Collins v Collinson t/a Canterbury Lace [2004] QIRC 172 (2004) 177 QGIG 391

15 October, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 391 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Lizabeth Collins AND Peter Collinson t/a Canterbury Lace (No. B1635 of 2003) COMMISSIONER BECHLY 28 September 2004 DECISION Lizabeth Ann Collins has sought reinstatement to employment as a Store Manager with Peter Collinson t/a Canterbury Lace. She was initially employed as a casual sales assistant from 18 October 2000 then as a permanent employee from 1 January 2002, prior to being appointed as Manager of the Indooropilly store. She was appointed as Manager of the respondent’s Indooropilly store from June/July 2002. There appears to be no documentation initiating the appointment as Manager although there does exist a letter of appointment as a permanently employed Sales Assistant from January 2002. The respondent proposes that the applicant clung to the coat tails of the Regional Manager and was never able to fulfill the management role fully or to its satisfaction. On the other hand the applicant states that she acted as an Assistant Manager for a period of some months from June/July 2002 and attended managers’ meetings, initially as an observer, to find out what was involved in the management role. The Regional Manager retained the management role for some time before relinquishing it to the applicant. The applicant states that in these circumstances it was not her role to usurp the Area Manager’s local store management function. The circumstances surrounding the appointment of the applicant as Store Manager are worth consideration as an indication of the apparent unstructured process of management of the store at that time. The applicant was appointed a fulltime Shop Assistant in March 2002 and worked as a merchandiser/sales person at Indooropilly for two days a week and at Carinadale for three days a week. At that time there was an employee at Indooropilly, a Jill Douglas, who was a fulltime employee and who was the second-in-charge of that store. At that time the Regional Manager had a dual role. She also acted as Manager of the Indooropilly Store. The Regional Manager dismissed Ms Douglas and asked the applicant to take over the role of second-in-charge. As best as can be gleaned from the evidence, this occurred in about June/July 2002. At that time also it is stated that the Regional Manager role became a fulltime position. The Regional Manager says that the applicant was appointed as full time Manager from June/July 2002. The applicant says that she remained as second-in-charge for a time “some time down the track” until the Regional Manager announced her appointment as Indooropilly Store Manager at a Managers’ meeting. There was no letter of appointment as Store Manager which might verify the relevant date. More importantly there was no position description for the role of Store Manager or any written statement of duties required to be performed. There was however, a list of duties to be performed by a Salesperson. The Regional Manager operated from the Indooropilly complex but some floors above the store. Her office was in a stock store area where stock for each of the then four stores of the respondent was held. It was a part of the applicant’s role to look after that store. She was also required to manage a remote sales outlet in the Indooropilly complex to dispose of stock at discounted prices. There is little evidence of any counselling about unsatisfactory performance until she was confronted on 16 June 2003 by the Regional Manager and the Manager of another store of the respondent with a document titled “Record of Discussion” which contained five points of “Performance/Behavior Area of Concern”, three points outlining “Standard required”, some “consequential actions” required and a request for “Reasons (employee’s explanation and suggestions for rectification of problems).” The applicant was summoned to a meeting with the Area Manager without any prior notice on 16 June where she was confronted with the list of concerns about behavior and performance. It was proposed during the hearing that the manager from another of the respondent’s stores in attendance at the meeting was there as an “independent” observer. This cannot be the case. This manager was consulted several days prior to the interview and proposed some of the issues to be raised with the applicant. The respondent proposes that each of the issues raised in the list were dealt with in the discussion. The applicant on the other hand believes that only some of the matters were dealt with. It is the applicant’s evidence that the meeting lasted about forty minutes which would appear to be ample time to deal with all the matters raised in the list. It is common evidence that the applicant was shocked and upset at the meeting. It is understandable then that, being totally unprepared for the counseling, her recollections as to the detail of all that was raised would be faulty. The applicant was invited to take the list home and consider it overnight and respond to the issues raised the following day. On the following day she declined to sign the document as she did not accept the correctness of its contents. -- 1 of 3 -- 392 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 October, 2004 She states that the Area Manager apologised for the