1251 Western Australian Industrial Gazette PUBLISHED BY AUTHORITY Sub-Part 6 WEDNESDAY, 27 APRIL, 2005 Vol. 85—Part 1 THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:— 85 W.A.I.G. CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION INDUSTRIAL APPEAL COURT—Appeal against decision of Full Bench— 2005 WAIRC 00759 APPEAL AGAINST DECISION OF THE FULL BENCH IN FBA 2 OF 2004 WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT PARTIES BUDGET AIRCONDITIONING APPELLANT -v- STEVEN RAINSFORD PENN RESPONDENT CORAM PULLIN J (Presiding Judge) HEENAN J LE MIERE J DATE OF ORDER MONDAY, 21 MARCH 2005 FILE NO/S IAC 8 OF 2004 CITATION NO. 2005 WAIRC 00759 Result Appeal discontinued. Representation Appellant Mr W.W.W. Yu Respondent Mr K Trainer Order Having heard Mr W.W.W Yu on behalf of the Appellant and Mr K Trainer on behalf of the Respondent, THE COURT HEREBY ORDERS THAT: 1. This Appeal is discontinued, and 2. There be no Order as to costs. (Sgd.) J.A. SPURLING, Clerk Of The Court. 1252 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 85 W.A.I.G. FULL BENCH—Appeals against decision of Commission— 2005 WAIRC 00743 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CANON FOODS APPELLANT -and- HAYLEY MAREE MCCOLL RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER A R BEECH COMMISSIONER S WOOD DATE FRIDAY, 18 MARCH 2005 FILE NO. FBA 42 OF 2004 CITATION NO. 2005 WAIRC 00743 CatchWords Industrial Law (WA) - appeal against the decision of a single Commissioner - probationary period - warnings - termination of employment - credibility of witnesses - substantial fairness - Industrial Relations Act 1979 (as amended), s29(1)(b)(i), s29(1)(b)(ii), s49. Decision Appeal dismissed. Appearances Appellant Mr D Clarke, as agent Respondent Mr K Trainer, as agent Reasons for Decision THE PRESIDENT: INTRODUCTION 1 This is an appeal by the above-named appellant, Canon Foods, an employer, against the whole of the decision of the Commission, constituted by a single Commissioner, made on 29 September 2004 in application No 1567 of 2001. The appeal is brought under s49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”). 2 The decision appealed against is constituted by an order, which, formal parts omitted, reads as follows:- “THAT the applicant, Hayley Maree McColl, was harshly, oppressively and unfairly dismissed by the respondent; THAT reinstatement of the applicant is impracticable; THAT the respondent pay to the applicant a sum equivalent to ten (10) weeks pay at the rate of $522.00 per week less the amount of $500.00 as compensation for her loss as a result of the unfairness of the dismissal; THAT the respondent pay to the applicant this amount within 14 days of the date of this order; THAT the applicant’s claim for a denied contractual benefit in relation to overtime hours is dismissed; THAT the applicant’s claim for a denied contractual benefit in the form of a motor vehicle allowance is dismissed.” GROUNDS OF APPEAL 3 The appellant now appeals against that decision on the following grounds:- “1. The Learned Chief Commissioner erred in finding that the Applicant’s employment was not in jeopardy at a meeting on the 1st August 2001 where the clear evidence under cross examination of the Applicant and the evidence of the Respondent clearly show that the Applicant knew her job was in jeopardy. 2. The Learned Chief Commissioner erred in not accepting the Respondent’s evidence that warnings were issued to the Applicant and that these warnings were made about the termination of the employment of the Applicant. 3. The Learned Chief Commissioner erred in ignoring the evidence that the Applicant had advised the Respondent through the reports that the Applicant had attended particular sites as required and the Respondent had discovered that no such sites had been attended to. The fact that this basic element of honesty was overlooked by the Learned Chief Commissioner in that an employee must act in an honest and forthright manner under a contract of employment has been misapplied in this case. 4. The Learned Chief Commissioner erred in not applying the principles attached to a probationary employee as indicated and accepted by the Applicant and Respondent and that the employer retains the right to see if an employee meets such requirements under a probationary period. 5. The Learned Chief Commissioner erred in not applying the primary remedy of an unfair dismissal claim in that reinstatement was the first option that the Learned Chief Commissioner should have addressed. 6. The Appellant submits that there is a serious issue to be heard in that the Learned Chief Commissioner erred in not applying the facts and the law and the Appellant seeks the Full Bench to uphold the Appeal and quash the decision or vary the decision as the Full Bench considers appropriate.” 