Fortunato Perri v Anglo Italian

[2013] FWC 10

[2013] FWC 10

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fortunato Perri
v
Anglo Italian
(U2012/7631)

COMMISSIONER GREGORY MELBOURNE, 10 JANUARY 2013

Termination of employment.

Introduction

[1] This is an application alleging unfair dismissal brought by the Applicant, Mr Fortunato Perri, under s.394 of the Fair Work Act 2009. The Applicant was employed by Anglo Italian Concrete for 15 years from April 1997 until his employment was terminated on 30 April 2012. The Applicant was represented by Mr R. Wainwright from the Construction, Forestry, Mining and Energy Union. Mr J. Tracey of Counsel was granted leave to appear on behalf of the Respondent.

The Issue to be Decided

[2] The Applicant states he was unfairly dismissed, essentially because the Respondent did not have a valid reason to dismiss him. He was called to a meeting to be warned about a breach of safety requirements but was then dismissed based on his conduct at the meeting. He also submits he was not given the opportunity to be represented at any time. The Respondent rejects the claim of unfair dismissal. It states it had a valid reason to dismiss the Applicant and the process involved was fair having regard to what occurred.

The Evidence and Submissions

[3] The Applicant submits he was dismissed because of his attitude during a meeting in which he was being disciplined for an alleged safety incident. The Applicant, firstly, admits the breach of safety incident occurred. He was employed in carrying out concreting work on construction sites. On a daily basis the work involved doing the preparatory work for concrete pours and then working with the poured concrete. Part of these duties involved operating a ride on trowel.

[4] On 29 March 2012 the Applicant was working at a site in Deer Park. After his lunch break he was asked to take over as the trowel driver from Mr Paul Vincent. He walked across the slab to the machine and was then asked by Mr Vincent for a lift to the edge of the slab, approximately eight to ten metres away. He states without thinking he allowed Mr Vincent to jump on the machine and they travelled at slow walking speed to the edge of the slab. This was done primarily to get Mr Vincent off the slab without making additional foot prints.

[5] The Applicant acknowledges this was the wrong thing to do, being in breach of appropriate safety practices. He stated he sincerely regretted what had happened. He also said he believed Mr Paul Piantella, the Respondent’s Occupational Health and Safety Manager, was on site that day and witnessed the incident. However, he said Mr Piantella did not raise the issue with him on that day, nor at any other time, despite the fact they met on various worksites on several occasions after the incident occurred. Work then continued as normal at the Deer Park site for the rest of the day.

[6] The Applicant said around four weeks later he arrived at his worksite and was told by Mr Joe Fruci, a Project Manager with the Respondent, that Mr Chris Collett, the Respondent’s General Manager, wanted to meet with him. He was not told specifically what the meeting was about but he was told Mr Vincent had also been asked to attend. The two men went to see Mr Collett during their lunch break to be told initially he was not ready to meet with them and was still writing their warnings out. They were then told the warnings related to the incident on 29 March and someone could have been killed or seriously injured, given what occurred. The Applicant states he then said he was very sorry about what had occurred and that it wouldn’t happen again. He states Mr Collett then told him to “get that fucken (sic) smile off your face” and that he was “a smart arse” and he was going to be sacked. 1 The Applicant said, in response, he simply indicated he wanted to accept the warning and couldn’t believe this was happening having worked with the Respondent for so long.

[7] He states the meeting lasted for about ten minutes. He then left the office and after a brief discussion with some work colleagues left the worksite in a state of shock. He stated as a single father he needed to obtain another job quickly and did find work in the next few days as a concreter with another employer, although initially at a lesser rate of pay. He also states at no time was he offered the option of having a representative present in the meeting with the Respondent.

