Finney v HTC Vocational Institute Pty Ltd [1999] QIRC 167 (1999) 161 QGIG 260

260 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 July, 1999 ------------------- ######################## #########ffl #####It#########################fflffl###ltlt#ffl#####################################ffl# QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workplace Rda1io11J Act /997-s. 218- application for reinstatement Dominique Finney AND HTC Vocational Institute Pty Ltd (No. B1937 of 1998) COMMISSIONER BLOOMFIELD 14 July 1999 . . . . nt Consultant _ Redundancy_ Restructuring of Respondent - Dismissal not related to Remstatement - D1snussal . - Terrrunat,on of Empl oyment - t�/;:ation -A hcant believed posuio n permanent - Applicant arranged for possessions t o work performa nce- Appraisal ses d s10n 4 to 5 :,"eek s d pnproro t p o erty- Applicant :d to forgo property following termination - Arbitrated Mdtter - Company be brought from New Zealand an contract s1gne on . . · ded was entitled to terminate Applicant's services- Method of effecting termination was harsh, unJUSt or uoreasonable-6 week s compensa tion awar · DECISION · · · · F · which he sought re lief from what she described as a harsh, unjust, unreasonable and This decision relates to an apphcanon by Ms Donumque in;ey�n r s The actual emp loyer was conceded to be HTC Vo cation al Inst itute Pty Ltd illegal termination of he r servic;,s by l losp1taht y Tra1111ng o ustra 1 a. (TITC). Ms Fmney comme nced e mployment with an associated compa ny, Tu rning Po m1 Employment Services �)' Ltd c··Tur ,oin edg P per o i::� �o n a�:;�;:r : T · p · h Jd ment contract to provide case management serVJces 10 unemp oy · (.'O0l!a ct m early January 1998. urmng omt e a govern em l o ed rsons with vacancies and vice versa. Towards the end of her gain employ"?':nl. _ It operate _ d, effectivel:,� a Joh bro,kerage b ���:� g R�:our�e/and1q�ali;y Assurance M�ager, Mr John Southey, who alened her contract wJth_ 1_ urmng_ Point sh� was _con1,1�� l � b b l y H�� s :�;tn�e invited her to apply for the position giv,;n the imminent cessation o f her fixed-term to a new posttson w hich WdS beconung ,tvaJ a e w1 m contract. w ,suon was for an Account Consultant selling traineeships to employers. It was one of three such positions to be established m Queensland. �: ::sitions arose out of a decision taken by the company's Directors to move into th� train �esh1ps area 1;s b: �:::it�:��:���dd �::� ;�: :�:f:t;! previous Labor c,;overnment employment and training programs. The other Account onsu tants were Townsv11le to Mount ls.t region. 5 •nne a lied for the new stllon in her area and was interviewed by a Diree1or of HTC, Mr Peter Kmght, at the Gold Coast office of t�e company. �t�as l�te�fnterviewed by J:°catherrne Chaffey, t he Nauonal Marketlng Manager, at the company's Brisbane office. She was successful in obta1mng the position of Account Consultant and commenced emplo yment with HTC in the new rol e on 25 March 1998. , 1 1 ITTet with HTC suegested that her temtory wa s sout h-east Queensland tocluding parts of B risbane, the Su?shine Coast The applicant s emp oymen �on " w• d� le 1rom certam of the employer witnesses about her temtory I accept that the appl icant always il.nd n�h 10 Gt;tist�ne.th:�i'l:a� h :e set:�:�e C:tract. Accordingly, she worked in the area as descnbed without any challenge_ from her superiors. behe�ed (4u1te gh y) "d I h t t . always the intenti on of all parties that she would fO<JUS her attention on the Sun shme Coast area. Her That slThtll argument put dSt e, accept la I was evidence suggests that she did. H , B Frida 24 July l 998 her files and othe r work relat ed mater ial had Ms Finney compla !o s th:' :�;:�ar:u:�:�.,�o:' e s � :: !:{o':::se e;,: h;'. �e alle:ed that a n.1wly engaged clencal 1Iamee (on proba11on in her a l leg :'.�e: e ;;f�1;;1�=r�hat she would no longer be sign ing up tra ineeships and thal the company's lr"dtntng sta ff would be taking over that role. S�e ��:: allege� tha l she was told by the tramee and a ProJeCt Officer, who ha d only commenced work 2 or 3 days earlier, that some of her other duties had been divided up between them. 23 July, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 261 Ms Finney said 1ha1 she was very upset at this information and phoned Mr Southey to enquire about what wa.� happening. She .