Lynch v Grafton Sawmilling

[2009] NSWADT 102

CITATION:	Lynch v Grafton Sawmilling [2009] NSWADT 102
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT: Michael Lynch RESPONDENT: Alan Hingston as trustee for the A P Family Trust trading as Grafton Sawmilling
FILE NUMBER:	081119
HEARING DATES:	26 and 27 March 2009
SUBMISSIONS CLOSED:	27 March 2009
DATE OF DECISION:	8 May 2009
BEFORE:	Furness G - Judicial Member; Mooney L - Non-Judicial Member; Monaghan-Nagle L - Non-Judicial Member
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Hollows v Macquarie University [2009] NSWADT 23 Purvis v New South Wales (2003) 217 CLR 92 Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) 2 All ER 26 Dutt v Central Area Health Service [2002] NSWADT 133 Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 Hall v A&A Sheiban Pty Ltd (1989) 20 FCR 217 Janiak v Ippolito [1985]1 SCR 146 Mance v Vinidex [1974] 2 NSWLR 235 (CA) Najdovska & Ors v Australian Iron and Steel Pty Ltd (1986) EOC 92 176 Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5
REPRESENTATION:	Applicant Representative: C Smith, Barrister Respondent Representative: E Johnston, Barrister
ORDERS:	The complaint of disability is substantiated. The respondent is ordered to pay the applicant damages in the sum of $26,272.74.

Introduction

1 The applicant claims that he was unlawfully discriminated by his employer dismissing him on the grounds of disability on 24 January 2008.

2 The applicant complained to the Anti Discrimination Board by letter dated 2 May 2008. The complaint was referred to the Tribunal by letter dated 3 November 2008. The President’s report was in evidence in these proceedings.

3 The applicant complained that on 24 January 2008, the respondent dismissed the applicant from his employment because he had a knee injury and had indicated to his employer that he may instigate a claim under the Worker’s Compensation scheme and/or that he would return to his doctor to obtain further Work Cover medical certificates for required time off work for his injury.

4 Many of the facts are not in dispute. It is not in dispute that the applicant:

a suffered a work related injury to his right knee in late October 2007
b was entitled to, but did not at the time make a Worker’s Compensation claim for that injury
c suffered a non-work related injury to his right knee on 19 November 2007
d had his employment terminated on 24 January 2008
e was told that he was being dismissed, at least in part, because he had threatened a foreman with a worker’s compensation claim over a day he did not work following the 19 November 2007 injury, and for which he was not initially paid.

The Evidence

5 The applicant gave evidence and relied on three sworn affidavits made by him. Annexed thereto were various documents including references concerning his work performance. His partner Megan Coutts and a neighbour Matt O’Shea each swore one or more affidavits and gave evidence, as did a former employer of the applicant, Noel Spencer.

6 Alan Hingston, the respondent, gave evidence as did his foreman, Greg Denny and the investigator for the respondent’s Workers Compensation insurer, GIO, Doug Stanford. Each swore an affidavit in these proceedings.

7 The applicant commenced work with Grafton Sawmilling in January 2006 as a sawyer. In January 2007, the respondent acquired Grafton Sawmilling.

8 The applicant suffered a work-related injury to his right knee between 24 and 30 October 2007; the precise date not being material to the application.

9 The applicant obtained a Work Cover Certificate for the period 31 October to 7 November 2007 and obtained a Work Cover clearance certificate stating that at 8 November 2007 he was fit for pre-injury duties.

10 While the applicant handed each Certificate to his employer, no Worker’s Compensation claim was lodged by the applicant and the employer did not report the injury to Grafton Sawmilling’s Worker’s Compensation insurer, GIO or to Work Cover. In evidence, Mr Alan Hingston, trustee for the AP Family Trust trading as Grafton Sawmilling, (the employer) said he was not then aware he was obliged to report the work injury.

