Marion Griffin v Cold Xpress Pty Ltd T/A Cold Xpress Refrigerated
[2012] FWA 3736
•1 MAY 2012
[2012] FWA 3736 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marion Griffin
v
Cold Xpress Pty Ltd T/A Cold Xpress Refrigerated
(U2011/12831)
COMMISSIONER RYAN | MELBOURNE, 1 MAY 2012 |
Termination of employment - did the Applicant resign or was she dismissed.
[1] An application for an unfair dismissal remedy was made on 21 October 2011 pursuant to s.394 of the Fair Work Act 2009 (the Act) by Ms Marion Griffin (the Applicant). The Applicant claims that she was dismissed by Cold Xpress Pty Ltd T/A Cold Xpress Refrigerated (the Respondent) on 10 October 2011.
Background
[2] The Applicant was employed by the Respondent as a Data Entry Operator, normally working Monday to Friday 2.00pm to 10.00pm. Prior to August 2011 data was entered by keying in each item of data relating to customer orders, but as a result of the Respondent introducing a new system as from 1 August 2011 data entry was primarily by way of importing electronic data from one source to another. The benefit of the new system was that it avoided key stroke errors which could lead to significant costs being incurred by the Respondent.
[3] The Applicant was given training in the use of the new system but preferred to enter data using manual keystrokes.
[4] A direct consequence of the introduction of the new data entry system was that the importing of data from one source to another was significantly quicker than manually entering data through keystrokes and this meant less hours of data entry work would be required to be performed.
[5] It was acknowledged by the Respondent that even with the new data entry system in place some data (although only a small amount) would still need to be entered through the former manual keystroke method.
[6] In the period from beginning of August 2011 until the date of termination the Applicant continued to enter data using the keystroke method rather than the importing method.
Evidence
[7] Evidence in this matter was given by the Applicant on her own behalf.
[8] Evidence was given for the Respondent by Mr John Di Losa, a Director of the Respondent and the effective manager of operations of the Respondent, Mrs Marie Di Losa (whose duties were described in the evidence of Mr Di Losa as “Marie looked after the accounts, and she looked after the girls in the office”) and by Ms Emma Martino an employee of the Respondent.
Did the Applicant resign or was the Applicant dismissed by the Respondent?
[9] The central issue in this matter was whether the Applicant resigned her employment or whether her employment was terminated by the Respondent.
[10] On the morning of Friday 7 October 2011 Mr Di Losa sent an email to all staff in the following terms:
“To all concerned.
Again this week I have had complaints about keying in errors. Just yesterday a keying in error on the Hay run which now cost about $800 to fix.
Let me put it plainly to all concerned. I did not spend over $200,000 on a new transport system because I had nothing better to do with my money! If one more keying in error occurs when we could have imported without incident I will expect the person who made that mistake to pay for all associated costs in fixing up the error.
2 errors a night on country runs could cost as much as $5,000 to fix. We have a system in place, which we all need to use.”
[11] Mr Di Losa described the events leading to this email as follows:
“22. On the morning of October 2011, Ema Martio told me there had been another keying in error to Hay and that the applicant had made it, which meant I would have to send a vehicle all the way to Hay NSW for 2 boxes at my expense.
23. I was not happy about this to say the least, so I sent a general email out to all everyone basically saying if one more keying in error occurs when we could have imported without the error that person will be charged with the cost of fixing up the error.
24. I had personally told the applicant to import rather than key in and here there was another keying in error. Rather than single out the applicant and embarrass her, I sent a general email out.
25. Later on Ema told me that Marion had not made the mistake, but that it was a warehouse issue. I recall thinking I am glad I didn’t single the applicant out.
