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T12074 - 6 September

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Marian ("Murray") Wojcik
(T12074 of 2005)

and

"Foamland" Registered Proprietor Ms Sandra Helen Wallis

 

COMMISSIONER JP McALPINE

HOBART, 6 September 2005

Industrial dispute - unfair termination of employment - breach of award or registered agreement - Order issued

REASONS FOR DECISION

[1] On 9 May 2005, Marian ("Murray") Wojcik (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with "Foamland" Registered Proprietor Ms Sandra Helen Wallis (the respondent) arising out of his alleged unfair termination of employment; and alleged breach of award or registered agreement.

[2] The matter was listed for hearing on 27 May 2005 (Conciliation Conference) 29 June 2005, 13 July 2005 and 10 August 2005 at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania.

[3] At the hearing on 29 June 2005, the respondent raised a threshold matter with regard to the jurisdiction of this commission to hear the instant application. I determined that the threshold issue would be dealt with in the first instance and it was listed for hearing on 13 July 2005. A decision dated 26 July 2005 issued from that hearing which dealt with a threshold issue, wherein I found the applicant to be award free and, as such, his application T12074 of 2005 fell under the jurisdiction of this Commission.

[4] The decision the Commission also informed the parties that the hearing would be relisted to enable the parties to complete their submissions on all aspects of the application. The date of the hearing was set down for Wednesday, 10 August 2005 at 9.30 am at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania

[5] The respondent engaged the applicant on 22 November 2004 as Assistant Manager (Retail). After completing three months probation his appointment became permanent. In January 2005 the management of the store was taken over by Mr P Higgins. Midway through February of 2005 the applicant was given a very positive performance assessment, in the form of a letter of appreciation, by Mr Higgins and subsequently a significant increase in salary.

[6] On 22 April 2005, while on sick leave, the applicant was asked to meet Mr Higgins at the workplace. The applicant's employment was terminated during that meeting. The reasons given for the termination were disputed.

[7] The applicant asserts he was unfairly dismissed because the Manager, Mr Higgins, had become aware of a criminal conviction he had. He is seeking reparation and compensation to the sum of $33,192.

LIST OF WITNESSES WHO GAVE EVIDENCE

Marian (Murray) Mitchell John Wojcik
Monica Anna Roelfsema
Peter Patrick Higgins
Anthony Duncan McRae
Bronwyn Louise Hansson

BACKGROUND

[8] In January 2005 the management of the Argyle Street Foamland store was taken over by Mr Higgins. The applicant and Mr Higgins had a close working relationship, which was by all accounts amicable. They communicated regularly on a range of issues, both work related and social. It was acknowledged by his co-workers that the applicant was a good salesman. It was admitted by all of those who gave evidence, to varying degrees, the business at the time of the applicant's dismissal was having difficulty in keeping up with the volume of work.

[9] Some time during February Mr Higgins reallocated duties performed by Ms Hansson to the applicant. The reallocation of duties meant Ms Hansson lost the use of a company vehicle. To this point in time, the relationship between Ms Hansson and the applicant was described as being "good". It was also about this time Ms Hansson questioned the applicant with respect to his criminal conviction, which he confirmed.

[10] Subsequently, however, the relationship between Ms Hansson and the applicant deteriorated considerably. The applicant asserted the difficulty working with Ms Hansson was communicated to Mr Higgins on an ongoing basis. This is alluded to in the letter of commendation (Exhibit A.5).

[11] In March 2005 Ms Hansson was directed to take stress leave by Mr Higgins. On her return to work she was given a written warning regarding her performance. It was attested the letter outlined changes Mr Higgins, as Manager, required in Ms Hansson's behaviour. She accepted the warning without challenge. The applicant was given a copy of this letter for his information.

[12] During the week of 18 April 2005 the applicant was on sick leave. On Wednesday, 20 April 2005 the applicant went to work and had a casual discussion with Mr Higgins. Later that same day Ms Hansson, it is alleged, complained to Mr Higgins that the applicant had sexually harassed her and bullied her son who was a co-worker. She also took it upon herself to inform Mr Higgins of the applicant's criminal record.

[13] The applicant was summoned to a meeting with Mr Higgins, held on 22 April 2005. At that meeting Mr Higgins handed the applicant three letters. Two of which were written warnings dated 20 and 21 April 2005. The third was a warning/notice of termination dated 22 April 2005. Mr Higgins asked the applicant to resign. The applicant refused. Mr Higgins summarily dismissed him.

DETAILS OF THE CASE PUT BY THE APPLICANT

[14] The applicant asserted the reason given by Mr Higgins for the termination of his employment was that, Mr Higgins had received a complaint from a customer with respect to the applicant's criminal record. Mr Higgins denied this. Mr Higgins asserted the applicant was guilty of sexual harassment, bullying and poor work performance. The applicant denied these allegations.