11 On 19 November 2007, the applicant’s right knee became painful and swollen after he had injured it at home, while waiting to be collected to travel to work. He then travelled to work and showed his injured knee to his employer and to the mill foreman, Mr Greg Denny. The applicant said Mr Denny told him that the employer had problems already with another worker with a back injury who was off on Worker’s Compensation and that ‘insurance is killing him’. The applicant said to him if he could just have two days off, he would not go to the doctor. Mr Denny did not refer to this conversation in his affidavit and gave no oral evidence about it.

12 The applicant said Mr Denny went into the office and returned telling him to go home and come back in two days. The applicant returned home and rested his knee for two days, without attending a medical practitioner or obtaining a Work Cover Certificate for those two days.

13 When the applicant received his pay for the week which included the two days he had not worked, he noticed that he had been paid one day’s sick leave and had not been paid for the second day off.

14 The applicant then had a discussion with Mr Denny about why his pay was one day short. It was common ground that the reason for the reduction in pay was that the applicant did not have a medical certificate for the two days he was not working. His employer paid him one day because he had one day’s leave owing to him.

15 The applicant gave evidence that he said to Mr Denny, words to the effect of “if I went back to the doctors I’d get more time off”.

16 Mr Denny said that the applicant said to him “My leg is fine but if you don’t give me the day’s pay that I have lost I will go back to the doctors and get more time off work because I know how to work this system”. He said he considered this statement to be a threat of blackmail, with the threat being that the applicant would return to the doctor even though his knee was fine. Mr Denny said that he believed that the applicant was ‘troublemaking” and threatening to make a Worker’s Compensation claim.

17 Mr Denny gave evidence that he then told Mr Hingston that “Michael Lynch has just threatened me. He says that if we don’t pay him the money we owe him he’ll go to a doctor and get more time off. Knowing him he’ll probably do it too.” Mr Hingston then decided to pay, and paid the applicant in cash for the day’s pay.

18 The applicant then continued to work with no time off for his knee injury. Towards the end of December 2007, the mill closed down for Christmas holidays and the applicant returned to work on 14 January 2008.

19 In oral evidence and in his affidavit sworn 18 March 2009, the applicant said that on 24 January 2008, he twisted his knee at work. He did not officially report the injury, although he did see Mr Denny informally and said words to the effect: “My knee’s playing up again”.

20 His statement of complaint to the Anti Discrimination Board did not include this information. In evidence, the applicant said that he had told his then solicitors of this information and they chose not to include it in the statement of complaint. The applicant had included this information in the statement he made to the investigator engaged by his employer’s Worker’s Compensation insurer.

21 Mr Denny denied being told by the applicant on 24 January 2008 that his knee was playing up.

22 On the evening of 24 January 2008, Mr Hingston rang the applicant at home and told him that he was being dismissed, effective immediately.

23 There were two or three telephone conversations between Mr Hingston and the applicant that evening. One of those conversations was overheard by the applicant’s partner Megan Coutts and a neighbour Matt O’Shea. It was not in dispute that Mr Hingston told the applicant that he was being dismissed, at least in part, because he had threatened Mr Denny with a worker’s compensation claim over the, initially, unpaid day in November 2007. It is also not in dispute that there was some reference to insurance during those conversations.

24 The applicant gave evidence that Mr Hingston said, among other matters, his insurance premiums had increased and that he could see his knee causing problems in the future. Megan Coutts gave evidence that she heard Mr Hingston refer to the applicant’s knee causing him problems, not taking a chance with his knee and that when another employee had injured his back, his insurance premiums went from $50,000 to $100,000. A neighbour, Matt O’Shea gave evidence that he heard the person saying he could not take a chance with the leg and mentioning insurance.

25 In the employment separation certificate completed by Mr Hingston, he recorded the reason for separation as being “shortage of work”. That certificate had provision for Mr Hingston to record, among other matters ‘unsatisfactory work performance”, ‘misconduct’ and ‘other’.

