Lindsay Wade v Murray Security Services

[2010] FWA 6267

[2010] FWA 6267

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lindsay Wade
v
Murray Security Services
(U2010/8440)

COMMISSIONER ROBERTS SYDNEY, 2 SEPTEMBER 2010

Application for unfair dismissal remedy.

[1] This decision concerns an application lodged on 28 April 2010 by Mr Wade pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Wade’s application is Murray Security Services (MSS or the Company).

[2] The application was dealt with by a Fair Work Australia Conciliator on 24 May 2010 but the conciliation was unsuccessful.

[3] The arbitration came before me for hearing in Wodonga, Victoria, on 4 August 2010. Mr Wade represented himself and the Company was represented by Mr G Lawrence, its Principal. Directions had been issued on 10 June 2010 for the filing of submissions, witness statements and other documentary materials. That process was completed on or about 20 July 2010. Mr Wade gave sworn evidence on his own behalf and Mr A Wolfe and Ms E Loy also gave evidence for the Applicant. Mr Lawrence gave evidence on behalf of the Company.

Background

[4] Mr Wade entered employment with MSS as a Security Guard on 1 May 2008. He was initially employed on a part-time basis before later taking up full time employment. Mr Wade was summarily dismissed on 19 April 2010 following alleged threats made by Mr Wade’s wife to Mr Lawrence in a telephone exchange. Mr Lawrence also relies upon various alleged performance issues arising from Mr Wade’s employment. Mr Wade claims that he was not guilty of misconduct in his employment and that the termination of his employment was unfair. Mr Wade does not seek reinstatement to his former or similar position with the Company.

Legislative Framework

[5] Section 385 of the Act provides:

“385 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] Section 388 of the Act provides for the Minister to declare a Small Business Dismissal Code. That code was declared on 24 June 2009 and commenced operation on 1 July 2009. The Code provides:

“Summary Dismissal

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.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[7] It is not disputed that MSS is a small business as described in the Act, employing fewer than fifteen full time equivalent employees.

[8] Firstly I must decide if MSS complied with the Small Business Fair Dismissal Code.

Evidence

Mr Wolfe

[9] Mr Wolfe gave sworn evidence and submitted a witness statement. 1

[10] In his witness statement, Mr Wolfe relevantly said:

“My name is Anthony Wolfe, I have worked at Murray Goulburn Cobram Site for 12 months, and in that time I have met Lindsay on many occasions, whilst doing his job and have become friends.

I would see Lindsay every night at work doing his rounds with a smile and he would always say g’day.

In the last 3 months I noticed Lindsay struggling with his job, and I had seen first hand the poor condition of the security vehicle that Lindsay had to drive. At no times did I see or hear Lindsay shirked his responsibilities. I was surprised and disappointed when I heard about him being fired.

In my opinion Lindsay was fired for sticking up for his rights as a worker, and replaced by an overseas worker that would not know what his rights are.

In my mind Lindsay definitely has a case for unfair dismissal and the way he was treated was very unaustralian.”

[11] There was no supporting oral evidence.

[12] In cross-examination, Mr Wolfe was asked how he knew that Mr Wade was ‘struggling with his job or not’ and he replied that he was familiar with Mr Wade through his (Mr Wade’s) place of work. 2 Mr Wolfe went on to say that he had inspected the security vehicle allocated to Mr Wade and that it was in poor condition.3

Ms Loy

[13] Ms Loy gave sworn evidence and submitted a witness statement. 4

[14] In her witness statement, Ms Loy relevantly said:

“I am a manager at McDonalds Cobram and I am writing in regards to Lindsay Wade.

In dealing with security 7 days a week, I have found Lindsay to be completely professional when dealing in his clients. To give an example of this, we have no regular security patrols on our night shifts, as we are a 24 hour store. Lindsay is the only security guard to go beyond his normal duties to patrol our store to ensure the safety of our staff. He also picks our cash up on a daily basis and our business has complete and total trust in Lindsay when he does the cash run.

