Mr Daniel Laidlaw v The Trustee for TF and CA Pickering Family Trading Trust T/A Biloela Dry Cleaners and Laundry Service

[2015] FWC 3069

[2015] FWC 3069

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Laidlaw
v
The Trustee for TF and CA Pickering Family Trading Trust T/A Biloela Dry Cleaners and Laundry Service
(U2014/7188)

DEPUTY PRESIDENT ASBURY BRISBANE, 26 JUNE 2015

Application for relief from unfair dismissal

[1] Mr Daniel Laidlaw applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by The Trustee for TF and CA Pickering Family Trading Trust T/A Biloela Dry Cleaners and Laundry Service (Biloela Dry Cleaners). Mr Laidlaw was employed as a casual delivery driver until 24 April 2014 when he ceased working for Biloela Dry Cleaners. The application is met with a jurisdictional objection made by Biloela Dry Cleaners on the basis that Mr Laidlaw’s employment was not terminated at the initiative of the Company.

[2] The application was made on 13 May 2014, within the time required in s. 394(2) of the Act. Mr Laidlaw is a person protected from unfair dismissal as defined in s. 382 of the Act. Biloela Dry Cleaners is not a small business and the dismissal was not a redundancy.

[3] The matter was dealt with by way of a hearing conducted in Brisbane, as it was considered that this was the appropriate course. Initially, Directions were issued in relation to the jurisdictional objection only. The material filed by the Applicant did not fully address this matter. Upon receipt of the material from the parties I held a further conference and the parties agreed that I would deal with the jurisdictional objection and the substantive application. Further Directions were issued to allow the parties an opportunity to supplement the material already before the Commission in relation to the two issues in dispute: whether Mr Laidlaw was dismissed; and if so, whether that dismissal was unfair. The further Directions set out in some detail the legislative provisions that were required to be addressed.

[4] Mr Laidlaw then sent a series of email correspondence in which he questioned the need to file further material on the basis that he had already provided material to the Fair Work Ombudsman. Attempts were made to clarify with Mr Laidlaw the difference between the two bodies and to explain the role and function of the Commission. It was pointed out to Mr Laidlaw that material filed with the Fair Work Ombudsman would not be received by the Commission unless he also tendered that material with the Commission. Mr Laidlaw resisted all attempts to facilitate him filing additional material and I decided to simply deal with the application on the basis of the material filed and the application was listed for hearing on 6 March 2015.

[5] Biloela Dry Cleaners sought and was granted permission to appear, and for witnesses to give evidence, by telephone. In circumstances where Biloela Dry Cleaners is based in Biloela and would have been essentially required to close down its business to attend the hearing with all of its witnesses, that request was acceded to. It is also the case that although there are some facts in dispute, I formed a view that the determination of those facts was not central to the issues I am required to decide, which can be summarised as: Was Mr Laidlaw dismissed, and if he was, whether the dismissal was unfair.

[6] Mr Laidlaw was offered the opportunity to appear by telephone but elected to appear in person and was assisted by his father-in-law, Mr Wilson. At the hearing Mr Laidlaw complained that the Respondent was permitted to appear by telephone and submitted that no weight should be put on the evidence of the Respondent because the witnesses did not appear in person. Various assertions were also made about the witnesses for Biloela Dry Cleaners being allowed to gather in a room and confer about their evidence. Given that the essential facts are not in dispute, it was not necessary that the witnesses appear in person.

[7] At the hearing Mr Wilson who represented Mr Laidlaw claimed that it was their understanding that the hearing would only deal with whether Mr Laidlaw was dismissed. Mr Wilson made this claim notwithstanding that my Associate sent a number of emails, to which Mr Laidlaw responded, indicating that both the jurisdictional objection and the substantive application would be dealt with. At the conclusion of the evidence, Mr Laidlaw agreed that I would deal with both matters.

