Allan Brett v Capital Glass as Trustee for Currie Haynes Trust T/A Capital Glass Pty Ltd
[2011] FWA 5796
•29 AUGUST 2011
[2011] FWA 5796 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Allan Brett
v
Capital Glass as Trustee For Currie Haynes Trust T/A Capital Glass Pty Ltd
(U2011/4537)
DEPUTY PRESIDENT IVES | MELBOURNE, 29 AUGUST 2011 |
Termination of employment.
[1] This decision relates to an application, pursuant to s.394 of the Fair Work Act 2009 (the Act), by Mr A. Brett (the Applicant) alleging that the termination of his employment on 24 January 2011 by Capital Glass as Trustee for Currie Haynes Trust T/A Capital Glass Pty Ltd (the Respondent) was unfair within the meaning of s.385 of the Act.
[2] The matter proceeded by way of hearing on 10 June and 15 July 2011.
[3] Evidence was adduced from the following persons:
- The Applicant;
- Ms M. Currie, Financial Controller, for the Respondent;
- Ms R. Vanzo, Office Manager, for the Respondent;
- Mr T. Currie, Managing Director, for the Respondent;
The Background
[4] At the time of the termination of his employment the Applicant had been employed by the Respondent as a glazier since October 2009.
[5] The Applicant had been presented with, but had never signed, a contract of employment.
[6] Further, the Applicant had been presented with, but had refused to sign, a Tools of Trade Agreement (the Agreement).
[7] The Agreement is a document that provided for, inter alia, a basis upon which the Applicant was provided with a company vehicle and other equipment required to carry out his duties.
[8] The Applicant had sought legal advice in relation to the Agreement due to his varying concerns arising from it, particularly regarding the use of and responsibility for the company vehicle. As a result of those concerns the Applicant ultimately decided to surrender the company vehicle when he ceased work for the day and commute to and from work via his own means.
[9] Over the course of the Applicant’s employment, the Applicant had had discussions with the Respondent regarding his failure to sign the Agreement.
[10] On 18 January 2011, the Applicant attended a meeting with Mr Currie regarding signing of the Agreement. The Applicant refused to sign the Agreement as he stated ‘it would be impossible for me to comply with it and I would risk breaking it.’ 1
[11] A further meeting was held around 4.30pm 21 January 2011 to discuss the Agreement. During the course of the meeting the Applicant was given a written warning that related primarily to the Applicant’s performance. The substance of the warning is reproduced below:
‘Subject: Written Warning
This letter summarises issues relating to your performance. Many of these points refer to issues you have been warned about previously.
• On many occasions you breach OH&S policy by refusing to wear appropriate personal protection equipment, eg. Failure to wear gloves, gauntlets, back brace and safety glasses on site and in the factory.
• Breaking company motor policy by parking illegally, eg. Job 96950 where the vehicle was parked for an extended period on a corner of a major intersection. Legal parking was available a short distance from the job.
• Refusal to perform reasonable overtime.
• Failure to carry out your duties in a professional tradesman like manner.
• Refusal to accept and work within company guidelines.
• Breaching company policy by driving company vehicle for personal use.
• General demeanor [sic] and causing unnecessary pressure on office staff.
• Taking an unreasonable amount of time to carry out tasks on many jobs.
• Breaching company policy with regard to the personal use of the company issued mobile phone for which the company requires reimbursement. The continued personal use is contributing to the lack of productivity.
You are required to rectify the breaches as list [sic] above and strictly adhere to company policy. Any further breaches of OH&S policy will result in the immediate termination of your employment. These breaches are regarded as serious misconduct.’ 2
[12] There is some contest as to the degree to which the performance issues were discussed in the meeting prior to the written warning being produced. The Applicant claimed that the warning ‘was all about performance issues which I had never heard of before.’ 3He stated further that he had never been spoken to about performance issues.4 Mr Currie claimed that he spoke to the Applicant at the meeting about a number of issues including ‘poor work performance, occupational health and safety breaches and various breaches of company policies.’5
[13] At some stage around midday of 21 January 2011, Mr Currie was advised by Ms Vanzo that an audit carried out on the ‘books’, specifically the Quality Assurance Book, had revealed missing monies, totalling $100.