26. I decided not to send another email about this issue as keying in errors were still occurring and I wanted the applicant to know that she must import as she was still refusing to import where possible.” 1
[12] The Applicant, who was responsible for most keying in of data, became upset after reading the email and she spoke to Ms Emma Martin about it. Shortly after this Ms Martino identified that the error referred to in Mr Di Losa’s email was not caused by a keystroke error but was caused by warehouse employees. Ms Martino advised the Applicant of this. Later the Applicant advised Ms Martino of her distress and her intention to go home. The Applicant then left the workplace.
[13] Ms Martino then immediately rang Mrs Di Losa to advise her of the Applicant leaving the workplace.
[14] The evidence of Ms Martino under cross examination was as follows:
“PN829. What did you report to Marie?---I said to Marie that I had written an email and John had a response to that and Marion actually came into my desk and she showed me the email and she - I pretty much told her what had happened during the day, and I said to her, “Marion is upset. She has gone home,” and I told Marie, “I don’t know what to do. Rachel is on holidays. There is no-one to do any keying. There’s no-one to input any data in the system.” So we were left with nobody to do what Marion was there to do on that day.
PN830. Was there any discussion between you and Marie about Marion having resigned? ---Not at that point. We had - didn’t know whether or not she was going to come back. At that stage we were more inclined to figure out how we were going to key the information for that night.”
[15] Ms Martino’s witness statement contained the following statement attributed to the Applicant:
“10. On Monday I had come inand resumed as normal. I was unsure if Marion was going to come to work, as she left on Friday she said she had had it with this place, and she was not respected.” 2
[16] The Tribunal explored this paragraph with Ms Martino as follows:
“PN890. Commissioner: Go to paragraph 10?---Ms Martino:Yes.
PN891. The second-last line and the last line. “As she left on Friday she said she had had it with this place and she was not respected”?---Mm’hm.
PN892. Now, I have just asked you several questions about the conversation you had, and you have been asked questions of Mr Dircks about the conversation. You haven’t mentioned at all what is in paragraph 10?---By her leaving I would assume that she had had it with this place.
PN893. All right. So where in paragraph it says, “As she left on Friday she said she had had it with this place and was not respected,” are you saying she didn’t say that but you presume that that’s her attitude?---Generally, yes. When someone walks out of somewhere without giving much of a - any - saying anything, or much at all, you would expect that someone has obviously had enough and - yes.
PN894. That’s okay. That’s your summary or your - - -?---Yes.
PN895. That’s your perception of exactly what the applicant was doing when she left?---Yes.”
[17] The Respondent treated the Applicant’s conduct in leaving the workplace as evidence of her resignation from her employment.
[18] Mr Di Losa’s evidence was that
“28. I recall my wife Marie Di Losa then telling me on 7th October 2011 that Marion got upset about my email, and had walked out and didn’t want to work for us anymore.
29. My wife was upset by this, as we have always had a good rap ore with our employees.
30. Marie said what are we going to do, she knows there is no one else. She has left us in the lurch. Out of the 3 data entry girls, one was on holidays the other was getting in late and the Marion had just walked out on us because she didn’t like your email.
31. I said to Marie, fine, if she has left, then don’t hire her back if she wants to come back. We don’t need people like that working for us.” 3
[19] However the evidence of Mr Di Losa does not accord with the evidence of either Ms Martino or Mrs Di Losa.
[20] Mrs Di Losa in her examination in chief by Mr Di Losa said:
“PN985. Because the commissioner has read all this it’s kind of fine. I want to go to when Emma rang you on 7 October. You had told me that Marion has left. Can you tell me what Emma had told you?---Emma said to me that Marion saw that email, had come into work and saw that email and she was most upset and she has walked out, she has gone home.
PN986. Okay. What was my response to that?---When I told you you said to me that, “Fine, if she wants her job don’t give it to her, we don’t need people who work like that for us.”
[21] Additionally Mrs Di Losa in answer to questions from the Tribunal provided some further clarification as follows:
“PN1179. You recount the phone call you got from Ms Martino in relation to advising you that the applicant had left work?---Mm.