[8] Evidence was given on behalf of Biloela Dry Cleaners by:

● Mr Tony Pickering, Director;

● Ms Justine Megan Stephens, Operations Manager;

● Mr Kim Roberts, Driver;

● Mr Errol Martin, Manager of the Hotel; and

● Ms Jo-Anne Collocott, Office Manager.

[9] Evidence was given by Mr Laidlaw on his own behalf, and by Mr Allan Wilson, Mr Laidlaw’s father-in-law.

[10] I have considered all of the evidence and set out below that which is relevant to the issues in dispute.

Evidence and submissions

[11] It is not in dispute that Mr Laidlaw commenced employment for Biloela Dry Cleaners on 3 July 2013 1 in the position of casual delivery driver. Mr Laidlaw last worked for Biloela Dry Cleaners on 24 April 2014. At a meeting on that date, Mr Laidlaw was questioned about allegations that he stole money from a motel that was a client of Biloela Dry Cleaners. Biloela Dry Cleaners claims that Mr Laidlaw admitted to stealing the money and was subsequently advised by Ms Stephens that he was dismissed.

[12] Ms Justine Stephens 2, Operations Manager for Biloela Dry Cleaners, gave evidence that on Thursday, 24 April 2014, she requested that Ms Jo-Anne Collocott, Office Manager, and Mr Kim Roberts, Delivery Driver, be present for a meeting between Ms Stephens and Mr Laidlaw. Ms Stephens says that the purpose of the meeting was to discuss the stealing complaint, made by a client of Biolela Dry Cleaners, against Mr Laidlaw.

[13] At the meeting Ms Stephens states that she put to Mr Laidlaw an accusation that he had stolen from the client’s storeroom. Ms Stephens states that Mr Laidlaw immediately started shaking. Ms Stephens asked Mr Laidlaw whether he had stolen as alleged, to which Mr Laidlaw responded “no”.

[14] Ms Stephens put to Mr Laidlaw that the Hotel Manager who had made the complaint, was coming to the Respondent’s premises and that he “thinks otherwise”. Ms Stephens again asked Mr Laidlaw he had taken the money to which Mr Laidlaw responded “yes”.

[15] Ms Stephens asked Mr Laidlaw how much he had stolen, to which Mr Laidlaw responded “about $10”. Ms Stephens states that she explained to Mr Laidlaw that “stealing of any kind is a sackable offence” and that he would have to be “let go”. In response, Mr Laidlaw nodded his head. Ms Stephens says that she shook Mr Laidlaw’s hand and wished him luck.

[16] Mr Kim Roberts 3 confirmed that he attended the meeting with Mr Laidlaw. Mr Roberts was requested to attend the meeting by Ms Stephens. Mr Roberts confirmed that during the meeting, Ms Stephens explained “the events of the previous afternoon and the reason why [Mr Laidlaw] had been accused of theft”. Mr Roberts states that Ms Stephens then asked Mr Laidlaw if he had taken any money, and Mr Laidlaw responded “no”.

[17] After Mr Laidlaw denied the allegation, Mr Roberts states that Ms Stephens advised Mr Laidlaw that the hotel manager was on his way to discuss the matter. Following this Mr Stephens says that Mr Laidlaw become “uneasy and was seen to be shaking nervously”. Mr Laidlaw was again asked if he had taken any money and Mr Laidlaw responded: “yes, I took some money”. When asked how much money, Mr Roberts says that Mr Laidlaw said: “about $10.00 I think”.

[18] Mr Roberts says that after the admission, Ms Stephens stated that theft was not tolerated and that she “reluctantly, would have to terminate [Mr Laidlaw’s employment]”. Mr Roberts was not involved in the matter further once the meeting ended.

[19] Ms Collocott’s evidence is that at first, Mr Laidlaw denied any knowledge of the allegations but then “changed his mind” when he was told that the hotel manager was to attend the office to discuss the matter. Ms Collocott said that following this, Mr Laidlaw admitted to taking “about $10”, and was dismissed after this admission.

[20] Ms Stephens states that later in the morning, Mr Laidlaw returned with his “irate” father-in-law, Mr Wilson. Mr Wilson demanded to see the owner of the business, Mr Pickering. Ms Collocott contacted Mr Pickering and went to pick him up to bring him to the business to see Mr Wilson.

