Cox v DFS Australia Pty Limited [2003] QIRC 49 (2003) 172 QGIG 1855

24 April, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1855 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Anthony Cox AND DFS Australia Pty Limited (No. B1937 of 2002) COMMISSIONER THOMPSON 3 April 2003 Application for reinstatement – Witness evidence –Termination harsh and unreasonable – Reinstatement or re-employment impracticable – Nominal amount of compensation awarded – Application granted. DECISION Background An application for reinstatement by Mr Anthony Cox (applicant) was filed on 4 December 2002 in which he alleged that his employment had been terminated unfairly and for an invalid reason by DFS Australia Pty Ltd (DFS) (respondent). Applicant The applicant was self represented in the proceedings, relying upon his own evidence and that of one further witness, Ms Cheryl Matthews. In evidence, the applicant stated that he had been “aggressively headhunted” by the respondent, commencing employment on 28 April 1999 and ceasing upon termination on 16 November 2002. During the course of his employment, his services were utilised across a number of areas, with his appointment to a position in the Electronics Department in September 1999 heralding a move from casual to full-time employment. About half-way through his period of employment, his evidence was that he began experiencing unnecessary problems with his wages and other general conditions of employment which, he believed, coincided with a “push” from management to convert full-time wages staff to salaried positions. On 1 September 2001, the award rate of pay was increased, and when DFS failed to pass on the increase, he took it upon himself to raise the matter with management, a move, in his mind, that placed him off-side with his superiors. In October 2001, due to a downturn in business, staff with accrued annual leave in excess of twenty (20) working days were directed to take such leave. The applicant raised, with the manager, the need to take at least two (2) weeks’ leave in May 2002, as his wife was expecting their first child at that time, and further leave in September 2002, when his wife would be undergoing a knee re-construction. His evidence was that his leave was, at that time, approved by management. When his manager changed in January 2002, he raised the subject of his previous leave approval and was advised that this would cause “no problem” provided he kept the company informed of the dates in question. He was approached by his manager on 7 May 2002 and told to go to the human resources office and to take a witness with him to the meeting. His evidence was that the meeting was such a farce that, from then onwards, he started to seek advice from the Department of Industrial Relations, which included information that he would be within his rights to tape-record future meetings. The reason for tape-recording future meetings was due to concerns that managers would misrepresent what had been discussed by the parties. On page 4 of his affidavit of evidence, in relation to the tape-recording of meetings, he stated his reasoning “. . . to protect everyone concerned and especially in cases where I was not allowed, or able to get a witness of my choice.”. By the end of May 2002, he had informed his superiors that the date of his wife’s knee operation was to be around 29 October 2002 and that he would require one month’s leave. -- 1 of 7 -- 1856 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 2003 Between May and September 2002, the applicant claimed that he continued to remind his superiors of his forthcoming leave without any adverse feedback. A memo was circulated to all staff on 3 September 2002 where it was stated that the preferred position of the respondent would be that, unless special circumstances existed or leave had been previously approved, leave should not be taken in October, November or December. Shortly after, the applicant was advised that his wife’s operation would be performed on 15 October 2002 and he submitted his annual leave form. About ten (10) days later, he was told that his leave would not be approved. This refusal, in the words of the applicant, led to a “completely unnecessary series of events, which can only be described as games, which to me were extremely serious and stressful and only served to exacerbate the whole situation for all those concerned.”. Leave was eventually taken by the applicant, however he was required to meet on three (3) occasions, following his return, with Ms Vikki Picton and Ms Kimberly Neil and it was at these meetings that the applicant tape-recorded, or attempted to record, the meetings. The applicant claimed that at the meeting of 12 November 2002, Ms Picton raised no concerns with his tape-recording of the meeting, however at the 13 November 2002 meeting he was asked not to record to which the applicant “reserved his right to record” and was subsequently suspended. A further meeting was held on 16 November 2002 at which the applicant was accompanied by Ms Matthews, his external witness. It was claimed by the applicant that he had his employment terminated for failing to turn off his tape-recorder at the commencement of the meeting. In the final paragraph of his affidavit, the applicant stated: “I wish to make it perfectly clear that at no time was I told or directed in any shape or form, to turn off the recorder. If I had been told to, despite being within my rights, I would have turned it off. I was never told to turn it off. It was only ever a request, I was always given an option. I was NEVER told that my actions would result in termination. It was only ever hinted that there MAY be a possibility, not that it was a fact in any shape or form. My actions did NOT contravene any State Legislation or Common Law and certainly do NOT contravene any DFS policies. Therefore I was unfairly dismissed.”