PN1180. Commissioner: Paragraph 29, you say, “When Emma called to tell me that Marion got upset about the email and went home, I was shocked. I never received a call from her at all this day, nor did I receive a call days after.” Was the only thing that Ms Martino put to you that the applicant got upset and left and gone home?---Mrs Di Losa: Yes. She said that she had read the email that John had written and got upset and went home. She said she couldn’t work, she’s going home.
PN1181. Did you then have a conversation with your husband, Mr Di Losa, about the same matter?---Yes, because I had to go in and work, so I did say to him that, “Marion read your email, she got upset and she’s walked out. She’s gone home. She’s not working.
PN1182. Mr Di Losa in his witness statement says at paragraph 28, “I recall my wife, Marie Di Losa, then telling me on 7 October 2011 that Marion got upset about my email and had walked out and didn’t want to work for us any more.” Did you make that statement to him?---Can’t remember if I said exactly those words, but I said she walked out and she was unhappy and didn’t want to work, she went home.
PN1183. There’s a big difference between what you said earlier, the information you got from Ms Martino that the applicant was upset or angry, left work, went home, and then when I asked you if you conveyed that message, you said yes, you conveyed that to your husband, because you had to go to work - there’s a big difference between that statement and the statement that “Marion got upset about my email and had walked out and didn’t want to work for us any more.” Those end words, “and didn’t want to work for us any more”, that’s very specific. Were those specific words used by you to your husband?---I honestly don’t remember saying that. I said lots of things, I was upset that I had to go into work. But the fact is that we didn’t know at that stage whether she was coming back. She had walked out, and as far as I knew then, I had no phone call, which - Marion used to call me many times for various different things on my mobile, and she hadn’t called me at all. So at that stage I didn’t really know whether she was going to come back.”
[22] The evidence makes clear that Mrs Di Losa was uncertain as to whether the Applicant was going to return to work or not. However Mr Di Losa adopted the position that the Applicant had effectively resigned her employment.
[23] The Applicant attended the workplace on Monday 10 October 2011 and was approached by Mrs Di Losa on the outside verandah at the workplace before she entered the office area.
[24] From this conversation the Applicant accepted that she had been dismissed as Mrs Di Losa said: “You have put me in an awkward situation because what you did got John upset and he doesn’t want you here anymore.” (PN997)
[25] The Tribunal questioned Mrs Di Losa on this conversation:
“PN1190. Commissioner: Mr Di Losa asked you a question where he put the proposition, “If I say someone isn’t going to work there, and you want them to work there, are they going to work there,” and you said, “Yes.” Which seems to follow that whilst he can express an opinion, you make the decisions on who works in administration?---Mrs Di Losa: Pretty much, that’s correct.
PN1191. If that is the case, why would you have said to the applicant the words, “John does not want you working here any more because you left us in the lurch,” if those words had no effect?---I let her know because of what she’d done my husband was upset, and he had told me so, and that I needed to work it out with her.
PN1192. Did the applicant know that Mr Di Losa was the CEO of the company?---I’m sure she does, yes.
PN1193. Is there any reason that you would be aware of as to why an employee, even an employee in the administration area, would not consider that words expressed by the CEO were meant, and meant to be effected?---Because most of our employees know John and I, and I’m the one that pretty much organises who works, and John will have an opinion. But if he definitely doesn’t want anyone working there, he would actually go and tell them himself. So, no, I don’t believe that because I said that, that was the actual case. I was just letting her know that he got most upset and that was his comment.
PN1194. Did you say anything in that conversation to the applicant that would have put her mind at ease that it didn’t matter what the CEO said, they were irrelevant considerations?---I believe I did in the conversation that we had, in the manner that when she was leaving I said, “Don’t go. Don’t leave like this. You know I like you. You know I gave you your job back.” That led her to believe that I didn’t want her to go. I was willing to - I just want her to understand that what she did really left us in a bad situation.”