[14] There is contested evidence in relation to whether the issue of the missing money was raised at the meeting later that day. The Applicant claimed it was not raised, and, in fact, that he had not heard of it until it was raised in response to his application made before this Tribunal. 6
[15] Mr Currie claimed that he raised the issue of the missing monies at the end of the meeting on 21 January 2011. He provided the following details:
‘I started talking about the missing monies and whether or not Allan had a reasonable explanation for the missing monies when Allan cut me off, stating again “no comment” before standing up and leaving the room. I followed him out of my office and directed him 3 times to return to my office to finish the meeting. Allan refused to acknowledge my direction.’ 7
[16] The Applicant then left the Respondent’s premises.
[17] On Saturday 22 January 2011, Mr Currie claimed to have discovered a further $100 allegedly not deposited into the safe deposit box by the Applicant.
[18] At or around 7.30am on Monday 24 January 2011 the Applicant called the Respondent to advise that he was sick and would not be attending work that day. Mr Currie called the Applicant at around 2.30pm of the same day.
[19] The Applicant provided the following version of events:
‘At 2:35PM, I was asleep I received a call for [sic] Mr. Currie, he asked me why I wasn’t at work? I informed him that I was sick, he said I sounded alright, I said I have a medical condition and I have a doctors certificate.
Mr. Currie then said that I was terminated. I asked him “for what reason”. He said “goodbye.”’ 8
[20] Mr Currie claimed that he made three telephone calls to the Applicant at around that time. He provided the following account:
‘Then you terminated him over the phone, correct?---That's correct.
How long did that phone call go for?---There was three phone calls and I think went for probably half a minute.
Half a minute.
THE DEPUTY PRESIDENT: It was three phone calls, did you say?---Yes.
How was it three phone calls?---I phoned him three times.
You spoke to him on three separate occasions?---That's correct.
In respect of the termination of his employment?---On the first two occasions the call was terminated. On the third occasion it was also terminated. How far I got into that conversation I don't know. I said, "Are you there?" There's no answer. I don't know at what point he terminated the conversation, I have no idea.’ 9
[21] A termination letter dated 25 January 2011 was forwarded to the Applicant:
‘Dear Allan
Termination of Employment
I confirm that your employment with Capital Glass is terminated. Your termination has taken effect immediately due to serious misconduct on your part.
I confirm the reasons for your termination are as follows:
• Failure to comply with company policy
• Failure to acknowledge that any company policies exist
• Theft of money belonging to Capital Glass
• Continual and blatant breaches of Occupational Health and Safety
• Excessive use of company mobile phone despite verbal warnings
• Blatant refusal to follow basic instructions regarding the return and signing-in of company property and paperwork
• Obstructive behavior [sic] on site
• General insubordination, bullying and harassment of supervisors and co-workers
As you are aware, company policy requires you to return all property, equipment, paperwork, uniforms owed to Capital Glass prior to receiving termination payment payment [sic].
Yours faithfully,
Tony Currie.’ 10
[22] The Applicant claimed he didn’t receive the letter as it was addressed to a wrong address. He also claimed that he has not received any termination payments.
[23] The Respondent particularised items that, it is claimed, have not been returned by the Applicant and estimated their value at approximately $910. The items alleged to be ‘missing’ are a mobile phone, gloves, drop sheet, straight edge, uniforms, boots, gauntlets, back brace and 2 pair trousers. 11
[24] Mr Currie also claimed that the Applicant has retained two Quality Assurance Books belonging to the Respondent.
The Applicant’s Evidence
[25] The accounts of the Applicant and the Respondent with respect to a range of events are markedly different. It is appropriate at this time to consider particular aspects of the evidence.
[26] The Applicant gave evidence to the effect that his failure to sign the Agreement was the core issue raised in the meetings of 18 and 21 January 2011. The Applicant admits he felt ‘pressured’ and ‘said no comment to the questions I really wanted the lawyer to sort it all out.’ 12 As for the written warning provided to him at the meeting of 21 January and pertaining mainly to performance issues, this, he stated, was only briefly discussed. He claimed that he left the meeting then as he had to look after his younger cousin.
[27] The Applicant provided the following evidence in relation to the missing monies:
‘Can I just ask you one question, Mr Brett: you - you did answer this previously, but the issue of this money - I think you said it had never been raised with you, the issue of this missing money?---Yes, but I haven't been - Tony never - -
So when did you first become aware of there being an issue in relation to missing money?---After I lodged a claim with Fair Work Australia.