[8] In regard to the incident with the ride on trowel, as indicated, the Applicant admits the incident occurred and acknowledges it was the wrong thing to do. He also states he apologised at the meeting on 30 April with Mr Collett and said it would not happen again. It is also submitted the incident was not raised with the Applicant until more than four weeks after it occurred, and it was not raised with him at the time, despite having been witnessed by the Respondent’s Occupational Health and Safety Manager, Mr Paul Piantella. The Applicant submits he was, in fact, dismissed for smiling or “smirking” in the meeting with Mr Collett on 30 April and “it is inherently unreliable to dismiss a worker based on one person’s interpretation of that worker’s facial expression” 2. The Applicant tendered material to support the view a person’s facial expression should not be taken as a reliable indicator of their attitude or emotions. It was accordingly submitted there is no valid reason for the Applicant’s termination. The Applicant also made various submissions about the process involved, namely he was not given any notification of the reason for dismissal, nor the opportunity to respond to those reasons. He also submitted he was not given the opportunity to be represented at any time and there were no warnings issued.

[9] The Respondent submits there are two principal reasons for the Applicant’s dismissal. It submits those reasons go to the heart of the employment relationship and constitute a breakdown of that relationship. It submits in the first place the Applicant asked Mr Collett to dismiss him. Secondly, the Applicant treated the Respondent with contempt in a manner that demonstrated a lack of regard for the serious safety breach that had occurred. Given that situation the Respondent submits it can have no confidence in the Applicant conducting himself in a safe manner in the future.

[10] The Respondent provided evidence from four witnesses. Mr Paul Vincent was working with the Applicant on 29 March when the safety breach occurred. He confirmed the Applicant’s evidence about what happened that day and indicated he did something he regretted when he asked the Applicant to give him a lift to the edge of the slab by standing on the guard rail of the ride on trowel. He stated Mr Paul Piantella, the Respondent’s Occupational Health and Safety Manager, did approach both he and Mr. Perri after the incident to indicate he would have to report it. He also said Mr Collett sent a letter to all employees shortly afterwards to emphasise the significance of what had occurred.

[11] Mr Vincent also confirmed he and the Applicant were asked by Mr Fruci on 30 April to go and meet with Mr Collett. They went to his office together at their lunch break. Mr Collett pointed to the significance of what had occurred and indicated they could both have been sacked. He then said to the Applicant, “It’s not a laughing matter” 3. Mr Vincent then stated the Applicant said, “There’s so much that goes on that you don’t see or know about”4. Mr Vincent stated Mr Collett then said in a raised voice, “Don’t be a fucking smart arse, we could have you sacked for this,”5 to which the Applicant replied, “if you want to sack me then sack me”6, after which he was told by Mr Collett to get out. The Applicant then left. Mr Vincent then repeated an earlier apology he had made and went back to work. He received a formal warning letter from Mr Collett two days later.

[12] Mr Giuseppe Fruci has worked with Anglo Italian Concrete since 1971. He is now the Construction Manager having started with the Company as a labourer. He stated Mr Collett first asked the Applicant and Mr Vincent to meet about the safety incident on 1 April at a time when both men were working together on a site close to his office. The meeting did not take place at that time for various reasons, including Mr Collet being on leave, the Applicant being off work for a time with an injured shoulder, and because both men were not working in close proximity to the office where Mr Collett was located.

[13] Mr Paul Piantella is the Occupational Health and Safety Manager with the Respondent and has been in that role since March 2004. He has been employed with the Respondent since 1996. He attended the work site on the day the safety incident occurred and stated earlier that day the Applicant had been provided with a Safe Work Method Statement and had signed an induction checklist. He also stated the safety incident could have resulted in serious injury or worse. He estimated the machine travelled for 20 - 25 metres with one person standing on the guard rail. He spoke to Mr Vincent after he was dropped off the machine, indicating he would have to report the incident. He yelled out the same words to the Applicant but said he was either ignored or not heard. In cross examination he acknowledged the Applicant would have been wearing appropriate hearing protection whilst on the machine, and the machine was noisy, but it was still possible for the Applicant to hear him. He also acknowledged he had seen the Applicant on several occasions after the incident but had not raised the matter with him. Shortly after the incident he rang Mr Collett, who asked him to contact the Master Builders’ Association for advice on how to respond to what had occurred.

