Mr Christopher Fox v Robert Oar Pty Ltd T/A Ruralquip

[2015] FWC 2826

[2015] FWC 2826

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Christopher Fox
v
Robert Oar Pty Ltd T/A Ruralquip
(U2014/973)

COMMISSIONER BOOTH BRISBANE, 27 APRIL 2015

Application for relief from unfair dismissal - arbitration.

[1] Christopher Fox applied under the Fair Work Act 2009 (Cth) (the Act) for a remedy under s.394 after he was dismissed on 5 March 2014 from his employment in Ayr with Ruralquip, an agricultural supplies business operated by Mr Robert Oar, principal of Robert Oar Pty Ltd t/as Ruralquip (Ruralquip). Ruralquip employed 17 employees at the time.

[2] Mr Fox worked for Ruralquip for some 7½ years and is now 68 years old. He has not been able to find alternative employment and is in receipt of social security benefits. The dismissal took effect immediately and Mr Fox was paid 5 weeks in lieu of notice. Mr Fox does not seek reinstatement but seeks compensation.

[3] This matter proceeded in an unusual way in that the application, prepared and filed by a paid agent, was very sparse, not even stating the relief sought. 1 The paid agent appears to have ceased representing Mr Fox without notifying him, and it took some time for him to arrange representation by a solicitor. In the event, Ruralquip’s submissions preceded Mr Fox’s written material which included reply to the Ruralquip’s material.

[4] By the time of the hearing both parties were legally represented. Both sought and were granted leave for the hearing of the matter.

[5] Mr Fox’s case simply put is that he was not provided with any warnings that his employment was at risk. Further that any performance issues in his employment were the result of Ruralquip’s system of work and style of management, neither of which Mr Fox could have rectified even if they had been brought to his attention, which they were not.

[6] Ruralquip asserts that Mr Fox’s performance was an issue in his employment from at least March 2012. Ruralquip listed numerous incidents said to be errors or poor performance by Mr Fox, and states that Mr Oar met with Mr Fox about his performance on several occasions, including giving him a “last employment warning” on 17 January 2014 after Mr Oar was dissatisfied with Mr Fox’s failure to undertake general duties when not serving customers. A further warning was said to have been given on 10 February 2014 for not fulfilling his duties.

Mr Fox’s evidence and submissions.

[7] Mr Fox’s evidence is that he was never provided with a statement of duties nor a position description; no training was provided on stock and ordering procedures; and he and other employees were often confused about who was responsible for certain activities, causing friction with Mr Oar.

[8] He submits that there was a high turnover of staff and that Mr Oar was abrasive and aggressive in his management of the business.

[9] Mr Fox filed 4 witness statements - 3 were former employees who spoke highly of Mr Fox as a colleague, and Mr Gilchrist, describes himself as a regular customer of Ruralquip, spoke of his ‘calm and courteous demeanour’ and good character. These witnesses were not required for cross-examination.

[10] Mr Fox asserts that no performance issues were raised with him before August 2012. Mr Fox swears that the first time he was aware of some of the concerns about his performance was on reading Ruralquip’s submissions. He swears that he was completely unaware of the matters in paragraphs 5 to 11 of Ruralquip’s submissions (covering from March to July 2012), saying they just did not happen or happened in a different way.

[11] The first Mr Fox was aware of any concern was the (recorded) meeting of 6 August 2012.

[12] After hearing the transcript at the hearing Mr Fox accepted that the recording was accurate: but he was not given a copy of the sound recording at the time, only a summary of the issues in the document and that he did not understand that there was a warning given in the meeting that his job was in jeopardy.

[13] Mr Fox says Mr Oar gave him a document at the end of the meeting:

“After the meeting I understood that Mr Oar had some issues with my performance at work, but I was very confused as to what he wanted from me, he was extremely unclear. … At the end of the meeting Mr Oar gave me a list which had a number of “points” on it. I read that after the meeting finished but I was quite confused about it as much of what was on the list was not discussed during the meeting … Immediately following the meeting it was not my understanding that I had been provided with any warning that my job was at risk of termination.”