Yes. When?---It would have been in March just before the conciliation, on 18th - yes, it was a month after I was - yes, 18 March.
And how did you become aware that there was an issue in relation to - - - ?---The last minute on the phone with my solicitor was a four-way phone call between Mr Currie, Mrs Currie, Commissioner Peeves, my solicitor and me. That's when I heard the allegation of theft.
...
Yes. Okay. That, I guess, answers the next part. Then the money in the meeting that you had with Mr Currie at 4.30 in the afternoon that you said took about 40 minutes, the issue of the money never arose?---No, it never arose.’ 13
[28] In relation to his placing of the monies in the Respondent’s safe deposit box the Applicant gave evidence as follows:
‘Okay, I'm not 100 - I'm not sure when the one in Gladstone Park got put in. It would have been the first time I got back to Richmond factory to do my paperwork, and I know I put the money in at 4.30 before I attended the meeting at Elsternwick - when I come back to the factory from Elsternwick, I put it in the box before I went upstairs and spoke to Tony and Peter Crone in a meeting.’ 14
[29] In respect of materials listed by the Respondent as ‘missing’, the Applicant claimed in his witness statement and during his oral evidence, that he had not ‘returned’ the materials listed by Mr Currie, but that he had left certain materials on the work vehicle upon leaving the meeting of 21 January 2011. The Applicant claimed he could not have returned those materials as, ‘how can I return things when I was still employed on the Monday?’ 15 He provided the following explanation:
‘MR MENTIPLAY: Those items that are marked there as not been returned are, in fact, not returned, isn't that correct?---That's correct.
And you retained those items, didn't you?---No. Not all of them.
So which items do you say you didn't retain?---I haven't got the straight edge, I haven't got the shovel, the broom, the gloves, the drop sheet, the gauntlets, and the mobile phone, and the back support.
And so if my client doesn't have these items and they were last in your possession where might my client find those items and did, in fact, serve an order that was served on you and your representative to inquire as to where these items might be both the ones you say you don't have and the ones it seems by implication that you've just said you still have?---The ones are on the ute, and the other ones are in the Court room today: my uniform, like, my shirts, my trousers and my boots.
...
THE DEPUTY PRESIDENT: Sorry, Mr Brett, you say that those materials that are listed here that you - let me just understand what you said in response to the question - that those items were issued to you?---Yes, they were issued to me.
And you didn't return them, is that what you said?---No, I haven't returned them.
No. But you don't have, among other things, the gloves, the mobile phone, the drop sheet, the straight edge, the shovel, the broom, and I think you said the gauntlets?---Yes.
You don't have them?---Yes.
If you didn't return them and you don't have them, where are they?---They're on the ute.
So did you return the vehicle?---Yes.
And the vehicle - and those items were with the vehicle?---Yes.’ 16
[30] The Applicant claimed that he returned the mobile phone to Mr Currie, at Mr Currie’s request, upon leaving the meeting of 21 January 2011. Mr Currie disputes this.
[31] The Applicant’s employment was terminated via telephone by Mr Currie on Monday 24 January 2011. The Applicant’s account of that phone call is set out above.
[32] The Applicant claimed not to have received the termination letter dated 25 January 2011 until ‘only recently’ when his representative brought it to his attention upon receiving the materials of the Respondent for this application. 17
The Respondent’s Evidence
[33] Mr Currie provided evidence in his witness statement that the Applicant was terminated as ‘[o]n the evidence, I reasonably believed that Allan had stolen the amounts set out at paragraph 27 [$200] from Capital Glass and that he had refused a lawful and reasonable direction to participate in an investigation into those allegations.’ 18
[34] During cross-examination Mr Currie admitted, at various stages, that the alleged theft was the ‘biggest thing’ 19 and certainly the ‘primary thing’20 he took into account in his decision to terminate the Applicant’s employment.