Another example is when our store shuts up on Christmas Eve. Lindsay was the ONLY security guard that night to help the managers on duty to safe secures our store until we reopened on Boxing Day.

Lindsay’s care towards all his clients is completely professional and trustworthy. We now only see security once a day for the cash pickup and they no longer do routine checks on our store. This has meant our staffs feel insecure at night with no one patrolling the area.

Above all, Lindsay is very professional and reliable person and I would recommend him to any future employer in the future.”

[15] In supporting oral evidence, Ms Loy was asked: “On my designated days did I ever with your knowledge fail to pick up any of your cash deposits?” and replied: “Not that I’m aware of, no.” 5

[16] In cross examination, Ms Loy said that she had only ever seen Mr Wade picked up cash from her store. 6 Ms Loy went on to say that in all her dealings with MSS staff she had found them to be courteous.7

The Applicant

[17] Mr Wade gave sworn evidence and submitted a witness statement. 8

[18] In his witness statement, Mr Wade said, in summary:

• He had not entered Ottrey Lodge due to an infestation of redback spiders around the entry gate. He had left a note explaining the situation.



• He used his personal vehicle on MSS business as company vehicles were not “up to a standard to drive”. He had left a note for another worker before his weekly shift was due to begin telling that person that he was ill and could not perform his normal duty.



• Mr Lawrence had copies of both his Victorian and New South Wales security licences and a copy of his RSA Certificate.



• Denied that he had asked clients to use their own staff to deliver cash to banks. He later discovered that it was not lawful for him to pick up cash when he was not the holder of a Cash In Transit Licence.



• Denied being aggressive with the staff of the Barooga Sports Club.



• He was expected to train other staff without any additional payment.



• He was never paid for being on 24 hour call.



• He had been forced on many occasions to complain about problems with his wages.



• A dispute arose over payment by MSS for the use by Mr Wade of his personal vehicle for work purposes. This led to a telephone altercation between Mr Lawrence and Mr Wade’s wife on 18 April 2010.



• Mr Lawrence dismissed him on 19 April 2010 by email “due to my wife having words with him over the phone”.



• “Last thing is yes I rang Mr Lawrence about a week later and said to him that if anything happened to my wife I was coming after him the reason I said this was because my wife walked out on us after this as she blamed the whole thing on herself but I tried to explain that it wasn’t her fault it was Gary’s fault for been so bloody tight and not paying a damn bill if it had been a client Gary would have refused to give them a service but because it was me had had chosen to sack me and take and easier way out. I refused in the end to give Gary my Phone Number as I was sick of him ringing me on my days off to go do the club lockup for him, I was sick of not seeing my family.”



• “My summary on all this is I was sacked due to myself and my wife standing up for my rights as a worker and as advised by the Fair work ombudsman I had a right to send Mr Lawrence a bill for the use of my car at 0.74c km.”

[19] Mr Wade also gave supporting oral evidence. That supporting oral evidence expanded on matters addressed in his witness statement and I have paid regard to that evidence.

[20] At this stage, I asked Mr Wade: “What do you say in relation to the reason given for your termination of employment?” and he replied: “Well, the reason that I was given was because it was the last time he was going to put up with my wife speaking to him like that. To me that doesn't fall back on my shoulders because at the time I actually said to her, ‘Don’t stress about it. We'll figure something out,’ and I actually said to her, ‘Hang up the phone,’ ...” 9

[21] Mr Wade went on to say: “She started making the phone call, I told her to get off the phone. I then walked inside because I didn't want nothing to do with it because it was her business with the bill, that had nothing to do with me. Who she bills and who she doesn't bill, that's out of my hands. That's the statement Mr Lawrence actually started with, that I was sacked because of the way my wife conducted herself, but in the same sentence he's turned around and stated that I'd done a really good job and I'd always looked after the car. So to me there was no valid reason to dismiss me.” 10