[14] He tried to address the issues that his employer raised, stating in re-examination that he “tried to be more effervescent”.

[15] He says that the meeting followed a reduction in his work hours, and he thought it was about stock and customers’ issues, topics of frequent discussion with management of Ruralquip.

[16] Mr Fox says that he received thank you cards and a bonus at Christmas in 2012 and 2013. He denies that Mr Oar or anyone on Ruralquip’s behalf even conversed with him about poor performance or gave him a warning that his job might be terminated. He says the termination on 5 March 2014 came as a huge shock to him. He made a diary note once he arrived home after his dismissal and recounts in his evidence the following version of the meeting, commencing with Mr Oar's statements:

I am letting you go -- From when?

Immediately -- Why?

I don’t have to give you any reason. -- Well I believe you do.

Work is slow and I can’t pay you to just sit there and wait for customers -- I do as much as anyone else there does. Why me?

You don’t know what others do. Anyway I am not going to argue with you about it.

[17] Mr Fox says he then left (followed by Mr Oar) he gathered his belongings and left the premises.

[18] In final submissions, Mr Honchin of counsel, who represented Mr Fox addressed issues of Mr Fox’s conduct, performance and procedural deficiencies in the termination.

[19] As to conduct Mr Honchin admitted that perhaps Mr Fox was not the ideal employee but that he did his best with the training given.

[20] He noted notwithstanding the employer pointing out certain limitations of Mr Fox, no training was given nor supervision was provided.

[21] He says Mr Fox was never given the opportunity and the resources needed to improve his conduct and performance. He noted that when Mr Fox first began this job in retail it was his first retail role but no retail training given.

[22] On the question of procedural deficiencies, he noted notwithstanding a set of policies and procedures in place for termination these were not followed.

[23] While it may have been a warning on August 2012 - which was provided orally - it was certainly not the case that the document handed to Mr Fox at the time of termination says anything about termination.

[24] It is disputed that the two meetings held on 17 January and 14 February 2014 were termination meetings. While it may have been meetings at this time, such meetings could not be construed as timely and appropriate warnings leading to termination.

[25] Mr Fox was not aware that his position was so tenuous that he could be terminated as a result of these meetings.

Respondents evidence and submissions

[26] Mr Oar submits that the reasons for dismissing Mr Fox are those annexed to his submission as the summary points of the meeting. They state, verbatim, as follows.

Problem issues as per previous discussions. Details on previous employment warnings.

1. Refusal to correct actions regarding failure to move from seat behind counter to serve customers.
2. Failure to make any attempt to improve “attention to detail” on invoices.
3. Failure to follow normal set procedures as instructed.
4. Failure to follow instructions on general cleaning and stock replenishment.
5. Failure to wear appropriate dress clothing.
6. Failure to not address the “bullying other employee” issue.
7. Failure to not restrain from “smart arse” comments to customers.
8. Failure to ask acknowledge fellow employees about products before ordering goods.

[27] Ruralquip’s submission on the dismissal is as follows:

5 March 2014 – Mr Oar calls the Applicant into his office and informs him that he is terminating his employment. The Applicant becomes enraged. Mr Oar attempts to explain that there are a number of reasons to go through but the Applicant stormed out of the office, abusing the administration manager as he left.

[28] Ruralquip filed statements from Mr Robert Oar and 2 senior current employees of Ruralquip.

[29] Mr Oar’s evidence is of a hands-on Director with significant experience in business.

[30] Mr Oar says Mr Fox was employed in the retail side of the business, but had virtually no experience at point of sale software, customer relations or computer use.

[31] From the beginning his attitude to following management directions and policies was poor. After being given responsibility for product group management and not succeeding in that role, these responsibilities were taken off him and given to another employee who was able to carry them out successfully.

[32] Eventually Mr Fox’s duties were limited to: responsibility for front counter customer service and replenishment of stock on the shelves.

[33] Mr Oar deposes, “I formed the view that despite many attempts to train and improve Mr Fox, these duties represented the limits of the duties which he could do or would carry out in my business.”

