Anderson v Parker & anor t/a Scallywags Virginia [2004] QIRC 79 (2004) 176 QGIG 28

28 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 May, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Katrina Anderson AND Darrell and Michelle Parker t/a Scallywags Virginia (No. B2074 of 2003) DEPUTY PRESIDENT BLOOMFIELD 30 April 2004 Application for reinstatement – Witness evidence – Witness credibility – Three formal warnings given to applicant – Argument about roster changes – Applicant swore at employer – Nothing unfair about termination – Application dismissed. DECISION Introduction Ms Katrina Anderson has made an application for relief concerning her alleged unfair dismissal by Michelle and Darrell Parker trading as Scallywags at Virginia. Scallywags is a play centre for children aged up to approximately 9 years of age. It also has a café/coffee shop for the convenience of parents whose children are utilising the play centre. Ms Anderson said she commenced employment with Scallywags on 10 February 2003 as “permanent full-time second in charge” and she worked in that position until she was unfairly terminated on 3 December 2003. Evidence on behalf of the applicant Ms Anderson said she was informed by Mrs Parker on 17 November 2003 that her hours were to be reduced from 27 November 2003 due to lack of profit. At that time she was not told what the new hours would be. She claims that on 24 November 2003 she was informed by Mrs Parker her status was to change from permanent to casual and she was to receive a payout of all accumulated annual leave. Ms Anderson said she informed Mrs Parker on 26 November 2003 she wished to remain a permanent employee. Ms Anderson said that on 1 December 2003 she asked Mrs Parker what her minimum hours would be and was told they would be 20 hours per week. However, on Wednesday, 3 December 2003 she said she noticed that her roster for Thursday and Friday of that week had been changed and the changes meant that her hours would be reduced to 19 for that week. Ms Anderson said she asked Mrs Parker about the proposed changes and was told that by law she only had to be provided with 10 hours work per week. Ms Anderson said she sent her mother an SMS to ask her if the minimum of 10 hours was correct. Her mother then telephoned to say she had spoken to Wageline which informed her that the 10 hours was correct. Ms Anderson said she sent her mother a further SMS message about the lack of notice for the roster change for the next day. She said her mother then telephoned her to say she had spoken to Wageline which advised that 7 days’ notice of change to roster was required unless otherwise agreed between the parties. Ms Anderson said she then went to speak to Mrs Parker about the roster changes and the lack of appropriate notice. Ms Anderson alleged Mrs Parker stated that she did not have to give any notice and that she could do what she liked. Ms Anderson said that she told Mrs Parker that under the Award she had to be provided with 7 days’ notice. Ms Anderson claims she was then told that her employment was terminated. When she asked Mrs Parker “why?” she was allegedly informed that it was because she was lazy, moody and Mrs Parker was sick of her not being available. Ms Anderson said that when she attempted to question Mrs Parker further about these responses Mrs Parker would not speak to her. Ms Anderson said that during her employment she was never given any formal warnings and Mrs Parker only spoke to her once about wearing the incorrect shirt. Ms Anderson also said that she subsequently found employment at a coffee shop in the Chermside shopping centre in early January 2004 for about 25 hours per week. She said that on Wednesday, 18 February 2004 she was informed that a man had come into the café and spoken to the assistant manager about her. She said she was also informed that the man had identified himself as her previous employer and that he did not have nice things to say about her. She said that she was not rostered to work any hours after that visit. Ms Anderson also said that she was informed on 27 February 2004 by a former co-worker at the Chermside café that on the night of 26 February 2004 a woman had come into the café and asked if Ms Anderson was working. Ms Anderson said that when the woman was informed Ms Anderson was not working that day, the woman made the comment “Good. She won’t be getting many hours anymore”. Ms Anderson said that when she showed this former co-worker a photograph of her old employer the co-worker identified Mrs Parker as being the woman who had visited the café. Mrs Margaret Anderson, the applicant’s mother, gave evidence that she had received several text messages from her daughter on 3 December 2003. The first message sought information about the minimum hours for a part-time employee. The second text message concerned the appropriate notice to effect a shift change. Mrs Anderson said she had made enquiries with Wageline in respect of each of these SMS messages and had telephoned her daughter at Scallywags to inform her of each of Wageline’s responses. Ms Kristie Byquar was summonsed to give her evidence. She said she had been a co-worker with Ms Anderson at a café at the Chermside shopping centre. Ms Byquar said that on a Thursday night in February 2004 a lady, a young girl and a young boy had come into the café asking for the employer. When the staff informed the woman the employer was not available she identified herself as Michelle Parker, Katrina’s ex-boss, and said that she had spoken to the employer on the telephone. Ms Byquar said that the woman then made some remark that Ms Anderson probably would not have employment at the café for