[22] Mr Wade said that his wife intended to attend the Tribunal hearing but was required to stay at home by the sickness of their son. 11

[23] In cross-examination, Mr Wade:

• Agreed that he initiated the telephone call to Mr Lawrence on 18 April. 12



• Agreed that Mrs Wade was becoming abusive in the background and that Mr Lawrence told Mr Wade that he would ring back at another time. 13



• Agreed that when the first telephone call was terminated, Mrs Wade immediately rang Mr Lawrence. 14



• Said that he had not notified Mr Lawrence of his need for a shift change due to illness because he had been told to work such matters out with other staff. 15

Mr Lawrence

[24] Mr Lawrence gave sworn evidence and submitted a witness statement. 16

[25] In his witness statement, Mr Lawrence said, in summary:

• He was happy with Mr Wade’s work performance until approximately June 2009 when Mr Wade came under financial stress and “became more difficult to manage”.



• “The employee’s wife, Julie also began to regularly call me and accusing me of ‘not looking after Lindsay’ and making aggressive statements about the rate of the wages and the number of hours he was working. I indicated to Julie that I would work out matters with Lindsay. However, I continued to receive angry telephone calls from Julie on a regular basis.”



• “I received numerous calls from Julie during the latter stage of the 2009. She often used to preface the conversation by saying ‘don’t let Lindsay know that I called’. Julie would continued to complain and allege that Lindsay needed more money. She was often rude and very aggressive about pay details. I eventually told Julie not to call. I became increasingly frustrated at these calls because when I spoke to Lindsay he denied that there was any problem.”



• Mr Wade had ‘work performance issue’.



• “Lindsay consistently took time off and increasingly tried to change his shifts at the last minute. He failed to provide a telephone number so that he could be contacted. During the last 6 months of his employment he denied having a phone if but if there were issues about his pay he would ring me on an unlisted number. His refusal to provide a contact number meant considerable hassles if I needed to speak to him regarding his shifts.”



• “Lindsay was criticized by the Barooga Sports Club. The managers alleged that Lindsay was discourteous and rude to the duty managers at the conclusion of several evenings. I received several complaints that Lindsay was rude if there were delays in locking up the premises. He was paid from 7.30pm to 4.30am and there was no need for him to be impatient with the Barooga Sports Club. The manager claimed that Lindsay snapped at staff when he was locking up on 2 occasions.”



• “Complaints were also received from McDonalds regarding failure to collect cash from the premises. Lindsay failed to inform me and that cash monies had not been collected and that the client had been unhappy. These complaints came from the owner of the franchise not the duty managers. These mistakes cost me money since the client declined to pay for the missed cash collection.”



• “The employee was provided with a patrol car during his shifts. In April 2009 the gear box in the Daihatsu 4WD ceased working. Lindsay was provided with a relief vehicle (Barina). However, he refused to drive this car because he claimed the vehicle hurt his back. I told him that a private car could not be driven since it was against company policy. I refused his request to drive a private car. However, he simply drove it anyway. The Daihatsu subsequently suffered a motor breakdown and Lindsay also used his wife’s vehicle during this period. He was driving his own vehicle for a period of 10 days in total. He was reimbursed for fuel together with $50.00 supplement plus fuel.”



• “Lindsay also misplaced two sets of security keys which was a serious issue given that the keys were master security keys and allowed access to local client’s premises.”

[26] Mr Lawrence’s statement went on to detail warnings allegedly given to Mr Wade concerning work performance issues and conduct:

“1. Lindsay was provided with a verbal warning on 10 February 2010 in reference to leaving notes to clients about spiders. Lindsay refused to attend a client (Ottrey Lodge) on his own volition. The property is an aged care facility with dementia patients. He never spoke to any staff at the Ottrey Lodge about concerns he had. He also never raised concerns with me direct. The note stated that Lindsay was not going to provide security until they got rid of the spiders. The client was very upset at the rude tone of the note. Then the client complained that the security staff had no right to address them about matters apart from security.