[35] The Respondent’s evidence is that access to monies placed in the safe deposit box is available only to Mr Currie and Ms Currie. 21
[36] Contrary to the Applicant’s evidence Mr Currie stated that he raised the issue of the missing monies toward the end of the meeting on 21 January 2011. He claimed he raised it ‘just as Mr Brett decided he didn’t want to be there any more.’ 22
[37] There is contradictory evidence from Mr Currie as to whether the issue of the missing monies was put to the Applicant in the phone calls terminating the Applicant’s employment on 24 January 2011. Mr Currie stated that he did not get an opportunity to raise the missing money in what he says were three phone calls to the Applicant totalling about thirty seconds, but then stated that he did mention it. The relevant evidence is reproduced below:
‘MR MENTIPLAY: You say in your witness statement that you phoned the applicant to terminate his employment on the 24th, can you describe what happened on that day?---I phoned Allan a number of times and I attempted to tell him that he was no longer required and I also asked him to return the belongings of Capital Glass.
THE DEPUTY PRESIDENT: Including the money?---I hadn't got to the point where we continued - the termination - - -
No, but surely this is a concern to you, Mr Currie, this money?---Yes.
But you didn't raise that in the telephone conversation?---I wasn't given the opportunity before it was terminated.
But you had the opportunity to raise the other materials that you needed him to return?---Yes, I mentioned the fact that there was money missing and I said we want - - -’ 23
[38] Despite claiming that he believes theft of company property, including money and Quality Assurance Books, to be very serious and that he has, in fact, had various cases of theft against the Respondent successfully prosecuted, 24 Mr Currie failed to notify police of the missing monies until some time in late January 2011.25
[39] In his witness statement, Mr Currie stated the following occurred subsequent to the meeting of 21 January 2011:
‘As Allan was leaving the premises, I asked him if he had submitted all paperwork and money for outstanding work. Allan indicated that he had and stated “don’t stress, everything is in”.
After Allan had left the premises, I checked the vehicle allocated to him and found that a Book was on the floor of the vehicle.’ 26
[40] Under cross-examination Mr Currie further stated:
‘- the office we were in was upstairs, he then left the building after I'd asked him to come back on three occasions. A short time later I went downstairs and he was still downstairs and I asked him if he had put in all his paperwork, I was surprised actually seeing him there but - he said that he had put the paperwork in.’ 27
[41] Mr Currie’s later evidence regarding his check of the vehicle allocated to the Applicant is as follows, ‘I couldn’t put a firm date on it but I think it was the Saturday when I started to look at the vehicle, hadn’t hen [sic] identified the fact that there was money missing.’ 28.
[42] Mr Currie claimed that he was the last person to leave the premises on 21 January 2011 and that ‘nobody else had access to the vehicle after I left and before I came back in the morning.’ 29 He later conceded that other employees may have had access to the vehicle.30
[43] It was during his inspection of the vehicle that Mr Currie claimed to have discovered a Quality Assurance Book on the floor of the vehicle and that certain materials were missing off the vehicle. He indicated it could have been ‘either the Saturday or the Monday at some point I became aware of the fact they were missing.’ 31
[44] In his evidence, Mr Currie stated that prior to or on the date of termination of the Applicant’s employment an audit revealed that two further Quality Assurance Books on issue to the Applicant had not been returned. 32 This appears to be at odds with the evidence of Ms Vanzo whose responsibility it is to issue the books and who stated that a glazier cannot be issued with, and sign for, a new book without handing in their old one.33
[45] Mr Currie conceded that the missing Quality Assurance Books were never raised with the Applicant because ‘as far as the books go that just formed part of the items that were missing.’ 34 The missing Books were not included in the termination letter of 25 January 2011, nor are they listed as ‘missing items’ in Mr Currie’s witness statement.
[46] Further, Mr Currie, during his oral evidence, raised a number of issues he says were determinative in his decision to terminate the Applicant’s employment. In particular, Mr Currie claims to have seen the Applicant, about ‘a month or so’ prior to his termination, driving the company vehicle for personal use, against company policy.
[47] Breach of company policies is included in the warning issued to the Applicant during the meeting of 21 January 2011. Mr Currie admitted that the above circumstance was never raised with the Applicant prior to the warning being issued as he ‘wasn’t going to make a big deal about it.’ 35
[48] It is interesting to note that the termination letter forwarded to the Applicant ostensibly outlining the basis for the termination of the Applicant’s employment, and leaving aside the issue of missing monies, can, for certain of the grounds relied upon, only be equated with the substance of the warning letter by applying, what is in my view, an untenable stretch to the meaning of particular phraseology. Except to the extent that the termination letter reflects the warning letter and save for the issue of theft, there is no contest that grounds relied upon for the termination were not previously raised with the Applicant.