much longer and left. Ms Byquar identified the woman in question as Mrs Parker and identified the young girl as “the one outside” (i.e. outside the hearing room). -- 1 of 4 -- 14 May, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 Evidence on behalf of the respondent Mrs Parker said Ms Anderson was employed as a full-time café assistant on 10 February 2003. Mrs Parker said during Ms Anderson’s employment she was spoken to about a number of matters, and given a number of warnings, as follows: Leaving work early • 4 August 2003 – Given a warning about leaving early. • 15 September 2003 – Given another warning about leaving early. • 1 October 2003 – Given a warning about leaving early without permission. Use of telephone • 30 April 2003 – Mrs Parker questioned Ms Anderson about using the business telephone for private use to which Ms Anderson responded by saying “take the money out of my pay”. Mrs Parker said she told Ms Anderson this was not suitable and gave her a warning regarding private use of the telephone. Mrs Parker said, and I accept, the business only had one telephone line and she discouraged the making of outside calls because it stopped customers, and potential customers, from being able to contact the play centre. • Ms Anderson continued to use the telephone for private use and on 25 August 2003 was given another warning. • 26 September 2003 – Ms Anderson was given another warning regarding private use of the telephone and was told this was her “first official warning”. Wearing correct uniform • 13 February 2003 – Mrs Parker said Ms Anderson signed a conditions of employment form which clearly stated that the dress code was black slacks or trousers, shorts, long skirts and a purple polo shirt supplied by management. • 20 August 2003 – Ms Anderson was given a warning about not wearing the correct uniform. Mrs Parker said that at this time Ms Anderson replied that she did not know where her purple shirts or her pants were. Mrs Parker said Ms Anderson then went out and purchased 10 shirts later (successfully) pressing Mrs Parker for the reimbursement of their cost. • 24 October 2003 – Ms Anderson was issued with her “second official warning” for continuing to wear short skirts. Mrs Parker said that following an analysis of the business needs she spoke to Ms Anderson and another employee, Ms Roxanne Osborn, at the same time on 17 November 2003 and asked them if they would consider a change to permanent part-time as business was slow. Mrs Parker said that Ms Anderson agreed with this proposal indicating that it suited her because she was thinking of going to university next year. Ms Osborn also agreed to the change. Mrs Parker said it was also agreed that the change would commence on 27 November 2003. Mrs Parker said the first roster for Ms Anderson had her working 20 hours for the week although she did not promise any particular minimum number of hours. Mrs Parker said that on 2 December 2003 she drew up the hours for the week commencing 11 December 2003 and this roster had Ms Anderson working for 19 hours. Mrs Parker said that on 3 December 2003 she arrived at work to find Ms Anderson and her husband already there. Ms Anderson was eating her breakfast in the kitchen area and made a remark about beating Mrs Parker to work. Ms Anderson also said that she had just given Darrell (Mr Parker) a “blowie” out the back. Mrs Parker said that she told Ms Anderson that that type of behaviour, even if she was trying to make a joke, was not appropriate in front of staff or customers. Mrs Parker said that because it was not the first time Ms Anderson had made this remark, she told her this was her “third official warning” and any further type of behaviour would result in the sack. Mrs Parker said that later on during 3 December 2003 Ms Anderson approached her saying “you only gave me 19 hours and you can’t do that”. Mrs Parker replied that the Award only required 10 hours to be given to permanent part-time employees. Mrs Parker said that Ms Anderson then swore at her calling her a “fucking bitch”. Mrs Parker said she reminded Ms Anderson of her final warning that morning for bad language and said “no more warnings. I am giving you one weeks notice. You are to finish up next Wednesday, 10 December 2003.”. Mrs Parker said that Ms Anderson sought reasons for her termination. In response she said she told Ms Anderson that she had been given lots of warnings and had not made any attempt to change her behaviour. Mrs Parker said that Ms Anderson then called her a “bitch” and walked out of the café area. Mrs Parker said that later during the afternoon of 3 December 2003 Ms Anderson telephoned and said she would not be returning to work and asked for her termination pay to be put into her account on the next pay day. Ms Roxanne Osborn said that she had commenced employment at Scallywags on 1 September 2003. She said that when she started work she was informed that the telephone was not for personal use and that there was a sign taped next to the telephone stating “this phone is not for personal use”. However, there was also a jar next to the telephone saying “phone money. Please pay for calls.”