[21] Upon Mr Pickering’s arrival, there was a second meeting between Mr Laidlaw, Mr Wilson, Mr Pickering and Ms Stephens. There is evidence that various persons at the second meeting were agitated. Mr Laidlaw and Mr Wilson maintain that Ms Collocott was not in the room during the second meeting but was outside the room. It is not necessary to determine this point as all witnesses agree that Mr Pickering told Mr Laidlaw to: “come back on Tuesday (29 April) and if there is a job out on the floor that does not involve driving a vehicle I’ll see if I can fit you in.” According to Mr Pickering, Mr Laidlaw said: “”Yeah no worries” and shook Mr Pickering’s hand. Mr Pickering also said that Mr Laidlaw did not come back on the following Tuesday and that if Mr Laidlaw had done so, he would have found him a job.

[22] Mr Laidlaw said that he did not return to Biloela Dry Cleaners on Tuesday 29 April because it would not have been in his best interests to put himself through more embarrassment and humiliation to that he had already gone through in relation to the allegations of stealing. Mr Laidlaw conceded that although he had found the money and was not guilty of stealing it, he was made to feel like a criminal and was too embarrassed to return to work.

[23] Mr Wilson gave additional evidence about the second discussion on 24 April and said that the manager of a hotel, Mr Martin, also attended with the head cleaner of that hotel, and stated that a sum of money had been hidden in a cupboard before Mr Laidlaw delivered to the hotel and was gone after he left. Mr Wilson said that he insisted that Mr Martin go to the police with the complaint and he declined to do so. According to Mr Wilson, Mr Martin stated that Mr Laidlaw was not to enter his premises again and that if he did, Mr Martin would take his business elsewhere.

[24] According to Mr Wilson, a complaint was made to the Queensland Police Service some five months after Mr Laidlaw’s dismissal. Mr Wilson asserts that the Police complaint was motivated by the fact that Mr Laidlaw made a complaint about his wages and superannuation.

[25] Payslips tendered by Mr Laidlaw indicated that during his employment, he worked on average 29 hours per week and earned an average of $625 per week. In relation to remedy, Mr Laidlaw said that he seeks compensation for lost wages resulting from his unfair dismissal and for relocation of his family because of the need to seek other employment. Mr Laidlaw said that but for his dismissal he would have remained in employment for quite a while, and that he was a valuable asset to the business.

[26] Mr Pickering said that at the time Mr Laidlaw was dismissed, he had twenty employees but that number had since reduced to fourteen. Mr Pickering said that he has limited financial capacity to pay any amount of compensation and would seek to pay any amount in instalments. Mr Pickering also said that other than this incident, there was no issue with Mr Laidlaw’s conduct, capacity or work performance.

[27] On 19 May, Mr Laidlaw corresponded with the Commission advising that he would accept nothing less than $15,000 in compensation and that if he did not receive a decision in his favour by 25 May 2015, he would report the matter to the Crime and Misconduct Commission. Regrettably I have not met Mr Laidlaw’s deadline. However, my conclusions and the basis upon which I have reached them are set out below.

Consideration

[28] The first matter for consideration is the jurisdictional objection; that is, was Mr Laidlaw dismissed? Whether or not a person has been terminated on the employer’s initiative is a question of fact.

[29] Section 386 of the Act provides that the meaning of dismissed, so far as is presently relevant, is:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer...”

[30] There is no dispute that Mr Laidlaw was dismissed by Ms Stephens in the first meeting on 24 April 2014. Biloela Dry Cleaners does not submit that Ms Stephens had no authority to dismiss Mr Laidlaw, but rather that Mr Pickering reversed that decision. I do not accept this submission for two reasons. Firstly, once Mr Stephens dismissed Mr Laidlaw, the contract of employment was terminated. Once terminated, the contract of employment could not unilaterally be revived; that is, Mr Pickering could not reinstate that contract of employment without the agreement of Mr Laidlaw. Mr Laidlaw did not agree.

