Garry French v Lufra Investments Pty Ltd t/a Best Western Lufra Hotel
[2009] FWA 574
•26 OCTOBER 2009
[2009] FWA 574 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Lufra Investments Pty Ltd t/a Best Western Lufra Hotel
(U2009/10416)
COMMISSIONER DEEGAN | CANBERRA, 26 OCTOBER 2009 |
Termination of Employment.
[1] The matter arises from an application filed on 16 July 2009 under s.394 of the Fair Work Act 2009 (“the Act”) by Mr Garry French (“the applicant”) for relief in relation to alleged termination of his employment by Best Western Lufra Hotel. This was the trading name of Lufra Investments Pty Ltd (“the respondent”).
[2] Following an unsuccessful conciliation conference, the matter proceeded to arbitration.
[3] Directions were issued by Fair Work Australia and the matter was set down for hearing on 22 September 2009. At the hearing, Mr James Eddington, Hobart Community Legal Service, appeared on behalf of the applicant and the respondent’s Managing Director, Mr John Shepley of counsel, appeared for the respondent.
Background
[5] The applicant, who held the position of maintenance man, had been employed by the respondent since May 2004. Prior to that date he had worked for the hotel’s previous owners since 1999. His employment was terminated on Thursday 9 July 2009. The respondent is a company which operates a hotel in southern Tasmania. During the proceedings it became apparent that while Mr Shepley was the respondent’s Managing Director, Mr Jeff Holland was the major shareholder of the respondent and licensee of the hotel and Ms Judy Holland was the CEO or manager of the hotel.
The applicant’s evidence
[4] The applicant filed a statement of his evidence 1, expanded on the statement orally and was cross-examined. It was his evidence that in a telephone call with him on 7 July, Mr Holland (who resides in Queensland) instructed him to clear out a shed (variously referred to as a garage) at the hotel in order to be able to store in it a container of goods about to arrive from China. Over that day and the next day the applicant cleared space in the shed for the container. Ms Holland was away from the hotel for a most of those days. Mr Holland had telephoned on occasion during that period to enquire how the task was proceeding.
[5] Early on the morning of 9 July the applicant had opened up the hotel and was in the kitchen when Ms Holland asked him what he had done in the shed. He had informed her that he had readied the shed for the container and was told that he had no right touching items that were in the shed that belonged to Ms Holland’s son and that he should restore the contents of the shed to their former position.
[6] The applicant claimed that he was upset as he had spent some time clearing the shed at Mr Holland’s instruction. He returned to the shed where he received a telephone call from Mr Holland who accepted responsibility for the matter and stated that he probably shouldn’t have given the instruction. Mr Gavin Boon, who had been in the kitchen during the discussion with Ms Holland and was working in the vicinity of the shed, advised him to “just do it to make her happy”. Although he was upset by Ms Holland’s attitude the applicant proceeded to rearrange the contents of the shed as instructed.
[7] According to the applicant, a little while later when he returned to reception to turn off some lights he was met by Ms Holland who screamed at him. He said to her, “Judy, I don't want nothing to do with this" and walked away. Ms Holland continued to abuse him and “she come charging at me”. She then screamed, “Get out of here, I don't want you ever back here again. I'll get the police if you come back in”. At that stage the applicant claimed he started to walk out but Ms Holland said, “Don't ever turn your back on me”. He responded, “Judy, you've got a massive problem” and then went straight home. The applicant claimed he was “totally shattered” as he had worked at the hotel for 10 and a half years.
[8] Under cross-examination the applicant agreed that Ms Holland had previously asked him to put some items from another part of the hotel into the shed for an upcoming market. He noted, however, that this had occurred “a fair while” before, the market had been held and some goods had not sold. He conceded that the markets were held monthly. He agreed that he had not informed Mr Holland that there were items in the shed which Ms Holland had instructed him to put there and could see no reason why he should have done so. The applicant stated that Ms Holland had also told him that the container was expected and that the goods would need to be put in the shed. He agreed that she had not given him instructions to clear the shed. At some time after Mr Holland’s phone call another employee of the hotel had advised him that the arrival of the container had been delayed.