[15] The applicant asserted he had never been spoken to, given a warning, counselled or discussed the issues catalogued in the three warnings issued by Mr Higgins.

[16] The applicant admitted he used sexual innuendo, blew kisses and made sexual inferences to fellow employees. He asserts no one had ever complained or had been upset by his style. He maintained, had anyone complained he would have desisted immediately. He also admitted to engaging in sexual innuendo with customers as part of his selling technique, but attested he only ever followed the customer's lead.

[17] The applicant also admitted on one occasion he raised his clenched fist to Ms Hansson's son, Mark, over a particular issue.

[18] The applicant admitted not showing the time spent in prison 10 years ago in his resume. He asserted his then employer had not dismissed him and he had not resigned from his job. He argued his employment status remained unchanged while in prison.

[19] Ms Roelfsema gave evidence on the applicant's behalf. Her evidence contradicted a very damning letter (Exhibit A.15) written by her regarding the applicant's conduct. She refuted the allegations made in the said letter. This letter, she attested, was written under duress at the behest of Mr Higgins as a response to the applicant applying to this Commission for a hearing. Mr Higgins denied this. It should be noted the letter is dated 25 May 2005, more than a month after the applicant's dismissal, but two days prior to the first hearing (conciliation conference) before this Commission.

[20] Ms Roelfsema painted the picture of a workplace where sexual innuendo was commonplace, "a bit of a joke". She also asserted there was considerable tension between staff. A situation confirmed both by Ms Hansson and the applicant.

[21] Ms Roelfsema described an altercation between Ms Hansson's son and herself that degenerated into exchanges of foul language and insults. Ms Hansson also confirmed this. She also asserted that at that time Ms Hansson's son had to be restrained by another staff member.

[22] Ms Roelfsema asserted Ms Hansson's son often shouted, threw items around and slammed doors in a temper. Her assessment was in line with the applicant's view of Ms Hansson's son.

[23] Ms Roelfsema was asked why she had come for forward after writing such a damning letter. Her response was, "Because I would like to really put the truth forward that I wrote the letter basically because I felt threatened myself that I was going to lose my job ..." 1

DETAILS OF THE CASE PUT BY THE RESPONDENT

[24] Mr Higgins, for the respondent, asserted he was justified in terminating the applicant's employment on the grounds of sexual harassment, bullying and poor work performance. He does not deny summarily dismissing the applicant. He asserted the allegations were sufficiently serious to remove the applicant from the workplace forthwith.

[25] In his prepared address, presented at the initial conciliation conference, Mr Higgins made a number of strong allegations as to the applicant's conduct and work performance. Some of these allegations are reflected in the three warning letters issued on 22 April 2005 to the applicant.

[26] Mr Higgins asserted the applicant failed in his duty by failing to complete work, not following up with customers and made errors in measurements. He also asserted the business was still recovering from the applicant's poor performance. No evidence was presented to support any of these allegations.

[27] The references to the applicant's work performance were in absolute contrast to the glowing letter of commendation he was given in February 2005. When challenged about the letter of commendation (Exhibit A.5) Mr Higgins asserted he was blind to the applicant's poor performance at the time. Yet he also asserted he worked closely with the applicant on an ongoing basis.

[28] Mr Higgins asserted he had a letter from a customer regarding the applicant's work performance and stated "... there are several other customers who are more than happy to provide statements ..." 2. The respondent did not produce the customer's letter or provide customer statements. When questioned by the Commission with regard to this aspect of his allegations, he responded; "... if it were necessary I could call witnesses, yes". He obviously did not think it necessary.

[29] Mr Higgins alleged staff members had reported several incidences of both sexual harassment and bullying to him. This was later proven to be false. Only Ms Hansson had made any statement about sexual harassment or bullying to him prior to him dismissing the applicant, and only on one occasion.

[30] The applicant was accused of attempting to force the resignation of two staff members. There was no evidence presented in support of this accusation. Mr Higgins also concluded the applicants alleged action "was driven by his desire to hide his previously undisclosed criminal history." There was no argument given in support of this conclusion.

[31] Mr Higgins' said in evidence that he "couldn't care less" when he discovered the applicant had a criminal record.

[32] Mr Higgins asserted he had counselled the applicant with regard to sexual harassment legislation. There was no evidence provided of counselling or coaching. When challenged Mr Higgins could not identify the legislation to which he referred.

[33] Mr Higgins admitted the claims against the applicant were not independently verified, contrary to the content of the warning letters of 21 April 2005. When the warning letters were written only Ms Hansson had complained about sexual harassment and only she raised the issue of her son being bullied. She had not witnessed the alleged bullying. There was no evidence of any customer complaining about the applicant's behaviour, contrary to Mr Higgins' prepared statement.