26 In his response to the Anti Discrimination Board, the respondent said the timing of the termination was due to not wishing to terminate the services of the applicant prior to the annual Christmas break and that the decision to wait meant that extra notice was required to be paid by the respondent. The reason for the decision was the skill level of the employee and that he had never embraced the team culture and was constantly being warned for smoking. There was no reference to any threats having been made.

27 In evidence, Mr Hingston said that his reasons for terminating the applicant’s employment was the “threat of blackmail” in relation to making a Worker’s Compensation claim, the slowness of his work, smoking at work and having days off work in addition to those which were owing to him.

28 In his affidavit, sworn 20 March 2009, Mr Hingston referred to the applicant ‘performing very poorly at his job” and noted that productivity was down one third which was due ‘almost entirely’ to the applicant’s poor work habits and low skill level. He said he determined to terminate his employment after the holiday period and chose the date to qualify him for an extra week of notice.

29 Mr Hingston also gave evidence that:

a There was no downturn in business at the time he dismissed the applicant;
b He completed the employment separation certificate with the reason for separation as being “shortage of work” in order to help the applicant obtain benefits; and
c He believed that, in his conversation with Mr Denny, the applicant was threatening to create a “new injury” or “any injury”.

30 In relation to the applicant’s work performance, the evidence was that first, there were no written warnings made to the applicant, secondly, Mr Hingston did not issue any warnings to the applicant and finally, Mr Denny gave evidence that he had “checked” the applicant and ‘chipped him” about smoking and wastage of wood.

31 Mr Noel Spencer, a retired saw miller, who had employed the applicant as a No. 1 sawyer on a casual basis over 6 years, gave evidence that the applicant was one of the best sawyers he had seen. He stated that at no stage did the applicant fail to reach the quota of work he was allocated.

32 The GIO investigator, Doug Stanford gave evidence about a number of omissions and inconsistencies in and between information provided by the applicant to him. The most significant of these concerned the timing of the injury. Before the Tribunal, the employer accepted that the injury occurred at work and no issue was taken with the precise date it occurred.

33 After his dismissal, the applicant lodged a Worker’s Compensation claim with GIO in relation to his injury to his right knee. He obtained Work Cover Certificates for the period 7 February to 29 April 2008. On 2 May 2008, GIO advised the applicant that liability was accepted for the knee injury. On 19 May 2008, the applicant obtained a Work Cover Clearance Certificate.

34 On 20 May 2008, the applicant commenced work with ROCLA, laying concrete sleepers. ROCLA’s contract finished on 1 September 2008 and the applicant ceased work on that date.

35 From 2 September 2008 to 26 March 2009, the applicant has been unemployed and reliant on Centrelink benefits.

36 It was submitted on behalf of the applicant that:

a Mr Hingston was averse to making a Worker’s Compensation claim in respect of the applicant’s injury
b That the applicant was a competent sawyer was supported by
i the evidence of Mr Spencer
ii the various references tendered
iii the applicant’s employment for over two years with the respondent
iv the applicant being paid at a higher rate than the job he performed attracted
v the absence of written warnings about his performance
c Thus, the suggestion that the applicant was dismissed for poor work performance should not be accepted.
d The obvious inference is that something happened around 24 January 2008 to drive Mr Hingston to dismiss the applicant, that being the flare-up of the applicant’s work related injury and Mr Hingston’s fear that it would lead to a Worker’s Compensation claim.
e The correct interpretation of the applicant’s conversation with Mr Denny in late November 2007 was that the applicant felt he had no option, in order to protect his income, but to go back to the doctor and obtain a Work Cover certificate in order to be paid for any days he needed to take off in respect of the work-related injury to his knee.

37 It was further submitted on behalf of the applicant that

a a hypothetical comparator would be a person employed in the same position as the applicant who stated their intention to obtain a Doctor’s certificate for an illness or injury which was not a workplace injury, such as the flu
b the applicant’s disability was his workplace derived knee injury and that it was a characteristic of that disability that he was entitled to obtain Work Cover Certificates and make a Worker’s Compensation claim in respect of that injury.