[9] The applicant conceded that he had, earlier in his employment, been told by Mr Shepley that he was not to take instructions from Mr Holland. The applicant had advised Mr Holland of this fact but claimed that, within days, Mr Holland had reverted to giving him orders and he had “gone with the flow”. He denied a suggestion put by Mr Shepley that Mr Holland merely gave him directions as to the performance of some of his tasks but maintained that Mr Holland had generally directed him.
[10] According to the applicant he had cleared space in the shed by stacking property belonging to Ms Holland’s son in one corner and returning to their original location those unsold items that had been placed in the shed for the market day.
[11] In relation to his first conversation with Ms Holland, the applicant stated that she had asked him what he had done to the shed and he had informed her that he had cleared it in accordance with Mr Holland’s instructions. She had then told him to “put the shed back the way it was”. The applicant denied that he had refused to comply with her instruction stating that he had gone to the shed and “put it all back together”. He claimed that he had been in the shed when telephoned by Mr Holland who had apologised and suggested he try to “smooth things over with Judy” as she was upset. The applicant had advised Mr Holland that it would be better for him to stay away from Ms Holland that day as he had “had enough”. He also noted that when Mr Boon had advised him to just do what Ms Holland wanted he had been at the shed.
[12] According to the applicant he had been screamed at by Ms Holland when he returned to reception to switch off some lights and had had his employment terminated before he had a chance to tell her that he had put the shed back to its original state.
[13] So far as the management structure of the hotel was concerned, the applicant understood that Ms Holland was the “CEO” and initially he had been told that Mr Holland was the manager. It was also his evidence that Mr Holland was the licensee of the hotel. He reiterated that Mr Holland was definitely the “overseer” and that care had been taken, whenever he was due to arrive from Queensland, to ensure all at the hotel was “spick and span”.
[14] Evidence was also given for the applicant by the former owner of the hotel, Mr George Patterson, who attested to the applicant’s earlier employment at the hotel and his competence. Ms Sonia Henry, who was employed at the hotel between November 2007 and June 2009, gave evidence to the effect that Mr Holland, when present at the hotel, acted as an owner and routinely gave orders to the staff, including the applicant.
The respondent’s evidence
[15] Evidence was given for the respondent by Ms Judy Holland, Mr Jeff Holland and Mr Gavin Boon.
[16] It was Ms Holland’s evidence that in October 2008, when Mr Jeff Holland ceased to be in an employment capacity with the hotel, it was made clear to the applicant that he was not to take direction from or perform any tasks required of him by Mr Holland without first checking with Ms Holland. In her statutory declaration Ms Holland stated that the applicant was clearly mistaken when he claimed in his application to have had a telephone conversation with “the owner and licensee” of the hotel around 6 July 2009. (This appears to be a suggestion by Ms Holland that Mr Holland was either not an owner of the hotel or not the licensee. The evidence was that he was both an owner and the licensee).
[17] Ms Holland gave evidence about the discussion she had with the applicant on the morning of 9 July when she asked him about the shed. It was her evidence that she twice requested the applicant to put the gear back in the shed the way it had originally been and that he had responded that he would not. At this point Ms Holland stated that she had said to the applicant that if she gave “an instruction and provided he was not in danger of doing the task I could advise him to stand on his head or lie on the ground”. The applicant had then advised that he would not do either of those things and walked away.
[18] Some time later Ms Holland and the applicant had a further encounter. According to Ms Holland she told the applicant she wished to speak to him about the incident and he had told her that he did not wish to speak to her and would not take orders from her or have anything further to do with her. She then terminated his employment. At the time she was unaware that the applicant had accepted her instructions and largely restored the shed to its earlier condition.
[19] It was Ms Holland’s evidence that Mr Holland did give the applicant advice (as opposed to direction) concerning the performance of his maintenance duties.