[34] Mr McRae, the proprietor's partner, gave evidence. He asserted he had been aware of the applicant's criminal conviction since November 2004, and that it did not bother him. He also confirmed the business did not have policies on sexual harassment or bullying.

[35] Ms Hansson gave evidence in support of the respondent. She asserted she was a friend of the owner and her partner and sometimes stayed with them when visiting Coles Bay.

[36] In evidence, Ms Hansson admitted telling the applicant of an affair she was having with a married man who lived at Coles Bay. She also admitted asking the applicant if he had had affairs. When asked had she told the applicant to desist using sexual inferences, she asserted she told him to "piss off" a "couple of times". She alluded to a discussion around permissible sexual activity she had with the applicant whilst they were travelling in the company vehicle on business. On this occasion she made her position clear and he did not raise the issue again. She asserted she was too frightened of Mr Higgins to report the alleged sexual harassment to him.

[37] Ms Hansson asserted there was continual spirited banter amongst the "boys" in the establishment. She admitted she did not witness the alleged bullying of her son by the applicant. She was asked why she had not reported the incident to Mr Higgins. She asserted she spoke to the applicant, the alleged perpetrator, and said that it was because he was "the next one above" and "you don't want to cause any more trouble".

[38] Contradicting Mr Higgins assertion that several members of staff had questioned the applicant "from time to time" about his criminal record, Ms Hansson confirmed she spoke to the applicant on one occasion about his conviction. She also confirmed he gave her his explanation of events. This concurs with the applicant's evidence. There was no evidence any other member of staff had question the applicant about his criminal record.

[39] Ms Hansson asserted the loss of her position to the applicant, in regard to both the travelling to customers and use of the company vehicle, did not affect her. However, Mr Higgins and the applicant both confirmed a negative change in her demeanour about that time.

FINDINGS

[40] The Industrial Relations Act 1984 is quite clear on termination of employment. Section 30(5) states:

"Where an employer terminates an employee's employment, the onus of proving the existence of a valid reason for the termination rests with the employer."

[41] Further, at s.30 (3) of the Act:

"The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with -

(a) the capacity, performance or conduct of the employee; ..."

[42] The respondent asserted the reasons for the applicant's dismissal were poor work performance, sexual harassment and bullying.

[43] Evidence from the applicant's co-workers acknowledged his sales ability. Evidence of the applicant's competence and commitment was reflected in Exhibit A.5, the letter of commendation. No other evidence was produced to counteract this glowing citation. Mr Higgins's assertions otherwise were unsubstantiated and, in my view, fictitious.

[44] Up to the time of his dismissal, there was no evidence the applicant's conduct was anything other than acceptable in that particular work environment.

[45] Mr Higgins attested he had not observed any untoward behaviour by the applicant. He asserted he spent most of his time serving customers and working in close proximity to the applicant in the retail area of the premises. It is not unreasonable to presume Mr Higgins would have been able to observe the applicant's behaviour, on a regular and extended basis.

[46] There was no evidence educed that Mr Higgins had received any complaints about the applicant's behaviour until two days before he dismissed him; and that from a person possibly with a vested interest in the applicant's demise. Mr Higgins contrived to expand the complaint of a single complainant to falsely allude that there were complaints from several staff members and customers.

[47] The applicant admitted one incident where he raised a clenched fist at Ms Hansson's son. The circumstances were not clear. No other specific incident of bullying was alluded to in evidence. Under reasonable consideration this single incident cannot be construed as "... several instances ... brought to my attention by several staff ..."3. I assess this as another gross exaggeration of a situation by Mr Higgins.

[48] At s30 (7) the Act further provides:

"The employment of an employee must not be terminated for reasons related to the employee's conduct, capacity or performance unless he or she is informed of those reasons and given an opportunity to respond to them, unless in all the circumstances the employer cannot be reasonably expected to provide such an opportunity."

[49] In his evidence, Mr Higgins argued the seriousness of the applicant's alleged conduct warranted summary dismissal. It has been shown Mr Higgins exaggerated the allegations made to him pertaining to the applicant. The applicant was not given the opportunity to defend himself, nor rectify any alleged unacceptable behaviour.

[50] Mr Higgins deliberately misled this Commission when he asserted the allegations against the applicant had been "independently verified". In fact there was no verification independent or otherwise of the alleged sexual harassment of Ms Hansson. It was only Ms Hansson who did not witness the alleged bullying of her son and allegedly her son's wife who verified bullying. Neither of these parties could be construed as "independent". There is no evidence Mr Higgins conducted even a basic investigation into the veracity of the allegations by Ms Hansson, despite his being aware there was animus between her and the applicant.

[51] Ms Hansson did not report the allegations until April 2005, claiming she was "frightened of" Mr Higgins. She did not report her allegations to the previous Manager, yet she asserted the alleged sexual harassment commenced when the applicant took up his position with the respondent. She was a houseguest of the owner and her partner, yet she did not confide in them.

