Burgo v Robinson River Trading Pty Ltd [1998] QIRC 348 (1998) 159 QGIG 56

56 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [11 September, 1998 #######################################It################## QUEENSLAND JND USTRIAL RELATIONS COMMISSION Workplace Relat,ons Act 1997 s. 218 - application for reinstatement B. BU(go AND Robinson Riven Trading Pty Ltd (No. Bl6J of 1998) COMMISSIONER HS.HER J September 1998 Application for reinstatement - Breach of rrust - Operational requirements - Applicant flom ed employers instructions - Decision to terminate - Incident - Applicant seeking new residence - Applicant contac.1.5 company client re rental unit - U nit booked over long weekend - Appropriate rental rate - Respondenis approval not in.itially sought - Keys m possession of applicant - No rental payment - No condition report - Previous problem5 in previous tenancies - Respondent believes appbcant seeking rent free period - Respondent sought explanation - Perceived conflict of interest - Derogatory remark - Applicant acted improperly - Conduct not dishonest or dece1tiul - Applicant naive - Applicant given opportunity to respond - Manner of d1smi~sal and use of pejorative term unwarranted - Dismissal harsh and unJUSI - Compensation - Alleged discrimination - Rebuttal evidence - Applicalion for COSIS - Costs denied. DEClSIO.\J B eh nda Burgo has made application for reinstatement to her former position of Manager with Holiday Mooloolaba, a company owned by Robinson Rivett Trading Pty Ltd. Ms Burgo commenced her employment wilh Holiday Mooloolaba in F ebruary 1996 as a part-time Sales and Rese.rvatioTlS Consultant. In April J 997 Ms Burgo was promoted to the full- time position of Manager. She was dismissed on 27 January I 998 for breaching her e mployer's trust. Allhough John Rivett. the employer concerned, contended the reason related to the operational requirements o f the business, J am of !he v iew, after hearing the evidence that conduct and performance issues clearly impacted on the decision to dismiss. Mr Riven said that h e had intended to dismiss Ms Burgo after the January l ong weekend because she had deliberately flouted his insrruction concerning the opening hours of the business. He said the volume of work over the Christmas/January hobday period necess1taled the sh~ opening from 8 am to 6 pm 7 days per week. As Y!s Burgo was responsible for the rostering of Staff she was instructed to arrange the staff's working hours so that these hours would be covered for the whole of the period. However, Ms Burgo had taken it upon hersel.f in the week before the AuStra)ia Day weekend to redu ce the opening hours by two so !hat the business would only be open between 9 am and 5 pm. On raising the issue with Ms Burgo she said that she considered the volume of work did not necessitate the longer ope ning hours. He said that when he indicated the constant staff complaintS about thei r inability to cope with the workload, she ignored him. Mr Rivett said that he co1,$idered Ms Burgo had defied his instructions and ignored his attempt, to correct her. He resolved 10 terminate her employment on his return to work after the Australia Day long weekend. However, another incident arose over !hat period which was the ultimate reason for the dismissal. Jn response to these clamlS, Ms Burgo denied she had defied Mr Rivett's instructions but claimed to have misunderstood them. She did not recall any discussions m which Mr Riven had raised his concerns. 'The incident which resulted in Ms Burgo' s dismissal stemmed from her decision to seek new residential acconunodation with her partner in January 1998. After consulting with various real estate agenis about the availability of rental accommodation Ms Burgo remembered that one of the owners who rented properties through Holiday Mooloolaba had a suitable unit. She was aware chat the owners, Mr and Mrs Salvatore, were thinking about selling !he unit but nonetheless decided to contact them to see whether they may be interested in renting !he unit to her pending the sale. With this in mind and to e nquire about the rental rate he would require Ms Burgo telephoned Mr Salvatore on 19 January 1998. Mr Salvatore said he would need to con~ider the matter as he did not want to inhibi1 the sale of the propeny. He ro]d her she would have LO move out i.f it was sold. At this stage Ms Burgo believed the proposition might be a<.-cepta.ble and planned to move into the unit over the long weekend. On 20 January 1998 another employee of Holiday Mooloolaba, Skye Coonan. 