38 It was submitted on behalf of the respondent that the applicant had no medical certification for any injury at the time he made the ‘threat’ to Mr Denny in late November 2008.

39 It was further submitted that the evidence of Mr Hingston that he was not concerned that a legitimate Worker’s Compensation claim would be lodged, should be accepted. He had no issue with the applicant’s injury in late October 2007. The last straw for the respondent was that a threat was made by the applicant to use his then non-existent disability or injury as the basis for a Worker’s Compensation claim.

40 It was further submitted that the:

a key elements of the applicant’s evidence in relation to the injury in late October 2007 had been altered or elaborated to give additional weight to his claim
b respondent and Mr Denny denied any knowledge of the injury on 24 January 2008
c applicant did not refer to the injury on 24 January 2008 in his statement of complaint to the Anti-Discrimination Board
d respondent gave evidence that his insurance premiums increased from $50,000 to $55,000 in a twelve month period due to an increase in wages during that period.

The Law

41 In his complaint the applicant alleged that the respondent’s actions contravened s 49D(2)(c) of the Act.

42 At all relevant times the applicant was an employee of the respondent. Relations between employers and employees are governed by s 49D(2) which provides as follows:

(1) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability , a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability .

43 Section 49D(4) contains an exception or defence to the conduct which is rendered unlawful by s.49D(2)(c) of the Act. Section 49D(4) states:

Nothing in subsection (1)(b) or (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

44 The respondent did not seek to rely upon s.49D(4).

45 Discrimination on the ground of disability is defined in s 49B to include both direct and indirect discrimination. The applicant’s claim was for direct discrimination.

46 The definition of direct discrimination is found in s 49B(1)(a) of the Act which provides as follows:

A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability.

47 The term "disability" is defined broadly, and in functional terms, in s 4 of the Act. There was no dispute that the applicant had a "disability" in late October and early November 2007. That disability was described by the parties as a knee injury. In terms of the statutory definition of "disability", the applicant’s knee injury may be characterised as a "partial loss of a person’s bodily functions" (paragraph (a)) and "the malfunction of a part of a person’s body" (paragraph (c)).

48 There are two elements to the statutory definition of direct discrimination: differential treatment and causation (see Commissioner for Corrective Services v Aldridge[2000] NSWADTAP 5).

49 As Deputy President Hennessy said in Hollows v Macquarie University [2009] NSWADT 23:

The High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially: Purvis v New South Wales [2003] HCA 62 ; (2003) 217 CLR 92 at [231] . That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However, when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, namely why was the person treated in the way that they were treated? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 ; [2003] 2 All ER 26 at [7] and [8] and Dutt v Central Area Health Service [2002] NSWADT 133). Consequently, one is unable to determine how a hypothetical comparator would have been treated without first deciding the causation question.
In Purvis v New South Wales [2003] HCA 62 ; (2003) 217 CLR 92 , when interpreting similar provisions in the Disability Discrimination Act1992 (Cth), the majority of the High Court said that:

... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.

The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended.

50 The applicant must establish that he has been treated less favourably than in the same circumstances, or in circumstances which are not materially different, the respondent treats or would treat a person who does not have that disability. There was no evidence of any actual person with whom the applicant can be compared, thus this case concerns a hypothetical comparator.

51 Section 4A of the Act provides that

If:
(a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),
then, for the purposes of this Act, the act is taken to be done for that reason.

Findings

52 The Tribunal accepts the evidence of the applicant that he twisted his knee again at work on 24 January 2008 and that he communicated that to Mr Denny, who in turn told Mr Hingston, who contacted the applicant on that evening. Mr Hingston’s evidence that he waited until after the holiday period and to give him an extra week’s notice is rejected. The applicant returned from holidays on 14 January.