[52] Unsolicited, Ms Hansson discussed her affair with a married man with the applicant. She also tried to educe from the applicant information about his extramarital behaviour. Ms Hansson did not direct the applicant to refrain from his conduct other than to tell him to "piss off" a "couple of times". On the one specific occasion where she expressed her displeasure at the content of a particular conversation, the applicant desisted.

[53] I found the evidence given by Ms Hansson to be vague, capricious and unconvincing.

[54] The Anti Discrimination Act of 1998, Part 4 - Discrimination and prohibited conduct, Division 2 - Prohibited conduct, Clause17 - Prohibition of certain conduct and sexual harassment, states:

    "(3) Sexual harassment takes place if a person-

      (a) ...

      (b) ...

      (c) makes an unwelcome remark or statement with sexual connotations ...; or

      (d) makes any unwelcome gesture, action or comment of a sexual nature; or

      (e) ...

      in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended ..."

[55] From the evidence presented, the relationship between the applicant and Ms Hansson with regard to the discussion of sexual matters appears to have been reciprocal, open and frequent. The claims of sexual harassment by Ms Roelfsema, I accept, were false. There was no company policy on bullying or sexual harassment. Although his behaviour could be seen as unsavoury it appears it was an accepted aspect of the environment at Foamland. There has not been sufficient evidence presented that would support the applicant being dismissed on the genuine grounds of sexual harassment.

[56] Mr Higgins' action in contriving to legitimise the applicant's dismissal by serving him with three written warnings at the one time was callous in the extreme.

[57] Despite her change in allegiance, I have no reason to disbelieve Ms Roelfsema in that it was at Mr Higgins' behest she penned her letter condemning the applicant's behaviour. I see this as another contrivance.

[58] I found the evidence given by Mr Higgins, in the most part, to be contrived to suit the outcome he desired. His persistent exaggerations in evidence were continually shown to be such. His almost off-hand citing of sources as authorities, such as the sexual harassment and bullying legislation, and the awards with respect to wages and hours of work were shown to be empty bluster.

[59] In his prepared statement4 Mr Higgins alleged the applicant was responsible for trying to "(d) ... force resignation of ... two staff members....". There was no evidence presented in support of this allegation. Mr Higgins asserted the applicant's alleged bullying " ... was driven by his desire to hide his previously undisclosed criminal history ...". I challenge the veracity of Mr Higgins' response, when question about how he felt when he became aware of the applicant's criminal conviction "... I couldn't care less ...".5

[60] There is no evidence the applicant was anything other than frank and open with Ms Hansson when questioned about his background.

[61] I accept the applicant's assertion that the reason given to him by Mr Higgins for his dismissal was indeed the discovery by Mr Higgins of his criminal conviction.

[62] I find the applicant was not shown procedural fairness.

[63] I find the applicant was harshly and unjustly dismissed.

[64] I find the applicant was unfairly dismissed.

[65] Section 30(11) of the Act provides:

"(11) In determining the amount of compensation under subsection (10), the Commission must have regard to all the circumstances of the case, including the following;

    (a) the length of the employee's service with the employer;

    (b) the remuneration that the employee would have received, or would have been likely to receive, if the employment had not been terminated;

    (c) any other matter the Commission considers relevant.

[66] Further at s30(13) of the Act:

"The Commission is to take into account any efforts of the employee to mitigate the loss suffered as a result of the termination of his or her employment."

[67] The respondent had employed the applicant for about six months. He had successfully completed a probationary period. He had been given a pay rise and added responsibility. I have no doubt but for the calumny of Mr Higgins the applicant could have expected a long relationship with the company.

[68] The applicant is 50 years old.

[69] I find the treatment of the applicant by Mr Higgins to be unjustified, unreasonable, harsh and his dismissal unfair.

ORDER

I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that "Foamland" Registered Proprietor Ms Sandra Helen Wallis pay to Marian ("Murray") Wojcik, the sum of seventeen thousand six hundred dollars ($17,600.00), by not later than the close of business on Wednesday, 21 September 2005.

The above sum of seventeen thousand six hundred dollars ($17,600.00) is equivalent to six months salary at ordinary time earnings, and it is the maximum I can award by law.

 

James P McAlpine
COMMISSIONER

Appearances:
Mr GB Lynch, Butler McIntyre & Butler, Lawyers, for Marian ("Murray") Wojcik
Mr T Levis, Piggott Wood & Baker, Barristers and Solicitors, with Mr P Higgins for "Foamland" Registered Proprietor Ms Sandra Helen Wallis

Date and place of hearing:
2005
May 27
June 29
July 13
August 10

1 Transcript, para 1348
2 Transcript, para 37
3 Transcript, para 21
4 Transcript, para 21
5 Transcript, para 1555