<raid that he told her to stay calm and thal he would come up on the following Tuesda y 10 sort the situation out. Mr Southey did trave l 10 Noosa and met with I.he applicant oo Tuesday 28 July 1998. He infocmed her that due to the lack of potenual business for traineeships m the Sun...shine Coast area the position of Account Consultant was redundant. He Sllessed to her that the decision had nothing to do with her w ork performance. He said that the decision arose out of a restructuring of the company's sales and marketing functions. Not unexpe�1edly Ms Finney became quite upsel at this news. There was considerable discussion between her and Mr Southey about the company's decision. She had great c)jfficul ty accepting it at the time, and still doe.s. Her evidence and submissions suggested that she believed that because she had been made "permanent'" a fter her probationary period, wit h he r next salary review due to be conducted in December 1998, she could nOI be terminated u nt il that time. She went so far a.� to suggest that the employer had breached her employment contract by terminating her prior to December. In her �1atement o f evidence Ms Finney said that she had participated in an appraisal session w ith Ms Catherine Chaffey some four lo five weeks before he r termination. Ms Finney said that lhe appraisal was very positive and she was given no indication of any company concerns about her position. She also claimed that the appraisal session gave her the security 10 arrange for the removal of the famil y's possessions from New Zealand and to sign a contract for the purchase of a property oo the Sunshine Coast. Her termination had resulted in a bank refusing to grant her a mortgage becaus e she no longer had employment. Consequently, she and her husband had to forgo the purchase of the property. Mr Southey told me, and I accept, that he s tress ed to Ms Finney ou 3 or 4 occasions du ring the termiuation discussion that the company's decision had nothing to do with her performance and that the decision was one forced on the company because of the perceived lack of potential for trarneeships in the Sun shine Coast area. Mr Southey also informed Ms Finney that the company was changing direction in its a nempts to market trainee.ships a nd that a new Business Development Manager would commence in about three weeks time. He told Ms Fin ney that once the new manager commenced she would be choosing her own sales team an d that Ms Finney could then awly foe one of the several new Business Development Co nsultant positions which were 10 be created. Ms Finney also complai ned that Mr Southey had not offered her one of the forthcoming Business Deve lopment Con�ultaot positions and that she had not been offered a transfer elsewhere within the company. In this regard she alleged that the company was quite sizeable and that it had the capacity lo find employment elsewhere for her. The uncontradicted evidence of the employer witnesses was that each manager was responsible for the selection of his/her own subordinate staff and that whilst the Dire ctors may have participated in interviews the final employment decision rested with the responsible manager(s). Ms Fmney initial ly applied for relief m lhe AuStralian Industrial Relations Commission. She said that she was mOlivated to make her application for relief be cause Mr Southey woul d not let her apply for any int ernal positions and nor would he gra nt her a transfer. She said that this led her to believe that there was another reason for her dismissa l and that it was not a genuine redundancy. Her application was the subject of conference proceedings before Mr Ledlie and Commissioner Hodder, re spectively. During one of the conciliation sessions the company offered 10 interview Ms Finney in relation to one of the Business Development Consultant posmons. However, �s Fmncy wrongly assumed that she was being offered the positJon. She wrote to the employer obJecting to its requirement that she attend a job interview in connecllon with the position because she had already bee n interviewed by the Directors in connection with the earlier appointments. She also objected 10 attending any interview 011 the Gold Coast and requested that any "meetings" be held in Noosa. The compa ny respon ded in writing and informed M.s Finney 1ha1 she w.ss under a misapprehension about the company's position. The Jetter spelt out that she had not been guaranteed employment and thal it was Standard company practice for any person applying f or a position 10 be interviewed, irrespective of whether the y were a current oc past employee or a fresh applicant. The letter also spelt out that t he Gold Coast office had bee n chosen for the interview for two reasons. The first was the availability of people to conduct the interview. The second