Barton v Baker Johnson Lawyers [2003] QIRC 122 (2003) 173 QGIG 868

868 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 July, 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Marilyn Barton AND Baker Johnson Lawyers (No. B802 of 2002) COMMISSIONER EDWARDS 27 June 2003 Dismissal – Reinstatement – Termination of Employment – Evidence – Verbal Abuse – Swearing – Inappropriate Terminology – Barbaric Language – Unacceptable Work Environment – Workplace Bullying – Dismissal Harsh, Unjust and Unreasonable – Reinstatement Impractical – Compensation Awarded. DECISION By application filed on 20 May 2002 Marilyn Barton (the applicant) applied for reinstatement with Baker Johnson Lawyers (the respondent). At the initial hearing on 8 October 2002 Ms Bow on behalf of the applicant outlined the difficulties she was experiencing in getting compliance with the Direction Orders. As a result she was unable to meet the timeframe as set out. On behalf of the respondent, Mr Messenger extended apologies. He advised that Mr Alexander was in hospital. He believed that he had been admitted for stomach surgery and obviously was unable to meet the obligations. Mr Baker was in Mexico. The Commission amended the Directions Order accordingly. During the hearing it was necessary to record in evidence the actual words reported to have been used by Mr Baker and Mr Alexander. The Commission records that on occasions the witnesses appeared uncomfortable in repeating the words but understood the nature of the hearing. Marilyn Barton commenced employment with the respondent on 10 April 2001. She was employed as a full-time legal secretary at the Gold Coast Office. Initially her primary position was secretary to Mr Shane Alexander but occasionally she would work for the principal, Mr Michael Baker. As outlined in Exhibit 20 the respondent has five major offices. These are located at: • Brisbane City • Springwood • Gold Coast • Burpengary • Clayfield. In the message of welcome to new employees the respondent states: “As a member of this firm you will obviously have certain expectations of us and we have expectations of you. This manual has been prepared for your guidance and is designed to acquaint you with our office policies and procedures. Please read it carefully. Your supervising Partner will be pleased to answer any queries you may have. Due to its nature, this manual is a confidential document which is the property of the firm. We ask that it not be copied or made available to any person outside the firm.”. The respondent did not request a suppression order under s. 679 of the Industrial Relations Act 1999 in regard to the fact that the manual is a confidential document. The Support Staff Policy Manual also states: “Behaviour/Conduct As a Law Firm, the public expects a high degree of decorum from our employees. All staff members should behave in a dignified and courteous manner at all times as the reputation of the firm depends upon the manner in which staff members conduct themselves.”. The applicant’s day-to-day duties included: • dictaphone typing; • transcribing Solicitor’s tapes; • compiling Court documents; • liaising with clients via phone and in person; and • assisting at reception with clients who have special concerns. Prior to her appointment she attended an interview. At the interview the applicant alleged that Mr Michael Baker warned her he “swears a bit”. She had no idea as to the level of swearing he meant. Upon commencing employment the applicant attended staff meetings where she alleged Mr Baker would abuse staff members who may have made mistakes. He would address them by swearing and yelling. During the course of her employment she alleges she was constantly subjected to verbal abuse from Mr Baker, Principal and Mr Alexander. This alleged verbal abuse in front of other staff included being referred to as: -- 1 of 5 -- 11 July, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 869 “fucking moron fucking cunt piece of shit.”. Furthermore, the applicant alleges she was constantly being told to “fuck off” and “piss off” by both Mr Baker and Mr Alexander. In view of the proliferation of the terminology the applicant and other staff kept a written diary of some of the events. The Commission does not propose to record the full text of these notes (Exhibit 1, attachment A) but the following terminology is alleged to have been used: “Thursday 17 May Helen went into Mike’s office to point out something to him that needed doing on a file (about mid afternoon 3.00-3.30) He yelled and carried on at her for disturbing him.”. “Monday 21 May 2001 Emily walked into Mike’s office to see if he had any more work for her to do. She actually just stood at the door. He said in a huff (gritted teeth) ‘Get out of here!’. He then came by her desk just after that – dumped/slammed papers beside her and said: ‘Don’t ever f - - - ing do that again. I’m not here Mondays’.”. “Friday 25 May On tape: This file of Bianca Contanno. Mike said: Again some blind bastard in this office cannot put my correspondence neatly on the spikes. On tape again: This file – it’s the file of Webb – these morons at the front desk keep sending it to the same place.”