Baumann v Devine Limited (alternatively) DMB Pty Ltd [1998] QIRC 172 (1998) 157 QGIG 322

322 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 1998 ########################################################## QUEENSLAND INDUSTRIAL RF.LATIO�S COMMISSION Workplace Relations Act /997 s. 2 I8 - application for reins1a1emcn1 Karl Baumann AND Devine Limited (alternatively) D.M.B. Ply Ltd (No. 8/486 of 1997) COMMISSIONERBLADES J7 April 1998 Termination of Employment - Disnussal - Reinstatement - Witness Evidencs> - Exhibits - Applicant counselled on work pcrformanc'e - Application refused. DECISION The applicant seeks reinsiatement 10 his former position with the re.spondcnt(s) or alternatively, compensation for unlawful dismissal. The original application named onl y Devine Limited as the respond ent but on 24 March last. I ordered that the applicant have leave t o join D. M.B. Pty Ltd as a respondent in the alter native. By letter dated 25 July I 997 from Devine Limited, the applicant was summarily dismJssed. The followi ng rcamns (in hrieO were given:- " 1. On 19 June 1997, you made a number of misrepresentations 10 a pot.ential Purchaser which ultimately re.suited in a loss of that sale. These misrepresentations included t.he following:- (a) that there was one unit remaining on the top floor of a building on t.he Cathedral Place site; (b) indicating by directly pointing 10 the top floor of the model of the building t.o be built on the Cathedral Place site that the units sought to be purcha�ed by the Purchaser was (sic) in fac1 on the lop floor.". The letter alleges that the applicant was formally warned ahoul the misrepresentation, that his employme nt was i n jeopardy and as a result, the applicant was moved to an alternative site. The subS1ane-e of ground two was:- "2. You prepared a negative gearing worksheet which was not authorised in accordance with the memorandum dated I l April 1997. You calculated a number of figure s which wer e in accurate, incorrect and misrepresentative on the sheet and forwarded same to the client You misrepresented the company by embossing the sheet prepared by yourse.lf with the Devine logo .". The lener further alleges t.hat the applicant was given a formal verbal warning and that further miscondu<.1 would not be tolerated. The substance of ground three is as follows:- "3. On 22 July 1997 you left your employment work site. On 23 July 1997 you were contac1cd and directed to return to I.he site inuuediately as there wa.s a shonagc of employee s . You rdused to obey thi.� direction stating that you would be unable to return to . 5ik for three ('.l) days as your m01or veJ1icl.e wa1 getting repaired. You were directed to hire a car or 10 find some alternative means of attending I.he site and that you were required at the site,. You dirnheyed this specific direction.". The applicant's employment was terminated on the basis of the gross disobedience, misrepresentations and misconduct. He was paid one week's pay in lieu of notice. Tiie respondent has 1he onus of proving that there was a valid reason for the dismissal and the applicant must establish th.at the dismissal was harsh unjust or unreasonable. The standard of proof is proof upon the balance of probabilities. The applicant's case is that he denies all allegations as de.liberately untrue, except that he admit-< leaving the workplace on 22 July 1997 but maintains that dismissal for that reason is unfair. As to ground one., evidenc e given by the Sales Manager for D . M.B. Pty Ltd., Mr L.K. Titheradge., indicate s that M r. Baumann was instrumental in affecting the sale of a linit at Cathedral Pla(.-e to a purchaser, a Mr Charles Bauicciotto about J 9 June 1997. The purchaser complained that the unit he had bought was n()l on the top floor where he thought it was. There was certainly some confusion in the mind� of the sales people involved. The top floor. being the 10th. was not being marketed because of approval delays within the Brisbane Ci1y Council. The 9th floor was 3lsn not being marketed. The top floor that Mr Baumann wa� authorised to sell was the 8t.h floor and Mr Baumann accepts he was aware of that. What the purchaser in fa ct bought was a unit on the 6th floor. Needless to say. the sale contract was rescinded. The undisputed evidence is that Mr Baumann was counselled about the mauer in a meeting with Mr Vandervalk. the General Sales Manager. Investment Divi.