[14] Mr Chris Collett is the General Manager of Anglo Italian Concrete. The Company has operated since 1927. On 29 March he received a phone call from Mr Piantella about the safety incident. He stated in his examination in chief:

“Well, I was shocked for a start, because I know that just from looking at the machines, those welds are not really designed to carry a man, especially when it's probably operating. It's meant to be there more to maybe step onto to get into position, and just really just picturing what could have happened, had one of those welds broken whilst they were on the machine, dinking each other. It would have resulted in them probably dying, one of them at least, if not being severely injured, and we don't want that behaviour in our workplace.” 7

[15] He confirmed he asked Mr Piantella to contact the Master Builders’ Association to obtain advice about how to respond. He subsequently decided, given the long service of the two employees, it was appropriate to provide them with a written warning and he would meet with them himself to convey that warning, given the serious nature of the incident. He confirmed on 2 April he asked Mr Fruci to organise that meeting at a time the two men were working in the vicinity of his office. He stated he again spoke with Mr Fruci on 4 April and asked the meeting occur that day after the concrete pour, however, the Applicant later went home early after injuring his shoulder. Mr Collett was then on annual leave from 6 April until 30 April. He then spoke to both men on 30 April. He stated as a breach of the Respondent’s Occupational Health and Safety Policy they would be given a first and final warning and asked both men whether they had any excuse for what they were doing. Both replied “No”. He then stated he noticed the Applicant smirking or smiling. An exchange then took place between the two men which reflected the evidence of Mr Vincent referred to previously.

[16] He stated it was clear at the meeting the Applicant demonstrated no insight into the seriousness of what he had occurred. His lack of regard had also been apparent when he had ignored Mr Piantella on the day the incident occurred. He said he believed the Applicant’s apologies about the incident were not sincere, and he doubted whether he viewed the incident as serious at all. He subsequently arranged for a letter of termination along with the written warning to be sent to the Applicant. Future tool box meetings with all employees were also planned.

[17] In cross examination Mr Collett confirmed the Applicant had worked for Anglo Italian Concrete for 16 years and he considered him to be “a very good concreter” 8. He also stated he had not previously had any reason to consider him to be a “smart arse,” and he did not intend to dismiss him prior going into the meeting on 30 April. He also stated he had not previously had any disciplinary issues with the Applicant.

[18] The Respondent submits it had a valid reason to dismiss the Applicant because it could no longer have confidence in his ability to comply with appropriate safety obligations. It also submits the Applicant was aware and on notice as to the reason for his dismissal. The Applicant had an opportunity in the meeting on 30 April to respond to the reasons for his dismissal and chose instead to respond by challenging Mr Collett about those issues. The Respondent submits there was no request and no refusal to have a support person present in the discussions on 30 April, and this consideration is accordingly not relevant.

The Legislation and Law to be Applied

[19] Section 385 of the Act states, in part, a person has been unfairly dismissed if the Fair Work Commission is satisfied the person has been dismissed and the dismissal was harsh, unjust or unreasonable. Section 387 details the matters to be taken into account in considering whether the dismissal was harsh, unjust or unreasonable. It indicates as follows:

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:

(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 FWC considers relevant.”

[20] The obligation imposed by s.387 is clear. It was simply stated by a Full Bench of Fair Work Australia in the matter of L. Sayer v. Melsteel Pty Ltd 9 in the following terms.

“Where the Applicant does present a case, in the ordinary course each of the criteria in s. 387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 10

[21] The Applicant also makes reference in his submissions to the decision of Senior Deputy President Cartwright in Mohamed Ahmed v Webforge NSW Pty Ltd 11 when he suggested other relevant matters carried weight in terms of whether a dismissal was harsh, unjust or unreasonable. Senior Deputy President Cartwright referred, in particular, to the applicant’s length of employment (more than ten years), his good employment record, and his open and honest behaviour during the investigation of the safety issue.