53 The Tribunal accepts the account of the applicant as to the conversation with Mr Hingston that one of the reasons given for his dismissal was his insurance premiums had increased and that he could see his knee causing problems in the future. This account is consistent with the evidence of Ms Coutts and Mr O’Shea. The respondent admitted there was some reference to insurance during the conversation.

54 The Tribunal is satisfied that one reason for terminating the employment of the applicant was that the applicant’s injury to his right knee may have resulted in the applicant lodging a Worker’s Compensation claim in respect of that injury. It was not the injury simpliciter which gave rise to the termination, it was the injury coupled with it having initially occurring at work and thus permitting the making of a Worker’s Compensation claim.

55 The question then arises whether the making of such a claim was so ‘inextricably linked’ to the applicant’s knee injury to permit a finding that the termination of his employment was ‘on the ground of’ his disability, namely his injured knee.

56 In Wiggins v Department of Defence – Navy (2006) 200 FLR 438, the Navy argued that its refusal to transfer the applicant to other duties was not because of her disability, but because of her absences from work. McInnes FM rejected that proposition and found that the applicant’s absences were due almost entirely to her illness for which she required treatment. Thus it was “inextricably related to her disability and in turn it was the disability which effectively caused the concern… and led to the transfer.” (at 476).

57 The Tribunal agrees that where the treatment to the employee is based on facts or circumstances which are inextricably linked to that person’s disability, that treatment is “on the ground of” that disability.

58 The Tribunal is satisfied that the circumstances of the injury to the knee, which occurred at work and permitted a Worker’s Compensation claim are so inextricably linked so as to conclude that the termination of the applicant’s employment was on the ground of his disability. Without first suffering from a disability, the applicant could not have made a Worker’s Compensation claim. The claim would not have been available to him, unless he had first sustained an injury. Thus, the real reason or the true basis of the termination was his disability.

59 The applicant submitted that a hypothetical comparator would be a person with an injury which would not give rise to a Worker’s Compensation claim. The Tribunal does not accept this is correct. In Purvis, the hypothetical comparator to a pupil with a disability which resulted in disturbed behaviour, was a pupil without a disability who engages in that form of behaviour. It was possible and realistic to envisage a pupil behaving in a manner similar to the complainant without a disability.

60 However, in this case, it is not realistically possible to identify a hypothetical comparator who had an entitlement to make a Worker’s Compensation claim without first having a disability of some kind. A hypothetical comparator must then be a person without a disability, otherwise in the same position as the applicant. It follows that that person could not have an entitlement to make a Worker’s Compensation claim. In the Tribunal’s opinion, that person would not have had their employment terminated.

61 The Tribunal is satisfied that the respondent discriminated against the applicant on the ground of his disability, by dismissing him in circumstances in which a person who did not have such a disability, would not have been dismissed.

Remedies

62 In his Points of Claim the applicant sought an award of damages in the sum of $48,478.64, comprising $18,478.64 for economic loss and $30,000 for non economic loss.

63 In relation to non-economic loss, it was submitted that the applicant suffered embarrassment, devastation and shock, worry and fear about his family’s welfare, a return to smoking, drinking more than he did previously, disrupted sleep patterns, detrimental effect on his relationship with his partner, loss of social network, fear his friends will be bullied if they socialise with him, distress that he is unable to provide the same benefits to his children, embarrassment at being on welfare benefits, feelings of inferiority at being reliant on his partner as the main bread winner and demoralisation.

64 In relation to economic loss, it was submitted that the applicant immediately commenced work on receipt of his Clearance Certificate with ROCLA and left that position when the company’s contract ended. The applicant’s claim is for pre-dismissal wages for the period 24 January 2008 to 7 February 2008 when he was not working and was not covered by a Work Cover Certificate, in the sum of $1,452; the difference in his hourly rate for a 38 hour week when he was working at ROCLA from 20 May to 1 September 2008, in the sum of $2,205.90 and the difference between what he would have earned at Grafton Sawmilling and his Centrelink payment for the period 2 September 2008 to the date of the hearing, $14,820.74. The applicant’s evidence was that he earned more per week at ROCLA than at Grafton Sawmilling because he was working much longer hours.