. Ms Osborn said that Ms Anderson ignored these signs many times each week and made personal calls that she never paid for. Ms Osborn said that Ms Anderson would quite often sit on the lounge when Mrs Parker was not present and chat on the telephone to persons whom Ms Osborn thought were Ms Anderson’s friends. Ms Osborn confirmed that she had witnessed Ms Anderson wearing short skirts and not the proper uniform on many occasions. Ms Osborn also confirmed that Mrs Parker had spoken to Ms Anderson and herself on 17 November 2003 to ask them if they would change to permanent part-time because business was slow. She said that both she and Ms Anderson agreed to the proposal and everyone decided it would not begin until the following pay period which was 27 November 2003. Ms Osborn said at no time was there any discussion, or promise, about the hours they would receive. Ms Osborn said that on the day of Ms Anderson’s termination she recalled Ms Anderson and Mrs Parker standing near the till and talking between themselves. At first she thought nothing of it, then Ms Anderson began swearing. Ms Osborn said she was out in the kitchen but could still hear Ms Anderson swearing at Mrs Parker very loudly using very offensive language. She said Ms Anderson was saying “ ‘That’s not fair, you’re a bitch.’ that sort of thing”. Ms Melissa Parker, the daughter of Mr and Mrs Parker, also gave evidence. Ms Parker said that she arrived at Scallywags on 3 December 2003 with her mother to find Ms Anderson and her father already at work. Ms Anderson was eating in the kitchen area and made a remark about beating Michelle (Mrs Parker) to work, saying that she had just performed a “blowie” on Darrell out the back. -- 2 of 4 -- 30 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 May, 2004 Ms Parker said that her mother then proceeded to tell Ms Anderson that this type of behaviour was not suitable for Scallywags and then said “this is your third official warning and any further type of behaviour will result in the sack”. Ms Parker also said that she witnessed Ms Anderson swearing at her mother in a loud voice right in the middle of the café area in full view of customers and children. She said that she heard Ms Anderson call her mother a “fucking bitch”. Ms Parker said that she was later informed that Ms Anderson had been dismissed. Findings The respondents were self-represented and did not understand or appreciate the need to produce documentary evidence to confirm the written and verbal evidence of Mrs Parker about the discussions had with, and warnings given to, Ms Anderson. As a consequence, I do not propose to draw any adverse inference about their failure to produce the diary into which it is alleged that various entries and notations about the happenings at Scallywags were entered. Rather, I intend to determine whether the events occurred as suggested solely based upon my analysis of the evidence, my assessment of each of the witnesses as they gave their evidence (including any inconsistencies and omissions in that evidence) and to determine the matters in dispute based upon what I believe occurred, on the balance of probabilities. At the outset I record that I found each of Mrs Anderson, Ms Byquar, Ms Osborn and Ms Melissa Parker to be credible and truthful witnesses and I further record that I accept all of their evidence. I also record that I generally found Mrs Parker to be a credible and truthful witness who was prepared to admit, or concede, failures in processes she might have followed during Ms Anderson’s employment, and arguably her termination, even though that evidence was to her detriment. Although Mrs Parker incorrectly stated she had not provided Ms Anderson with a silver badge showing Ms Anderson’s name and her position as “2IC” I did not think her evidence on that point detracted from her evidence on the other issues in dispute. Mrs Parker was not shaken under cross-examination on any of the other issues and I thought her evidence about her various conversations with Ms Anderson, when warnings were given, was credible and entirely believable. Consequently I record I accept Mrs Parker’s evidence (above) about the discussions she had with Ms Anderson, and the warnings she gave her. By contrast, I found great difficulty accepting that the evidence of Ms Anderson was completely truthful. I have reached this finding from my observation of her as a witness and also because her evidence conflicts with other evidence given by other witnesses (most notably Ms Osborn and Ms Melissa Parker) which I have accepted. In particular, I note that Ms Anderson categorically rejected the proposition put to her that she had sworn at, or to, Mrs Parker at the time of her termination. In doing so, she said under examination in chief “no, because I knew a hearing would come about”. Under cross-examination she said “I knew I would bring this to a hearing and that it would look bad if I swore at her so I didn’t”. I found this evidence to be untruthful and self-serving. I accept that Ms Anderson did swear at Mrs Parker using the language recorded above. Ms Anderson’s evidence about the general nature, and timing, of the discussions with Mrs Parker about the change in employment status from full-time to part-time is also at odds with the evidence given by Ms Osborn. Whereas Ms Osborn says that each of she and Ms Anderson agreed on 17 November 2003 that the change in status would be from permanent to part-time, Ms Anderson gave a much different version of events (see above). After considering the evidence of Ms Osborn and Mrs Parker I reject Ms Anderson’s evidence about how, and when, the change in status came about. Ms Osborn said that the change in status from permanent to part-time was agreed on 17 November 2003 and that no particular hours were promised. Mrs Parker gave the same evidence. I accept their version of events over that of Ms Anderson. Ms Anderson also claimed that the changes to her roster which she objected to were to occur on 4 and 5 December 2003, respectively, which did not provide 7 days’ notice. On the other hand, Mrs Parker said that the changes were to occur the following week (from 11 December 2003) and, in any event, did not constitute