Cherti v Queensland Rail
[2014] QIRC 220
•22 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Cherti v Queensland Rail [2014] QIRC 220 |
PARTIES: | Cherti, Lenard v Queensland Rail |
CASE NO: | TD/2013/93 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 22 December 2014 |
HEARING DATES: | 2, 3, 4 April 2014 |
MEMBER: | Deputy President O'Connor |
ORDERS: | 1. The application is granted; 2. The applicant is to be reinstated to his former position with the respondent; 3. The reinstatement is to be on the basis that the applicant's continuity of service is maintained; and 4. The respondent is to pay the applicant the remuneration lost because of his dismissal to be agreed or, failing agreement, to be the subject of further application to the Commission |
| CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – UNFAIR DISMISSAL – HARSH, UNJUST OR UNREASONABLE - Where the respondent dismissed the applicant following an incident which was alleged to constitute misconduct - Whether termination in the circumstances was harsh, unjust or unreasonable Industrial Relations Act 1999, ss 73, 74, 77, 78, 79 |
| CASES: | Auto Logistics Pty Ltd v Kovacs (1997) 155 QGIG 320 |
| APPEARANCES: | Mr S. Reidy, instructed by Stephens & Tozer, for the applicant. Mr D. Matley of the respondent. |
Decision
The applicant, Lenard Cherti, worked as a train driver for the respondent employer, Queensland Rail. He was dismissed on 27 September 2013 following an incident that occurred at Fortitude Valley on 28 June 2013.
The incident of 28 June 2013 and the subsequent dismissal
On 28 June 2013 the applicant was driving a train designated as "Train 1159". At approximately 4:35pm his train passed a signal known as "BS5". He then set the train back without contacting train control, before proceeding past signal BS5 at "Red". This constituted a breach of the respondent's policy and procedures, namely, a "signal passed at danger", or "SPAD".
The respondent undertook an initial investigation into the applicant's SPAD infraction in accordance with its usual protocols. The respondent then conducted a further investigation, involving its human resources division, into possible disciplinary action, during which time the applicant was placed on special duties.
On 4 July 2013 the applicant attended an information gathering meeting and then on 8 July 2013 he attended a disciplinary interview. Following the interview, Kevin Wright, Executive General Manager - Rail Operations, wrote to the applicant on 5 August 2013 asking him to show cause as to why he should not be dismissed. The show cause letter referred only to the SPAD incident of 28 June 2013 and subsequent discipline interview. The letter continued by stating that, at the discipline interview, it was explained to the applicant that his "conduct" - which, given the only "conduct " referred to in the preceding paragraph was that which amounted to the SPAD incident - was considered a breach of a number of the respondent's policies and procedures. After listing those policies and procedures, and referring to the applicant's response in relation to his "conduct" (including his suggestion of workplace bulling and harassment), the letter went on:
"In breaching the policies and procedures above, you have shown a disregard for your responsibilities as a Queensland Rail employee and the requirements of your role as Driver.
Queensland Rail takes any allegations of bullying and harassment very seriously. An information gathering process has been conducted to address your concerns.
After having given careful and due consideration to all of the above circumstances and your response, I am considering terminating your employment with Queensland Rail. Before making my decision, I am providing you with 3 days to put to me, in writing, any further response or circumstances that you consider should be taken into account."[1]
[1] Exhibit 5, Attachmet "MS3", item 13.
After being granted an extension of time, the applicant provided a written response on 16 August 2013 alleging, amongst other things, that the decision-maker was biased. In response, the Mr Wright agreed to appoint a new decision-maker, and confirmed in writing that the applicant had until 13 September 2013 to respond. His letter of 28 August 2013 relevantly stated:
"The new decision-maker will be Michael Skinner, General Manager Train Service Delivery. Mr Skinner will be provided with the additional information from your correspondence and will be instructed as follows:
·The information in your correspondence must be added to all of the materials in relation to this particular matter;
·Mr Cherti must be provided with any additional material that may be relevant, if there is such material;
·Mr Cherti is to be invited to provide any additional responses he wishes to make in light of any additional material and must be provided seven days from the receipt of that material to do so;
·Only after the seven days has expired is Mr Skinner to make a decision in respect of this matter;
·The decision to be made is: should Mr Cherti be terminated from his employment with Queensland Rail? If the answer is 'no' then what discipline action, if any, is to be imposed;
·The decision is to be conveyed in writing to Mr Cherti."[2]
[2] Exhibit 5, Attachmet "MS3", item 8.