�ion of D.M.B. Pty Ltd. lie refused t o accept any responsihility for the error and Mr Vando.'rvalk gave evidenc e that the 24 April, 1998 QUEENSLAND GOVERN!Y1ENT INDUSTRIAL GAZETTE 323 applicant was rather bc-lliguent at>ou1 the counselling. Mr Titheradge te . s1ified as to raised voices during the counselling session and that evidence was not denie d. Mr Baumann gave evi.de n<.:e that he had not done . anything wrong "to make the cu�tomer jump out of the sate··. But Mr Baumann was the salesperson involved in the sale. 'Ille only other person involved wa.> " Mr Titicia and the only pan he played seems to have been to introduce Mr Baumann lo the purchaser. MrBauman n wa� the one who Sei.'tlre d the purchas er's signature to the cont ract and he was the salesperson involved in the discussions with the purchaser leading up to the sale and then the following day when the cu�tomei- returne d. Mr Titheradge gave evidence that he overheard Mr Baumann on that next day anempting to explain the situation 10 the purchaser but was satisfied that Mr Baumann' s explanations were flawed and were compounding the problem. l am sa!isfted on the probabilities !hat Mr Baumann must have been instrumental in causing the confusion in the mind of the pu rchaser. Whether it was the. 8th floor or the I 0th noor that the purchaser expected. he signed a contract. for the 6th floor. MrBaumann's refusal to acc ept any resp<>nsihility indicat.:s 10 me an attitude of obstinacy and stubbornness. A Real fatatc Salt,sperson must be alen to avoid misunderstanding$ of something so basic to a co11tract of sale and this is where Mr Baumann failed, whether he «cccpts responsibility or not. As a result of the error, it seems that the applicant was taken off the floor at Cathedral Place and placed 011 telemarketing. He responded with a letter 10 Mr Vaode.rvalk dated )4 July, threatening to involve the ¼anag.ing Director and "out5ide institutions" if he wa..� not reinstated in the sales team. He was s ubsequently returned to Cathedral Place although the date has not been reve.aled in evidence. The applicant's apparent s1Ubbornness is also evident when the circums1ance.s of ground two are exami ned. Mr Vandervalk's evidenru is that all sales staff were informed by memo dated 11 April 1997 that only company prepared negative ge...ring worksheel5 were 1.0 be ust.d. 11 was common to both side.� that on 19 July 1997. Mr Baumann sold a propeny 10 a Mr Beard. Mr Bauma nn said he had knowledge of negative gearing worksheet$, had w,ed sunilar worksheets with another company, had made the worksheet more unde;standable and as there were no company worksh,,ets to be found, he used his own worksheet. 11e superimposed the Devine Company logo so that it appeared I<> he an official company document. Whiht conceding that th� workings in the work.sheet were d iffer..int to that on 1he company'� form, Mr Baumann clrumcd th.H th-: rcsu.lts were the same, a fact which was denied by Mr Vandcrvalk. \\/hat was a significan1 variation between th� company document and the private document was the fact that the. pnvatc docume-nt did not coota,n a very kngthy Acknowledgm�nt and Disclaimer by the Company. lt would not take a gre•t. i,nagjnation H.> understand the legal acti<,n th� compan y might face i�1 the abs�-;,ce of the acknowledgment and disclaimer shoul.d the. information provided to the client prow to be incorrect. Yet Mr Bam11anu again refused 10 acce.pt that there was anything wrong with what. he did both when he was counselled a nd when he gave evide . nce. What was al.so not adequately ex.plained was that ]',fr Bawnann tendered 10 the Commission a.� Exhibit 2 which <:Onsisted of, purportedly. �'Opies of the worksheet he had used. It wa.< significant that the workshe�ts he produced in evidence were markcdlv diffeNnt from the work.