any breach of any understanding with Ms Anderson because no particular number of hours had been promised. After considering all of the evidence I accept the version of events of Mrs Parker that the roster change was not to occur until the following week. Mrs Parker’s evidence about her understanding of Award conditions generally established that she knew enough about the setting of rosters, and roster changes, to convince me that the changes were proposed for the following week and not for 4 and 5 December 2003 as alleged by Ms Anderson. I also reject Ms Anderson’s evidence that Mrs Parker told her that she was not required to give 7 days’ notice of a roster change and that she “could do what she liked”, for several reasons. Firstly, I have determined (above) that Mrs Parker knew that 7 days’ notice was required to change rosters and it was highly improbable she would have made the comment in those circumstances. Secondly, my observations of the body language of Ms Anderson and Mrs Parker, as well as my consideration of their evidence about the employment relationship, causes me to conclude that, even though Mrs Parker was the employer, Ms Anderson was the dominant personality of the two and, in such circumstances, it was highly unlikely that Mrs Parker would have responded in the way alleged. I think Mrs Parker would have been defensive in her approach to Ms Anderson, rather than aggressive as suggested. The response which Mrs Parker said she gave is, in my view, the more likely scenario, and I so conclude. Additionally, the evidence of Mrs Parker that she informed Ms Anderson on the morning of 3 December 2003 she was being given a “third official warning” was confirmed by her daughter, Ms Melissa Parker, whose evidence I have accepted. In that regard, one would think it inherently unlikely that the term “third official warning” would have been used if no previous warnings had been given to Ms Anderson. Finally, I note that Ms Anderson withheld evidence about the actual circumstances of her departure. She did not volunteer she had walked out after being informed of her termination and telephoned the employer later in the afternoon asking for her final pay to be banked the next day. I thought this omission was deliberate. It appeared to be a further attempt by Ms Anderson not to paint herself in a negative light. Consequently, after considering the evidence of the witnesses, their demeanour and the differences in evidence between the applicant and the witnesses of the respondent, I have concluded, on the balance of probabilities, that the circumstances surrounding Ms Anderson’s employment, and her termination, occurred as alleged by Mrs Parker. Was the termination unfair within the meaning of s. 77 of the Act? I record that I accept Mrs Parker’s evidence that she provided Ms Anderson with the reasons for her dismissal (see s. 77A) at the time of termination. Mrs Parker said, and I accept, that after Ms Anderson swore at her she reminded her of her final warning that morning for using bad language and told her that she would be given no more warnings and was being given a weeks notice. -- 3 of 4 -- 14 May, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 31 I also record, lest there be doubt, I accept Mrs Parker’s evidence that Ms Anderson had previously been given a “first official warning” for private use of the telephone, a “second official warning” for not wearing the proper uniform and a “third official warning” for making an inappropriate sexual comment on the morning of 3 December 2003. I further record that I accept the first and second warnings were preceded by earlier discussions between Mrs Parker and Ms Anderson during which Mrs Parker raised her concerns about the issues which later became the subject of the warnings. I also accept Mrs Parker’s evidence to the effect that the inappropriate sexual comment was not the first time that such a comment had been made by Ms Anderson. Consequently, it seems to me, Ms Anderson was simply dismissed for swearing at her employer after receiving three earlier warnings for a variety of repeated misdemeanours. After considering all of the evidence and material presented I have decided that the applicant has failed to establish that her termination, in all of the circumstances, was harsh, unjust or unreasonable. Accordingly, I decline to interfere in the decision of the employer to effect Ms Anderson’s termination. I dismiss the application. Post termination events As noted above, evidence was led on behalf of the applicant, through Ms Byquar, to the effect that Mrs Parker attended at the place of employment of Ms Anderson on 26 February 2004 and made adverse comments about Ms Anderson. The substantive aspect of that evidence was not refuted by the respondent, which simply led evidence through Mrs Parker and Ms Melissa Parker to the effect Mrs Parker had not been at Chermside on the night suggested because it was Melissa’s birthday and there was a party held, at home, in her honour. No evidence was led that Mrs Parker had never attended the café or made the comments as alleged. However, questionable such events might have been, it has not been necessary for me to decide whether they happened as alleged because the events do not relate to the question of whether, in all of the circumstances, Ms Anderson’s termination on 3 December 2003 was harsh, unjust or unreasonable. It would (obviously) have been a different story had I determined in the applicant’s favour. Determine and order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: Appearances: Ms K. Bow, of Young Workers’ Advisory Service, for the applicant. Mr D. Parker, for the respondents. -- 4 of 4 --