was that the rol e was expected to be based in and around the Gold Coast area. Jn a letter signed "Dorrunique Finney and Associates" (bemg Ms Finney, her husband aod a friend) Ms Finney responded by demandsng reinstatement 10 her formcr position as well as compensauon. She indicated that once she was reinstAted she would be in a position to "tender for any vacancies within the organisation". The letter also said that it was not appropriate to attend any interviews/meetings unless it was for the purpose of addressing the matters raised in tl1e correspondence. Conclusion Ms Finney was obviousl y quite shattered by the company's decision to terminate her services because of its decision to move out of traineeships in the Sunshine Coast area. This was partially because she held the rather naive view that her employment contract entit led h.er to security of emplo yment until at least J 7 December I 998 when her neitt s alary review was due. It was al so because she believed tha t there was potential for traineeships in the longer term . The emp loyer's evidence was that there was in sufficient inter�1 in traineeships in the Sunshine Coast and Gold Coast areas to support the retenlion of the Account Consultants in those areas. The Directors decided to chan ge direc tion an d to engage a Busmess Development Manager who would concentrate on marketing traineesh ips to larger employers and franchisors at head office level. The manager was to be supponed .in that activity by Business Development Consultants who would work at the local level with branch offices oc franchisees in the engagement and placement of the trarnees. A deciSton was taken to ter nunate Ms Fmney's employment because her old Account Consultant positio n was no longer availabl e and because the new Business Development Manager would have the responsibih1y for recruiting her own consultants after she commenced employmenl and settled io. It was not necessary to terminate the Gold CoaSt Account Consultant because he had resigned hi.< employment in early July 1998. Ms Finney' s employment contract in the Account Con sultam position showed that she was expected 10 place an average of ten t raineeships per week over a twe lve month period and to achieve a particula r turnover figure. The employer's evidence was that the targets were not being achi eved, despite Ms Finney' s efforts, becaus e there was simpl y nOI enough potential for the IYJ>C of traineeships being offered in the Sunshine Coast area. The Jack of potential had only been identified after Ms Pinney commenced employment and after the employer had had the opportunity to review her results. It was established that smaller employers w ere not prepared to take on a l!ainee because of the transient nature of the local population and because of the peaks and troughs in the marketplace- which was lar gely tourist based. 1nstead, the company (as indicated) had decided to try to market 1Iaineesh1ps to larger nationa l organisations and franch1$0rs who were more capable of J){oviding the long-1erm commitment required. ::ODMA\GRPWJSE\QIRC-DOM.IRO-POI .GENERALI :29168.1QGIG 23n/99 -- 1 of 2 -- 262 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 July, 1999 The company stressed during the hearing that its decision to terminate Ms Finney had nothing to do with her work effort. She was simply the victim of circumstances. The employer witnesses said that Ms Finney had always operated professionally but her efforts and professionalism did not, an d would not, produce re sults because the market was simply n ot there for the type of "product" that the company was attempting to market. Her termination had eventuated sol ely because the Directors decided to cut their losses and to change strategies by engaging a Business Development Manager who would be primarily responsible for marketing traineeships to larger employers. The manager would have responsibility for recruiting her own workforce, once she was in a position to do so. I t was not possibl e to simply keep Ms Finney on the books until the B usiness Development Consultants were to be recruited because, firstly, the ultimate employment decisions would rest with the new ma.nager and, secondly, the timing of the appointments was unclear. Notwith;1anding Ms Finney' s strong assertions about the market potential f or traineeship.5 in the area she serviced I have decided to accept the employer's assessment that the position of Account Consultant was no longer tenable. The record of placements sugg ests that only three or four trainees were being placed each week and that the