[26] From the evidence in this matter I draw several conclusions:
1. The Applicant did not intend to nor did she resign her employment by leaving the workplace on Friday 7 October 2011.
2. Mrs Di Losa did not intend to dismiss the Applicant when she spoke to the Applicant on Monday 10 October 2011.
3. Both Mr Di Losa and Mrs Di Losa had authority to dismiss the Applicant.
4. The Applicant made a reasonable assumption that when spoken to by Mrs Di Losa on Monday 10 October 2011 that she had been dismissed.
5. The Applicant’s assumption was reasonable given that:
- Mrs Di Losa met the Applicant outside the office before the Applicant had an opportunity to enter the office,
- Mrs Di Losa made clear that Mr Di Losa, the CEO of the business did not want the Applicant working with the Respondent anymore,
- Mrs Di Losa did not make clear to the Applicant that she was not dismissed.
[27] I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.
S.396 - Initial Matters to be considered before merits
[28] I determine that the application in this matter was made within the period required by s.394(2).
[29] I determine that the Applicant was protected from unfair dismissal as there is a modern award which applies to the Applicant’s employment.
[30] The Respondent is not a small business employer and the Small Business Fair Dismissal Code is not relevant.
[31] I find that the dismissal was not a case of a genuine redundancy as this was never argued by the Respondent.
[32] The Tribunal must consider each of the criteria in s.387 in determining whether the dismissal is or is not harsh unjust or unreasonable. S.387 provides as follows:
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.
Valid Reason - 387(a)
[33] The only evidence relating to the reason for the dismissal is that of Mr Di Losa and Mrs Di Losa in relation to their reaction to the Applicant leaving work on Friday 7 October 2011. Each of Mr Di Losa and Mrs Di Losa had different reasons for reacting to the Applicant leaving work on Friday 7 October 2011. Mrs Di Losa was required to go to work with her daughter to cover for the absence of the Applicant. Mr Di Losa expressed frustration with the Applicant continuing to use the keystroke method of data entry when the data could have been entered using the import method. Thus it is clear that the reason for the dismissal was the unapproved absence of the Applicant from the workplace on Friday 7 October 2011.
[34] Notwithstanding the respective reactions from Mr Di Losa and Mrs Di Losa to the Applicant leaving work on Friday 7 October 2011 I do not consider that the unapproved absence of the Applicant from her workplace on Friday 7 October 2011 is a “sound, defensible or well founded” 4 reason for dismissing her from her employment.
Was the Applicant notified of the reason - s.387(b)
[35] It is clear from the evidence of both the Applicant and Mrs Di Losa that the Applicant was notified of the reason for her dismissal during the conversation that took place on the verandah when the Applicant arrived for work on Monday 10 October 2011.
Was the Applicant given an opportunity to respond to the reason for dismissal - s.387(c)
[36] It is clear from the evidence of both the Applicant and Mrs Di Losa that the Applicant was given an opportunity to respond to the reason for her dismissal during the conversation that took place on the verandah when the Applicant arrived for work on Monday 10 October 2011. However it is also clear from the evidence that whilst Mrs Di Losa clearly intended to allow the Applicant to respond to the reason for dismissal the way in which the conversation took place led the Applicant to believe that the decision had been made to dismiss her and that the conversation was not an opportunity to respond to the reason for dismissal before the dismissal decision was made.
The issue of a support person for the Applicant - 387(d)
[37] This is not relevant in this matter. The Respondent did not give the Applicant any opportunity to have a support person present given the way in which the conversation between Mrs Di Losa and the Applicant occurred on the 10 October 2011.
Unsatisfactory performance - s387(e)
[38] Whilst issues of unsatisfactory performance underlay the reason for dismissal unsatisfactory performance was not part of the reason for dismissal and as such this criteria is not relevant in the present matter.