. “Monday 28 May On tape: (Mike) There’s a statement in the correspondence. Some arsehole has left it in the correspondence. GET RID OF IT! Tell that moron with the initials MB that you do not put my statements in the correspondence.”. “Tuesday 29 May Mike came into our office about 12.30 today and said to Marilyn ‘Did you type this statement’. She said ‘yes’. He asked why she didn’t put a total on it. She said that Shane had checked it and said it was fine. Mike said – well Shane’s an idiot!”. “Tuesday 29 May (cont.) Walking passed my/our office Mike went into the office next door and said to Guy – ‘just do the fuckin’ thing. On leaving that office he said: ‘Don’t comeback to me 2 hours later about the same thing’. He said that you never do documents in draft and that Paul Lock is a fucking moron!”. “Monday 17-9-01 8.15 am Michael Baker phoned in and before we know it Liz the receptionist is in tears and Shane has warned us that Michael’s not happy today. Sarah our temp has phoned in sick. Julie is running late – in at 8.20am and the atmosphere is really bad.”. On 11 July 2001 a staff meeting was held at which the applicant raised concerns regarding the manner in which she was being spoken to by Mr Alexander. As a result by letter of 11 July 2001 she was dismissed by Mr Alexander. A meeting was held on 13 July 2001 at which the applicant advised Mr Alexander a letter on company letterhead was required. Subsequently she was advised by Mr Alexander that such was not available but she should start looking for another job. On 30 July 2001 the applicant was informed by Mr Alexander that he did not want her to leave. On 31 July 2001 the applicant was instructed by Mr Baker to send an e-mail to the pay officer stating: “Please be advised that Marilyn Barton will continue to be employed by this firm with a review of salary on the 1 st September, 2001. Michael Baker.”. On 10 September 2001 the applicant informed her employer in writing of the workplace bullying in the office and in particular an abusive incident which had occurred on 7 September 2001 in front of all staff. This document was also signed by four other staff members in the Gold Coast office, Ms Sarah Carney, Ms Elizabeth Hassan, Ms Andrea Gietzel and Ms Helen Firns. On 28 February 2002 Mr Baker subjected the female staff in the office to an appalling display of verbal abuse. On 3 March 2002 the applicant informed Mr Baker in writing that the staff found his behaviour ‘‘demoralizing, soul destroying, vulgar, obnoxious and extremely unprofessional”. This correspondence also requested that Mr Baker desist from such behaviour and was signed by seven other staff members In evidence the applicant outlined that following her complaint she alleges she was subjected to constant “nit picking” and intimidation. On 6 March 2002 two internal memorandums were sent to the applicant: “. . . I have told you this on a number of occasions verbally now I am telling you in writing. I want you to execute a copy of this memo so that I can be sure that you’ve got the message. From SGA/jc.”. “You are not efficient, you make more mistakes than you are worth and you can treat all of these notes from me as warnings to tidy up your performance. from MVB:ml.”. Finally at approximately 9.30 a.m. 29 April 2002 she was called to the office of Mr Alexander where her employment was terminated without any prior notice. As a result of discussions and questions to Mr Alexander he informed her that she was “disruptive to the workplace”. The evidence of Ms Barton was very succinct and clear. She did not yell, or be rude or show disrespect to Mr Baker. The only time she spoke to him was when she objected to being screamed at or at his language. Furthermore, at no time did she show disrespect to junior employees. Ms Firns was employed as a full-time secretary at the Gold Coast Office of the respondent and was an employee at the time of the applicant’s dismissal. Except for one argument in relation to workload sharing she enjoyed a great working relationship with the applicant -- 2 of 5 -- 870 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 July, 2003 Ms Firns outlined in evidence: • never witnessed applicant being abusive towards any staff member; • applicant always assisted and was supportive of other staff; • she along with other staff were subjected to verbal abuses and foul language by both Shane Alexander and Michael Baker. The foul language to which reference is made included “fucking moron, fucking cunt and pile of shit”. • new staff would not stay long but the applicant was helpful to them; • new staff were known to leave at morning tea time on the first day but some would leave at lunch; • .received nasty memorandum and e-mail from Mr Baker; and • office meetings were held once per month at which staff were invited to air grievances. After raising issues the respondent would not treat staff very well. In the attachment to her affidavit Ms Firns states: “One minute he can be normal, the next he’s off being totally abusive, swearing at whoever crosses his path. He constantly calls us fucking morons, you can never defend yourself for something you never did but get abused for. He always has to have the last word. . . . For the record, Shane Alexander who is the other solicitor in practice on the Gold Coast, is shaping up to be a Michael Baker clone. If you buzz him to put a client through you usually get, ‘I don’t fucking want to talk to anybody, take a fucking message’, or if you need to see him about something you usually get the same reaction and fobbed off.”