[22] The Applicant also referred to the decision of the Industrial Court of Australia, as then known, in the matter of Senathirajah Selvachandran v. Peteron Plastics Pty Ltd 12 [Selvachandran]handed down in July 1995 by Northrop J. That matter was concerned with provisions contained in the Industrial Relations Act 1988, which are similar in part to those contained in s. 387 of the Fair Work Act 2009. His Honour held in regard to the valid reason requirement,

“In its context in subsection 170DE (1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudicial could never be a valid reason for the purposes of subsection 170DE (1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed upon them. The provisions must ‘be applied in a practical and commonsense way to ensure that’ the employer and employees are each treated fairly...” 13

[23] The Respondent in their submissions referred to the Full Bench decision of Parmalat Food Products Pty Ltd v. Mr Kasian Wililo 14 [Parmalat] which also involved a termination related to a safety issue. The proceedings arose on appeal from a decision of a single member who found the dismissal to be harsh despite the safety breach which was considered to constitute serious misconduct. The Commissioner at first instance found a valid reason for termination existed but taking into account each of the factors in s.387 found, on balance, the termination to be harsh.

[24] The Full Bench overturned that decision finding the Applicant’s conduct constituted a valid reason for dismissal and there were “no mitigating factors that should have led to a lesser penalty being adopted” 15.

The Full Bench also made the following statement at paragraph 24 of the decision about the significance of “valid reason” in the terms of the various considerations contained in s.387 (a) - (h).

“The existence of valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render any termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 16

[25] The Full Bench also emphasised the importance of safety in the workplace and the responsibilities of employers in this regard when it stated at paragraph 18:

“In our view this case raises important questions about the respective rights and obligations of employers and employees in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so can send a message to the workforce that safety breaches can occur with impunity.” 17

[26] However, the circumstances being considered by the Full Bench in that matter were different in one important respect from those under consideration in these proceedings. In the Full Bench matter the “valid reason” concerned the employees conduct in placing his arms, head and shoulders underneath an unstable and elevated load in a distribution centre in which he was working as a forklift driver. However, in the present matter it was not the safety breach that is claimed to be the “valid reason” pursuant to s. 387(a), but instead the Applicant’s response after being warned about that safety breach.

[27] Reference was also made to the decision of Deputy President McCarthy in Buston v BHP Billiton Iron Ore Pty Ltd 18 in which he considered a submission based on failure to comply with safety obligations and found the behaviour did constitute a valid reason for termination, despite evidence other employees had also failed to comply. However, again that decision to dismiss was based on the employee’s indifference and lack of recognition of his safety responsibilities, rather than his response to being warned about his previous actions.

[28] This Tribunal‘s predecessor has also considered what is required in regard to “valid reason.” In the matter of Rode v. Burwood Mitsubishi 19 the Full Bench stated:

“...the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 20

[29] I now turn to consider the circumstances in the present matter in the light of the considerations contained in s.387 of the Act.

(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 the other employees)

[30] There is no doubt about the importance of workplace health and safety and about the importance of the obligations both employers and employees have in this context as the Full Bench emphasised in the Parmalat decision referred to previously.

[31] It is clearly of critical importance that actions taken by employers in conjunction with their occupational health and safety obligations are not unreasonably undermined or set aside by decisions of this Tribunal. But, as already emphasised and confirmed by the Respondent in its submissions, it is not the safety breach in the present matter that is the valid reason for termination. It is instead the Applicant’s alleged response when being warned about the breach that is submitted to be the valid reason for termination on the basis it destroyed any confidence in the Applicant being willing to adhere to safe work methods in the future.

[32] A safety breach did occur. It resulted from action initiated by Mr Paul Vincent when the Applicant agreed to his request to be transported on the ride on trowel across the slab the two men were working on. Both employees have subsequently acknowledged what they did was wrong and in breach of understood safety requirements. Both have apologised and indicated it will not happen again. It was a significant safety breach, however, after due consideration it was not considered by the Respondent to justify the dismissal of the two employees. A report of the incident was provided by an eye witness, the Respondent’s Occupational Health and Safety Manager. The Master Builders’ Association was also consulted for advice on how to respond. The two men were long standing employees with good employment and work records. In all the circumstances a decision was made that the appropriate response was for a written warning to be provided in a meeting involving the General Manager and the two employees.