events of the previous day and told her to tear the document up and said to her that it was not a formal warning nor would it be placed on her personnel file. On the other hand the Area Manager has quite the opposite view of the intent of the process. I accept that the process was intended as formal counselling by the respondent. I also accept that the applicant was probably told that she could tear up her copy of the list if she wanted to. What she did with her copy of the document was up to her. It would seem that the applicant incorrectly took this to mean that the respondent intended to disregard the whole matter. This obviously was not the case as a six month review period was set with a further consideration of the issues raised to be conducted on 30 September 2003. There are significant inconsistencies in the respondent’s evidence about the applicant’s capacity to perform the duties of Store Manager. The impression created is that the applicant was never or rarely able to balance tills, prepare paper work or properly deal with stock balancing etc. If this was the case one wonders why she was appointed as Store Manager in the first place. The applicant of course denies these allegations. She does admit to occasional errors in processing documentation but professes to have been able to get on top of the various requirements of the role. She was absent on leave when a new management system was introduced by the respondent. This was introduced and explained at a manager’s meeting during her absence. It is her capacity to implement this system that was the subject of some criticism. The only evidence as to any formal training provided by the respondent was a reference to some training given on one day by Westfield, the shopping centre owner, about what it required of lessees. This was conducted at Chermside and other of the respondent’s managers’ attended. Nothing in this training dealt with the respondent’s requirement of its managers. Contrary to the evidence as to the applicant’s incapacity to adequately manage the store the Regional Manager prepared a document in June 2004 to assist in staffing of the various stores of the respondent. A new store was then about to be opened. That document states that the applicant, among others, “can do any aspect of managing a store”. The Indooropilly store was somewhat different from other stores in the chain in Brisbane. It was the smallest of the stores, was the only one that had “outpost” sales areas and administrated the stock storage for some of the other stores. The outpost sales areas were separate sales areas within the shopping complex which disposed of slow moving stock from all the stores at discounted prices. One complaint of the respondent was that the applicant over discounted stock from her store or discounted stock which she personally did not like. The applicant says that she consulted the Regional Manager about stock discounting. On the other hand the Regional Manager says that on one occasion the applicant discounted product against her express instructions. Little or no evidence was given about actual discounting polices adopted by the applicant. Passing reference was made to one or two items. It is not possible on the evidence available to accurately or reasonably assess whether the complaint justifies the final action to terminate. It is alleged that the management standards of the applicant caused the turnover, hence profitability, of the Indooropilly store to fall. The applicant has countered with evidence that sales in the giftware classification of stores operated in the Westfield Indooropilly shopping complex fell by up to seventeen per cent at some time during the relevant period. On the other hand the store stocked other items where sales performance was reported to have increased. No material was provided as to the relative proportion of stock for sale in the various categories listed which would assist in determining the value of this material as a determinant of the applicant’s responsibility for any profit reduction. No evidence was provided by the respondent to support the allegation that profitability had fallen under the applicant’s management, other than a statement that that was the case. If there had been a fall in profitability the extent of the fall was not placed before the Commission. Neither was there any evidence to demonstrate the relevant performance of other stores in the chain in Brisbane. The respondent states that training was offered to the applicant to assist with a better understanding of certain aspects of the job. There was no evidence provided as to the applicant’s skills on entering employment. There is no suggestion that she held out to possess retail management skills. It was incumbent on the respondent to provide the training necessary to enable the applicant to perform at the level required. The Regional Manager’s evidence suggests constant one on one training. This seems to conflict with evidence that she was almost totally engaged in regional functions at other stores and that she rarely spent more than a few minutes each day in the Indooropilly store “breezing in” to collect the mail and offering complimentary comments on the quality of staff. The applicant was charged with having a non co-operative and sometimes hurtful attitude towards staff from other stores and seeming to not “contributing in the full