[34] He was informed of his duties on many occasions and how to undertake them - Mr Oar submits that Mr Fox can have been under no illusion or confusion as to what the job entailed.

[35] Despite limited responsibilities, Mr Fox was generally unable or unwilling to follow procedures or directions with which other staff had no difficulty.

[36] Although he did receive a Christmas card he received a token bonus only.

[37] Both before and after the August 2012 meeting there were both performance and conduct issues with Mr Fox. These included ordering incorrect parts, wrongly charging a customer, giving a little ‘shove’ to another staff member which Mr Fox acknowledged but said it was nothing more than a joke. These issues were addressed throughout 2013.

[38] In January 2014 Mr Fox was advised, following a discussion about not refilling the display racks, that it was a last employment warning which he would be given.

[39] In February 2014 Mr Fox charged a large quantity of goods to the wrong customer and Mr Oar deposed that he explained to Mr Fox that he was not fulfilling his duties and again that there will be no further warnings.

[40] Mr Oar indicated in cross-examination that the day before the termination, on 4 March 2014, that he had concluded that Mr Fox should be terminated the next day.

[41] On 5 March Mr Oar deposed “it was my intention to terminate his employment pursuant to his failure to improve performance after previous warnings. At the commencement of that conversation I informed Mr Fox that I was terminating his employment immediately”

[42] As part of his evidence, Mr Oar appended a transcript of the meeting of 12 August 2012. It reveals a 20 minute conversation where Mr Oar puts certain issues of performance and conduct to Mr Fox. Apart from an issue of leaving early Mr Fox denied each of the allegations put to him.

[43] It was submitted that Mr Fox’s responses on transcript were indicative of his attitude as an employee.

[44] Mr Cromwell, the current manager of Ruralquip, deposed although he initially got on with Mr Fox, he found him to be rude and unpleasant. He deposed that when Mr Fox was in a bad mood he would behave in a rude, aggressive and belittling fashion.

[45] Mr Corradi, has been employed by Ruralquip for 25 years, and described Mr Fox as arrogant, argumentative and difficult to manage.

[46] As for his employment duties he deposed, “He would just sit on his chair at the front counter and that was about the extent of what he was prepared to do.”

[47] In final submissions at the hearing, Mr Baxter, legal representative for Ruralquip, submitted that Ruralquip had justifiable concerns about Mr Fox.

[48] He thought it would strain credulity for Mr Fox not to have known that Ruralquip was considering termination.

[49] Mr Oar considered that the recording of the August 12 meeting was a written warning. The 2 meetings held in January and February 2014 meant Mr Fox knew he would be sacked if he did not improve.

[50] He said the evidence of Mr Cromwell and Mr Corradi noted the rudeness and even physical contact with other employees.

[51] On the question of procedural fairness the August 2012 meetings and the January and February 2014 meetings ensured that Mr Fox was well aware of the possibility of termination.

[52] He noted that while no written letter was given at the time of termination this was because Mr Fox was abusive and left.

Issues arising out of the meeting of 6 August 2012 and subsequent meetings in January and February 2014

[53] The transcript of meeting of 6 August 2012, recorded with Mr Fox’s consent, was first seen by Mr Fox when preparing for these proceedings.

[54] At the beginning of the hearing of this matter Counsel for Mr Fox sought and was granted leave to tender a number of documents. The first document 2 was an original letter dated 6 August 2012 Chris Fox. Re- matters requiring attention. It is a different document to the one annexed to Ruralquip’s material.

[55] Mr Oar did accept that the document provided to this hearing was the document that Mr Fox would have received on 6 August 2012. He said he appended another document to his statement 3 and he mistakenly thought these more comprehensive notes were given to Mr Fox, but he now realises that is not the case.

[56] Importantly both the document actually handed to Mr Fox and the document that Mr Oar thought he handed to Mr Fox were descriptive of “matters requiring attention” for example “every employee at Ruralquip is required to assist customers with any enquiries. These enquiries relate to ‘retail machinery, steel BOC, warranties and retail the solution can be as easy as taking the customer to the person experienced in that particular area.’”.