. In evidence Ms Firns stated: “You made – you raised issues with him toward the end of last year about his behaviour? Every time we had a staff meeting I would raise issues. I mean we were asked if we had problems to raise them and I used to – when I did his tapes, every day I’d put the tape on, for the first X minutes it would be – he would be abusing or talking about some ‘f’ing moron staff member who had done this or not done that’ and at one staff meeting I said, ‘If you have a problem with staff would you please not put it on Dictaphone for me to cop, you take it up with the staff concerned’. Well, that didn’t go over very well, but I didn’t understand why I should have to listen to his berating a staff member. I said, ‘I’m here to do dictaphone work, to type, not to listen to abuse.”. In response to questions regarding possibility of dismissal as a result of standing up to Mr Baker, Ms Firns stated: “Your employment wasn’t terminated, you weren’t out the door? Well, it was – my life was made hard. It was made very miserable and I thought – I’m the sort of person, I will take as much as I need to take, but I don’t be bullied that’s for sure. When I’m ready to go I will go. The first five weeks of my employment there I went home in tears every day. I had a week off and I thought in that week, ‘He’s not going to bully me. I will go and do my job which is what I’m paid to do.”. Ms Gietzel was employed at the Gold Coast office of the respondent for a period of 5 months while Ms Barton worked there. She was a full-time legal secretary from March 2001 to September 2001. Her evidence included: • subjected to verbal abuse from Mr Baker • witnessing of abusive behaviour towards other staff • identified the notes of Exhibit 1, Attachment A which stated: “It was not uncommon for Mr Baker to subject the office staff to verbal abuse and intimidating behaviour. Mr Baker would often approach a member of staff at their work station and yell and scream and swear at that staff member in front of all of the other staff in the office. It was not uncommon for Mr Baker to slam files on a staff member’s desk while verbally abusing them in front of everyone else. Staff members often approached Mr Baker in relation to his behaviour however nothing would change. I remember on at least one occasion I personally approached Mr Baker in relation to his behaviour. I informed Mr Baker that I found his behaviour intimidating and frightening. I also informed him that I found the way he spoke to the junior staff appalling. On that particular day Mr Baker left the office early stating words to the effect of ‘I’ve had enough of this’. On many occasions I was not going to return from lunch but for the support of the other staff. I remember on one particular occasion that Ms Barton encouraged me to stick it out and reminded me that I needed the experience in the legal area.”. Ms Julie Clough is employed by the respondent as a Secretary and has been with the respondent on and off for three and a half to four years. When the letter was circulated in August/September she was aware of concerns about the language of Mr Baker but she did not sign the letter. After the letter was distributed she was aware that Mr Alexander had suggested to Ms Barton that she look for another job. In regard to the work environment her evidence included: • high pressure work environment; • after staff (particularly female) commence work for the respondent they are warned about Mr Baker; • at the time Mr Alexander interviewed her she was warned that Mr Baker swore; • offensive language included “fucking cunts, fucking morons”; • not appropriate for ladies to be called “fucking cunts”; • she heard Mr Baker swear at Ms Barton; • she did not believe it is OK for foul language to be used even if staff are forewarned; • occasionally Mr Baker uses the following language on dictation tapes – “Who did this fucking document?”; “What fucking idiot did this document?”; and • when such language is used on tapes she separates the behaviour from the person. The evidence of Ms S. Goodes who is a legal secretary included: • advised by Mr Alexander that Baker Johnson is a high pressure workplace; and • told that the principal swears. She also remembers being told the following about the workplace: -- 3 of 5 -- 11 July, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 871 “Well, he was – Shane informed me well. He basically said that, ‘If you can’t handle swearing it’s not the place to be’, and Michael was not easy to work for.”