Findings
[49] As is apparent above, the evidence of Mr Currie contains a number of inconsistencies and apparent absurdities.
[50] The alleged theft of monies from the Respondent was stated as the ‘primary’ issue that resulted in the termination of the Applicant’s employment, yet Mr Currie claimed to have only raised it with the Applicant ‘towards the end’ of the meeting of 21 January 2011.
[51] Mr Currie admitted to having opened the meeting with a discussion about the Applicant’s failure to sign the Agreement. After refusing to sign the Agreement the Applicant was issued with a written warning.
[52] It seems to me to be an odd circumstance that Mr Currie would, knowing there is money missing, schedule a meeting with the Applicant and raise, on his own evidence, the issue of the Applicant’s failure to sign the Agreement at the commencement of the meeting and raise the issue of the missing money as an apparent afterthought at the end of the meeting.
[53] Mr Currie’s evidence in respect of his attempts to address the issue of the missing monies is inconsistent.
[54] Mr Currie appeared to be relatively unconcerned with the missing Quality Assurance Books that he believed the Applicant to have retained, even though they represent a basis to enable the audit of all cash monies received by the Respondent. The issue of the missing Books was never raised with the Applicant prior to or after the termination of his employment.
[55] There is conflicting evidence as to whether Mr Currie had raised concerns in relation to the Applicant’s employment prior to 21 January 2011, however, Mr Currie admitted that although he claimed to have seen the Applicant driving a company vehicle for personal use a month or so prior, this issue was not raised with the Applicant until after his refusal to sign the Agreement at the meeting on 21 January 2011. 36
[56] I do not find Mr Currie to have been a reliable witness. His evidence is riddled with inconsistencies and what I have previously termed as apparent absurdities. Examples are provided above.
[57] In all relevant matters where there is a contest over the facts I prefer the evidence of the Applicant over that of Mr Currie.
[58] It follows that I find, on the balance of probabilities and on the materials before me, that the Applicant cannot be reasonably held accountable for the missing monies or other items. I further find that, prior to the termination of his employment, the Applicant was not made aware of any allegation of theft against him.
[59] Having found that the materials before me are an insufficient basis for any finding that the Applicant is guilty of theft, I make no further findings with respect to the missing monies and other items, if, in fact, any of these is or was actually missing.
The Act
[60] In considering whether a dismissal was harsh, unjust or unreasonable, hence unfair I am required to take into account the factors provided for in s.387 of the Act. Those factors are:
‘387 Criteria for considering harshness etc.
...
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.’
Valid reason
[61] As I have found that there is an insufficient basis for any finding of theft of money or other goods attributable to the Applicant, there was no valid reason for the termination of the Applicants employment on 24 January 2011.
[62] Even if there was some substance, which I do not find, to any or all of the performance issues and other issues raised by the Respondent in respect of the Applicant, and outlined in the warning letter, they formed, even on the actions and acknowledgement of the Respondent, a basis only for a written warning and not, in and of themselves, a valid reason for termination.
Advice of reason and opportunity to respond
[63] In accordance with my previous finding I do not accept, that the issue of the missing monies was raised with the Applicant, prior to the termination of his employment. It is self-evident therefore that the Applicant was not informed of the reason for the termination nor provided with an opportunity to respond to it.
[64] In any event, the Applicant had called in sick, with a medical certificate, on the day upon which he was terminated. Mr Currie was aware of his illness and had no basis to reasonably believe the Applicant’s condition was such that it would have been appropriate to have put the allegations to him in those circumstances.
Support person
[65] On the materials before me it appears that no issue arose between the parties in respect of whether or not the Applicant was given an opportunity to have a support person present at the meeting of 21 January 2011.
Unsatisfactory performance
[66] The Applicant was issued, as has been recorded above, with a warning letter on 21 January 2011. I have serious doubts as to the factual basis of the matters raised in that letter. In any event the letter, in the circumstances of this matter, is not capable of providing adequate grounds for the termination of the Applicant’s employment on 24 January 2011.
Size of employer and access to human resources expertise
[67] It is certainly the case that the Respondent is a relatively small employer that apparently does not employ dedicated human resource personnel. What access the employer may have had to human resource expertise is a matter that was not canvassed during the proceedings. In any event, it is my view that neither the size of the Respondent’s business, nor any lack of access to human resources expertise that may have existed, in any way renders what is in this case essentially an unfair termination of employment to be a fair one.