. Cross-examination In cross-examination, Mr Matthew Smith, for the respondent, put a number of matters to the applicant, including: • May 2002 – meeting with Ms Picton regarding customer complaint • Advise on legality of tape-recording meetings • Leave regarding wife’s operation (page 16, line 20 of transcript): “Smith: At the time of your wife’s operation. Right. Now, there was a bit toing and froing in terms of being provided in one week increments at first instance and then two weeks in a block, but ultimately DFS did grant you the leave, didn’t they? Cox: Yes, that’s correct.”. • Contact with Ms Nicole Azuolay – 3 November 2002 – returning to work on half day shifts • Contact with Mr Ralph Roberts seeking approval for leave – misrepresentation • 12 November 2002 meeting – concealing tape recorder • 13 November 2002 meeting – regarding tape recording (page 25, line 40 of transcript): “Smith: And, Vikki, on several occasions advised you that it isn’t DFS’s normal practice to tape-record these conversations and she asked you not to? Cox: That’s basically correct, yes. Smith: Right. And she also indicated to you that she thought it was a fair and reasonable request? Cox: Yes, she used that phrase. Yes. Smith: But you still hadn’t turned the tape-recorder off; had you? Cox: No, sir. Smith: Right. And it was your intention to keep taping, because it’s your legal right? Cox: I hadn’t been afforded a witness, so, yeah, I – I intended to keep recording. Commissioner: When Ms Picton talked to you about the tape-recorder, did she direct you not to use it, or did she request you not to use it? Cox: Never directed in any shape or form, sir.”. • Suspended from duty between 13 to 16 November 2002 (page 29, line 30 of transcript): “Smith: Now, you’d been suspended on full pay for this period between these meetings, hadn’t you? Cox: Yes, sir. -- 2 of 7 -- 24 April, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1857 Smith: And I assume, being a sensible man, you would have realised that DFS Galleria took great exception to the practice of tape recording these meetings? Cox: Well, yeah, I guess so.”. • Direction to turn off tape recorder at 16 November 2002 meeting: “Smith: So it’s effectively being warned three times, isn’t it. Or I should say, that’s effectively being directed three times, isn’t it, to turn off the tape-recorder? Cox: Again, maybe you accuse me of playing on words but to me I wasn’t directed three times to turn off the tape player. That was the original question and that’s the one I answered to. Smith: Now the whole time obviously the tape-recorder was continuing to run? Cox: Mmm, I guess that’s correct. Smith: And your argument against DFS was, again, ‘It’s my legal right to record’, that’s right, isn’t it? Cox: Yes.”. The evidence of Ms Matthews related to her attendance at the meeting on 16 November 2002 where she was to act as a witness (for the applicant). On the commencement of the meeting, she was advised by Ms Picton that her role was to be that of an observer only. Her evidence was that when the applicant had produced a tape-recorder at the meeting, an exchange occurred between Ms Picton and Mr Cox at which the legal right to record the meeting was put forward by the applicant. Ms Picton then warned Mr Cox that his failure to turn off the tape-recorder could be seen as misconduct and shortly thereafter terminated the applicant’s employment effective immediately. In finalising her evidence, at page 2 of her affidavit, Ms Matthews stated: “In my opinion I felt this to be a hostile environment. I would also add that at no time did Anthony refuse to turn the tape off.”. On the exchange between Ms Picton and the applicant, at page 41, line 55 of the transcript, in cross-examination, it was stated: “Smith: Well, when Vikki said to him that it could be seen as misconduct and he then could be terminated, that would have made it pretty clear where it was heading? Matthews: Yeah, but I don’t think enough time was given for Anthony for a right of reply. But that’s my opinion. Smith: You mean he wasn’t given enough opportunity to argue his case? Matthews: No, I don’t believe so. I think that’s true.”