. • Mr Baker swore in the office and she found the swearing offensive. The type of swearing was; “fucking moron, moron, bastard, fuck, cunt”; • Mr Baker has not made derogatory comments or abusive behaviour towards her but he had made such comments to other staff; • Ms Barton helped her with her work and she learnt basically everything she knew from her; • Ms Barton was always willing to be very helpful; • Ms Barton was never abusive or intimidatory towards any staff; and • She thought that two other staff did find Ms Barton intimidatory. Ms Leonard who left the employer in October outlined in evidence: • at the interview for the position she was warned by Mr Alexander that Mr Baker is an angry person who swears. If she could not accept that behaviour she should not take the position; • other staff swear; • when she started work she was helped by Ms Barton but her main assistance came from Julie Clough • she signed the letter Ms Barton put together on behalf of other staff members and asked them to sign • she heard Mr Baker verbally abuse and swear at Ms Barton. Her evidence was; “I heard the one way of the incident where he said ‘the fucking moron with the initials MB’ and she said, ‘Michael, my initials are MB and I’m not a fucking moron.’ But after that I can’t recall what was actually said.”. • there were some difficulties between Ms Barton and herself however when they were friends she asked her for a reference; • the work environment could not be described as healthy or normal; and • confirmed her mother’s boyfriend was connected to the company Tow Trucks Light and Heavy. The Commission mentions that evidence was presented that Ms Leonard was a protected employee as she was related to one of the respondent’s largest personal injury clients, Tow Trucks and Light and Heavy. Mr Alexander had advised staff that irrespective of whether she was a good worker or a bad worker she could not be dismissed. In evidence Mr Alexander found difficulty in responding to some of the questions in a clear manner. On occasions the questions needed to be repeated but he preferred to provide a reply that did not answer the question. On other occasions he had difficulty in recalling details. The Directions Order issued on 20 September 2002 stated at No. 8 in part: “Leave of the Commission will be required should either party seek to adduce further evidence in chief beyond that contained in the statements of evidence filed . . .”. Even though Mr Alexander was aware of this Order he failed to record significant work related matters in his affidavit. In reply to a question from the Commission in regard to the purpose of an affidavit he replied as follows: “It gives evidence-in-chief. It tells you roughly what happened or gives an outline as to what happened.”. Mr Alexander was responsible for investigating the complaint made by Ms Barton. Unfortunately he placed emphasis on interviewing the employees rather than ways to stop the fact that the employees of the respondent were severely stressed and subject to inappropriate language. On 6 March 2002 after being informed by staff that the offensive and abusive language was not acceptable Mr Alexander agreed in evidence that he continued to use abusive language and stood in the doorway and said, “fuck sammy.”. Mr Alexander, a solicitor and employee of the respondent who represents persons subject to harassment and bullying has not read any legislation on the subject. The transcript records as follows: “Yes, that’s what I’m saying. So you haven’t been trained on workplace harassment? No. I do what I think’s fair. Yes, but you haven’t been trained in terms of ? No. ---contemporary harassment legislation on what is acceptable behaviour? Acceptable – no, I wouldn’t know – wouldn’t know, no. So have you had the opportunity to review any legislation on – or read any legislation on such aspects? No.”. The evidence of Mr Baker does not support the view that Ms Barton was “disruptive to the workplace”. His evidence included: • at the initial interview stressed to the applicant that the position is under pressure and she should not accept if it she could not handle pressure; • advising that he would blow a fuse or would swear and if she had difficulty with swearing she should not take the job; • did not care what religion she was as long as she did not take her religion to work; • applicant did not take instructions easily and refused to follow his instruction; • on occasions he attended the Gold Coast office he had cause to tell the applicant and Helen Firns to stop arguing; • advising Mr Alexander to dismiss the applicant because she was too big a disruption; • he did not put any allegations to the applicant; • to his knowledge the applicant was not given any opportunity to respond to the decision to dismiss her; • his acceptance that he is abusive to a person who makes mistakes; and • agreeing that he swears at people. Mr Baker agreed that he used words including “fucking moron” and “fucking idiot”. Further, he did not recall using “fucking cunt” in the public forum of his office but he did use it in his office. Furthermore, he did not recall using “fucking cunt” on the tapes. It was the evidence of Mr Baker that in the circumstances it was acceptable for the applicant to be paid a month’s salary and she could spend one month finding another job. -- 4 of 5 -- 872 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 July, 2003 