstone said that the meeting took about half an hour and that Michael Bailey had told an untruth to Jenny Chapman. When Ms Featherstone got home that night she decided to resign because she felt that she did not want to be involved if an untruth was found out about. She did not discuss this with Michael Bailey.
[34] During cross examination, Ms Featherstone initially said that she did not believe that she had gone anywhere else with Mr Bailey on 29 April 2002 [the day of the National Trust meeting], but, after prompting, she recalled that they had then gone to visit Kings Meadows Travel. She said that she was in a very stressed state at the time, under pressure and feeling very anxious. [35] She said that she could not recall what the untruth was:
[36] She made her decision to resign that night, and resigned the next day at 5pm. She agreed that the precipitator for her deciding to resign was Mr Bailey accompanying her to the National Trust meeting. She also agreed that he had accompanied her on visits to other clients, including in February to the West Tamar Council, but said that she did not complain about that and that she was not being critiqued then. [37] Ms Featherstone agreed that she had not followed a change of procedure, as directed by management, when she was told that booking forms were not be handwritten but she continued to send them out hand written. Mr Michael Bailey's evidence [38] Mr Bailey gave evidence that he was the Sales Manager at Sprinta Print. He described Ms Featherstone's duties, and the areas she covered. [39] He said that the sales representatives were given budgets, which were set in conjunction with the sales representatives. Ms Featherstone's budgets were revised because it became apparent that she was not going to achieve them. [40] On November 23 [2001] the first discussion with Ms Featherstone about budgets took place. He met with Ms Featherstone and Mr Peck and discussed what needed to be achieved. [41] There was a further discussion on 3 April 2002, again involving himself, Ms Featherstone and Mr Peck. At that meeting a range of issues were discussed, including non-performance in relation to budget, time wasting in the office, non-adherence to internal procedures and the number of private telephone calls Ms Featherstone was receiving. He said that as a result of that interview the agreed plan was for Ms Featherstone to complete a daily time sheet which would be a snapshot of how her time was spent. [42] Mr Bailey said that the use of a time sheet was very common, and that a variety of people in the business complete the same sheets on a daily basis. The previous year he had all of his staff completing a daily time sheet. When cross-examined, he said that at the time Ms Featherstone was filling out time sheets, she was the only sales person doing so, and that was the case for the entire nine months that she was there. [43] There was another performance meeting scheduled for three weeks' time, he said, at which they were going to review the previous three weeks and assess any training issues and remedial action. [44] The review meeting took place on 26 April. Ms Featherstone had asked if it could be moved to that day. At that meeting they reviewed the previous three weeks, and found that Ms Featherstone had increased the rate of client calls, but there had been no result in terms of the number of quotes. He said:
[45] He said that she had invoiced $2000 for April and the expected figure for April was $65,000. [46] Mr Bailey was asked:
[47] Mr Bailey said that it was agreed that at the start of every day Ms Featherstone would show him what her daily calls were going to be and that he would accompany her on some of those calls to assess her sales technique and to try to fix any problems that she was making in the sales process. Ms Featherstone had agreed to that proposition and had not voiced any opposition to it. The meeting was on the Friday and the following Monday, 29 April 2002, he and Ms Featherstone made one sales call to the National Trust of Tasmania and one service call to Kings Meadows Travel. [48] Mr Bailey said that all of the sales representatives had the same access to computers. There were two available in the sales area, and the computer in his office was also available, as were the two computers in the administrative area. He said that there had been no promise that sales staff would get individual computers. There was access to five computers. Ms Featherstone was provided with training on the Prism system used in the computers. [49] Attempts were made to assist Ms Featherstone, including telling the estimators to process her quotes as a priority, and the margin she was working to was drastically lower than that of other staff. [50] Mr Bailey said that it was his practice to go on sales calls with his staff, which he did as often as he could. He would do so on a weekly basis. [51] Mr Bailey said that he had gone on a number of sales calls with Ms Featherstone and that she had not objected to him accompanying her. [52] During cross examination Mr Bailey's attention was drawn to his comments in the letter dated 23 April 2002, in which he said:
and the comments in the record of meeting dated 3 April 2002 in which it was said:
[53] Mr Bailey said that Ms Featherstone was never told she was going to be dismissed, and that the comments made in the letter were not a threat of termination. He said that the reference to a formal warning and future employment being at risk "is certainly not a threat of termination."13 [54] Mr Bailey said that he understood that the warning process is to clearly outline that there are issues that need to be rectified, if that did not happen, then it would proceed to a second warning, and then to a third warning, then after that it would proceed to a termination, but that:
[55] Mr Bailey said that a second warning was never given "and wasn't ever going to be given".15 [56] Mr Bailey's evidence was that he was shocked and disappointed at her resignation, which he was not expecting at all. She had never expressed to him any disquiet within the company. She was allowed to work out her notice. He was asked if she had given any other reasons for her resignation. He said:
Mr David Peck's evidence [57] Mr Peck's evidence was that he is the Managing Director of Sprinta Print. He said that Andrews, Thomas and Mallinson had merged with Sprinta Print and that is how Ms Featherstone came to work for him, commencing on 1 July 2001. [58] In June of 2001 he had met with Ms Featherstone, that meeting was an initial interview designed so that people from A T & M could understand what their roles were to be. At that meeting Ms Featherstone said that she felt the budget set for some of her publications could not be achieved. Those budgets had been set by A T & M. She felt that she needed computer training, he said. At the beginning of the new financial year she was given the Sprinta Print budget. He said that the budgets were set through a process of consultation with the sales representatives. [59] Mr Peck said that there was another meeting with Ms Featherstone in October [2001] when budgets were discussed. Some of the budgets were revised down. [60] There was another meeting on 23 November 2001, attended by himself, Michael Bailey and Ms Featherstone. Budgets were discussed again. The budgets were again revised down. [61] There was a further meeting with Ms Featherstone on 3 April 2002, the purpose of which was to raise with her concerns about the non-achievement of her budget plus some other issues about time management. An action plan was put together as a result of that meeting. Ms Featherstone was to complete a time sheet because she was losing a lot of time through being in the office and doing administrative tasks. He said that Ms Featherstone was fine at the meeting, which went very well and everything was taken on board. When asked if Ms Featherstone was crying at the meeting, he replied "Definitely not."17 She was given a copy of the record of interview, which was signed by herself, himself and Mr Bailey.18 He said that Ms Featherstone did not object to signing the document. [62] The performance review which was agreed to at that meeting took place on 26 April 2002, having been changed from 24 April because the changed date suited everybody. At that meeting they reviewed the progress over the last few weeks. Ms Featherstone's conversion rate for quotes and jobs was still way down. A course of action was proposed in order to overcome problems. It was decided that Mr Bailey would go with Ms Featherstone on certain calls, to help her with her technique. Ms Featherstone did not object to Mr Bailey doing that, or express any concern. [63] The record of interview said that there would be a further review on 15 May 2002. Mr Peck said that Ms Featherstone had not objected to the review. [64] Mr Peck was asked:
[65] Mr Peck was asked by the Commission: "... what was meant by the comment in the document dated 3 April: `It must be clearly understood that this is a formal warning and your future employment is at risk if these issues are not rectified.' "20 [66] He replied:
[67] Later, he said:
[68] Mr Peck said that there were occasions when things had been requested of Ms Featherstone which had not been done. On one occasion he had asked her not to go and see a client but Ms Featherstone still went and saw her. On another occasion they had put out a memo to Ms Featherstone asking that booking forms be typed through the media people, but Ms Featherstone was still handwriting them and faxing them out. [69] On the morning of 30 April 2002, he was approached by Ms Featherstone who asked if he was available for an appointment that afternoon, which they made for 4.30pm. Ms Featherstone came to that meeting with her letter of resignation. [70] That letter said:
[71] Mr Peck said that they discussed the resignation. He was shocked and he asked her why and whether she had another job to go to. Ms Featherstone said no, and that she just felt that she wanted to resign because she wanted a rest, he said. She said that a lot of things had been happening in her life over the last couple of years and she just wanted a break. It was resolved that she would work out her notice and finish up at the end of the following week. [72] On Friday May 10 2002 Ms Featherstone came into his office and raised certain issues about commission, mainly in relation to the Visitors' Guide. He said Ms Featherstone felt she was due the commission for that, but he told her that commission is only due when the jobs are actually invoiced, that they do not pay commission on forward sales [later he clarified that the commission was paid on the issuing of statements, not invoices]. Mr Peck said that Ms Featherstone said that if she had known that she would have waited until the Visitors' Guide was put out so that she could get her commission. The Visitors' Guide was due to come out in the next couple of weeks. [73] Mr Peck's evidence during cross-examination was that at times Ms Featherstone was selling over budget and, in fact, would have qualified for payment of commission, had she remained in her employment past the date that the statements in relation to those sales were sent out to clients. In October 2001 the amount budgeted was $30,000, her actual sales were $42,684 and in November 2001 the amount budgeted was $50,000 and the amount of sales was $66,169. Submissions Ms Butler for the applicant [74] Ms Butler submitted that the termination of Ms Featherstone's employment was at the initiative of the employer. [75] Mr Bailey and Mr Peck say that Ms Featherstone was never told that her future was uncertain, in spite of the evidence of three documents. One document shows that her employment was threatened as early as 29 October 2001. This goes to the credibility of those witnesses, and, in Ms Butler's submission, they cannot be believed. [76] The evidence of Matthew Bowen was confused and his evidence regarding availability of computers conflicted with that of Messrs Bailey and Peck. [77] Ms Featherstone's [sales] budgets had been the subject of much attention, but her sales were significantly over budget in October and November [2001]. No evidence has been produced to show that any other member of staff was put under the kind of scrutiny suffered by Ms Featherstone, certainly regarding time sheets. [78] Ms Featherstone said that the actions of her employer were beginning to have an impact on her health as early as March/April of this year. Ms Butler said that Messrs Peck and Bailey embarked on a course of action which forced Ms Featherstone to resign. [79] Ms Butler referred to G W Carnie v Blue Ribbon Pty Ltd:24
[80] Ms Butler submitted that, again, from Carnie v Blue Ribbon:
[81] The cumulative impact of the letters threatening Ms Featherstone's future employment prospects, the harassment suffered regarding the time sheets, the failure by the employer to provide adequate access to the equipment necessary for her to be successful, all go to prove that Ms Featherstone's termination of employment was at the initiative of her employer and that she was unfairly dismissed, Ms Butler submitted. [82] The straw that broke the camel's back was the visit with Michael Bailey to the National Trust. The untruth that she overheard Michael Bailey telling was the significant event that finally drove her to feel that she had no other option but to resign her employment. Given the state of mind that Ms Featherstone was in at that time, it is not unreasonable that total recall of that day is difficult. The fact that her memory was jogged under cross-examination is proof that. Any conflicts in Ms Feathertone's evidence are the result of confusion around some issues. [83] Mr Peck's and Mr Bailey's evidence regarding conversations after the resignation need to be taken with a grain of salt. Similarly with the evidence regarding Ms Featherstone's state of mind at the interview on 3 April this year. Ms Featherstone was very clear about how upset she was at that meeting, yet Mr Peck bluntly said that she was not and was not crying. [84] Ms Featherstone was in a position of having no faith in her employers, and felt that she had no avenues where she could express any kind of [dis]satisfaction. In Carnie v Blue Ribbon Meat Products Pty Ltd it was found that the fact that an employee has not made any submissions to the employer that they were dissatisfied with their circumstances is not a matter that has relevance to the issue of whether the termination was at the initiative of the employer. [85] The letter of 29 October 2001 needs to be taken in the context of the other written items of correspondence to Ms Featherstone; it was one of a number of letters which would certainly make her believe that her employer was not acting in her best interests. She had every right to believe, having received that piece of correspondence, that her employer was trying to force her out. Ms Featherstone did not initiate anything, she simply reacted to a series of events that were initiated by her employer. [86] In Carnie, the Commissioner said at paragraph 405 that:
[87] And, at paragraph 407:
[88] Ms Butler said that the harassment of Ms Featherstone began in October [2001] and continued until she was forced into a position where she had no other alternative but to resign. Mr Hargrave for the respondent [89] Mr Hargrave submitted that a number of assertions made by Ms Butler in her opening statement were not proven or brought forward as matters for examination, therefore anything that Ms Butler said prior to evidence being given should be discounted by the Commission. [90] The evidence of Mr Bowen was that the amount of input time required on computers was between nothing and thirty minutes. There was confusion about the number of computers but it was resolved that there were sufficient computers available for people to carry out their necessary duties. [91] It was said that Ms Featherstone was given a number of dormant accounts to canvass for sales, later in the evidence we see that Ms Featherstone was given a number of major accounts, including the National Trust. [92] Ms Featherstone said that she was told the Visitors' Guide was not a profitable publication and that there needed to be other sales opportunities for her, otherwise her future with the company was not guaranteed. Mr Hargrave said that the company was saying that she needed do other things and be trained in other areas, so that, if the Visitors' Guide did not continue, there would still be gainful and meaningful employment for her. [93] The meeting of 3 April was in relation to Ms Featherstone' performance and there was no question of termination of employment. In her evidence, she was told not to worry because she wasn't getting the sack. Ms Featherstone's evidence was that she felt humiliated and was crying, but Mr Peck's evidence was that she was not crying, so there is a conflict between their evidence. In the interview of 26 April Mr Featherstone's evidence is that she was on annual leave that day but agreed to come in and have the meeting that afternoon. Other evidence showed that the company was willing to move that date. [94] Ms Featherstone gave evidence under oath that she travelled to a meeting on her own. At a later stage she admits that she took her husband with her. [95] At the meeting of 26 April it was agreed that Ms Featherstone would be accompanied on sales calls by Mr Bailey. One such call took place, at the National Trust on 29 April. In Mr Hargrave's submission, that was a normal role for a sales manager. It was a coaching exercise. The Commission is told that was the catalyst that caused Ms Featherstone to form the opinion that she should resign from the company. She said: "When I got home that night that was when I decided to resign because I didn't want to be involved if an untruth was found out about." [96] Ms Featherstone made great play about this untruth. She admits that she cannot recall what that untruth was, but she says, that is the motivating factor that made her decide to resign from Sprinta Print. Either she has a very selective memory recall or that was a figment of her imagination. Ms Featherstone said that the untruth was the trigger that was the final straw that led to her resignation, but we don't know what the untruth is. She remembers that it was the trigger, but she can't or won't remember what it was. Mr Hargrave submitted that if something was said that was sufficient to make a person consider terminating their employment then they would have to be aware and be able to recall what that was that lead to making such a momentous decision. [97] Ms Featherstone's evidence was that she had no discussions with anybody following that meeting. Later, after prompting, she recalled that there were discussions with Mr Bailey in the car afterwards. She also could not recollect going on [another] visit with Mr Bailey. All of this is conflicting evidence given by Ms Featherstone. [98] Ms Featherstone's initial accusation was that she was precluded from dealing with the Abt Railway account, but after some questioning she agreed that she was told that the reason for that was that they were not paying the account. [99] The company was endeavouring to assist Ms Featherstone with her selling techniques and to broaden her experience. She was put on notice that there was a possibility that the Visitors' Guide may not continue. That is obviously why she was given a number of other accounts to assist her in achieving her budgets. Mr Peck's evidence was that her quotes were given priority. The margins on her quotes were reduced in an endeavour to generate additional sales. [100] There was to be a further review process on 15 May [2002]. If the company had wanted to dispense with Ms Featherstone's [services] it would have done so earlier, but the company persisted in having a further review. [101] Mr Bailey and Mr Pecks' evidence was that there were never any direct statements to Ms Featherstone saying that if she did not achieve her sales budget she would be terminated. Mr Bailey's evidence was that he was shocked and disappointed that she had resigned, and that he was not expecting her resignation. Ms Featherstone had never expressed any disquiet within the company. She was allowed to work out her notice. [102] Mr Bailey's evidence was, when asked whether she had given any reasons for her