On 9 September 2013, Mr Skinner wrote to the applicant confirming his instructions as the delegated "decision-maker in respect of particular allegations" against the applicant. He went on to particularise the material he would take into account and respond to the applicant's request for additional information in relation to the allegations against him:
"In making a decision I will be taking into account all material available to me, including all of the information collated prior to the show cause letter of 5 August 22013 and the additional information you provided in response to the show cause letter.
I note in your response, you indicate that additional information may be of benefit …, including greater particularity in the allegations relating to distances, periods of time and communications that occurred during the incident in question. I have enclosed a copy of the "disciplinary record: for the event in question. This should contain answers to the questions you raise."
On 17 September, the applicant requested further and better particulars of the SPAD incident to which Mr Skinner replied by letter dated 20 September 2013.[3] That letter also confirmed that a final decision would be made on 25 September 2013. On 24 September 2013 the applicant sought further information, to which he received no response. The respondent was dismissed by termination letter dated 26 September 2013. That letter relevantly stated as follows:
"I refer to the Show Cause letter to you dated 5 August 2013 and your written response to the Show Cause submitted on 16 August 2013.
…
Your responses to the Show Cause letter have been given serious consideration. However, I do not believe that you have provided adequate explanation for this incident. Therefore, you employment with Queensland Rail is terminated effective Friday 27th September 2013."[4]
[3] Exhibit 5, Attachmet "MS2", Item 5.
[4] Exhibit 5, Attachment "MS1".
The applicant now applies for reinstatement, arguing that his dismissal was "unfair" within the meaning of s 73 of the Industrial Relations Act 1999 ("the Act") because it was "harsh, unjust or unreasonable".
Matters to be considered in deciding the application
Section 77 of the Act provides that the Commission must consider certain matters in deciding on an application such as this:
"77 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider–
(a) whether the employee was notified of the reason for dismissal; and
(b) whether the dismissal related to–
(i) the operational requirements of the employer's undertaking, establishment or service; or
(ii) the employee's conduct, capacity or performance; and
(c) if the dismissal relates to the employee's conduct, capacity or performance–
(i) whether the employee had been warned about the conduct, capacity or performance; or
(ii)whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
(d) any other matters the commission considers relevant."
(a)Was the applicant notified of the reason for his dismissal?
The letter of termination dated 26 September 2013 contains no specific statement of the reason for the applicant's dismissal. The precise reason for dismissal must therefore be inferred from the context of the termination letter, including the prior correspondence to which it refers, namely, the show cause letter of 5 August 2013 and the applicant's response to it. The only reasonable inference that can be drawn from that background is that the reason for dismissal was the SPAD incident of 28 June 2013.
On the face of the termination letter, the sole reason for his dismissal was the SPAD incident of 28 June 2013 as set out in the show cause letter. However, the affidavit of Mr Skinner reveals that this was not the case:
"The existence of the SPAD on 28 June 2013 was not the sole factor in my decision. We often investigate instances of SPADs occurring across the network and we have a set process to follow. … Only if there is some anomaly found, will an investigation into a SPAD then move into a separate discipline process. This may be where alcohol is detected … or, in the case of Mr Cherti, where other possible disciplinary issues are identified.
The information before me was that on 28 June 2013 Mr Cherti had a couple of breaches in a short space of time: he had overshot the platform, had then 'set back' without required authority from Train Control and had then proceeded forward through a red signal (the SPAD). Attached and marked MS3 is a copy of the Show Cause documents I was provided with. Additionally, I had spoken with Tony Nelson who had conducted the discipline interview to get his opinions on the allegations and outcomes, prior to making my decision.
It was the combination of the last two issues that was at the forefront of my mind:
a.Mr Cherti had deliberately moved the train back without following our well documented rules and had then knowingly moved the train through the red signal;
b.After having overshot the platform, Mr Cherti then had time to contemplate his actions and he deliberately took action to breach our safety rules. Through my discussion with Mr Nelson, I also understood he had told the Guard to ignore the red signal. This, for me, was inexcusable for someone with Mr Cherti's experience;
c.The location, Fortitude Valley, is one of our busiest locations and the timing of the incident (peak hour) increased the risk of injury to other persons on or around the train.