. Respondent Evidence was given supportive of the respondent’s position by Mr Roberts, Ms Azoulay and Ms Picton. Mr Roberts, who is employed as an administration manager by DFS gave evidence of a discussion with the applicant over the issue relating to the applicant leaving work to go home to look after his wife. Attached to his affidavit was a diary note dated 4 November 2002 in which Mr Roberts noted that the applicant did not seek authorisation from him regarding his early departure from work on that day. In evidence, Ms Azoulay, a supervisor at the Gold Coast store of DFS, provided information on exchanges with the applicant over his intention to take leave to care for his wife after her operation. It was not within her authority to approve the leave and the applicant was advised to contact Ms Picton. On 3 November 2003, the day before the applicant was to return to work, he contacted her by phone and requested that he be allowed to return to work on a half day basis or be granted further leave. The applicant was advised that a decision on his request would have to be made by Ms Picton and, following a meeting between Ms Picton and herself, it was decided that, due to insufficient staff numbers to cover the gap, the request was refused. The applicant was advised of the decision upon commencing work on 4 November 2002 that his request had been rejected. On 6 November 2002, the applicant did not attend work as rostered and phoned the witness later in the day to advise that he would be taking family leave for the remainder of the week. At paragraph 13 of her affidavit, she stated “At no stage did I tell Mr Cox that I approved his taking of the leave.”. In cross-examination, the applicant raised concerns with the affidavit of Ms Azoulay at page 56, line 30 of transcript: “Cox: Ms Azoulay, I must bring up the point again. I suggest to you that you coerced into making this statement. A lot of detail has deliberately been left out to paint a very different picture from the truth, wouldn’t you agree with that? -- 3 of 7 -- 1858 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 2003 Azoulay: No. Cox: I put it to you that this has been severely edited, hasn’t it? Azoulay: No.”. The final witness for the respondent, Ms Picton, the human resources manager for the Gold Coast branch of DFS, gave evidence relating to a number of encounters involving the applicant, herself and others. First, she went to a meeting held on 6 May 2002 which was a counselling session with the applicant at which a tape-recorder was produced by the applicant and his intention to record the session was made known. Ms Picton did not object to the use of the tape-recorder and was subsequently provided with a copy of the tape. Her evidence then went to the leave arrangements of the applicant at the time that an operation was to be performed on his wife’s knee. Despite the leave being sought in October 2002, which is, for the company, part of the busiest period of the year, leave was granted to the applicant between 15 to 20 October 2002. Following a request for two (2) periods of further leave, taking the applicant’s absence from duties through until 3 November 2002, the respondent, on compassionate grounds, granted the leave sought. On 4 November 2002, Ms Azoulay advised her that the applicant was seeking to return to work on a half day basis, a request that she was not prepared to grant. Later that day, the applicant contacted the duty manager (Mr Roberts) and sought approval to leave early without giving details of the earlier refusal of his request to be able to work half days. The following day the applicant contacted another duty manager (Mr Gary Lush) and advised that he was taking sick leave for the day and would be having the remainder of the week off as compassionate leave. Upon the applicant’s return to work on 11 November 2002, a meeting was arranged in which an explanation of the applicant’s conduct the previous week was requested. A short time after the commencement of the meeting, Ms Picton heard a clicking sound coming from the direction of the applicant’s shirt, where it was discovered that the applicant had been tape-recording the meeting without having first raised with those present at the meeting his intention to do so. A request by Ms Picton for a copy of the tape was declined. A further meeting was scheduled for 13 November 2002 where the applicant again produced a tape-recorder and, despite requests to turn off the tape- recorder, he continue to record, insisting that he had a legal right to do so. Ms Picton’s evidence was that, at the conclusion of the meeting, the applicant was suspended on full pay pending further investigations of a range of issues. Contact was made with Mr Cox on 15 November 2002 requesting his attendance at a meeting to be held on 16 November 2002. The meeting was attended by the applicant, Ms Kimberly Neil, Ms Matthews and the witness where, at the outset, the applicant informed the meeting that Ms Matthews was to be his external witness. At paragraphs 36 and 37 of her affidavit of evidence, Ms Picton provided detail of what then occurred: “36. Mr Cox then produced a tape recorded and pressed the record button. I asked Mr Cox not to tape record the conversation. Again, although Mr Cox did not expressly refuse to turn off the tape recorder he continued to argue that he was entitle to tape record the conversation. Mr Cox did not at any stage turn off the tape recorder despite my direct requests that he do so. 37. On the basis of Mr Cox’s refusal to comply with a lawful direction I terminated his employment.”