[57] In the document that Mr Oar thought he gave to Mr Fox at the conclusion of the 6 August 2012 meeting raised similar concerns but were of a less polished writing style for example “continual complaints from administration office regarding incorrect customer account, wrong product charged, wrong product given. Most issues generated by CF and when approached show no indication of trying to improvement.”

[58] It is Mr Fox's submission that the document he received contains no warning that his job was in jeopardy.

[59] It is the case that while the document Mr Oar thought he gave Mr Fox was more detailed, it too was descriptive of performance and conduct issues and what needed to be done in relation to those issues.

[60] Neither of these written documents addresses termination, even in the vaguest of terms, the documents focus on performance and conduct issues and how to address them.

[61] Mr Oar deposes that he had significant other discussions with Mr Fox about performance after the 2012 meeting throughout 2013 4 and he details those in his statement.

[62] Then in January 2014, Mr Oar says he met with Mr Fox to discuss with him the issue of not moving from his seat and not stacking racks when there were no customers in the shop. Mr Oar says he gave him a last employment warning.

[63] Under cross-examination Mr Fox denied that that occurred.

[64] On 10 February 2014, there was a further meeting following the charging of a large quantity of goods to the wrong customer and Mr Oar deposes that there would be no further warnings.

[65] Again Mr Fox denied that this occurred.

[66] It is unclear what specifically triggered Mr Oar’s decision to terminate Mr Fox’s employment on 5 March, but Mr Oar submits that the day before he had observed Mr Fox:

“holding up other employees carrying out their duties by talking and not serving customers until they stood in front of him with goods already taken from shelves.”

Consideration

Was the dismissal unfair?

[67] It is uncontested that Mr Fox was protected from unfair dismissal and was in fact dismissed having served the minimum employment period. Further, neither party suggested this was a case of genuine redundancy. The small business code does not apply.

[68] Mr Fox submits that the dismissal was harsh, unjust or unreasonable. In considering his and Mr Oar's submissions and the evidence, the Commission must take into account the factors stated in s.387 in considering whether the dismissal was harsh, unjust or unreasonable.

(a) Valid reason

[69] The Fair Work Commission (the Commission) must be satisfied that the employment was terminated for a valid reason by reference to the Commission’s assessment of the factual circumstances and not by reference to whether the employer has a legal right to terminate the employment. 5 The reason must be “sound, defensible or well founded” and cannot be “capricious, fanciful, spiteful or prejudiced”.6

[70] In this case there are 2 competing versions of the reason for termination: the list annexed to Ruralquip’s evidence and submission, relating to performance issues, and Mr Fox’s assertion that Mr Oar cited business downturn during the termination meeting.

[71] Ruralquip submits the termination was for the reason of Mr Fox’s conduct, and more particularly his failure to discharge his duties, or to discharge them in an unsatisfactory way.

[72] It is the obligation of the Commission to ascertain if the complained of conduct occurred and what the conduct involved was. 7

[73] Mr Fox’s evidence may be a true account of the exchange that took place on 5 March 2014, but the preponderance of evidence, including the transcript of the 2012 meeting, the 2 lists annexed to Ruralquip’s submissions, and the content of the submissions themselves, points to the reasons for dismissal being about Mr Fox’s work performance and "attitude".

[74] Mr Corradi and Mr Cromwell appeared to be both honest witnesses not prone to exaggeration. Their evidence is important – it speaks of a difficult employee whose conduct was not able to be improved and that his work was not being done.

[75] On the basis of that evidence I am satisfied that Mr Fox’s conduct and performance were the reasons he was dismissed. I find that the conduct in fact took place, specifically the listed performance shortcomings in Ruralquip’s submissions. I note that this is not to say that Mr Oar sought to assist Mr Fox to be more effective, but taking into account their interactions, displayed on the taped meeting, it was clear that Mr Fox could see no problem with his work or attitude. Such an approach and attitude was not consistent with Mr Fox’s continuing employment with Ruralquip.

[76] Ruralquip’s business circumstances may well have been in a downturn, but neither party suggested that Mr Fox was in fact made redundant. I find that the reason for the dismissal was Mr Fox’s conduct.