The procedures required that any complaints by staff need to be raised with management so that this can be raised with the client. Client relationships are very important to the business and the note caused some conflict with the client.

2. On the second occasion on 19 March 2010 I provided a second warning to Lindsay about leaving a note on the patrol car to another worker saying ‘I am sick and can’t work’. He similarly did not make any contact to me or speak to the other worker (Joban) about whether he could cover his shift. Joban rang me after he found the note on the patrol car outside his house. I could not contact Lindsay because he refused to provide any telephone number. I eventually contacted him when he started his shift the next night and he gave no reason why he had not contacted me. He also offered no explanation about his conduct. I subsequently gave him another warning that his conduct was not acceptable. I told him that he needed to discuss any change in his shift with me and not to unilaterally request another worker fill his shift. I have contractual obligations to provide security and these require all shifts are filled.

3. On 6 April 2010 I asked Lindsay to provide a copy of the security license renewal as required by a tender for the Moira Shire. Lindsay refused to provide me with the details as he believed I had it on file. I explained to him that as he had renewed his license I needed a current copy as it was mandatory by law. Lindsay refused to provide same. I also warned him about this.

4. The final incident that led to Lindsay’s dismissal involved the abusive conduct of his wife. Julie rang and abused me on 18 April 2010. She had forwarded a bill for the use of his vehicle in the sum of $117.00 I told her that Lindsay had already been paid for fuel and $50.00 for the vehicle during the weeks in use. She screamed and threatened me over the phone. She repeatedly yelled ‘You fucking arsehole, you will pay this sum or you’re going to get it’. Lindsay was sitting beside her at this stage and allowed her to talk to me in this manner. So I took the view that threats against me personally justified instant dismissal.

In addition, Lindsay has subsequently made threats against me on a number of occasions to me directly and third parties. He rang after I terminated his employment and stated that ‘if my wife kills herself over you sacking me, I’m coming after you, so watch out’.”

[27] Mr Lawrence went on to say that he had always been accommodating towards the Applicant by such means as providing him with extra shifts and ‘cash jobs’. Any pay errors were dealt with promptly. “The company has tried to treat all employees as part of a small family environment and have had no problems with other staff.”

[28] In supporting oral evidence, Mr Lawrence said: “I'd just like to make it clear that the sole - not, the sole reason, but the final reason why Mr Lindsay Wade was terminated was after his wife became abusive and threatening on the phone to me. He was present during this entire conversation and I believed that I had no other alternative except to terminate his employment because I could not go on any longer having threats made to me or my company.” 17 He went on to say: “That's basically where I'm standing from, I just don't believe I've got the right - also in our industry, especially in our industry, if you have an employee who is not performing and has problems with you as an employer, he has access to keys, alarm codes, clients premises, and if he was allowed to continue after being given severe warnings, the amount of damage that could be done to my company also comes into play, and that was one of the other reasons in my mind I needed to terminate his employment.”18

[29] In response to question from me, Mr Lawrence said in relation to his telephone altercation with Mrs Wade: “Other reasons were involved in the final decision, but that was the, to use the cliché, sir, the straw that broke the camel's back.” 19 He also said: “The other factors were, as I stated, that the last six months became increasingly harder and harder to get anything out of Lindsay because it was becoming more of a problem. It was getting to the stage where I was looking at a possibility of termination of employment. Had she have not rang that particular night, to be completely honest with you, I really don't know whether it would have been then, now, six months' time, two months' time. I really couldn't answer that question in all honesty, but it was on the agenda.”20

[30] In cross-examination, Mr Lawrence agreed that he could not offer proof that Mr Wade was present when Mrs Wade was abusive towards Mr Lawrence. 21 In relation to verbal warnings, Mr Lawrence said that he did not issue written warnings as the verbal warnings were effective.22

[31] Mr Lawrence agreed that Mr Wade was a good worker ‘most of the time’. 23 In relation to verbal warnings, Mr Lawrence said: “The verbal warnings at that stage you adhered to and I did not believe I needed to go any further.”24

Oral submissions

[32] Mr Wade made brief oral submissions: “I just hope that whatever the outcome is today it is fair and just. No disrespect to Mr Lawrence at all, he was a good boss and I did enjoy working for him. That's it, thank you.” 25

[33] Mr Lawrence did not make oral submissions.