Was the termination unfair?
[68] For the reasons provided above, the termination of the Applicant’s employment by the Respondent on 24 January 2011 was harsh, unjust or unreasonable, hence unfair within the meaning of s.385 of the Act.
Remedy
[69] Section 390 of the Act relevantly provides:
‘390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.’
[70] In view of the circumstances that surround this employment relationship and its termination, it is highly unlikely that there could be sufficient mutual confidence between the parties to sustain reinstatement. On that basis I find reinstatement inappropriate.
[71] I intend to make an order for compensation pursuant to s.392 of the Act. In doing so I am statutorily required to take into account the following:
‘392 Remedy—compensation
Criteria for deciding amounts
...
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.’
[72] There is no evidence before me that any order I might make for compensation would affect the viability of the Respondent’s enterprise.
[73] The Applicant had been employed with the Respondent for a period of approximately 14 months. In my view, given what appeared to be becoming somewhat acrimonious circumstances between the Applicant and the Respondent with respect to the Agreement, and other issues, it is unlikely that the Applicant would have remained in the employ of the Respondent for a period much exceeding a further three months.
[74] According to the Applicant’s evidence, his gross weekly earnings at the time of termination of his employment were $885.40 ($46 040 per annum). 37
[75] A letter, from Axle Glass Pty Ltd, provided by the Applicant to the Tribunal as one of a number of documents emanating from an Order to Produce Documents relevantly provides:
‘This letter serves as confirmation of employment for Mr Allan Brett who is currently employed by our Company.
Commencement Date: | 15 March 2011 |
Employment Category: | Glazier, Full Time |
Annual Salary: | $42,680.00’ |
[76] I note that this document is legitimately before the Tribunal however it was never tendered into evidence nor marked as an exhibit.
[77] It would appear from this correspondence that, at least subsequent to 15 March 2011 the Applicant has, to a significant extent, mitigated his loss suffered due to the termination of his employment by the Respondent.
[78] There is no further evidence before the Tribunal in relation to the earnings of the Applicant during the relevant period.
[79] Having taken into account, insofar as is relevant, each of the criteria outlined in s.392 of the Act, I have formed the view, based on the foregoing, that an order should be made that the Respondent pay to the Applicant by way of compensation a sum in the amount of seven thousand nine hundred and sixty eight dollars ($7968.00).
[80] This amount represents nine weeks pay at the rate the Applicant received whilst in the employ of the Respondent and in my estimation, based on the limited relevant material before me, is, in the circumstances, adequate compensation in lieu of reinstatement.
[81] An order giving effect to this decision will issue as PR513918.
DEPUTY PRESIDENT
Appearances:
G Pinchen for the Applicant
E Mentiplay for the Respondent
Hearing details:
2011.
Melbourne.
June 10, July 15.
1 Exhibit A1, PN 8
2 Exhibit A1, Attachment (Exhibit) B
3 Exhibit A1, PN 11
4 Ibid.
5 Exhibit R2, PN 22
6 Transcript, PN 359-371
7 Exhibit R2, PN 23
8 Exhibit A1, PN 15-16
9 Transcript, PN 1299-1305
10 Exhibit R2, Attachment TC-5
11 Exhibit R2, PN 4, 34-35
12 Exhibit A1, PN 9
13 Transcript, PN 358-361, 371
14 Transcript, PN 249
15 Transcript, PN 144
16 Transcript, PN 150-153, 158-164
17 Transcript, PN 410-417
18 Exhibit R2, PN 30
19 Transcript, PN 1202
20 Transcript, PN1216
21 Transcript, PN 1441-1445
22 Transcript, PN 917
23 Transcript, PN 989-993
24 Transcript, PN 1082
25 Transcript, PN 1027
26 Exhibit R2, PN 24-25
27 Transcript, PN 983
28 Transcript, PN 854
29 Transcript, PN 858
30 Transcript, PN 1253-1260
31 Transcript, PN 1317
32 Exhibit R2, PN 33, Transcript, PN 1278
33 Transcript, PN 625
34 Transcript, PN 1292
35 Transcript, PN 1187
36 Ibid.
37 Exhibit A1, PN 3
Printed by authority of the Commonwealth Government Printer
<Price code C, PR513917>
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