[77] It is well established that failure to perform duties and issues of poor work attitude can amount to a valid reason for dismissal. 8

[78] The conduct Mr Oar complains of took place over an extended period, and the events, taken together, satisfy the requirements for a valid reason to dismiss.

(b) Notice

[79] It is uncontested that Mr Oar did not give Mr Fox notice of the intent of the meeting at which he was dismissed noting he decided on 4 March 2014 of his intention to dismiss Mr Fox and was dismissed without prior notice. He was not given reasons.

[80] The cases make it clear that notice of the valid reason to terminate must be given to the employee before the decision to terminate is made; 9 in explicit terms;10 and in plain and clear terms.11

[81] On either version of the dismissal meeting, Mr Fox was not given reasons before Mr Oar had made the decision, and the material adduced for Ruralquip does not, in my view, satisfy the requirements for explicit and plain, clear terms.

(c) Opportunity to respond

[82] Mr Fox was dismissed at the commencement of the dismissal meeting, without being given reasons beforehand. He was not afforded an opportunity to respond.

[83] While Ruralquip submits that Mr Fox stormed out of the meeting, that did not amount to his waiving his right to properly consider and respond to the reasons for his termination. Mr Fox's evidence was that he explicitly asked for reasons. Mr Oar says that he attempted to state reasons but Mr Fox left the meeting peremptorily. Neither version suggests an opportunity to respond before a final decision was made.

[84] The list annexed to the submissions was not given to Mr Fox at the time of his dismissal. Indeed he says he first saw it in Ruralquip’s materials.

(d) Support person

[85] Mr Fox was not invited to bring a support person to the meeting and he attended the meeting without the benefit of a support person. However this consideration, in s.387(d), refers to an unreasonable refusal to allow a support person and does not impose a positive obligation on the employer. 12 Mr Fox was not refused a support person, even if the opportunity to ask for one hardly arose.

(e) Warnings of unsatisfactory performance

[86] It is clear that Mr Fox and Mr Oar had a testy relationship. The transcript of the meeting in August 2012 shows both men to be argumentative. It concludes with the following statement by Mr Oar:

And if there’s no change, well there will … I’m not putting up with the shit anymore.

[87] I accept Mr Oar’s submission that he warned Mr Fox on more than one occasion, and that he expected improved performance from him. I also accept Mr Fox’s evidence that the warnings and performance expectations were not expressed clearly or in a way that Mr Fox understood the change required of him by Mr Oar.

[88] As noted by a Full Bench, “a mere exhortation for the employee to improve his or her performance would not be sufficient”. 13

[89] I conclude that while Mr Fox was warned about his performance, the lack of precision and follow up on performance improvement means the warnings were not sufficient in the circumstances.

(f) Size of enterprise on procedures and

(g) Absence of expertise in the enterprise

[90] Ruralquip is a small company, employing some 17 people and without direct access to human resource managers. Mr Oar is a hands-on manager, taking personal responsibility for employment decisions. On Mr Fox’s evidence, Mr Oar is quick to terminate employment and has considerable staff turnover. There are procedures 14, which were provided by Mr Fox at the hearing. Ruralquip did exhibit a document headed “Ruralquip Termination Sheet”, a form with details of his outstanding entitlements, including payment in lieu of notice. The existence of the form indicates some process was in place for employee termination, an intent to approach employment termination methodically.

[91] While a small business like Ruralquip is different organisationally and operationally from a large business, the procedures followed in dismissing a person cannot be devoid of any fairness. 15 The fact that Ruralquip is a small enterprise does not explain the apparent absence of fairness in Mr Fox's dismissal.

(h) Other matters

[92] Mr Fox submits that he was singled out for dismissal when he was merely conducting himself as others did. That is, he was treated differently and that should be taken into account. 16 However I cannot conclude that Mr Fox was treated differentially. On Mr Fox’s own evidence Mr Oar was quick to dismiss others for performance deficits, yet Mr Fox sustained employment for more than a year and a half after the August 2012 meeting and multiple, if imprecise, warnings.