sense at managers meetings.” No details of these charges were provided to the applicant upon which she could reasonably respond or initiate personal action to attempt to meet the respondent’s expectations. On the other hand the applicant was contacted at home by the Manager of the Carindale store on 17 June 2003 who stated that she and the staff of the store had no problems with the applicant. Flowers were sent by that Store Manager to the applicant on 17 June 2003. It appears that, some time earlier, the applicant had made a comment to the store manager about service level following a request by the applicant for a stock transfer to her store. While the declining performance of the Indooropilly store was raised at the meeting of 16 June 2003, fourth on the list of items for discussion, no specific improvement in turnover was nominated. On the evidence of the Regional Manager the declining performance (unspecified) of the store was wholly the responsibility of the applicant. The final issue raised at the meeting of 16 June 2003 was a requirement that the applicant work “at least one day on each weekend, or the equivalent”. The applicant worked each weekend from the date. It is significant that the respondent’s two representatives at that meeting agree that no warning was given to the applicant at that meeting that her employment might be in jeopardy. The evidence is that the Regional Manager informed the applicant that the document headed “Record of Discussion” and given to the applicant was not a warning letter. The Record of Discussion required the applicant to make evident that various changes proposed by 30 September 2003 “at which time a review of the points will take place”. On 17 June 2003 a large sale was made by the Indooropilly store to a significant customer. Goods to the value of $28,000 were paid for in advance of delivery. The store’s budget was, at that time exceeded by $5,000 for that month. However, in early August the applicant received a telephone call from the customer complaining about the timeliness of the delivery of the goods ordered. The applicant telephoned the respondent’s principal, Mr John Shackell and proposed that a refund be given for the goods not delivered. While the respondent denies any connection between the issues concerning this customer and the dismissal of the applicant the application expressed the belief that her dismissal was the result of problems encountered by the customer with the respondent. It is appropriate to consider the events concerning the customer and the respondent. The customers Managing Director provided evidence about his involvement with the respondent. The respondent elected not to cross-examine that evidence. -- 2 of 3 -- 15 October, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 393 During March 2003 the customer placed an order with the applicant for furniture and goods to the value of $9,000. At that time the customer was assured by the Regional Manager as to the quality/standard of the product ordered in that she stated that it was fully made of mahogany. The customer was given a letter by the Regional Manager offering a fifteen percent discount on purchases. The customer required that the order for furniture be placed as one complete order to enable colour matching. That was agreed by the Regional Manager. In June 2003 a further order valued at $17,500 was placed. Later that month problems were experienced by the customer about the orders. These ranged through the furniture not being entirely mahogany; the order being incomplete despite being told that the order had been checked in Melbourne; the surface treatment washed off with a damp cloth; extreme colour variations and no discount as offered. A refund and return of the furniture was sought but was refused. In August the customer informed the Regional Manager that he wanted a meeting with the applicant present to discuss concerns about the order. A meeting was arranged for 12 September 2003 between the customer, the Regional Manager and the General Manager of the respondent. The applicant was not present at the meeting on 12 September. She had injured her back at work on 9 September and took 10 September off. The Regional Manager phoned on 11 September asked how she was feeling and told her to take that day off also. The applicant was due for rostered days off from 12 September to 15 September. At the meeting with the customer on 12 September he emphasized his satisfaction with the service provided by the applicant and directed his dissatisfaction at the operation of Canterbury Lace as a whole. While the respondent’s evidence is that the issue with the client had no bearing on the decision to terminate the applicant’s employment the juxtaposition of the two events has led the applicant to the belief that the two matters are related. Mr Shackell was not called to provide any evidence as to the reason for termination. The Regional Manager states that she spoke to Mr Shackell early on 16 September and had taken the decision jointly with him to terminate the applicant’s employment. Later on that day she consulted with Ms Cumming the Manager of the Chermside store who was the witness at the discussion on 16 June and the decision to terminate the applicant’s employment was confirmed. The respondent’s evidence is that, at that time, no matter what the applicant may have said at any later