[31] The decision of Birrell v Australian National Airlines Commission 4 supports this proposition. In that matter, a decision of his Honour Justice Gray, after reviewing the limited authorities, his Honour stated:

“These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct.”

[32] The reinstatement of the contract relied upon by Mr Pickering was, at best, an offer of further and different employment. It was not a reversal of the dismissal or a reinstatement. At the point Mr Laidlaw did not report for work on Tuesday 29 April 2014, he had already been dismissed at the initiative of Biloela Dry Cleaners and the contract of employment could not be revived without his consent. Mr Laidlaw’s decision not to report for possible work on the following Tuesday, has no effect on this fact.

[33] It now falls to determine whether the dismissal of Mr Laidlaw was unfair. Section 387 of the Act sets out those matters that the Commission must consider in relation to an unfair dismissal application. Each will be considered in turn.

(a) Was there a valid reason for the dismissal related to Mr Laidlaw’s capacity or conduct (including its effect on the safety and welfare of other employees)

[34] A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 5 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts,6 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.7  The onus rests with the Respondent to establish that the misconduct as alleged took place and it constituted a valid reason for dismissal: Culpeper v Intercontinental Ship Management Pty Ltd.8

[35] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. 9 The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct.10 The Commission must make a finding as to whether the conduct occurred based on the evidence before it.11

[36] Mr Laidlaw was dismissed for allegedly stealing $10 from a motel. Precisely where in the motel is differently described by the various witnesses. The motel was a client of Biloela Dry Cleaners, and Mr Laidlaw was performing his duties as a delivery driver to the motel at the time of the alleged theft.

[37] Mr Laidlaw denied the allegations of theft and claimed that he had found the $10 outside of the motel storeroom. The Respondent did not cross-examine Mr Laidlaw regarding this and the evidence of the Respondent’s witnesses confirms that this was the version of events eventually given by Mr Laidlaw.

[38] The manager of the motel who had apparently made the complaint against Mr Laidlaw did file a brief statutory declaration in the Respondent’s case. This person was not available to give evidence or be cross-examined. I have given this statement limited weight because of this. However, upon reading the statement, which is only three paragraphs long, it gives no evidence of the allegation of stealing, but rather only gives evidence to the effect that the hotel manager was present at a meeting with Mr Laidlaw and that he requested that Mr Laidlaw not return to the hotel’s premises.

[39] The allegations against Mr Laidlaw are very serious. Mr Laidlaw was at the time charged with a crime and as I understand it has appeared before the Court at least in the preliminary stages of answering those charges. As a result, I have had regard to the principle established in Briginshaw v Briginshaw 12. This principle means that whilst the standard of proof remains the balance of probabilities, the seriousness of the allegation affects the process of reaching a level of satisfaction that the conduct occurred and ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion’.13

[40] The evidence in this matter is far from satisfactory to establish that on the balance of probabilities, Mr Laidlaw did steal money from the hotel. It is not logical that if Mr Pickering was satisfied that Mr Laidlaw had in fact stolen from a client that he would offer to reemploy him the next working day. I accept that Mr Laidlaw did agree that he had found $10 at the hotel and that he changed his story between the meetings. This is the only conduct that I can be satisfied occurred.

[41] In concluding that it has not been established that Mr Laidlaw stole money, I do find that he changed his story in relation to his explanation about finding the money. In this regard, I accept the evidence of the witnesses for Biloela Dry Cleaners, who are unanimous on the point that Mr Laidlaw initially admitted to at least “taking money” and then changed his story to state that he found the money. This is consistent with Mr Laidlaw’s evidence in the hearing of this matter where he said that he should have taken the money to the motel office rather than keeping it. However this conduct is a long way from theft and does not justify dismissal.

[42] I am not satisfied Mr Laidlaw has engaged in misconduct. Mr Pickering conceded during the Hearing that other than for this incident there were no other issues with Mr Laidlaw’s conduct or work performance. 14 I find that there was no valid reason for Mr Laidlaw’s dismissal.

