Boyle v Remola Pty Ltd T/a Cosmic Music [1998] QIRC 312 (1998) 158 QGIG 462

462 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 August, 1998 ~######################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workplace Relations Acr 1997 s. 218 - application for rdnstaternem Linda Boyle AND Remola Pty Ltd Tia Cosmic Music (No. B 1286 of 1997) OM MISSIONER EDWART>S 27 July 1998 crminatlon of Employment -- Dismissal - Reinstakment - Evidence - ross Miscon(hict - Telephone Call Unrelated to Employer -- Personal usiness - Complauit - Ptocedural Fairness - Dismissal Justified - pplication Refused. DECLSRlN '!1;is is an application by Linda Boyle for rein.,utement to her forrn.:r .isition as retail shop assistant with Remola Pty Ltd Tia Cn,mic Music (the ornpany), Ms l3oyk wa, a loyal and dedicated employee having been employed by osmic Music _,,,nee, 27 March l 992, She was surrrrn3rily dismissed on l 9 !tK~ 1997 for gross misconduct The, sene,;; of events corrun•snced w!ien a ;\,fa L. Studdert whiht lll the ·o{:ess of looking for part-time or casual work distributed copies of her ,·ume to many orgamsations including Cosmic Music. The resume ,,bbit l) was nut addressed to Cmmic Music and was not marked as :onfid;,mial or pnvate". As such the document had heen distributed widely, ln evidence Ms Boyle outlined that a fellow worker was reading the BUJT!e and said:- " 'This girl wo11ld get on really well with you and Paul, she's interested in theatre' and so l had a look at the resume after Elsa had fimshed reading it and browse<l through 1t and sort of thought of her inunediate1y for nerwork marketing as J -- my main interest for dotng network marketing were because I wanted to study full-time drama and you needed an income to help you. It's a very compditive field and I just found the likeness there. I was wanting to do theatre and l thought I might be able to hdp this girl with theatre as wen:·. That ewning Miss Boyle telephoned the person in the resume (a Ms uddc,J1) and advised hcr:- 'T m cailing from Cosmic Music. Can! please speak to Lynda!. And Mrs Studdcrt got Lyndal for me and Lynd<l! spoke to me on the phone and I tuld h,,.r once again who I was and then after that I sort of said t.'1at 1 noticed she, was interested in theatrco. 1 was referring to her resume and that she was in hei sc:cond year studying at university She said, ye,~, t.hat was conect and I toJd her thal a c.:>,-worktT; Paul Freney, and myself. we aJso did a lot of theaue and then I remembered that you had to be 18 to be in network marketing so I did a.';k her another question and J asked he.r ... everyfaing was in relation to Ul('atre and then I aske<l her date of h1rth to make it well a•,vare that she was 18 and she said she 7 August, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 463 was. I then asked her if she was still looking for employment and she said she was. I said, 'Well, Lynda!, it's not to do with the music store, but it is some other type of work that will help you bring in some money.'. And Lynda! wanted to know what it was. Network marketing organisations tell you that you should keep them keen and interested and you really shouldn't say anything io them. She asked me twice and on the third time she asked me l told her that it wa, network marketing 'cause she seemed concerned so l told her and then we arranged a meeting on 25 June which was the following Wednesday night '1t 7.30 pm to med at Oodles of Noodles and that was the end of that phone conversation that night.". The following day Ms Studdert rang to advise that she was not interested in network marketing. As a result of the telephone call by Ms Boyle, Ms Studdert and her mother telephoned Mr P. Freney, Manager, Cosmic Music expressing concern that private and confidential information was being used by Ms Boyle for her own 1-r~e, Ms Studdert stressed that she left the resume in the store in the belief that t.1-ie Manager or person responsibie for hirrng s-taff would have access 10 her personal details. As a result of the complaint received by Mr Freney, Mr P. Brown the D!fector of Cosmic Music arrang<'-d an interview with Ms Boyle. Following ,he interview Ms Boyle was dismissed for gross misconduct for using the confidential information contained in the resume. Mr Brown was under the belief that employees were aware of proce<lures to be followed in handling resumes and agreed there were no 1.witten procedures in place. He could not explain why witness Carlile was nm aware of the procedures" Ihe evidence of Mr Brown wa.s clouded by the fact that not all document, were provided during the discovery process, Furthermore, cmnmunication between Mr Browll and Mr Rowe was incomplete. Uncertainty arose concerning the title of the "reference, or certificate of serviee" together 1vith incorre<::t dates. The evidence also revealed that the Company was recording the inconect ACN number on documentation. In view of the diffo;ulty Lliat arose the Commission adjourned to enable !