discussion, that decision to terminate would not be altered. The applicant was called to a meeting at four o’clock on 16 September and her employment was terminated. No notes were taken of that meeting. Ms Cumming was present. There is an issue between the parties as to precisely the process used to effect the termination but whether the respondent asked for the applicant’s resignation or stated words to the effect “I’m going to have to let you go.”, the effect is the same. The respondent terminated the employment. The respondent acknowledges that the meeting on 16 June 1002 was not a warning about possible termination of employment. There is very limited evidence of a comment made by the Regional Manager at some stage prior to the termination that the applicant’s job may be in jeopardy. There was no record kept and no recollection of the date this comment may have been made. The termination on 16 September was determined without the necessary consultation with the applicant to enable her to defend herself. She was not able to make any response about store turnover, paperwork, attendance on weekends, motivation of staff, and relationship with other managers or attitude at manager’s meetings. In her view each of these matters had been attended to, there remaining the difficulty of deteriorating profitability said to be at least partially caused by a reduction in patronage at the whole shopping centre site. This was proposed during the hearing to have been in the order of 17%. The termination in this fashion offends the requirement of the Act and was unfair. This matter has taken a considerable time to be finalised. The principal witness for the respondent, the Regional Manager, was unavailable on the initial hearing because of illness and the matter was not finalised until almost four months later. It is now just over twelve months since the applicant’s employment was terminated. An Order for reinstatement without any loss to the employer would be the appropriate remedy in certain circumstances. That would allow for a proper review of the operation of the Indooropilly store and the applicant’s capacities and any subsequent action which might need to be taken. The applicant proposes that there has been such a breakdown in relationship between the parties that reinstatement is impractical. That is quite probably the case. Although the Regional Manager has now retired the relationship with the respondent seems to have so soured that all confidence between the parties has been lost. The applicant was in receipt of a salary of $30,000 per annum. She had been employed for a period of three years. Except for the matter of the stores financial performance there is no evidence that the applicant did not comply with each of the objectives set for her. She was a diligent worker and often stepped in to resolve difficulties experienced by shop staff rather than allowing them to resolve themselves. This was a criticism leveled by the Regional manager. Effective management training should have resolved this matter. The difficulty about the financial performance of the store was the essential basis for the termination although apparently not the prime issue raised on 16 June 2003. This was to be reviewed on 30 September 200. How this review was to be constructed is unknown. While reference has been made to excessive discounting of stock it is not known whether, for example, discounted slow moving stock from other stores was counted against the applicant’s figures; whether stock purchased by the applicant, as she was authorised to do, was sold profitably; whether the stock provided directly by the respondent was of a suitable quality or style for the Indooropilly area; what the performance of the store was like under the management of the Regional Manager and previous staff etc. While in no way intending to be definitive the time involved in determining these and other relevant issues, and implementing appropriate changes and controls, could be considerable. Processes such was these would, I would have thought, have been the natural follow on to the review proposed for 30 September. I have been referred to Serratore v Douglas Construction Lawyers (2001) 168 QGIG 9 at 11; Atkin v Hymix (1999) 160 QGIG 165 at 167; Chenery v Klemzig Nursing Home 55 SAIR 544 at 551-552 Messervy and anor v Maldoc Pty Ltd (1995) 61 IR 61 at 66-67 per Wilcox CJ and others to support a proposal that the applicant be paid as compensation the cap of six months’ salary. I propose to apply the relevant principals raised in the above matter. While the respondent proposes that the applicant should only be compensated to the extent of the differences between subsequent earnings and six months salary I find the principals raised above persuasive in these circumstances. I adopt the proposal of the applicant as to the relevant principals arising from the above and award the applicant the sum of $15,000 by way of compensation. Subject to the application of relevant taxation law the respondent is ordered to pay the above amount to the applicant within thirty days of the date of the release of this decision. R.E. BECHLY, Commissioner. Hearing Details: 2004 21,22 April 09 August Appearances: Mr J. Merrell instructed by Blake Topping Solicitors on behalf of the applicant. Mr M. Ravech directly instructed by the respondent. Released: 29 September 2004 -- 3 of 3 --