Written submissions

[34] Mr Wade relied on his witness statement as forming a written submission. Mr Lawrence filed a written submission. 26

[35] It was Mr Lawrence’s written submission, in summary, that:

• “The Applicant’s work performance was satisfactory for the majority of his employment.”



• “The Applicant’s work performance declined considerably in the latter part of 2009/early 2010. The Applicant was troubled by financial commitments including the purchase of a new home. The Applicant was offered increased hours and weekend shifts which were paid at a higher rate to assist him.”



• Mr Wade used his own vehicle for work purposes despite being directed not to do so.



• A dispute arose over reimbursement for the use of Mr Wade’s private car.



• Two verbal warnings concerning work performance issues were issued to the Applicant during 2010.



• “The reasons for the Applicant’s summary dismissal on 19 April 2010 was because of the threat made by the Applicant’s wife to me in an angry telephone exchange. Julie had told me she wanted reimbursement and Lindsay was seated beside her. She made a physical threat to me ‘you’re going to get it’. I had told both the Applicant and Julie that Julie was not to call me regarding work matters and that the Applicant should call and speak to me direct. However, the Applicant had not raised the matter with me.”



• “I waited for the Applicant to call me back and explain his conduct and the threat made against me. When I never received any communication I terminated his employment via email.”



• “Subsequently the Applicant continued to make threats against me, my workers and my business. Therefore, any further employment or reinstatement could not be contemplated.”

Conclusions and Findings

[36] In the case before me, it does not appear to be in contest that MSS is a small business employer. It is also not contested that Mr Wade is a person protected from unfair dismissal in that his employment exceeded one year and his annual earnings were less than the high income threshold. The first matter for me to consider is whether the dismissal of Mr Wade was consistent with the Code. The terms of the Code are set out earlier in this decision.

[37] Mr Wade was summarily dismissed for alleged misconduct. On the evidence and materials before me I am unable to conclude that misconduct justifying summary dismissal in fact occurred. The core reason Mr Lawrence terminated Mr Wade’s employment was the telephone altercation between Mr Lawrence and Mrs Wade on 18 April 2010. The alleged performance issues of Mr Wade appear to have been resolved after he was issued with verbal warnings. Nothing in the evidence convinces me that, on the balance of probabilities, Mr Wade was a party to his wife’s regrettable behaviour on 18 April 2010. Accordingly, no misconduct by Mr Wade occurred and therefore there was no valid reason for the termination of his employment and I so find.

[38] The Code was clearly not followed by MSS and I so find.

[39] Section 385 of the Act provides that a person has been unfairly dismissed if the Tribunal is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable and the dismissal was not consistent with the Code and the dismissal was not a case of genuine redundancy. In the case before me, the termination of employment was not a case of genuine redundancy. Given that Mr Wade was summarily dismissed without a valid reason, I now turn to the question of whether his dismissal was harsh, unjust or unreasonable.

[40] Given the factors set out above, I am satisfied that the dismissal of Mr Wade by MSS was harsh and unjust. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“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.”

[41] The question of valid reason is dealt with above. It is apparent from the materials and evidence that Mr Wade was notified of the reason for the termination of his employment. It is further clear on the materials and evidence that he was not given an opportunity to respond. Alleged unsatisfactory performance by Mr Wade was, on Mr Lawrence’s evidence, resolved by the issuing of two verbal warnings. The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting Mr Wade’s dismissal is a significant factor. On what is before me, I conclude that MSS is a small operation with no access to advice on industrial relations matters. This would have impacted significantly on the procedures followed by Mr Lawrence in effecting the dismissal of Mr Wade.