[33] For various reasons that meeting with Mr Collett did not take place until just over one month after the incident occurred. It was a relatively short meeting. The evidence differs slightly about what actually occurred, however, it is clear it became heated. The two employees were not told specifically beforehand what the meeting was about but both appeared to have understood it concerned the incident on 29 March. Both apologised after being warned by Mr Collett and indicated it would not happen again. The Applicant states he was then told by Mr Collett to get that smile off his face. He was then told he was a “smart arse” and didn’t take anything seriously. He was again told he was a “smart arse” and had just been fired.

[34] Mr Vincent’s recollection of the events is slightly different. He said he was not in a position to be able to see the Applicant’s face so could not observe his facial expressions but again after the warning and the apologies from both men he recalls Mr Collett saying to the Applicant “it was not a laughing matter” 21 and “don’t be a smart arse”22. He then recalls the Applicant responding by saying “if you want to sack me, sack me”23 and the Applicant then being told to get out. Mr Collett's recollection is similar. He recalls the warnings and apologies but then says he noticed the Applicant smirking. He asked the Applicant what he was smiling about to which the Applicant responded by saying “...he didn’t know half of what goes on on-site”24. In cross examination the Applicant did acknowledge saying words to this effect although his recollection was that he said, “A lot of things go on in this Company that you have no idea about”25. He added that in saying that he was not challenging Mr Collett but making the statement as a matter of fact. Mr Collett then said they were not here to talk about other issues but about the incident involving the two men. He told the Applicant he was being “a smart arse” and could have been sacked for what he had done to which the Applicant replied with words to the effect “...if you don’t like it sack me”26. The Applicant denies making this statement. He was then told by Mr Collett to get out which both parties appear to have understood to mean that the Applicant’s employment was being terminated.

[35] There are some disparities between the three men in terms of their recollection of what actually happened and what was actually said in the meeting on 30 April. However, in all the circumstances I am not satisfied on any version of those events that they constitute a valid reason for the Applicant’s dismissal that can be said to be “...sound, defensible or well founded ...” as was held to be required by Northrop J. in the matter of Selvachandran referred to earlier. Whilst the Respondent submits the Applicant’s attitude and behaviour in the meeting were such to destroy any belief about his commitment to workplace health and safety the evidence also suggests it came to this conclusion in haste and it was not, in fact, the impression the Applicant was conveying or intended to convey. This view is reinforced by the fact the Applicant had a 15 year record of service with the Respondent and the General Manager’s acknowledgement in cross examination the Applicant had no record of poor work performance, or failure to observe relevant safety requirements during that time. In addition, the safety breach came about because of action initiated by the other employee, notwithstanding that the Applicant should have refused the request made of him by that employee which led to the breach.

[36] The Respondent also indicated when the meeting was convened it was not intended that the Applicant or the other employee, Mr Vincent, were going to be dismissed because of what occurred at the Deer Park site on 29 March. However, perhaps due to a misunderstanding, as much as anything else, the meeting took a different course ending in a conclusion which was not intended at the outset, nor in my view justified at the end given what occurred.

(b) Whether the person was notified of the reason

[37] It appears the two employees were not specifically told about the reason for the meeting with the General Manager on 30 April, prior to attending, although they may well have understood it was about the earlier safety incident. However, I am satisfied neither had any idea termination of their employment was a possible outcome from the meeting. This view is reinforced by the fact the meeting took place more than one month after the safety breach incident, albeit there are various reasons to do with absence from work and annual leave that can explain some of that delay. In addition, the Respondent’s Occupational Health and Safety Manager, who was an eye witness to the incident, made no mention of it to the Applicant despite his evidence he came into contact with him on several occasions at various worksites after the incident occurred.

[38] The Applicant was finally provided with both a written warning letter and a letter confirming his termination after the meeting on 30 April.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[39] The Applicant was given little opportunity to respond to the position the General Manager came to in the meeting on 30 April. As already stated the meeting began with an intention to provide the two employees with a warning about what had occurred, however, it quickly escalated to another outcome.