. Ms Picton was subject to a lengthy cross-examination process touching on matters including: • Availability of the award in the workplace • 6 May 2002 meeting • Tape-recording of meetings • Applicant’s leave arrangements • Role of Ms Azoulay • Compassionate v Family leave • Non-existence of company policy regarding tape-recording meetings • 12 November 2002 meeting • 16 November 2002 meeting • Documentation prepared on 15 November 2002 indicating that the applicant’s employment would be terminated at the 16 November 2002 meeting • Advice on how to respond to the applicant’s use of a tape-recorder at the 16 November 2002 meeting -- 4 of 7 -- 24 April, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1859 • The Commission raised with the witness the nature of her comments regarding the request to the applicant to cease tape-recording at the 16 November 2002 meeting (page 106, line 4 of transcript): “Commissioner: Paragraph 36 of your statement, you say, and I quote ‘I asked Mr Cox not to tape-record the conversation’. The word I want you to focus on is, ‘I asked’. Then you go to 37 and you say, ‘On the basis of his refusal to comply with a lawful direction, I terminated his employment’. What was the lawful direction you gave him? Picton: Asking him not to record the conversation. We feel it’s a fair and reasonable request that you do not record the conversation. Commissioner: I understand that. I’m just – what I am trying to clarify is that you didn’t say to him, ‘I direct you not to record this conversation’; did you? Picton: No, he was asked. Commissioner: You asked? Picton: Correct.”. Submissions Each party provided to the Commission both written and oral submissions. Applicant The applicant’s submissions focused on a number of matters including: • Acknowledgement of the applicant’s work ethic and performance • Evidence of • Cheryl Matthews • Ralph Roberts • Nicole Azoulay • Vikki Picton • Industrial aspects of the case • Not paid correct wage rates • Award not on display in the workplace • Termination certificate not provided • Tape-recording of meetings (page 3 of submissions): “I’ve stated the moral reasons for deciding to tape the meetings. The legal support I have to submit is firstly a copy of the privacy act that clearly states that taping a conversation is not illegal if you are party to the conversation. Secondly, I submit the relevant extract of an Industrial Relations Commission Queensland case [McLauchlan v Australia Meat Holdings Pty Ltd (U No. 40587 of 1997)] of the 24th of March 1998 where Commissioner Bacon explains in almost half a page shy, and I quote, ‘On the point of taping such conferences, it is a practice that this member of the Commission wholeheartedly supports’.”. • Remedy • Reinstatement to previous position • Compensation for loss of wages • If reinstatement not awarded – four (4) months wages Respondent Mr Smith, in his outline of submissions, addressed the following areas: • Legitimacy of the request not to tape-record the meetings • Significance of “Document 2” • “‘There cannot be a criticism of an employer because he makes a preliminary determination to dismiss and takes advice in that regard, provided he has not shut his mind to any proffered explanation or further submission’. • Use of a pre-prepared termination letter is a legitimate practice. • There is no presumption due to the existence of a pre-prepared termination letter that the employee has been denied an opportunity to respond to adverse allegations.”. • Was the request a direction? • “The suggestion that the request made by the employer was anything less than a ‘direction’ to the employee is inconsistent with the circumstances surrounding the dismissal. • The employee was requested numerous times to turn off the tape recorder.”. • The employee was warned that his conduct may be construed as misconduct. -- 5 of 7 -- 1860 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 2003 • The employee was suspended with pay to consider his position for several days prior to the final meeting. • The employee was further warned on two more occasions and advised that his conduct may be construed as misconduct. • The employee, despite the above, by his actions refused to turn off the tape recorder.”. • Legal rights regarding tape-recording meetings • Reinstatement – impracticable • If finding in favour of the applicant (page 129, line 50 of transcript): “I would submit that Mr Cox’s conduct both with respect to what occurred with his lies surrounding the leave incident, his conduct with respect to the tape-recording in any case, which I would submit is just provocative and silly for a grown man to do, if he is to be awarded any amount of compensation at all it should be a nominal amount.”. • Authorities • Donald Spelicken v Darling Downs Foods (No. B1404 of 2002) Blades C • Alexander Marken v The Smith’s Snackfood Company (No. B243 of 1997) Bougoure C. Conclusion The applicant had been employed since April 1999 and, whilst his evidence was that the employment relationship had been reasonable apart from the intention of the respondent to change the status of full-time wage employees to that of salaried staff, the fact that the applicant commenced tape-recording meetings with management from 7 March 2002 leaves little doubt that the trust between the parties had, from the applicant’s perspective, started to “show some cracks”. There was a requirement for the applicant to access leave in and around October 2002 due to family circumstances and, whilst I accept the evidence of the applicant that due to changes in management, he experienced a number of difficulties having the leave formally approved when he did subsequently provide a specific date, leave was approved. Whilst on that leave, he was granted two (2) further periods of leave, even though the time in question was, for the respondent, their busiest period of trading. On his return to work on 4 November 2002, having sought to work a half-day arrangement and having that