[42] Section 390 of the Act provides:

“390 When FWA may order remedy for unfair dismissal

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

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

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

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

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

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

Note: Division 5 deals with procedural matters such as applications for remedies.”

[43] In all the circumstances in this case, reinstatement would in my view be impractical. In any event, Mr Wade does not seek reinstatement. I therefore find that reinstatement is not an appropriate remedy in this case.

[44] Where reinstatement is not ordered, the Tribunal may order the payment of monetary compensation. Subsection 392(2) of the Act sets out the criteria for deciding a suitable level of compensation:

“(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.”

[45] In relation to subparagraph (a), I find that the effect of the order I intend to make will not have any obvious effect on the viability of MSS. In relation to subparagraph (b), I have taken into account the relatively short duration of Mr Wade’s employment with MSS. In relation to subparagraph (c), I am satisfied that Mr Wade’s employment prospects with MSS were limited at the time of his dismissal and he would not have continued in the employ of MSS for a significant period. In relation to subparagraph (d), I am satisfied that Mr Wade has made efforts to mitigate his loss. The provisions set out at subparagraph (e) are not relevant to my consideration in the current case as it appears Mr Wade has earned little or no income since his employment was terminated and he remains unemployed. The provisions of subparagraph (f) are not relevant in the current circumstances. There is no other matter I consider relevant pursuant to subparagraph (g).

[46] Subsection 392(3) of the Act provides that:

“(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”

[47] In the case before me, I am not satisfied that misconduct occurred and this provision is therefore not relevant to my consideration.

[48] All in all, I find that the termination of Mr Wade’s employment was harsh and unjust and an order will be issued that MSS pay him a total of $4,000 (less appropriate tax), equating to four weeks’ wages. It was common ground between the parties during the case that Mr Wade earned approximately $1,000 gross per week whilst in the employ of MSS.

[49] As noted above, MSS is a small operation and while I am of the view that the award of a sum of $4,000 (less appropriate tax) to Mr Wade will not threaten its viability, I note the provision in s.393 of the Act that an amount ordered in these circumstances may be ordered to be paid in instalments. Accordingly, I intend to order that the sum awarded to Mr Wade be paid to him by MSS in four equal instalments. The first instalment is to be paid no later than 14 days after the date of this decision and the remaining three instalments to be paid no later than 28 days, 42 days and 56 days respectively after the date of this decision.

[50] Before concluding, I wish to note that Mr Lawrence’s conduct was not malicious but rather seems to have been born out of his frustration at the actions of Mrs Wade, who appears on the evidence to have become somewhat of an aggressive serial pest to Mr Lawrence. Whilst I understand the frustration that Mr Lawrence was subject to, he was not entitled to react to those frustrations in the manner which he did in summarily terminating Mr Wade’s employment.

[51] An order reflecting this decision is in PR500611.

COMMISSIONER

Appearances:

L Wade, the Applicant.

G Lawrence, for Murray Security Services.

Hearing details:

2010.

Wodonga:

August 4.

 1   Exhibit Wade 1.

 2   Transcript PN70 and following.

 3   Transcript PN97.

 4   Exhibit Wade 2.

 5   Transcript PN120.

 6   Transcript PN131.

 7   Transcript PN132.

 8   Exhibit Wade 3.

 9   Transcript PN183.

 10   Transcript PN185.

 11   Transcript PN208.

 12   Transcript PN213.

 13   Transcript PN214.

 14   Transcript PN215.

 15   Transcript PNs239-240.

 16   Exhibit MSS 1

 17   Transcript PN273.

 18   Ibid.

 19   Transcript PN276.

 20   Transcript PN279.

 21   Transcript PN300.

 22   Transcript PNs311 and 314.

 23   Transcript PN332.

 24   Transcript PN333.

 25   Transcript PN356.

 26   Exhibit MSS 2.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR500610>