The most basic form of communication between humans is that of direct verbal exchange. Despite technological innovation and more relaxed social conventions, face to face encounters remain the more usual means by which we get along with each other in the workplace. It has been suggested that Australians when communicating are more informal when compared to other western societies. However, manners have a place even in 21 st century Australia. Businesses whether Government or private have the overall aim of achieving goals. The basic input necessary to meet these goals is the business of Directors or officers, the employees and the customers. Courtesy, respect and manners have a role to play in any efficient and effective operation. Regardless of the safeguards the desired workplace etiquette and manners need to be sensitive to the industrial environment. There is no doubt that feelings, courtesy and manners have an important role to play. Thoughtfulness and common courtesy are not obsolete in the modern working environment. Civilised interactions should be expected and the need to revert to barbaric and aggressive behaviour should not be expected. The Commission relies on the Shorter Oxford English Dictionary for a definition of “barbaric” as: uncultured, unpolished, rude, savage. (Oxford Press 1973) In saying this the Commission is conscious that on occasions turmoil can exist in the workplace as a consequence of provocative or misleading behaviour by a person or persons. In those instances that type of behaviour must be scrutinised as such as the behaviour of the person seen to be responding badly. Based on the evidence the Commission is satisfied that Ms Barton is an honest hardworking, diligent and trusted employee who was demoralised by the working environment provided by the respondent. This environment was the result of the unacceptable and barbaric language and attitude of Mr Baker. It is no defence on the respondent’s part to say that because it had been stated that Mr Baker may act inappropriately during the course of the employment contract, that a lack of response on the applicant’s part led to the applicant’s implied consent that Mr Baker’s behaviour was somehow acceptable. The Industrial Relations Act 1999 provides that a person be given the opportunity to respond to any allegations. No opportunities to an appropriate level were given to the applicant. The Commission does not accept the submissions of the respondent that the dismissal was for operational requirements for the business. The Commission has considered all the evidence, submissions and exhibits and is satisfied that the dismissal was harsh, unjust and unreasonable. The evidence also reaffirms that it would be impractical for the applicant to be reinstated. The Commission has decided to award an amount of compensation equivalent to six months’ wages based on the salary the applicant received immediately prior to the dismissal. The Commission accepts that as a result of being subjected to such a working environment Ms Barton would need the assistance of a medical specialist. Her circumstances and condition would be a logical case for a successful Workcover claim. At the time of her dismissal she was paid one month’s wages to enable her to find employment. Unfortunately as a result of her experience she was not successful. In determining a remedy the Commission makes reference to the considerations adopted in Chenery v. Klemzig Nursing Home (1988) 55 SAIR 544 including: • the age of the applicant; • the psychological injuries she suffered during the employment; • the anxiety levels she would experience in attempting to return to the workforce even on a part-time basis; • the wage the applicant received at the date of termination to assist her to find suitable employment; and • any income she may have received since the dismissal. The Commission orders that six months’ compensation be paid by Baker Johnson Lawyers to Marilyn Barton within 22 days of the date of release of this decision. The Commission records that after reserving the decision arrangements were made for the Registrar to inform the Honourable the Minister for Industrial Relations of the contents of the transcript. The following is recorded on the transcript: “. . . The Commission however proposes through the appropriate channels to advise the Minister for Industrial Relations of the transcript and the nature of the evidence provided and given to the Commission as the Commission is concerned in relation to the health and safety of the workers at the various sites. The Commission expresses no views on those but in the interests of the employees and workers the Commission believes it has an obligation to ensure that the Minister is aware of the contents of the transcript. . . “. Dated 27 June 2003. K.L. EDWARDS, Commissioner. Hearing Details: 2002 8 October 23, 26 and 27 November Appearances: Ms K. Bow of Workplace Equity Consultants and with her Mr G. Howcroft on behalf of the applicant. Ms K. Prior of Prior & Associates and with her Mr M. Messenger on behalf of the respondent. Released: 27 June 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement -- 5 of 5 --