I was aware that Mr Cherti had a lengthy history of performance and behaviour issues including a number of final warnings. As I recall his file was some 60 odd pages thick. This lengthy history was not the overriding factor however it was in the back of my mind when contemplating my decision, particularly the existence of at least 2 final warnings in respect of safety issues."
Whilst it is said that the performance and behaviour issues were "not the overriding factor" in the decision to dismiss the applicant, Mr Skinner had them in the back of his mind when contemplating the decision. None of those matters were put to the applicant as part of the show cause process, he was not warned that they were within the contemplation of the decision maker, and his views in relation to them were not sought.
In considering the totality of the evidence before the Commission as to the reason for the applicant's dismissal, including the apparent discrepancy between the factors identified by the decision-maker in his affidavit as forming part of the reason for his decision to dismiss the applicant and the reason put to him in writing as part of the show cause process, the answer to the question "Was the applicant notified of the reason for his dismissal?" must therefore be "No."
(b)Did the dismissal relate to operational requirements or the applicant's conduct, capacity or performance?
It is not in dispute between the parties that the dismissal did not relate to operational requirements of the respondent but rather to the applicant's conduct, capacity or performance. I must therefore consider the matter identified in s 77(c) of the Act.
(c)Had the applicant been warned about the conduct, capacity or performance; or was he given an opportunity to respond to the allegation about the conduct, capacity or performance
The dismissal was based, it was said, on the events of 28 June 2011 as outlined in the show cause letter of 5 August 2013. It is apparent from the evidence of Mr Skinner that the incident was not the only factor that he took into account in determining whether the applicant should be terminated. As he said in his statement, Mr Skinner had "front-of-mind" issues and "back-of-mind" issues.
It is the respondent's contention that the reasons for dismissal were that on Friday 28 June 2013 at 16:35 hours, the applicant when in charge of the safe running of train 1159:
(a) overshot signal be S5 and then breached rules and procedures associated with setting back a trainer fortitude Valley Station; and
(b) then proceeded to pass signal the BS5 at a red.
The above two issue are arguably explained in the show cause letter of 5 August.
However, the applicant argued that he was not:
(a) warned about telling the guard to ignore a red signal;
(b) given an opportunity to respond to the issue of telling the guard to ignore a red signal; or
(c) notified that a significant reason for the decision to terminate his employment was that he inexcusably told the guard to ignore the red signal.
I accept the submission of the applicant that the respondent failed to include within the show cause process the allegation that Mr Cherti had told a guard to ignore a red signal. I further accept that he was not given an opportunity to respond to the allegation and I also accept that he was never notified that this issue was a key reason for the decision to terminate his employment.
Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, in discussing the manner in which procedural fairness cases are approached by the courts, said (at [37] ):
"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
A decision-maker should not make a decision having had regard to undisclosed material being adverse information that was credible, relevant and significant to the decision to be made without first putting that material to the relevant person.[5]
[5] Kioa v West (1985) 159 CLR 550, 629; (Brennan J); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Muin v Refugee Review Tribunal (2002) 76 ALJR 966.
A decision-maker should bring to a person's attention the critical issue or factor on which the decision is likely to turn so that the person may have an opportunity to deal with it.[6]
[6] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 [81].
In light of the facts outlined above, the Commission is not satisfied in accordance with s 77(c)(ii) that, in considering the evidence before it, the applicant has been given an opportunity to respond to the allegations against him.
(d) any other matters the commission considers relevant
The applicant submitted that the penalty imposed on Mr Cherti was inconsistent with the approach the respondent took in relation to other drivers who have had a SPAD or multiple SPADs. The applicant led evidence in relation to a number of Class 2 SPADs. The evidence was that three drivers had Class 2 SPADs but continued to drive. Another driver had multiple SPADs and was demoted to a guard but was not terminated. In some instances, drivers were given remedial training and supervision. Evidence was led in relation to other drivers who had Class 1 SPADs and, notwithstanding that this is the most serious breach, none of the drivers identified had their employment terminated.
The respondent submitted that the applicant's circumstances are analogous to those in the matter of Prideaux v Trans-Adelaide, where the issue of differential treatment was considered but it was concluded that there were elements of differentiation between employees' conduct.[7] It cannot be said that, with the exception of the fact that Prideaux passed a designated stop sign, the case is analogous to the matter before the Commission. In Prideaux, the SPAD for which the employee was terminated was significantly more serious. Prideaux failed to read the Daily Train Notices thoroughly and did not give adequate attention to the various track warning notices before a worksite. As a consequence, the driver passed a designated stop signal, knocked down the red stop board which was positioned adjacent to a 25km/h speed sign, and entered a worksite before having to apply the emergency braking system, stopping a few metres short of where welding work on the tracks was being finalised. A track maintenance employee performing flagman duties was forced to jump clear of the track and shouted a warning to other employees.