request refused, the applicant then engaged in what can only be regarded as “questionable behaviour” first, in terms of contacting Mr Roberts, then the taking of a day sick leave on 6 November 2002, followed by his decision to take the remainder of the week off on family leave. His actions were taken with the full knowledge of the demands of the respondent’s business and without any consideration for the difficulties that his absence would cause, the employer and his work colleagues. On his return to work, the company, quite appropriately, scheduled a meeting to discuss the applicant’s behaviour which, on reflection, seemed to be over taken by argument that arose over the applicant’s use of a tape-recorder at the meetings. There was uncontested evidence that, at various times during the months leading up to the applicant’s termination, he tape-recorded meetings with management in an open manner without objection by the respondent. The Commission accepts the evidence of Ms Picton that on one occasion the applicant had attempted to “covertly” tape record a meeting without advising of his intention. The evidence is quite clear that the respondent’s view on the tape-recording of the meetings by the applicant had changed to one of opposition by the time of the meeting of 13 November 2002. The applicant continued to argue his legal right and, in particular, the need to tape-record the meetings due to not having an external witness present at the meetings. Between the applicant’s suspension on full pay on 13 November 2002 and the meeting of 16 November 2002, the respondent obtained, as is their right, industrial advice in relation to dealing with the applicant’s behaviour in and around his unauthorised absence from work on 6 November 2002. That advice (Identification item 2) contained reference to the termination of the applicant based on four (4) grounds: “1) Violation of company rules, policies & procedures. 2) Dishonesty. 3) Unauthorised absence from work area during scheduled work hour. 4) Insubordination – failure to obey a lawful command.”. The applicant, in these proceedings, argued that the company had predetermined his termination prior to the meeting on 16 November 2002 by the preparation of the advice. In the view of the Commission, the applicant may have had the basis of a reasonable argument had that advice been the reason given for the termination, however, the disagreement at the commencement of the 16 November 2002 meeting over the tape-recording of the meeting was, on the evidence, the clear and precise event that led to the applicant’s termination and, as such, the advice obtained became void in the circumstances. Finding The applicant’s employment was terminated by Ms Picton on 16 November 2002 for what she described as his “refusal to comply with a lawful direction” being his failure to desist from the tape-recording of a meeting between the parties. On the evidence before the Commission, in particular that of Ms Picton, repeated requests were made to the applicant to cease tape-recording, but there -- 6 of 7 -- 24 April, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1861 was not, on the evidence, a lawful direction given, nor was the applicant advised that his continued use of the tape-recorder may have led to his termination. Putting aside whether the applicant had a legal right or not to tape-record the meeting, the actions of the respondent in terminating the applicant in the manner in which they did was, in my view, both harsh and unreasonable. In fact, on the evidence before the Commission, had the meeting proceeded (even if tape-recorded), the respondent had grounds upon which the termination of the applicant may well have been justified. Remedy The primary remedy under the Act is that reinstatement or re-employment should be the first option considered by the Commission and, in this matter, was actively sought by the applicant. On the other hand, Mr Smith submitted in the strongest terms that the conduct and the behaviour of the applicant had been such that the employment relationship had broken down to the extent that reinstatement or re-employment would be impracticable. I have accepted the arguments advanced by Mr Smith and, as such, I am not prepared to order the reinstatement or re-employment of the applicant. In considering the issue of compensation, it is necessary to take into account the conduct of the parties in the events leading up to the termination and, in the case of the applicant, his circumstances since the dismissal. The applicant advanced a claim for four (4) months wages, whilst Mr Smith stated that if any amount was to be awarded, then it should only be that of a nominal amount. As stated earlier in the decision, the Commission is of the view that the applicant’s conduct in taking leave from 6 November 2002, in the manner in which he did, may have presented the respondent with reasonable cause to terminate the employment. On that basis, I am inclined to accept the submission of Mr Smith and, as such, award a nominal amount of compensation, being $1500 (gross) to be paid to the applicant twenty-one days after the release of this decision. The appropriate income tax is to be deducted from that amount. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details 2003 6 and 20 March Appearances: Mr A. Cox, Applicant. Mr M. Smith, Barrister, for the Respondent. Released: 3 April 2003 -- 7 of 7 --