\fr Brown to ascertain the correct ACN numl:lcr of his Company, In response to questions from Mr Harding, Mr Brown stated that he had uot intended to falsify the document. The submission of Mr Harding highlighted the; inconsistencies in the evidence of Mr Brown and the faLt that a number of points he made were in fact assumpuons. These inconsistencies are of concern and could ,~1ggcst that the rc,-pondent failed to address the industrial matters of the business operation in a manner appropriatt. Mr Brown was lnru.te<l with his knowledge of contemporary workplace re.lation, evc,n though management of hurruL"l resources is a significant aspect. of modern busint:ss. Mr Harding also made substantive submissions concerning Mr Rowe. Mr Hardiug quest:oried the capacity of Mr Rowe to appea.r as an adviser. To enable Mr Harding to address the i:ssue in a clear manner the Commission resumed the hearing on 7 April 1998. Jn response to que,t10ns from the Commission, Mr Harding advised he w,,s placing reiiance on s. 436(1) of the Workplace Relations Act 1997 which states:- "The court hai all the protection, powers, Jurisdiction and authority possessed by \he Supreme Court in relation to contempt of court.". The Commission accepts the submissions of Mr Rowe that he was ac-ting on instructions and at no time deliberately misled the Commission. Upon the matta being brought to his attention the Conmrission accept, that he sought dear mstructions and clarified the is.sue. '111.; Commission acknowledges that the evidence presented hy the respondent was of concern and delayed proceedings. lt is accepted that Ms Boyle did use information she obtained as an employee to contact Ms Studdert on a subject unrelated to employmem with Cosmic Music. In Gooley v. Westpac Banking Corporation (1995) 59 IR at 269, Wik.ox CJ cited the de<CJsion of Smithers J and Evatt .L in North v. Television Corporation Ltd (l 976) 11 ALR 599, wherein at 608 their Honours said:- "It is of assistance to consider the expression 'rnas,:or,dl,ct reference to ~uhject matter to which ;t is related am! the cont0xt ia which it appears. The sut:iect lT'Jitter is the tennination by one party again.st th~:- wili of another of a continuing contract of employment on the ground of breach of one of the ternis of the contract and rhe contract is such to indicate that eertain breaches of a non-serious natun\ some of which would be witlnn the connotation of misconduct 1 are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression 'misconduct' as referring to condud seriously in breach of the contract that by the standard, of fairness and justice the employer should not be bound to continue the employment. 'This situation would arise if there was conduct inconsistent with the fulfii ment of the express or implied conditions of service.". Ms Studdert submitted her resume for one reaBon and not for use bv other persons or distribution to others without written consent. Th,, action ,;f Ms Boyle breached the confidence and trust which should e.xEl bdween an employer and an employee. The question arises as to whether {he breach v.:arranted disrni...:;sa.L In Ball v. Able Placements Pty Lui (157 QG[G 183) Fisher C. disc1,;sses further the issues of misconduct The J~cis1on states:- "The Macquane Dictionary for relevant purposes defines ·serious· as •of grave aspect; weighty or irD.po.rlanf. 'The auachm.ent of the adjective 'ser.iiJli,l to '1niscom.h.H.t' connotes a grave :forn1 o.frr1.1scc.mduct rendering the contract irreparahly hreachc:,l. Gross or serious rnisconduct usually .results in sun1111ary disnrissai, once apprvpriat'C'" pnx::edural steps have. be~n foHowt~.". Ms Boyle was interv1ew,xl hy Mr Brown and ',,foist the level of procedural fairness 18 4uesti0na.ble it is to a kvd that s<1tisfies the provi.sion.s of the Workplace Relations A_ct 1997. The Commission is satisfied that Ms Boyle was given a reason for her dismissal and as such the dismissal was jmtified and fairness was extended. The application rs kfosed, I order accordingly . K.L EDWARDS. Conunissioner A.ppearances:- Mr R. Ifardrng of Harding Lawyers on behalf of the appllc,wl :\1r A. Rowe of Retailer;•/ .A.sso-cjation of Que.()nshind Li1nited, Umon of Employers on behalf of the rc,spondent. Rele,1-sed: 27 July 1998 ########################################################## -- 1 of 1 --