[7] [2010] FWA 9434.
Senior Deputy President O'Callaghan noted that the capacity to draw definitive conclusions from comparisons is limited by the detail of the information provided with respect to both the incidents themselves and the disciplinary records of the other staff involved. In Prideaux, his Honour was concerned with the fact that limited evidence was led to permit a proper comparative assessment to be made.
In dealing with the issue of differential treatment of employees in respect of termination of employment, Senior Deputy President O'Callaghan was influence by the approach adopted in Sexton v Pacific National (ACT) Pty Ltd[8] and Daly v Bendigo Health Care Group.[9]
[8] (Unreported, Australian Industrial Relations Commission, Vice President Lawler, 14 May 2003) ("Sexton").
[9] (Unreported, Australian Industrial Relations Commission, Senior Deputy President Kaufman, 13 July 2006) ("Daly").
In Sexton, Vice President Lawler said:
"[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s 170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of
s 170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s 170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made."
In Daly, Senior Deputy President Kaufman (as his Honour then was) said:
"I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable."
Vice President Lawler and Senior Deputy President Kaufman acknowledged that, whilst differential treatment of comparable cases can be a relevant matter, a degree of caution needs to be exercised to ensure that the case examples are truly comparable and that sufficient evidence is place before the tribunal hearing the matter in order for it to make a proper assessment.
In this matter, the applicant led, in my view, sufficient evidence to form the view that the penalty imposed on him was inconsistent with similar SPAD breaches and disproportionate to the nature of the breach.
I accept the submissions of the applicant that the procedures that apply to setting back are relevant to seriousness. The factors which are relevant to the incident on 28 June are:
(a) The length of the setback was less than one car length;
(b) The type of train - passenger train with a driver who control the doors; and
(c) The type of permission required from Control - oral rather than SW10
Having regard to the level of seriousness of the breach, it was submitted by the applicant that other options were open to the respondent in dealing with a SPAD. The material before the Commission does not disclose whether these other options were ever given serious consideration. It would appear that they were not. The options available to the employer included:
(a) Counselling (SPAD Risk Management Document)
(b) Developing and implementing a Performance Development Improvement Plan (SRM document), which could include:
-Training
-On the job mentoring and coaching
(c) Observation and evaluation prior to return to operational duties (SRM document)
(d) A return to work development plan (standard SPAD Risk Management) which could include:
-briefing/coaching
-training
-formal assessments
-monitoring
-additional supervision
(e) Address or eliminate the source if the problem that was causing the applicant anxiety
(f) Reduction in status from driver to guard.
Having regard to the nature of the infringement, it would seem to me that the penalty applied to applicant, namely, his termination of employment, was disproportionate to the nature of the disciplinary matter.
It is accepted that the respondent operates in a highly regulated industry and the purpose of the Transport (Rail Safety) Act2010 is to ensure rail safety and regulatory efficiency.
The applicant accepts that he was in breach of the respondent's policies and procedures. This admission was made at an early stage in the disciplinary process. He acknowledged in his evidence that the incident on 28 June was a "mistake".
It appears to me that there is some ambiguity in relation to the circumstances in which permission is required before a driver can set back.
Clause 5.9.1(b), "Permission to Set Back", of the Standard - Remote Controlled Signalling Manual (RCSM) states:
"Permission to set back must be obtained from the network control officer or officer in charge of the local control panel for all rail traffic except passenger trains where the rail traffic crew or guards control the locking of the doors. These trains may set back one coach length without permission at schedule stopping places and at platforms provided the doors have not been released." [10]
[10] Exhibit APN 4 to the affidavit of Anthony Paul Nelson.
Whilst the applicant has always accepted that he is required to seek permission before setting back, it is arguable that the requirement is not clearly mandated.
The evidence of Mr Skinner makes reference to the applicant's performance history and behavioural issues including a number of final warnings.
The respondent relies on three previous incidents involving the applicant's conduct and performance. On 8 September 2009 the applicant was warned in relation to a failure to provide a handover; on 10 February 2011 the applicant received a warning in relation to a failure to complete a pre-departure test; and on 16 March 2012 the applicant received a warning in relation to unsafe driving in the Bowen Hills Administration Building car park. The respondent submitted that each of these incidents involved safety compliance issues.