[20] Essentially, Ms Holland claimed that she had terminated the applicant’s employment because he had “discussed Lufra business with Mr Jeff Holland, had taken direction from Mr Jeff Holland and had not clarified those directions with Judy Holland”. 2
[21] In her oral evidence Ms Holland elaborated on her concerns about the applicant clearing the shed including that she did not think “anyone should touch someone’s personal effects without getting clearance from them” (a reference to the applicant having moved items belonging to her son that were stored in the shed) and noting that she, and others, had put a great deal of effort into sorting the items in the shed, effort which had been wasted given the applicant’s reorganisation of them.
[22] Ms Holland agreed that she had possibly yelled at the applicant but was upset that he had taken the direction from Mr Holland without consulting her.
[23] Under cross-examination Ms Holland was unable to recall exactly when she had next checked the shed after terminating the applicant’s employment. When asked how the applicant had refused to obey her instruction when he had actually done as she had asked, Ms Holland replied, “Did he do it because of me?” When asked about the letter of termination which thanked the applicant for his service, Ms Holland agreed that the applicant was good at “parts of his job”.
[24] Mr Jeff Holland filed a statutory declaration 3 outlining his evidence. He noted that the applicant would “accept my advice and or direction in performing maintenance tasks at the hotel”. He stated that Ms Judy Holland was the CEO and if there was any disagreement between the applicant and him, Ms Holland would say what was to be done. According to Mr Holland he maintained an advisory role at the hotel and since October 2008 there may have been difficulties with staff determining whether he was telling them to do something or telling them how to do something. It was his evidence that he told the applicant about the container arriving from China and that the contents would need to be stored in the shed. He claimed that this occurred in a conversation when the applicant telephoned him although he agreed that his call register showed he had made 2 calls the applicant on the relevant day. Mr Holland also claimed that he would not have told the applicant to clear the shed had he known that other goods had recently been moved into it by the applicant at the request of Ms Holland.
[25] In his oral evidence Mr Holland claimed that he did not tell the applicant to clear the shed without consulting Ms Holland. He confirmed that on 9 July, after receiving a phone call from Ms Holland, he had telephoned the applicant and told him to approach Ms Holland coolly and try to calm things down.
[26] Mr Gavin Boon had performed renovation work at the hotel for about one year. Mr Boon stated that he performed the work, unremunerated, as a favour for Mr Holland whom he had known for about 25 years. It was his evidence that, on the morning of 9 July, Ms Holland had spoken to him about the shed and that he had told her that “Jeff had spoken to Garry and Garry had fixed it up.” It appeared that Ms Holland had been referring to another issue with the shed and enquired what Mr Boon was talking about. He then explained to Ms Holland about the conversation between Mr Holland and the applicant about clearing the shed. When the applicant appeared Ms Holland had confirmed with him what she had been told and then asked why the applicant had not clarified the matter with her. The applicant had responded that he didn’t think it was necessary.
[27] Mr Boon’s evidence went on:
“Judy then demanded that he go and move it back, Garry replied that he wasn’t going to do so. Judy then said words to the effect that “If I told you to stand on your head or lie on the ground or do something that wasn’t going to cause you harm, I’d expect you to do so”. Garry said he wouldn’t, he wouldn’t be treated like a dog and at that stage he walked away”. 4
[28] Mr Boon confirmed earlier evidence that he had advised the applicant to do as he had been instructed by Ms Holland. Under cross-examination he stated that the discussion between the applicant and Ms Holland was heated and agreed that the applicant had walked away.
Submissions for the applicant
[29] It was submitted for the applicant that the termination of his employment was both not consistent with the Small Business Dismissal Code (the Code) and harsh, unjust and unreasonable. It was put that unless the applicant was guilty of serious misconduct summary dismissal was not available under the Code. The respondent had argued that the applicant had refused a lawful and reasonable instruction that was consistent with his contract of employment. It was submitted that this was not a valid argument in circumstances where it had been shown that the applicant had, in fact, obeyed the instruction.