(b) Was Mr Laidlaw notified of the reason for his dismissal?

[43] The parties did not make submissions directly addressing this criterion. Notification of the valid reason for dismissal must be given to the employee in explicit terms. 15 The evidence does not establish that Ms Stephens put the reason for dismissal to Mr Laidlaw in explicit terms. The evidence is that Ms Stephens stated to Mr Laidlaw that an allegation had been made that he stole from a clients’ storeroom. The evidence does not establish that Ms Stephens put to Mr Laidlaw when the alleged conduct was said to have occurred, who it was raised by or other significant details

[44] An allegation of theft is serious and can have catastrophic consequences for an employee. It is important that such a serious allegation is put in a way that the employee against whom it is made has a proper understanding of what is alleged so that a response can be made. In the present case, I am unable to accept that Mr Laidlaw was notified of the reason for his dismissal so that he could respond properly to the allegation.

(c) Was Mr Laidlaw given an opportunity to respond to the reason for his dismissal?

[45] The undisputed evidence is that Mr Laidlaw was called to a meeting with Ms Stephens immediately prior to it occurring. Mr Laidlaw was given no warning of the purpose of the meeting, the seriousness of the matters to be discussed or the specific allegations in order that he might formulate a response. This has meant that Mr Laidlaw had no real opportunity to respond to the allegations regarding his conduct. I am also of the view that Mr Laidlaw’s inability to have a support person of his choice present at the meeting adversely impacted on his opportunity to respond to what were very serious allegations.

(d) Was there an unreasonable refusal by the employer to allow Mr Laidlaw to have a support person present to assist at any discussions relating to dismissal

[46] The parties did not make submissions addressing this criterion. It is clear from the evidence that Mr Laidlaw did not have a support person present to assist in the meeting of the morning of 24 April 2014, which is when the dismissal occurred. That Ms Stephens asked Mr Roberts to attend the meeting as a witness, does not result in Mr Roberts being a support person for Mr Laidlaw.

[47] Given that Mr Laidlaw was later represented by his father in law, Mr Wilson, it is probable that he would have requested Mr Wilson’s attendance in the first place had he been made aware of the subject matter of the meeting in advance.

[48] I find that in the present case, there was no refusal, unreasonable or otherwise, for Mr Laidlaw to have a support person present. However, I accept that Mr Laidlaw was effectively denied a support person because of the way in which the meeting was conducted and this is a matter that I have taken into account as part of the consideration of whether Mr Laidlaw had a reasonable opportunity to respond to the allegation as provided in s.387(c).

(e) If the dismissal related to unsatisfactory performance whether Mr Laidlaw was warned about that unsatisfactory performance before the dismissal

[49] Mr Laidlaw was summarily dismissed for misconduct and for that reason this criterion is not relevant. Mr Pickering confirmed during the Hearing that there was otherwise no concern regarding Mr Laidlaw’s performance.

(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

[50] Biloela Dry Cleaners is a relatively small enterprise that employed approximately 20 people at the time of Mr Laidlaw’s dismissal. 16 Biloela Dry Cleaners does not employ dedicated human resource staff. After reading and considering the material tendered by Biloela Dry Cleaners, I do not doubt that the size of the enterprise and the lack of dedicated human resource management or expertise in the enterprise did impact on the manner in which Mr Laidlaw was dealt with.

(h) Any other matters that the FWC considers relevant

[51] The evidence of Mr Wilson has raised the issue of alleged underpayment of wages and other entitlements. This is not an application under the general protections provisions of the Act. Mr Laidlaw himself has not given any evidence in relation to discussions he had with the Respondent regarding these matters or when these discussions occurred. I have not taken them into account. I note however that even had I taken them into account it would not have materially affected the outcome of the matter.