<ihect he gave. to Mr Beard. There were ditferent •working$ but imponantly. the former document contained Lhe company's acknowledgment and disclaimer on the reverse, wherea5 the document handed 10 the client did not. lt is my view then that Mr Baumann's obstinal'y funha carried forward 1o the incident whtch occurred over his motor vehide breakdown and . <ubsequenl dismissal. On 22 July 1997, the vehicle broke down out.side the work site after hi� arrival at work from Coo.tum . He advised the Sit.e , \1anager, Mr Titheradge, that he was le,l\iug and asked other employees to "cover for me". The vehicle was towed from the street. Mr Baumann made enquiries of automatic specialists, contacted his Bank Manager and tnade an appointment LO see him at Coolum the next day. llc left his workplace without any authority about 3.00 p . m. Mr \'andervalk endeavoured 10 conta<.1 him that night. ��lll morning he spoke with lvlr Vande rvalk and, according to M r Baumann. after Mr Baumann had explamed lh<l situation, :1,1r Var1dervalk had said ·'O.K.". Mr V:,ndervalk. on the othc.r hand, said that he dirce1cd .vlr Baumann to return to the worksite because there w,.s a shonage of staff auJ \1 r Baumann replied that he would not return for three days. I do not accep< Mr Baurnann's evidence on the probabilities. If it was all O.K with Mr Vandervalk, the catalyst for the subsequent dismissal escape$ me. Mr Bau mann could have returned to work on 23 July. He had u:avelk.d home by bus the previous day and could have used the same method d transport. July 24 wa5 a rostered day off, a faet which may have been unknowll 10 Mr Vandervalk. The Compa ny was in the concludin.g stag�s of the initial launch period of Cathedral Place. Extensive television and c,ther advenising had occurred and there were numerous enquiries. Mr Baumann made no effort to sec ure a repiacemetll sale.sper . son and made no effort to .seek Mr Vandervalk's authority to le ave. The interview with the B,,nk M.anage.r w"" of necessity only brief. There was no evidence as to why arrangements could not have bee.u made 10 have the loan papers C<>mplet-o-d and details given at a City location irutead of the local branch at Coolum or rn fa,1 why it could not haw occwTed on his ro.,tered day off. There is then the dispute bctwecu the applicant and the n,,1-mndcnt(s) as to the identity of his employ�r. A document (Exhibit 18) is a lener dated 24 February 1997, signed by M r Vandervalk on behalf of D.M.13. Pty. Ltd. confirming Mr Baumann' s employment with that company. There was also a confinnatory Jeuer of appointment dated 24 March 1997 with D.M.13. Pty Ltd signed by ;\,fr Baumann but thai document is DOI m evideuce. There were numerous advertisements seeking sales person s and other correspondence containing the words "Devine Residential Investments". On some correspondenc e the WO(ds "A Division of Devine Limned" were added. But it seems to me that I.he applicant's confusio n as to lhe name of his employer stems from his refusal to either acecpt or understa nd that "De vine Residential Investments" wa.s a trading name, a business name. owned by D . M .B. Pty. Ltd. which itself was i n turn a wholly owned �ubsidiary of Devin e Limited. The two compani� are separate legal entities and Devine Re.sidential [nvcstment5 1s a non-entity, having no legal <:xistcncc a1 all. '[lie.re is no incon.<istency in my view in being a ·•part of the big happy family c1lled Devine Limited" and yet being employed by D.M.B. Pty Ltd. But the [a�t which puts the issue. beyond doubt is that De.vine Limited wa� not the holder of a Corpvration Licence under the i\ucrirmeers aMI ,\genrs Act I 971 and was nut licen sed 10 and did not carry on the business of a Reai Estate Agent. lbe rdevan1 Corporation Licence was held by D.M.B. P1.y I .td. Mr Baumann would hardly have bee11 employed as a Real Estate Salesperson hy a Compan y not licensed as a Re.al Estate Agent Mr B aumann's confusion is rdlectcd by hts s1atemcot in evid;,n<.:e that he con�idered ··Devine Residential ln vestrncnis·' to be the �ame a< ·'Devine Limited'', which wa< not the- position al aH. A matt.er which also affc.;ted crcdibility wa.� Mr BauntcllJl·s mability 10 oame just one of the hundreds <.