[30] It was also put for the applicant that the applicant’s refusal to have the second discussion with Ms Holland was not an example of a refusal to obey a clear direction. The demand for a further discussion was put in the context of a heated argument between the applicant and Ms Holland and the applicant, reasonably, had extracted himself from the situation.
[31] The submission of the applicant’s representative was that there was no conduct of the applicant that could have been considered serious misconduct and no serious breach of the contract of employment. The Code had examples of serious misconduct which included fraud, acts of violence and occupational health and safety breaches. In essence, it was argued that the applicant had committed no act of serious misconduct in attempting to extricate himself from a heated situation to allow matters to calm down.
The respondent’s submissions
[32] It was put for the respondent that the applicant had been dismissed in compliance with the Code. The respondent’s case was that the applicant had been summarily dismissed for serious misconduct and that misconduct was constituted by his refusal to carry out a lawful and reasonable instruction that was consistent with his contract of employment. It was also argued that Sub regulation 1.07 (4) of the Fair Work Regulations 2009 operates to give the applicant the onus of showing that it was reasonable for notice to be served out. Sub regulation (4) provides:
“Sub regulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employer was not conduct that made employment in the period of notice unreasonable.”
[33] The submission of the respondent was that the evidence showed a “continual refusal” by the applicant to acknowledge that he was ever given a direction. The evidence of Mr Boon and Ms Holland was that the applicant was given a specific direction to go put the shed back the way it was. It was put that the applicant refused to accept that direction. So far as the next conversation between the applicant and Ms Holland was concerned, it was the respondent’s submission that the evidence of Ms Holland was that she had calmed down and had requested the applicant have a discussion with her and the applicant had refused. It was the applicant’s refusal to follow Ms Holland’s directions on 9 July that resulted in the termination of his employment. According to the respondent the first occasion of refusal may have occurred in the heat of the moment and may not necessarily have been serious misconduct, but that the applicant’s refusal to have the further discussion with Ms Holland and his stating that he did not wish to have anything to do with her made the termination of the employment relationship necessary.
[34] Finally it was put that the applicant was not seeking reinstatement and had already found new employment.
Consideration of the issues
[35] Not all the evidence and submissions in this matter have been reflected in this decision. A number of matters were raised in evidence, and put in submissions by both parties which, in my view, had little or no bearing on the matter before me.
[36] Section 385 of the Act provides as follows
“What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[37] The applicant was advised by Ms Holland on their second encounter on 9 July that he was dismissed. On the same day a letter of termination containing the following paragraphs was provided to him:
“I have been informed today by Judy that you have been terminated. As I understand the circumstances this arises from you’re continuing to discuss Lufra business, and more important, taking directions as to your work program from Jeff Holland, of which you have been told by me and others not to do so. Further upon having being directed by Judy to perform certain lawful tasks within your skill and ability you refused. I invite you to respond to me in writing if you dispute these facts.
Notwithstanding your previous great service to the Hotel I find there were sufficient grounds for summary termination for misconduct. No notice payment is required.”
[38] Only two matters remain for determination in respect of s385 as there was no question that the applicant was dismissed and no argument put that the dismissal was a case of genuine redundancy. The first matter for determination, therefore, is whether the applicant’s dismissal was consistent with the Code. If the dismissal is found to be consistent with the Code then the application can proceed no further. If the dismissal was inconsistent with the Code the question for determination is whether the dismissal was harsh, unjust or unreasonable.
[39] Section 388 of the Act provides for the Minister to declare a Small Business Fair Dismissal Code. The Code was declared on 24 July 2009 and commenced on 1 July 2009. As the applicant’s employment was terminated without notice the relevant part of the Code is as follows:
“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
[40] The respondent claimed that the dismissal was consistent with the Code as the necessary belief existed. In addition to the examples of serious misconduct given in the body of the Code the term “serious misconduct” is also defined at s.12 of the Act as having “the meaning prescribed by the Regulations”. Regulation 1.07 of the Fair Work Regulations 2009 provides as follows:
“Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.”