I accept that the applicant did not receive a final warning in relation to setting back or SPAD matters. I also accept that previous disciplinary matters have the common thread of involving interpersonal relations with other staff.
The applicant was regarded as antagonistic to his fellow employees,[11] pedantic,[12] and an irritant.[13]
[11] Exhibit 16 - Affidavit of Douglas Currie para 13.
[12] T3-45 Line 35.
[13] T2-25 Line 3.
On the applicant's case, the incident of 28 June was set against a history of harassment, rumour and workplace bullying which stretched over a twelve month period.
In March 2013 the words "Len Cherti is a cunt" were written in between the grout of the tiles in the toilet of the Bowen Hills Administration Building. The words were removed from the toilet wall but reappeared some six weeks later. On 28 June, the day of the breach, the applicant was sent the following message to his personal work folder: "DIP YA FUCKIN LIGHTS COCKSUCKER".
The applicant was angry and upset by what was sent to him. It affected his frame of mind throughout his shift. Before he started his shift he spoke to Mr Nelson in relation to the matter. After he had finished his shift he raised the issue with Mr Skinner and sought assistance from Ms Paton, a psychologist in the employ of the respondent.
Mr Skinner said in his statement that he was aware that the applicant was claiming bullying and harassment, which he accepts may have affected his frame of mind on the day. Mr Skinner goes on to note: "In my opinion, if that was the case, that could have explained the initial overshoot, however it does not necessarily account for his second and third breaches."
As noted above, unfortunately for the applicant, the allegations in relation to what Mr Skinner described as the second and third breaches were never put to the applicant for response.
Conclusion
In determining whether the termination was harsh, unjust or unreasonable, I refer to the decision in Bostik (Australia) Pty Ltd v Gorgevski (No 1), where Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:
"These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct."[14]
[14] (1992) 36 FCR 20, 28.
In Byrne and Frew v Australian Airlines Limited, McHugh and Gummow JJ observed:
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employer or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[15]
[15] (1995) 185 CLR 410, 465.
Having weighed all the evidence and considered the matters that the Commission is required to consider under s 77 of the Act, I conclude that the applicant's dismissal was harsh, unjust or unreasonable. The dismissal was therefore "unfair" within the meaning of s 73.
For the reasons outlined above, I am satisfied that the applicant has discharged the onus to show that the dismissal was harsh, unjust or unreasonable.
Remedy
The applicant seeks reinstatement. Section 78 of the Act gives the Commission the power to reinstate an employee in circumstances where their termination has been found to be unfair. Reinstatement is the primary remedy under the Act and s 79 is enlivened "If, and only if, the commission considers reinstatement or re-employment would be impracticable."
The respondent submitted that reinstating the applicant to his former role would be impracticable because:
(a)the applicant has not driven a train for over 8 months;
(b)the applicant's competencies have not been maintained over the eight month period and accordingly he is prevented from driving until deemed competent;
(c)further, there have been timetable and route changes over the past eight months which mean further training will be required prior to the applicant driving a train;
(d)it is estimated that the applicant would not be able to be reinstated until a further six months from the date of any decision.
It is the respondent's submission that, for reasons associated with route and timetables, re-employment of the applicant into a role such as a guard would also be impracticable. It was submitted that the training required to bring him back to the necessary level of competency in order to drive a train would take at least six months.
It may be inconvenient or difficult for the respondent to reinstate him, but it is not, in my view, impracticable. In Auto Logistics Pty Ltd v Kovacs (1997) 155 QGIG 320, de Jersey P considered the meaning of word "impracticable". His Honour concluded:
"That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practicably impossible."[16]
[16] Auto Logistics Pty Ltd v Kovacs (1977) 155 QGIG 320, 321, citing Liddle v Lembke (1994) 127 ALR 342, 360, 267–8.
I do not accept the submission that it would be impracticable to reinstate the applicant.
Orders
In light of the above findings, I make the following orders:
1. The application is granted;
2. The applicant is to be reinstated to his former position with the respondent;
3.The reinstatement is to be on the basis that the applicant's continuity of service is maintained; and
4.The respondent is to pay the applicant the remuneration lost because of his dismissal to be agreed or, failing agreement, to be the subject of further application to the Commission
3
8
2