termination, that she had said that when you get to a certain age where your family was more important, and that he had inferred from that that she wanted to take a step back and enjoy her grandmotherhood. Mr Hargrave said that was never challenged. Here there is a major conflict between Ms Featherstone saying that she had resigned because of an untruth to saying she wanted to have more time with her family. [103] Mr Hargrave said that in order for a constructive dismissal claim to succeed there has to be a situation so unbearable that the employee has no other choice but to resign. When considering the case relied upon by Ms Butler, Blue Ribbon v Carnie [actually, Carnie v Blue Ribbon] there are a vast number of differences between that case and this one. Firstly, Mr Carnie was a paraplegic and they intended to shift him to another area where there was inadequate or insufficient ablution facilities for someone in a wheelchair. [104] Mr Hargrave referred to some decisions which discuss the meaning of "termination at the initiative of the employer. He quoted Pawel v Australian Industrial Relations Commission, at paragraph 24:
[105] In the current case, there is no act of the employer that resulted in the termination of the employment. [106] At paragraph 49 [again, quoting Mohazab]:
[107] Ms Featherstone gave two reasons for what, Mr Hargrave submitted, was a voluntary resignation: one was in relation to the perceived untruth at the National Trust meeting; and in the second she gave a different version to Mr Bailey during a car journey. [108] In the respondent's submission, there has been no termination at the initiative of the employer. FINDINGS [109] I have reviewed all of the evidence and considered all the authorities relied upon by the parties. Having done so, I now set out the reasons for my decision. [110] I have not taken into account evidence in relation to the cessation of employment of a number of previous employees of Sprinta Print, on the basis that those persons were not called to give evidence and therefore there is insufficient evidence before me to enable me to make any sort of finding as to whether or not the circumstances surrounding Ms Featherstone's dismissal were part of a pattern of forced terminations of employees who had come across to Sprinta Print from A T & M. [111] As indicated earlier, I do not consider the question of payment of commission as something that is within my jurisdiction, except insofar as it relates to the circumstances surrounding Ms Featherstone's resignation, therefore a lot of the evidence presented in relation to commission is not relevant. Ms Featherstone was understandably aggrieved when she discovered that she was not to be paid commission which she had legitimately earned, however this discovery was made after she had already resigned, and although it may have had some bearing on her decision to bring this case before the Commission, it is not something I need to take into account when considering whether or not the termination was at the initiative of the employer. [112] A great deal of evidence was presented in relation to the failure of Ms Featherstone to meet budget targets, with considerable explanation given by Ms Featherstone as to why that was the case. In my view it is not necessary to deal in any great detail with that evidence, except insofar as it goes to the question of the reasons for the termination of employment. [113] Evidence was led regarding events in November 2001, concerning Ms Featherstone's health and there was also evidence regarding alleged personal problems at that time. These incidents are too far distant in time to be relevant to the events leading up to the termination of employment. [114] Ms Featherstone gave evidence, based mainly on hearsay, regarding the relationship between former partners in A T & M, which I have not taken into account, on the basis that it is not relevant to her resignation, which took place considerably later. [115] I found Mr Matthew Bowen to be a most unsatisfactory witness. His evidence was confused and contradictory and added little to that given by other witnesses. In fact, his evidence contradicted that of other witnesses for the respondent, particularly regarding the number of computers. I have not relied upon his evidence in reaching my decision. [116] A number of statements from people who had had professional dealings with Ms Featherstone were tendered as evidence. As the writers did not attend to give evidence and were not able to be cross-examined, I have given those statements very little weight when considering the major questions to be decided, which are: was the termination of employment at the initiative of the employer, and, if so, was it for a valid reason? [117] Mr Hargrave submitted that a number of assertions made by Ms Butler in her opening statements were not proven or not brought forward in evidence. This is indeed the case. In addition to those aspects dealt with above, I reject the contentions that Ms Featherstone was given insufficient access to training, computers and clients. The evidence of Ms Featherstone