[41] The respondent appeared to argue that the applicant’s conduct was serious misconduct as it was “wilful and deliberate behaviour by an employee that is inconsistent with the contract of employment”. I am not satisfied that the applicant’s conduct in initially refusing to restore the shed to its former state or refusing to discuss the matter with Ms Holland some short time later was, in all the circumstances “wilful or deliberate behaviour” or in fact conduct so serious as to justify summary dismissal. I will expand on my reasons for reaching this conclusion in dealing with the matter of whether the dismissal was harsh, unjust or unreasonable. As summary dismissal was not warranted in this case the dismissal was inconsistent with the Code.
[42] In determining the second question regard must be had to the provisions of s.387:
“Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
Given the particular facts of this application not all of the matters set out in s.387 are relevant. The most important factor is whether there was a valid reason for the termination.
[43] In most respects I accept the evidence of the applicant where it differs from that of the other witnesses. I am satisfied that, in the face of the tirade from Ms Holland in the kitchen, the fact that the applicant initially refused to restore the shed to its former state was an excusable lapse. That initial refusal, which was quickly remedied by the applicant’s actions, did not provide a valid reason for the dismissal, particularly in light of Ms Holland’s conduct. On the evidence before me I find Ms Holland’s reaction unjustified and in parts, inexcusable.
[44] While I accept that Mr Jeff Holland had been instructed not to give orders to the staff and the staff advised not to accept his instructions I am satisfied that this regime did not exist in practice. In my view the instruction was neither sufficiently clear, nor adhered to, to the extent that the applicant should have known that he was not to follow what appeared to be a reasonable direction about a minor “maintenance” matter. It was clear from the evidence, protestations to the contrary of some witnesses for the respondent, that Mr Holland retained a major and important role in the management of maintenance matters at the hotel.
[45] On the evidence before me, particularly Ms Holland’s statement and the letter of termination, the major concern with the applicant’s conduct appeared to be not that the shed had been cleared but that Mr Holland had usurped Ms Holland’s position at the hotel by giving a direction to the applicant. This may well have been an annoyance to Ms Holland but it was a matter that should have been clearly sorted out between the directors of the business and not a matter about which Ms Holland should have harangued an employee. She admitted to “yelling” at the applicant and her statement to him that he was expected to follow her orders (so long as they were lawful and didn’t put him in danger) even if were she to direct him to stand on his head or lie down, was appalling behaviour for an employer. The applicant’s reaction in removing himself was justified in those circumstances. Despite Ms Holland’s behaviour the applicant nevertheless commenced to carry out her instruction concerning the shed.
[46] Only the applicant and Ms Holland were present at the next encounter. Their accounts differ as to what occurred. I am satisfied that Ms Holland wished to continue the argument that had commenced in the kitchen and that the applicant did not. As the encounter took place less than one hour after the initial heated argument, it is understandable that the applicant was still angry. I also accept the applicant’s evidence that Ms Holland herself was not calm, as she suggested in her evidence. I am confident that the applicant made it clear to Ms Holland that he was not happy; that he did not wish to continue their earlier discussion and that he would not “stand on his head or lie down” at her direction. Whether he said the words attributed to him by Ms Holland, that is that he wanted nothing further to do with her and would not take instruction from her, is not as clear. His evidence was that he tried to extricate himself from the situation as he had from the earlier argument and that Ms Holland had screamed at him for turning his back on her. Both versions are plausible but neither, in light of Ms Holland’s own attitude and conduct, constituted a valid reason for his termination. In my view the applicant’s version of this encounter is to be preferred as the more likely, given the evidence of Mr Holland and Mr Boon as to Ms Holland’s demeanour only a short while earlier.
[47] The reason given for the applicant’s termination in the letter of the same day was his continuing to “discuss Lufra business” and take direction for his work program from Jeff Holland, despite having been instructed not to. The secondary reason was given as failing to perform lawful tasks within his skill as directed by Ms Holland. Neither of these matters provided a valid reason for the applicant’s dismissal. There was no evidence of his having been told not to “discuss Lufra business” with Mr Holland, and the evidence concerning whether or not he was to take direction from him about his work program was far from clear. The applicant could be excused for being confused by the contradictory advice he was given about Mr Holland’s role at the hotel. The respondent’s evidence was that Mr Holland owned 44% of the shares in the hotel and was the licensee even at the time of hearing (despite signs to that effect having been painted over except where they were on glass). There was also evidence that only a month earlier the applicant had been given a maintenance schedule to follow by Mr Holland, apparently with the knowledge of the other directors.