[52] In addition to finding that Mr Laidlaw was dismissed, I am satisfied and find that Mr Laidlaw’s dismissal was unfair. The dismissal was harsh because of its economic consequences for Mr Laidlaw and unjust because there was no reasonable basis for a conclusion that he was guilty of theft. However, I am also of the view that Mr Pickering took steps to try to mitigate the loss of Mr Laidlaw’s employment and this is a factor relevant to the assessment of remedy.

Remedy

[53] Given that I have found that Mr Laidlaw was dismissed and that the dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Mr Laidlaw was protected from unfair dismissal and that he has been unfairly dismissed. I am also of the view that Mr Laidlaw should have a remedy for his unfair dismissal. Mr Laidlaw seeks compensation in the amount of $15,000. The basis for that claim is not apparent. I am satisfied that reinstatement is not practicable. Mr Laidlaw has moved from the area in which Biloela Dry Cleaners operates and it is clear that there is no love lost on the part of Mr Laidlaw with respect to Mr Pickering.

[54] I am satisfied that an order for the payment of compensation is appropriate in all of the circumstances of the case. Section 392 of the Act provides as follows in relation to the remedy of compensation:

“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), the FWC 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 the FWC considers relevant.

Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC 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 the FWC 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 the FWC 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.

(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.”

[55] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket 17. In accordance with that approach, and s.392 of the Act, I calculate compensation as follows.

[56] Mr Laidlaw was a casual employee and the material produced by him indicates that during the period of his employment he worked on average 29 hours per week and was paid an average of $625 per week. While I accept that there were weeks when Mr Laidlaw worked longer hours there were weeks when he worked less hours and an average is in my view a fair way to deal with the calculation of compensation in all of the circumstances of this case.

[57] At the point he was dismissed, Mr Laidlaw had been employed for some nine months. On Mr Pickering’s evidence, a client of Biloela Dry Cleaners had refused to allow Mr Laidlaw to enter his premises. Mr Laidlaw may have left employment due to a down turn in business which Mr Pickering gave evidence of. In all of the circumstances, I have decided that Mr Laidlaw would have remained in employment for no more than a 12 week period.

[58] Had Mr Laidlaw remained in employment for the 12 week period he would have earned (using the averaged amount I have derived from his pay slips) the gross amount of $7,500.00. There is no evidence of any effort by Mr Laidlaw to mitigate his loss by seeking other employment. An obvious way for Mr Laidlaw to have mitigated his loss would have been to accept the work offered by Mr Pickering or at least make some effort in this regard. Mr Laidlaw did not do this and his reasons for not attempting to take up this offer are not compelling. I intend to make an adjustment of 25% for failure on the part of Mr Laidlaw to mitigate the loss of his employment. There is no power to compensate Mr Laidlaw for expenses associated with moving to a new location and I decline to include a component for this cost.

[59] The amount of $5,625 less tax is to be paid to Mr Laidlaw less taxation according to law. Mr Pickering sought to pay any amount of compensation ordered by the Commission in instalments. In my view the matter has gone on for a considerable period due principally to the criminal charges against Mr Laidlaw foreshadowed by Mr Pickering, which were not proceeded with. In those circumstances, and in light of the amount of compensation I have determined, I intend to issue an order requiring that the amount of compensation be paid within 28 days of the date of release of this Decision and an Order to that effect will issue.

DEPUTY PRESIDENT

 1   PN209

 2   Exhibit 1.

 3   Exhibit 2.

 4   Birrell v Australian National Airlines Commission [1984] FCA 378; 9 IR 101.

 5   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 6   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 7   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 8   [2004] AIRC 261.

 9   Edwards v Giudice(1999) 94 FCR 561 [6]‒[7]. See also Rail Corporation New South Wales v Vrettos (2008) 176 IR 129 [27]; Container Terminals Australia Ltd v Toby (unreported, AIRCFB, Boulton J, Marsh SDP, Jones C, 24 July 2000) Print S8434 [13].

 10   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

 11   Ibid.

 12 (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].

 13   Ibid at 362-363.

 14   PN321 to PN322.

 15   Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730.

 16   PN314

 17 (1998) 88 IR 21.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567017>