herself, as well as the evidence of Mr Peck and Mr Bailey, indicates otherwise. Similarly, the contention that Ms Featherstone was given no opportunity to have input into the setting of budget targets cannot be sustained on the evidence. The contention that Ms Featherstone was required to attend a formal counselling session whilst on annual leave is correct, but omits the crucial fact that the meeting was held on a day which was convenient for her legal representative, who was also attending. [118] The respondent, also, is not blameless in this regard. Mr Hargrave, during his opening statements said: "there was certainly no criticism in relation to Ms Featherstone's performance."26 Given the evidence, this statement is simply absurd. [119] I find that none of the witnesses were completely credible. Mr Bailey and Mr Peck insisted that Ms Featherstone's future employment with the company was not at risk, despite the fact that they had said, clearly, and in writing, that it was. There is nothing ambiguous in the statement contained in the letter following the meeting of 3 April "It must be clearly understood that this is a formal warning and your future employment is at risk if these issues are not rectified." I am at a loss to know why, in the face of such clear evidence, the company continued to insist that Ms Featherstone's employment was not at risk. In view of her continued poor performance, failure to meet targets and failure to follow directions, unless things changed, she was on the way out, and the ongoing performance reviews and the formal warning were a part of the pathway out of the company. [120] Ms Featherstone's evidence was that she was unable to recall the "untruth" which, she said, was told by Mr Bailey and was the event that triggered her resignation. I find this to be highly improbable. An event that was of such significance as to cause her to resign would be unlikely to be forgotten. Whilst not immediately able to recall some things without prompting, eg the visit to Kings Meadows, Ms Featherstone had a very detailed recall of events that were less significant and more distant in time than the supposed "untruth", which she said, was the "final straw" and the "trigger" which led to her resignation. I find this to be every bit as unbelievable as I find the respondent's insistence that Ms Featherstone's employment was not at risk. [121] The fact that none of the witnesses were entirely credible does not mean that none of their evidence was credible. In many areas the evidence of the witnesses did not differ in any material way. [122] I have not taken into account the evidence given by Mr Bailey as to the reasons for Ms Featherstone's resignation. Mr Bailey said that Ms Featherstone told him, in the car the day after the resignation, that she had said she wanted to spend time doing other things and that family was more important. By inference, therefore, Ms Featherstone's claim that she had resigned because of the actions of her employer, is not true. Mr Hargrave said that this had not been challenged by Ms Butler, which is the case, but neither was it put to her in cross-examination. She was never given the opportunity to deny or explain. If I am to be asked to disbelieve Ms Featherstone on this basis, then she should have been given the opportunity to deal with this issue. The question of the reason for her resignation is in serious dispute between the parties. It would therefore be unfair to take this evidence into account. [123] Mr Peck's evidence, that Ms Featherstone had said to him that had she known that she would not have been paid the commission owed to her then she would not have resigned when she did, was not put to her in cross-examination. This evidence is significant in the light of what Ms Featherstone claims was the reason for her resigning when she did. She said that the excessive monitoring of her time and performance, and the alleged untruth told by Mr Bailey brought everything to a head, causing her to think that "I just cannot have another three weeks ... I couldn't take it any more". The evidence of Mr Peck so seriously contradicts the evidence of Ms Featherstone that the fact that it was not put to her in cross-examination and she had no opportunity to offer an explanation, is seriously unfair. I have therefore not taken this evidence into consideration when reaching my decision. [124] The question for me to determine, on the remaining evidence, is whether Ms Featherstone was placed in such a position that she felt she had no choice but to resign. Did the employer behave in such a manner as to be the real initiator of the termination of the contract of employment, despite the fact that Ms Featherstone tendered her resignation? If the answer to this is "yes", this leads to the secondary consideration of whether or not the termination was for a valid reason. If the answer is "no" then there is no need to consider the second question. [125] Ms Butler said, and I agree with her, that the actions of the employer should be considered as a whole. Clearly, the actions of the employee should also be considered