[48] The applicant was both notified of the reason for his dismissal and afforded an opportunity to dispute the reason in the letter confirming the termination. He was not given the opportunity to put his version of the events prior to the termination taking effect. No discussions were held between the parties prior to the termination and, in the circumstances, Ms Holland’s demand for a continuation of the earlier argument did not constitute an invitation for such a discussion.
[49] The respondent is a small business and clearly lacks dedicated human resource management specialists. This may have had some effect on the procedures followed in effecting the dismissal. The termination letter confirming the dismissal was prepared by Mr Shepley, of counsel, who conducted the hearing for the respondent. Clearly the legal requirements attaching to the dismissal were within the knowledge of at least one of the directors of the respondent. I do not believe the size of the business provides any justification for the deplorable way this termination occurred.
[50] The evidence included some aspersions on the applicant’s work performance, which I am satisfied were not substantiated given the text of the termination letter. In any event the dismissal was clearly not related to the applicant’s performance.
[51] I have taken into account the fact that the applicant was employed in the same position at the hotel, albeit not by the respondent, for a period of around 10 years. His dismissal was unexpected and, in my view, unwarranted.
Conclusion and remedy
[52] I am satisfied that there was no valid reason for the termination of the applicant’s employment and that, in every respect, that termination was harsh, unjust and unreasonable.
[53] The provisions concerning remedy are set out at ss.392 and 393 of the Act. I am satisfied that the applicant was a person protected from unfair dismissal at the time he was dismissed and that he has been unfairly dismissed. The applicant has made an application pursuant to s.394 of the Act and does not seek reinstatement. Given the size of the respondent’s undertaking and the relationship between Ms Holland and the applicant I do not consider reinstatement appropriate, in any case. I am satisfied that the applicant should be compensated in lieu of reinstatement. The applicant has obtained alternative employment. At the time of the hearing the new employment was on a casual basis only.
[54] I have had regard to the matters contained in s.392 (2) of the Act and note that no submission was made as to the effect of any order on the employer’s undertaking. The applicant had been in the service of the respondent since May 2004, when the respondent bought the hotel from the applicant’s previous employer. The applicant mitigated his loss and found other employment, on a casual basis but on a comparable wage to that of his previous position, about two weeks after the dismissal. This employment commenced on the basis of two days per week but by the time of the hearing was at a five day week. I do not consider that the applicant engaged in any misconduct that should reduce the amount of any compensation awarded. At the time of the dismissal the applicant was paid only his accumulated leave entitlement and wages owed. Notice was not paid.
[55] I find that the applicant, had he not been unfairly dismissed, would have continued to have been employed by the respondent indefinitely. In the circumstances I intend to make an order compensating the applicant for any reduction in remuneration he has suffered since his dismissal. The applicant is directed to provide by 2 November 2009 to Fair Work Australia and to the respondent, details of his earnings since 9 July 2009 and information concerning his current employment status and anticipated earnings for the month of November. The respondent is directed, by 2 November 2009, to lodge with Fair Work Australia and to provide to the applicant’s solicitor information concerning remuneration the applicant would have earned from 9 July 2009 until 1 November 2009 had the dismissal not occurred.
[56] Upon receipt of the necessary information I will make the order for compensation.
COMMISSIONER
Appearances:
Mr James Eddington, Hobart Community Legal Service for the applicant.
Mr John Shepley of counsel for the respondent.
Hearing details:
Hobart
22 September 2009.
1 Exhibit F1.
2 Exhibit L1, paragraph 12.
3 Exhibit L12.
4 Exhibit L3, paragraph 9.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR989784>
1
0
0