[93] Other matters that may be relevant include Mr Fox’s length of service and age; 17 his work record (which is not unblemished);18 and the impact of the dismissal on his economic circumstances, including the difficulty of obtaining employment in a small town.19

[94] These factors go to the harshness of the dismissal.

[95] I have also considered the positive character references sworn by Mr Fox’s former colleagues and the customer.

Conclusions as to dismissal

[96] Ruralquip’s process in dismissing Mr Fox was plainly deficient. He was not given prior notice nor an opportunity to respond; warnings were given but not with enough detail.

[97] Given those and the other circumstances discussed above, I conclude that Mr Fox’s dismissal, while for a valid reason relating to his conduct and performance, was harsh, unjust or unreasonable for the purposes of s.385.

Remedy

[98] Mr Fox’s application under s.394 did not specify the relief he sought, leaving it to the Commission to give relief as it saw fit. In submissions at the hearing Mr Honchin confirmed that reinstatement was not sought.

[99] It was put to the Commission that “compensation be awarded appropriately at the high level – half a year’s pay.”

[100] I proceed to the question of whether an order for compensation is appropriate in all the circumstances, 20 and if so, the amount of compensation, if any, calculated by considering the criteria in s.392(2), reduced by an appropriate amount considering any misconduct of Mr Fox and the cap on compensation.

[101] Mr Fox will likely find it hard to obtain further work on account of his age and the employment prospects in Ayr, and while his conduct at work was not above reproach, the harshness of the immediate dismissal and the lack of procedural fairness make this an appropriate case for compensation.

[102] As to the amount, I address each statutory factor in turn.

(a) Viability

[103] Ruralquip made no submissions that an order to pay compensation would affect the viability of the business. The order proposed would not affect the business' viability.

(b) Length of service

[104] Mr Fox worked for Ruralquip for 7½ years. This is a period which supports the making of an order for compensation. Certainly no diminution of any amount that might otherwise be determined is warranted because of this circumstance.

(c) Remuneration Applicant would have received

[105] In calculating this amount, I make reference to the Sprigg formulation as refined in Ellawala v Australian Postal Corporation 21 and recently considered by a Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge.22 Under that formulation, the Commission calculates how much the applicant would have earned in anticipated future employment, deducts earnings in alternative employment over that period and contingencies, and adjusts for taxation.

[106] Mr Fox gave evidence that he has been unable to find alternative employment and is in receipt of an age pension and that he should receive half a year’s pay.

[107] Given the history of his employment and the quality of relations with Mr Oar, it is unlikely Mr Fox would have remained in Ruralquip’s employment for a lengthy period.

[108] Mr Baxter considered that if the dismissal was found to be unfair there should be no compensation noting that Mr Fox may be entitled to pro-rata Long Service Leave. It may well be that Long Service Leave is payable on a pro-rata basis but that is not a matter to be taken into consideration in an unfair dismissal.

[109] On the evidence, Mr Fox, over an extended period, failed to discharge his full duties, including failing to perform general duties when not engaged in sales. Mr Fox did not remedy his conduct when asked by Mr Oar (albeit in general, even vague, terms). Mr Oar counselled Mr Fox twice, in January and February 2014 before he was dismissed. I consider the conduct Mr Oar complained of was likely to be repeated in the future giving rise to further aggravation on Mr Oar's part and a high probability that Mr Fox's employment would have been validly terminated. I consider that Mr Fox’s employment would have been continued for a further 2 weeks and that should be the basis of the amount of compensation payable.

[110] Mr Fox was paid $17.98 plus a bonus of $3.94/hour. 23 His termination payment was calculated on the basis of 38 hours per week. On that basis he would have earned $1,665.92 gross over 2 weeks.

(d) Mitigation

[111] Mr Fox says he attempted unsuccessfully to obtain work after his dismissal. Given his age and location, obtaining alternative employment would have been difficult. While his efforts may have been modest, 24 in the circumstances of this case,25 I do not consider compensation should not be reduced on this basis.