(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussion relating to the dismissal

[40] The Respondent submits this consideration is not relevant as the Applicant did not request a support person be present at any time. It is clear the Applicant was not prevented from having a support person present. However, it seems equally clear the Applicant did not consider the need for a support person to be present at the meeting on 30 April because, firstly, he was not told beforehand what the meeting was to be about and, secondly, he never contemplated it could involve his dismissal from employment. Whilst it cannot be said with complete certainty it is not hard to imagine the prescence of a support person might well have acted to prevent the meeting from escalating to the outcome it did.

(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[41] This consideration is not relevant in the circumstances of the present matter.

(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal

[42] The Respondent is a significant and longstanding employer with a number of employees working across various worksites. No submissions were made about the particular relevance of this consideration and there is no reason to suggest it had an impact.

(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 dismissal

[43] No submissions were made about the particular relevance of this consideration and it does not appear to have had an impact.

(h) Any other matters

[44] The Applicant’s length of service (15 years) with the Respondent has already been referred to. The Applicant was also described by the General Manager in cross examination as being “a good concreter.” He apparently had an unblemished work record, both in terms of work performance and adherence to safety requirements. I am satisfied this long unblemished record is an additional matter that is relevant to the determination of this matter. In particular, it required a more considered view to be formed by the Respondent about the Applicant’s attitude to workplace health and safety, and his past good record in this regard should have been influential in informing the Respondent’s view about the Applicant’s approach to and observance of health and safety requirements.

[45] Having considered all of the submissions and evidence in this matter and each of the considerations in s.387 of the Act and, in particular, the conclusion I have come to about the lack of a “valid reason” for termination, I am satisfied the Applicant has been unfairly dismissed.

[46] Having come to that conclusion I now turn to consider what remedy is appropriate. The relevant section of the Act is set out below:

“390 When FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWC 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) FWC may make the order only if the person has made an application under section 394.

(3) FWC must not order the payment of compensation to the person unless:

(a) FWC is satisfied that reinstatement of the person is inappropriate; and

(b) FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[47] The language of the section makes clear the decision to make an order is discretionary and the exercise of that discretion is conditional upon the requirements in s.390 (1) and (2) of the Act having been satisfied. I am satisfied those requirements have been met. The Applicant in his original application and in his written submissions indicated reinstatement was sought by way of remedy. However, during the proceedings Counsel for the Respondent indicated on transcript,

“.. as I understand from my friend, reinstatement is not sought. I think it was sought in the application but I understand it’s no longer sought ..” 27

[48] Mr Wainwright for the Applicant made no further comment in response to this submission from the Respondent. I am accordingly unclear about what the Applicant’s submissions are in regard to preferred remedy. I accordingly propose to allow seven days from the date of this decision for the Applicant to clarify his position in regard to proposed remedy. If reinstatement is sought the matter will be relisted to enable both parties the opportunity to provide any further submissions they wish to make about that outcome. If not, then the issue of remedy will be determined on the basis of the submissions and evidence that have already been provided to the Tribunal in this matter.

COMMISSIONER

Appearances:

Mr R Wainwright on behalf of Mr F Perri.

Mr J. Tracey on behalf of Anglo Italian Concrete

Hearing details:

2012:

Melbourne.

3 September.

 1   Exhibit W2 at paragraph 41-43

 2   Ibid at paragraph 13

 3   Exhibit T1 at paragraph 15

 4   Ibid at paragraph 17

 5   Ibid at paragraph 18

 6   Ibid.

 7   Transcript at PN482

 8   Transcript at PN541

 9   [2011] FWAFB 7498

 10   Ibid at paragraph 20

 11  [2010] FWA 4053

 12 [1995] IRCA 333

 13   Ibid at paragraph 10

 14   [2011] FWAFB 1166

 15   Ibid at paragraph 34

 16   Ibid at paragraph 24

 17   Ibid at paragraph 18-19

 18   [2010] FWA 640

 19   Dec 451/99 M Print R4471

 20   Ibid at paragraph 19

 21   Transcript at PN 1022

 22   Exhibit T1 at paragraph 18

 23   Ibid.

 24   Transcript at PN 656

 25   Transcript at PN 286

 26   Transcript at PN 292

 27   Transcript at PN1064

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