65 The bulk of the applicant’s claim for economic loss is his period of unemployment from 2 September 2008 to the date of the hearing. It was submitted that the applicant has attempted to mitigate his loss by immediately gaining employment with ROCLA. The evidence of the applicant was that for the period thereafter he has approached two timber mills for employment and did not receive a reply from either. He gave evidence that he is not able to travel away from home, he lives 40 km from the nearest town and only has one car, the other being sold after he was dismissed, in support of not seeking employment further from home.

66 The respondent submitted that:

a The applicant has not made a genuine and concentrated effort to find work in the period after working at ROCLA. The respondent relies on the evidence of Mr Spencer of upwards of 100 working mills between Grafton and Bulahdelah, towns which, the respondent submitted, the applicant regularly travelled to and from between 2000 and 2004. The respondent also relies on the evidence of Mr Hingston and Mr Spencer that there was difficulty in finding any qualified workers.
b If all factors itemised under non-economic loss are attributable to the applicant’s unemployed status then they cannot be sheeted home solely to the respondent.

67 Section 108(1)(b) of the Act states that the Tribunal "may...find the complaint substantiated" and make various orders for relief which include, in sub-paragraph (a), an order that "the respondent to pay to the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct". However, at the time of the events the subject of the application, the maximum payment of damages was $40,000.

68 There is clear authority for the proposition that the Tribunal may award damages for non-economic loss in order to compensate the applicant for damage, such as distress, insult and humiliation, which he suffered by reason of the respondent’s conduct (Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47; Hall v A & A Sheiban Pty Ltd[1989] FCA 72; (1989) 20 FCR 217). As loss of opportunity and delay may be characterised as "loss or damage", these are also matters for which a successful applicant may be compensated.

69 Damages for economic loss are designed to place an applicant in the same financial position that he or she would have been in but for the discriminatory conduct. While an applicant has a duty to mitigate damages, the burden is on the respondent to prove that the applicant's refusal to mitigate his or her loss was unreasonable. (Janiak v Ippolito [1985] 1 SCR 146; Munce v Vinidex [1974] 2 NSWLR 235 (CA); See also Najdovska & Ors v Australian Iron and Steel Pty Ltd (1986) EOC 92 176 at 76,696 -76,697.)

70 The Tribunal is not satisfied that the portion of the claim for the difference between his hourly rates at the Grafton Sawmill and at ROCLA should be awarded as the applicant received more pay in the latter position than in the former, albeit for longer hours.

71 The Tribunal is satisfied that the applicant has met his duty to mitigate damages by gaining employment with ROCLA. In relation to the period of time after that employment ceased to the date of the hearing, the respondent has not satisfied the Tribunal that the applicant refused to mitigate his loss and that refusal was unreasonable. There was no evidence before the Tribunal that there were jobs available for which the applicant was qualified in any of the mills in surrounding towns, at any time between September 2008 and March 2009.

72 Based upon the applicant’s employment with the sawmill for two years prior to his dismissal, the Tribunal is satisfied that the applicant, but for the discriminatory act of dismissing him, is likely to have continued in his employment with the respondent for a period of at least months.

73 Accordingly, the Tribunal awards the applicant the sum of $16,272.74 for economic loss comprising $1,452 for the period 24 January 2008 to 7 February 2008 and $14,820.74 being the period 2 September 2008 to the date of the hearing.

74 The Tribunal is satisfied that the applicant felt embarrassment and was shocked by his dismissal. The Tribunal is satisfied that he fears for the future welfare of his family and that his relationship with his partner has been affected by his dismissal and being in receipt of benefits.

75 While the Tribunal accepts that the timber mill community is a close one, there was no corroborating evidence that if friends from the mill were socialising with him they might be bullied or made to suffer for that association.

76 The Tribunal awards the sum of $10,000 in general damages.