•f people he said he had app roached for a joh �ince his dh;rn1ssal. On the. whole of the evidence in this matter. l am satisfied on the IMfance of probabilities that Mr Baumann was employed by D.M.B. Ply Ltd a< from 3 Fcbntary 1997 and was always em ployed by D.M.B. Pty Ltd. I am funher satisfied that on J9 June J 997 Mr Baumann was inS1ntmcn1al in the sale of a Cnil on Lhe 6th floor to a purchaser who thought he- had purcha.1ed a Uni: on ,he top Jloor of Cathedral Place (whether that w,,s the 8th floor or the 10th tk,or). I am furthec satistied that on 19 July 1997. in !:>reach of a n earlier dtrcctive, Mr Baumann issue.d a ntigati ve gearing worksheet 10 a client whi..:h did not contain the Dcvioc "Acknowledgmenl and Disclaimer" and without authonsatwn, superimposed the Devine logo 0n his own priva1" document. On both occasions, Mr Baumann was counselkd by ihc Company. 1 am further satisfied that on 23 July whc-Jl directctl to report for work ,J'ter the vehicle bre.akdown, he refu.,ed. The termination letter signed 011 behalf of Devine Limited has be,:;11 explained as a mistaken tl.<t: of the \\Tong kti.:rhead and J au:ept that explanation . l am satisfied that the letter terminated Mr Baumaon·s employment with D.M.B. Pty Ltd. The Company rehcd upon mi.<c on duct under s. 37 of the V.'orkp:Cu:t: Relations Re.g11/ario11 /997 (lh<> Regulation). I am •�11,fted that the Devint' Group had a high profile in the rnarket place with exte nsiw 1devisio11 coverage. I am satisfied that the misreprc$e11lation on 19 June, uu.intentional though it might have h�n. could .:a.sily hav� c aus,,d serious risk I<) the Company' . s reputation. The failur e 10 pro,�de the appropriat< Comp:,ny clisclai mer on the negative gtanng worksheet on 19 July could have scriou.,ly affected the Company's reputation and protitability h3d something proved 10 be incorrec't and h:,d the client suffers>d ,ome dam age. The refusal 26460_].l)OC -- 1 of 2 -- _.-r' F · 324 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE to return to work on 23 July was wilful and deliberate behaviour that was inconsistent with the continuation of the employment contract. I am satisfied that each of the instances relied upon constitutes misconduct within the meaning of the Regulation. Alone, each instance of misconduct may not have been sufficient to justify dismissal but the.cumulative effect is what is relevant, to be viewed in the light of all the circumstances including the applicant's relatively short period of service. As Mr Vandervalk said in evidence, the refo;-al to return to work was the "straw that broke the camel's back''. I am satisfied that the Respondent had a valid reason for the dismissal, that Mr Baumann was extended procedural fairness and in all of the circumstances. I am not satisfied that the dismissal wa.s harsh, unjust. or unreasonable. It may be that Mr Baumann's case has suffered because he has preferred his own coun,5el. During final Sllbmissions he complained about being unable to seek legal advice and about not being aware he could call other witnes.ses . He was advised on I April that he could seek an adjournment to call witnesses but he did not make any such application whe-n he was asked at the commencement of this case whether he was ready to proceed. He had consulted a firm of Solicitors. Klooger Phillips, regarding the Magistrates Court matter involving D.M.B. Pty Ltd where the Entry of Appearance and Defen(.'e was lodged in November I 997. and could have taken some advice at that stage. In fact. he could have taken advice at any time. The witnesse., he regrctt.;i not calling (Bauicciotto and Tit.icia) were those involved in the rni;Teprescntatioo allegation and if they were of importance to his case, (a fact which is not tha.t apparent), he must have been aware of that long before this hearing was a1Tanged. The apphcation is dismissed. The Commission orders accordingly. B.J. BLADES, Commissioner. Appearances:- Mr K. Baumann on his own behalf. Mr G.B. Siebenhausen. instructed by Mr S. n,ompron ofThompson I-lannan Lawyers, for the re�ndent. Rele.ased: 1 7 April 1998 ######lt#####################################/1############# 24 April, 1998 24 April, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 325 -- 2 of 2 --