85 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1253 FINDINGS AT FIRST INSTANCE 4 The Chief Commissioner, at first instance, found as follows:- (a) That reinstatement of employment was impracticable. (b) That he accepted the criticisms that some of Ms McColl’s efforts were being misdirected towards the food services area of the business. However, he found that better supervision and training would have assisted in harnessing her enthusiasm and redirecting it towards the supermarket sector. (c) That, based on the further and better particulars in the evidence, he was not convinced that, at the meeting of 11 July 2001, Canon Foods impressed upon Ms McColl the importance of the issues to the extent that she appreciated that it was a warning. However, there was an improvement in her performance in relation to providing information. It was the first training she received following this, because Ms Shaw decided to spend a day with her. (d) That Ms Shaw recalled more details about the discussion on 1 August 2001 and there was no explanation of what occurred between 11 July and 1 August 2001 which precipitated an alleged second warning. The Chief Commissioner did not find that a second and final warning was uttered. If it were, he found then that it was not justified. (e) That there was no explanation as to what transpired between 1 August and 15 August 2001 when Ms McColl’s services were terminated, because according to Canon Foods, whilst there was a continued improvement, it was insufficient. Further, at the meeting on 15 August 2001, there were complaints that Ms McColl had not promoted some specials with clients and had failed to attend on one customer for a long time. She was not given an opportunity to answer this allegation, the Chief Commissioner found. (f) That Ms Shaw did think that, on 15 August 2001, Ms McColl’s reports had improved but they were still not at a standard acceptable to Canon Foods. Ms Shaw was not aware that Ms McColl’s services were to be terminated and she was concerned with the matters involving Ms McColl’s training and progress. The decision was Mr Dickenson’s. (g) That, in the circumstances of a prolonged probation which reflected the nature of an appointment where the salesperson works alone and from home for a significant part of the time and where the policy was to allow her time to find her feet, the dismissal was unfair. (h) That, even if it were accepted that Ms McColl was on a final warning, it was clear that something had occurred since that ultimatum to emphatically tip the scales against her continuing employment, and, as a result, she should have been given the opportunity to answer the particulars of the allegation of an incident, action or omission that caused her employer to invoke the legal right to dismiss her and it was unfair not to. BACKGROUND AND EVIDENCE 5 After 14 weeks’ employment and, in circumstances where she was required to finish up work immediately, she was dismissed. In the absence of one day’s notice in accordance with the terms of her agreement, but with payment in lieu, it was submitted that this amounted to a summary dismissal and there was no inference of gross misconduct so that, therefore, the dismissal was unfair. 6 Further, it was submitted that Ms McColl’s services were terminated because of a failure to properly perform her duties as a salesperson, and that the dismissal was unfair because she was given only minimal training as a new appointee. Ms McColl said that Canon Foods provided only limited organisational backup. To overcome this, she said that she undertook a number of initiatives but without any support from her employer. Further, she submitted that the unfairness was compounded by the fact that she was never given any warnings about her performance and was never given any indication that her position was in jeopardy. Ms McColl also claimed overtime payments which she alleged that she had not been paid, and an implied entitlement to reimbursement for the use of her vehicle in the performance of her duties. 7 It is necessary to say that there was a great deal of conflict between witnesses about important issues which, at first instance, the Chief Commissioner was required to resolve. 8 There was an amount of documentary evidence, too. 9 The only witnesses who gave evidence were Ms Hayley Maree McColl on her own behalf, and Ms Tracey Shaw and Mr John Frederick Dickenson, the National Sales Director on behalf of Canon Foods. 10 Ms McColl was employed by Canon Foods from 1 May 2001 to her dismissal on 15 August 2001.