as whole when considering which of the parties was the initiator of the termination of employment. Mr Hargrave said that fair consideration needs to be given to both the employer and the employee and that all the circumstances of the case need to be taken into account, and I agree with him. [126] I find that Ms Featherstone was an unsatisfactory employee for the following reasons, established through the evidence: she had, for many months, been failing to reach sales targets; she did not always follow instructions, eg attending a meeting after being told not to, and continuing to fill in forms in handwriting, against instructions; she spent an excessive amount of time on administrative tasks, and her employer felt that she was time wasting and receiving too many personal telephone calls. She had been told that if she did not lift her game, she would be dismissed. The evidence revealed no dispute in relation to the failure to follow instructions, the amount of time spent on administration and the failure to meet targets. Ms Featherstone had explanations for all of these criticisms, but did not deny them, apart from the allegation of time wasting. [127] On the evidence, I think it probable that Ms Featherstone knew that she was likely to be dismissed. On the day of the next performance review, scheduled for 15 May 2002, she would either have been given another warning or been dismissed. There is no doubt that Ms Featherstone found being given warnings very stressful, as would most people. Ms Featherstone's evidence showed that she was a person who took pride in her reputation and her work. Her performance was not improving in terms of calls converted to sales and it would have been obvious to her that it was only a matter of time before she would be dismissed. By her own admission, she was becoming more stressed and had failed to ask a potential client even the basic questions. Her evidence was that she thought that her job was at risk and felt that her employment had been threatened. [128] I find that some of the actions of the employer contributed to Ms Featherstone's decision to resign. Whilst it may be appropriate, as I was told by the witnesses for the respondent, for a sales manager to accompany a sales representative on visits, in Ms Featherstone's case it clearly made her more anxious and contributed to a continuing deterioration in confidence and performance. However, the evidence was that at no time did Ms Featherstone challenge the employer's decision to accompany her. Had she done so, it is possible that some other, less stressful, strategy might have been employed. [129] The fact that Ms Featherstone had to fill out a time sheet in six-minute blocks, including time spent on telephone calls and in the toilet, did not assist her. At the very least, it was a time-consuming task. The fact that no other sales representatives had to fill out such a form would also have been counter-productive in terms of improving her performance. I accept Ms Featherstone's evidence that what she saw as excessive monitoring contributed to her decision to resign. Again, Ms Featherstone did not voice any objection to this requirement. Whilst what Ms Featherstone viewed as excessive monitoring did contribute to her decision to resign, those monitoring requirements cannot be seen as so unreasonable as to leave her no option but to resign. [130] Some of the actions of the employer were entirely reasonable and seem to have been a genuine attempt to ensure the future of the applicant. I accept that the letter of 29 October 2001 was a genuine attempt on the part of the respondent to create new directions for Ms Featherstone, and that she was given assistance in terms of revising her budget downwards, provision of additional client lists and priority in the processing of her quotes. [131] I find that the most likely reason for the resignation is simply that Ms Featherstone knew that, in spite of everyone's efforts, her employment was likely to be terminated by the employer in the near future, and she decided to resign before that happened. [132] Were the actions of the employer, considered as a whole, judged reasonably and sensibly, sufficient to force the resignation? In other words, was it of such a nature that Ms Featherstone could not have been expected to put up with it? I find that this is not such a case, although some of the actions of the employer, in attempting to rectify the performance problem, may have had the unfortunate result of exacerbating it. It is not unreasonable for an employer to introduce strategies in an attempt to deal with a performance problem. In this case, some of the strategies were perhaps inappropriate and were certainly unsuccessful. However, I find that it was the fact of the performance shortfall itself that led to the termination of employment, not the means by which the employer attempted to redress it. [133] I find that the termination of the employment contract was not at the initiative of the employer. [134] The application is dismissed, and I so Order.
P C Shelley Appearances: Dates and place of hearings: 1 Exhibit A9 |