Size of the Respondent’s enterprise and absence of dedicated HRM expertise - s.387(f) and (g)
[39] The size of the Respondents business is directly relevant in this matter. An allowance must be made in this matter both for the degree to which the size of the employer’s enterprise impacted on the procedures followed in effecting the dismissal and for the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise impacted on the procedures followed in effecting the dismissal. Of particular relevance is that both Mr Di Losa and Mrs Di Losa are hands on owners and managers of the business and each with reasonably clearly defined roles and responsibilities. In the present matter the sudden absence of the Applicant from the workplace had an immediate impact on Mrs Di Losa and her family and led both Mr Di Losa and Mrs Di Losa to react negatively to the Applicant leaving the workplace. The way in which Mr Di Losa and Mrs Di Losa interpreted events on Friday 7 October 2011 is understandable. Equally the way in which Mrs Di Losa conducted the conversation with the Applicant on Monday 10 October is also understandable.
Any other matters that FWA considers relevant - s.387(h)
[40] The Applicant’s inability or unwillingness to perform data entry using the import method is a matter which is directly relevant in this matter.
[41] I accept the evidence of the Respondent that the Applicant was trained to perform data entry using the import method. The evidence also makes clear that the Applicant preferred to continue to enter data using keystrokes and the Applicant was of the view that she had not received sufficient training to do data entry using the import method. The Applicant sought to continue doing data entry using the keystroke method and Mrs Di Losa agreed. It is apparent from the evidence of both the Applicant and Mrs Di Losa that each had a different understanding as to what was meant or intended by Mrs Di Losa allowing the Applicant to continue entering data using the keystroke method.
Harsh, Unjust or Unreasonable Dismissal
[42] Having considered each of the criteria in s.387 I have formed the view that the dismissal of the Applicant was harsh, unjust or unreasonable. The lack of clarity and certainty in the actions of Mrs Di Losa created an environment where the Applicant was entitled to continue to input data using the keystroke method even when the Applicant was aware that Mr Di Losa wanted as much data as possible input using the import method. Whilst I have no doubt that the Applicant took advantage of the situation this could have been avoided had the Respondent been clearer in its communications with the Applicant. The language used by Mr Di Losa in his email of Friday 7 October 2011 was intemperate in threatening to make staff who made keystroke errors pay for the costs suffered by the Respondent. In addition the language of the email did not clearly state that data which could be input using the import method could not be input using the keystroke method. Further it was clear from the evidence of Mr Di Losa that while the email was sent to all staff it was meant to be directed at the Applicant, yet Mr Di Losa chose not to communicate directly with the Applicant.
[43] Whilst some allowance must be given to the fact that neither Mr Di Losa or Mrs Di Losa were acting maliciously towards the Applicant (in fact it is clear from the evidence that Mrs Di Losa was on good personal terms with the Applicant) the conclusion must be drawn that in all of the circumstances of this matter the dismissal was harsh, unjust or unreasonable.
Remedy
[44] The Applicant does not seek reinstatement and having had regard to all of the evidence in this matter I consider that reinstatement would be inappropriate.
[45] I do consider that compensation is an appropriate remedy.
[46] In order to calculate an amount of compensation I must have regard to the requirements of s.392 of the Act which is in the following terms:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(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.
Misconduct reduces amount
(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.
Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
Note: subsection 395(5) indexed to $59,050 from 1 July 2011
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[47] In taking into account each of the provisions of s.392 I must give adequate reasons for any amount of compensation which I consider appropriate. 5
[48] S.392(2)(a) - nothing was put to me which would suggest that the order I intend to make will have any effect on the viability of the Respondent’s enterprise.
[49] S.392(2)(b) - the Applicant was employed for a total of 18 months.