100k a booJcing for Mr Sa l vatore's unit for the Jong weekend On learning this Ms Burgo requested Ms Connan to see whether the people could be moved to another property. Ms Connan refused to accede to the tequest, believing, she said m evidence, that it was improperly made. M~ Burgo's request was also later conveyed by Ms Connan 10 Mrs Rivett, who at that time was helping out in !he. business. In any event Ms Burgo did not press the matter. Ms Burgo sought Mrs Rivett 's advice regarding the rental rate for the unit she had in mind. Given Mrs Rivett' s experience in the field, she suggested a rate of between $165 and $175 per week for a l ong term rental (ie a minimum of 6 months). Clearly !he holiday rental rate and medium term rentals would attract higher, differential raws. On telling Mrs Riven that she intended to rent it personally, Mrs Rivett said she would need to ,-ontact th e owner and to discuss it with Mr Rive tt. Mrs Rivett informed her husband of Ms Burgo's request but nothing was done by the Rivetts to funher di scuss the matter with her until 27 January 1998. Ms Burgo again telephoned Mr Salvatore prior to the long weekend to ask whether he had reached a decision on whether 10 rent the wtit to her. He said that she could rent it at $ J 55 per week, to send down written confirmation and to seek Mr Rivett' s approval. Ms Burgo then left a message on Mc Ri vett's desk, which he .said h e did not receive, to ring Mr Salvatore . Whether she intended to otherwise raise the matter with Mr Rivett is unclear as evenis overtook 11. On 26 January Mrs Riven learnt from the clea11er that Ms Burgo had the keys for the unit in her possession. She understood from her discussion with the cleaner that Ms Bur go intended to move in immediate ly . This prompted h er to check the computer o nly to discover that no rent had been paid. Mrs Rivett 1hen assumed that Ms Burgo intended to move in before paying rent, so mething which is contrary to Company policy. Mrs Rivett decided to confront Ms Burgo a.bout the arrangement. Ms Burgo said t hat !he owner had agreed to her paying $ 150 per week aod a bond and condition report had not been discussed. Mrs Rivett was concerned about the lack of bond and condition report, a nd in hght of her knowledge of past problems experienced by Ms Btlfgo in previous tenancies d ecided to inform her husband. Mr Riven was less than pleased with the information conveyed by his wife. His concerns went to the Jack of prolectton for the o wners especial! y ID light of Ms Burgo ' s past problems and that he had no1 been consulted about the arraneemeois. Mr Rivett considered the owners to be naive a.bout property ;'\alters and he had previously advised them not to tenant !he unit if they were considering selling it. A t this stage Mr Rivett also believed that Ms Burgo 1n1ended to enjoy a rent free period on the unit. His concerns were exacerbated on learning that Ms Burgo had attempted 10 move out higher rent paying guests of the unit m favour of herself. After being present in the office foe about 1e11 minutes on 27 January 1998 Mr R ivett approached Ms Burgo about her proposed rental. As is urually the case in these matters, marked deficiencies exist. in !he version of events especially in relation to the locauon of the playe rs and the tenor and content of the conversation. 11 September, 1998] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 57 Having considered !he competing evidence a nd given my impression of the witnesses I bdieve that Mt Rivett' s irutial approach to Ms Burgo was in a controlled manner albeit masking a latent anger in view of his concerns about what he knew of the anangementS. l am also satisfied that he asked her for an explanation and on telling him of it especially the rental ra te and on learning that there would be no bond, lease or condition report, this Stirred his anger as it confinned his suspicions. I bel ieve Mr Rivett expressed his coneerns quite forcefully about the potential for a conflict of interest to arise within the business and the lack of protection for the owners. Once Mr Rivett became agitated and voiced his concerns Ms Burgo responded defensive ly by saying she would seek alternati ve accommodation. Unfortunately this comment w as consrrued by Mr Rivett as showmg a lack of understanding of the situation especially insofaras the owners' interests were concerned and served. Regardless of whether Mr Rivett called h er a little bitch as Ms Burgo claimed or sa id she was talking l ike a little bitch, as Mr Rivett stated, the use of either of such expressions underscores his fru~'lration and anger. Mr Rive tt then dismissed Ms Burgo telling her he was upset with her manner and that she had acted improperly and dishonestly wwards the owners. Was Ms Burgo' s conduct such to cause Mr Rivett to decide !hat she had breached her employer's trust and result in her dismissal? After considering the matter I have concluded that Ms Burgo did not intend to act deceitfully. Ms Burgo's decision not to seek Mr Rivett's prior approval before contacting Mr Salvatore was plainly in error. There is an abundance of evidence from Ms Burgo's co-workers to suggest !hat after a period o f time as Manager, !he position went to her head. This is perhaps not surprising given !he a1taioment of a position of respoT1Sib1lity at a young age (approxi mately 23 ). It seems that Ms Burgo believed !hat her positio n allowed her cenain privileges that did not extend 10 other employees. So whether her decision can be attributed to ego, nai vety or absence of forethought is not able to be determined but it certainly contributed to her undoing. Leaving a message for Mr Rivett to contact Mr Sa]va1ore wit