income being generated from the region was not substantial enough to enable the Company to maintain Ms Finney' s employment. Consequently, I have decided that the co mpany was entitled to terminate Ms F inney's services. However, the circumstances surrounding the company's communication of that decision left a IOI to be des ired. Somehow the Directors' decision to restructure the operations was "leak ed'' internally and the other employees at Noosa found out about th e restructuring before Ms Finney was informed of her impending termination. This meant that the newly appointed clerical trainee and the newly appoimed Project Officer told her about so.me changes to their work roles before Ms Finney was informed that anything was happening. Accordingly, whilst the employer's decision might have been supported on the merits its actual implementation was very poor and reflects very badly on the company's management and its internal systems. Ms Finney's challenge to the decision has a5 much to do with the way that the termination was effected as it has had to do with its merits. In the circumstances J have decided that the termination was harsh, unjust or unreasonable because of the way it was effected and l have decided to award her compensation equal 10 six weekf wages at her base rate of $40,000, but excluding superannuation. I have decided to award compensation in such amoun t for several reasons. Fir�1ly, Ms Finney was given no indication prior to her termination that the company had any reservat.ions about the ongoing ,iability of her role. The decision to discontinue it appears to have been taken quite hastily -allegedly without Ms Chaffey' s input - and without too much regard for the likely impact on Ms Finney. Secondly, the Di.rectors' decision seems to have been leaked to other staff an d, whilst they may not have been aware of Ms Fi.nney's impending termination, the employees in th e Noo sa office had moved her desk an d started to divide up her various duties and tasks. They were the ones who initially alerted Ms Finney to the fact that some decisions about her future may have been taken. Thi(dly, Mr Southey's decision not to discuss the matter with Ms F inney on Friday 24 July 1998 and 10 leave her on tenterhooks over the weeken d before informing her on the following Tuesday that her services were terminated was, in my view, rather callous. Given that the news about the impending termination had "leaked" it would have heen better for Mr Southey to have approached the matter differently. It is not surprising that Ms F inney was upset. She had vi11ually been assure d on the Friday thac nothing was wrong. Founhly, there was no effort to mitigate Ms Finney's loss by discussing other possible arrangements which could have been entered into. Whilst Ms Finney claimed that she would have been prepared to travel anywhere in the country in order to have kept her employment, her approach to the employer's offer of an interview in October suggests otherwise. However, the suddenness of the Directors' decision, the consequences for Ms Finney, and the lack of any immediate need to terminate her services, dictated that she should have been allowed to remain in employment for a short period during which she could have handed over her responsibilities and looked for other employment fro m a more favourable position . lt is obvious from my decision that I have not accepted Ms Finney' s argument that she should have automatically been offered one of the impending Business Dev elopment Consultant position s. The employer's clear evidence was that it simply does not automatically tran sfer employees from one job to another job. Applications are called for any vacancy and anyone is entitled to apply. The ultimate selection is made by the responsible manager and not by the Directors or the human resources departmen t. Indeed, Ms Fin ney's own history suggests that she was not automatically transferred from her old employment with Turning Point to her Account Consultant role with HTC. She was required to make application and to sit for an interview with a Director and Ms Chaffey. The amount of six weeks' wages is to be paid to Ms Finney within twenty-two days of the dale of release of this decision. The Commission determines and orders accordingly. A.L. BLOOMFIELD. Commissioner. Released: 14 July 1999 Appearances:- • Ms D. Finney conducted her own case. • Mr J. Dwyer, of Watkins Stokes Templeton Solicitors. with Mr P. Knight for HTC Vocational Institute Ply Ltd. 23 July, 1999] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 263 -- 2 of 2 --