[50] S.392(2)(c) - it is quite likely given the evidence in this matter that the Applicant would not have continued in employment with the Respondent for any reasonable length of time whilst the Applicant was unwilling or unable to enter data using the import method. The evidence was that the Respondent had hired a new employee in September to specifically input data using the import method because the Applicant wouldn’t or couldn’t do this work. The evidence of the Respondent is that the hours of work of the Applicant would have reduced as the import method of inputting data simply required less hours of work than did the keystroke method and the amount of work required to be done by the keystroke method was small and was decreasing. Whilst Mrs Di Losa gave clear evidence that she did not intend to dismiss the Applicant on Monday 10 October 2011 she also gave evidence about her frustration with the Applicant not doing data entry using the import method. The evidence of Mr Di Losa shows that he had reached the point of not wanting the Applicant to be re-employed after he thought the Applicant had resigned. All of this points to the employment relationship having reached a precarious point where its continuation for any lengthy period could not be presumed. Had the Applicant not been dismissed it is more than likely given the attitude of Mr Di Losa and Mrs Di Losa that the Applicant’s position would have become redundant in the near future. Whilst data entry was still required by the Respondent a full time position of data entry operator by keystroke method (the Applicants position) was no longer required by the Respondent. Given the Applicant’s unwillingness or inability to perform data entry using the import method redundancy and subsequent dismissal was a real possibility.
[51] S.392(2)(d) - the evidence of the Applicant establishes that she has made efforts to mitigate her loss suffered because of the dismissal.
[52] S.392(2)(e) - the evidence is that the Applicant has obtained work for a short period where she earnt $9,587.51.
[53] S.392(2)(f) - there is nothing in the evidence or submissions before me which would suggest that the Applicant is likely to earn any income between the making of the order for compensation and the actual compensation.
[54] S.392(2)(g) - S.392(3) requires that I must reduce the amount of compensation by an appropriate amount for misconduct if I am satisfied that misconduct of the Applicant contributed to the Respondent’s decision to dismiss the Applicant. Having considered the evidence in this matter I cannot be satisfied that the Applicant engaged in misconduct and I cannot be satisfied that any misconduct of the Applicant contributed to the Respondent’s decision to dismiss the Applicant. The conduct of the Applicant in continuing to enter data using the keystroke method rather than the import method was not misconduct. The Applicant did not engage in conduct in breach of a clear direction from the Respondent. Rather the Applicant took unfair advantage of the permission given to her from Mrs Di Losa to input data using the keystroke method. Whilst the evidence of the Respondent makes clear that there were some orders which could not be input using the import method and which had to be input using the keystroke method this amounted to only a small portion of the data entry work and was a decreasing amount as customers moved to provide information in a form which could be imported. The Applicant was not only using the keystroke method to enter data which could only be entered using the keystroke method but was also entering data using the keystroke method when the data was in a form which allowed it to be entered using the import method, which was both more accurate and very much quicker. The overall conduct of the Applicant is relevant in determining the amount of compensation to be ordered.
[55] I also note that had the Applicant been dismissed as a result of her position becoming redundant the Applicant was entitled to a redundancy payment of 4 weeks pay in addition to the period of notice. The possibility of redundancy is a relevant factor in determining the amount of compensation.
[56] S.392(4) The amount of compensation to be ordered in this matter does not include any component by way of compensation for shock, distress or humiliation or other analogous hurt caused to the Applicant by the manner of the Applicant’s dismissal.
[57] Having considered each of the above matters I determine that the amount of compensation is $3,300.00 (which is equal to four weeks’ pay at the rate of $825.00 per week) to be taxed at the appropriate rate. As the amount of compensation is less than the compensation cap specified in s.392(5) and (6) an order will issue separately to this decision that the Respondent pay to the Applicant the amount of $3,300.00 less appropriate tax within 21 days of the order.
COMMISSIONER
Appearances:
G. Dircks for the Applicant
J. Di Losa for Cold Xpress Pty Ltd
Hearing details:
2012
Melbourne
6 March
1 Exhibit R1 - Witness Statement of John Di Losa
2 Exhibit R2 - Witness Statement of Emma Martino
3 Exhibit R1 - Witness Statement of John Di Losa
4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373, 7 July 1995, Northrop J.
5 Tabro Meat Pty Ltd v Heffernan[2011] FWAFB 1080
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