hou t fur1 h er explanation does not in my view satisfy the need to seek prior approval - insuuctions given b y Mrs Rivett and later Mr Salvatore and which on any view would have been the logical and sensible approach for an e mployee ~pecially when the employer's policy about such matters wa~ unknown. I agree with Mr Rivett' s conclusion that the arrangement was intended to be presented as a fait accompli leavmg htm little opportunity to reject the proposition. Mr O'Brien, appearing for Ms Burgo, too k issue with Mr Rivett' s contention that Ms Burgo should have been aware of t he rcquirementS for a bond, lease and condition repor1 given her position at Holiday Mooloolaba. Mr O'Brien correctly pointed out, as Ms Burgo did in evidence, that another arm of the busin.:ss condu<.-ted long tenn rentals. However, the evidence showed !hat Ms Burgo was a seasoned 1enant and in my view would have been generally aware that a bond, lease and condition report form par1 of the tenancy transaction. In my view Ms Burgo was remiss in not raising these matters with Mr Salvatore as she was the one proposing the arrangement and !)0.5Sib ly more experienced in such mauers. No doubt had prior approval been obtained from Mr Riven these matters would have been discussed and both parties' imerests protected. Mr O'Bnen also led evidence from Gail Hunter, Group Manager, Hen7.ell' s Agencies, to contradic1 the contention that a conflict of interest might arise when an employee rented a property managed by their employer. Ms Hunter said !hat in her experience such re ntal arrangements were advantageous to al l parties as in view of their empl oyment employees were conscientious about paying !he rent and maintaining the property. It was clear however that Ms Hunter's evidence was predicated on the completi on of the relevant documentation. In addition, while chis had been Ms Hunter's experience, it had not been one shared by Mr Rivett. In my view whether meri1exists in such arrangementS is a decision better left to each employer. 1 am satisfied that Ms Burgo d id not intend to e nj oy a rent free holiday. While I.he cleaners noticed scuff marks on !he carpets, this is consistent with Ms Burgo' s evidence that she and her partner had inspected the propen y. That was also the explanation for having the keys ID her possession when the cleaners had sought them. No physical evidence of property being moved in was witnessed by either of the cleaners. J consider that a conclusion was junlpted to without suffident to justify it. However, J do co1isider she acted improperly m requesting a junior employee 10 try to move ou t higher re))t paying guests over I.he long weekend so that she could move in. In e vidence Ms Burgo could not comprehend the nnphcatioIJs of her actions, that is, the owner would be financially disadvantaged. Again I do oot COMider her mtem to be dishonest just naive. Mr Rivett is correct when he said !hat Ms 19135 5-5 Burgo's actions were designed to benefit herself and although I do not believe she set out to disadvantage Mr Salvatore, this would have been the effect had Ms Coonan acted on Ms Bur go's request and had Ms Burgo's proposed rental arrangements stood. Io all it can be seen that Ms Burgo did a number of foolish things in her e ndeavour to rent !he property concerned. As l have said I do not consider her conduct to have been deceitfu.l nor do I consider it to be dishonest. l think Mr Riveu was entitled to be upset with arrangements which were presented as a fait accompli. I also accept Mr Rivett had an obligation to protect !he interests of the business an d Ms Burgo' s arrangements had the potential to damage those i nte r estS. However in the circwmtanccs where no agr eement had been formally entered into I consider Mr Rivett to have acted hastily. With the benefit of hindsight I suspect that Mr Rivett would regret his anger and the use of pejo rative terms. ln deciding whether the dismissal was harsh, unjust or unreasonable I am sati sfied that Ms Burgo was notified of t he reasons for her dismissal. Those reasoTlS related to Ms Burgo' s conduct, however, other factors also influenced it. The rental inddent. occurred shortly after the rostering incident, a matter about which Mr Rivett had resolved to terminate Ms Bu rgo' s e mployment. While 1 do n ot consider this matter to have been foremost in Mr Rivett's mind w hen the rental proposals were being discussed, the fact that it had occurred had created a mindset agai nst Ms B urgo. Although th e re ntal incident stood alone !he cond itioTlS for continued e mployment were already b eing undone. The evi dence also revealed a number of performance issues, some raised by Mr Rivett but a litany raised by her former co-workers. 1 have not taken these matters into account as the eviden ce revealed th at few, if any, had been raised with Ms Burgo during her employment. Ms Burgo' s conduct both in re.-,pect of the roster matter and the rental proposal was clearly having an impact on the operational requirements of the bus iness. Mr Rivett had lost confidence in her after !he rostering matter and this was even further er oded after the second mauer came to light. 