(e) Remuneration earned in other employment and

(f) Income between order for compensation and payment

[112] These factors are not relevant in the present circumstances. 26

(g) Any other matter that the FWC considers relevant

[113] The Sprigg formulation requires me to consider contingencies. Given the period of actual unemployment, my finding that 2 weeks is the appropriate period to be considered, and the fact that Mr Fox’s current situation is known, no allowance needs to be made for contingencies.

Misconduct (s.392(3))

[114] Section 392(3) provides that if the Commission is satisfied that the applicant’s misconduct contributed to the employer’s decision to dismiss then:

“...the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”

[115] I am satisfied that Mr Fox's misconduct contributed to Ruralquip’s decision to dismiss him. In particular, I note the repeated failure of Mr Fox to attend to his duties and to undertake general duties when not engaged in sales. It follows that the amount of compensation that would otherwise been ordered must be reduced on account of that misconduct. I find that the misconduct warrants a reduction of 25%.

Compensation cap (s.392(5))

[116] The amount ordered is less than the compensation cap and no further reduction is required by s 392(5).

Instalments (s.393)

[117] There was no submission that any amount of compensation should be subject to payment by instalments. I am not satisfied that payment by instalments is warranted.

[118] The amount of compensation ordered is therefore:

2 weeks’ wages + bonus	$1665.92
LESS earnings	n/a
LESS misconduct s.392(3) 25%	$416.48
TOTAL	$1249.44

Order

[119] An order will issue that Ruralquip pay Mr Fox compensation in lieu of reinstatement in the sum of $1249.44 less taxes.

COMMISSIONER

Appearances:

Mr D Honchin of Counsel for Mr Fox.

Mr M Baxter for Ruralquip.

Hearing details:

2015.

Townsville:

21 April.

 1   other than “as the Commission sees fit”

 2   Exhibit A1.

 3   Annexure 1 of Mr Oar’s statutory declaration.

 4   See affidavit of Mr Robert Oar at paragraph 41.

 5   Miller v University of New South Wales (2003) 132 FCR 147 at paragraph 13; Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 6   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373 ; [1995] IRCA 333.

 7   Edwards v Justice Guidice [1999] FCA 1836; Michael King v Freshmore (Vic) Pty Ltd M Print S4213.

 8   eg Kolodka v Virgin Australia Airlines Pty Ltd trading as Virgin Australia[2012] FWA 7828.

 9   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 at paragraph 70‒73.

 10   Previsic v Australian Quarantine Inspection Services (1998) Print Q3730.

 11   see Previsic.

 12   Explanatory Memorandum, Fair Work Bill 2008 (Cth) at paragraph 1542.

 13   Fastidia Pty Ltd v J B Goodwin Print S9280.

 14   Exhibit A3 is a document listing procedures inter alia about dismissal.

 15   Williams v The Chuang Family Trust t/a Top Hair Design [2012] FWA 9517.

 16   John Sexton v Pacific National (ACT) Pty Ltd, PR931440; Alkemade and others v SERCO Gas Services (Vic) Pty Ltd M Print R6090 (Full Bench).

 17   “Relatively advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a ‘fair go all round’:” John Sexton v Pacific National (ACT) Pty Ltd, PR931440 at paragraph [30] (Mr Sexton was 54 years old and had 26 years’ service with the employer).

 18   Streeter v Telstra Corporation (2008) 170 IR 1 at paragraph 27; Cunningham v Australian Bureau of Statistics (2005) 148 IR 20; Gasz v Mobil Refinery Australia Pty Ltd, PR960826 at paragraph 17 (Full Bench).

 19   Schliebs v Ricegrowers Co, PR908351.

 20   s.390(3)

 21   Q7051.

 22   [2013] FWCFB 431; See also McCulloch v Calvary Health Care Adelaide[2015] FWCFB 2267.

 23   pay advices annexed to Ruralquip’s submissions.

 24   McCulloch at paragraph [24].

 25   Biviano v Suji Kim Collection, PR915963 at paragraph [34].

 26   as to Mr Fox's social security payments see Steggles Ltd v West,Print S5876.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR563417>