1 think this view ca11 safely be reached de.spi1e an evaluation of the evidence revealing that cirCUJ)lStances were not as critical as 1'1r Ri veu imagi ned. I do not consider this to be a case where the dismissal was based on an honest belief held on reasonable grounds after sufficient inqujxy (see Bi-Lo Pry Lui v Hooper (I 992) 53 JR 224). ln my view i nsufficient investigation was undena keo or consideration given by the employer. Although allegations were put by Mr Rivett to Ms Burgo for her response, his position nad been iofluenced by a mistaken construction of eventS reported to him by his wife. l do not believe he wa5 as open to her responses as could have reasonably been expected but I do acknowledge that those responses were poorly presented and that her overall approach to the matter was u1.1satisfactory. The informality of the di scussion on 27 January, toge ther with Mr Rivett's predisposit ion meant that the manner of the d ismissal was undesirable. The use of pejorative terms, whether they were personally directed or descriptive of the tone of voice. is considered to be both unnecessary and unwarranted. For these r~asons I find the dismissal to be harsh, unjust or unreaso1iable. Reinstatement is not sought and in the circumstances I consider it to be inappropriate. Compensation would appear 10 be appropriate b ut in my view must be necessarily limited by !he fact that !he employment was coming to a conclusion in any event. ln addition my detem1ination relates more to the ma1mer of the dismissal rather than the rcasoJls for it. An employer must have confidence and trust in a manager as that person is re li ed 011 to serve and protect the employer's bus iness. In !his case while Ms Bmgo did little untoward she was clearly acting in her own interests rather than her employer' s. Ms Burgo was paid one week's notice and commenced 11ew employment albeit on a lesser rate on 16 February 1998. I have decided to order compensation of two weeks pay being an amount of SJ 14 0 plus a further amount of $280 being the difference between her new rate of pay and the rate received in her position with Holiday Mooloolaba for a period of four weeks. In awarding this amount I have also ta.ken into account Mi Burgo's length of employment with the r espondent Mr O'Brien has sough t compensation for hurt and distress, however, l do not consider even if the Commission had jurisdiction to award compensation for such factors that these should be separately considered bearing in mind the primary reason for findirJ.g the termination harsh, unjust or unreasonable and the basis for awarding compensation. 27274_1. DOC -- 1 of 2 -- 58 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [11 September, 1998 Compensation is also sought for discrimination. Three incidents ~f discrimination based on sex were alleged against Mr Rivett. I do not find 1t necessary to discuss the details of these allegations for several reasons. Firstly, none of the allegations were detailed in the dismissal application or the witness statement supplied shortly in advance of the hearing. The allegations were only made in oral evidence and appeared very much to be an afterthought and a ruse to obtain higher compensation. Despite the allegations only being latterly made, Mr Rivett was able to call rebuttal evidence. Based on the evidence 1 would not be prepared to make any fi ndings of discrimination. In any event where the jurisdiction is found to award compensation for this reason was not adequately addressed. Costs were sought by the applicant in the event of a succes~ful application. It seems that costs are limited to the circumstances detailed in s. 225 of the Workplace. Relations Ac/ 1997. In this case the relevant consideration is whether a party caused costs to be incurred by the other party because of an unreasonable act or omission connected ,vith the condu<.'l of the application (s. 225(1)(b)). In the early stages of proceedings Mr Rivett told the Commission that his Solicitor had written to Mr O'Brien a week before the hearing was scheduled to commence to seek details of the compensation soughL Although Mr O'Brien attempted to telephone the Solicitor no discussions were held. At the hearing Mr Rivett indicated that seu.lement was still a possibility depending on the quantum sought. Given that compensation in excess of $8 000 was sought in total, settlement was evidently not a possibility. However I do not think that Mr Riven could be said to have ae,1ed unreasonably. Accordingly I do not propose to order costs in this matter. 1 order that Robinson Rivett Trailing Pty Ltd pay an amount of SJ 420 as compensation to Belinda Burgo within 22 days of the date of release of this decision. Order accordingly. G.K. FISHER, Commissioner. Appearances :- Mr P. O'Brien (of O'Brien and Associates) for the applicant. Mr J. Rivett of Robinson Rivett Pty Lid on behalf of the respondent. Released: I September 1998. ########################################################## 11 September, 1998] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 59 -- 2 of 2 --