Mr Heath North v Inhomecarers Pty Ltd

[2010] FWA 4522

[2010] FWA 4522

FAIR WORK AUSTRALIA

DECISION

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

Mr Heath North
v
Inhomecarers Pty Ltd
(U2009/14263)

COMMISSIONER LEWIN MELBOURNE, 10 AUGUST 2010

Termination of employment–part-time employment–no specified hours–aged carer–client preferences–lack of regular clients–contractual obligation to provide clients–notice of termination–harsh, unjust, unreasonable.

Background

[1] This decision concerns an application by Mr Heath (Marc) North under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Inhomecarers Pty Ltd (Inhomecarers) was harsh, unjust or unreasonable. The application was filed in the Tribunal on 27 November 2009.

[2] Inhomecarers is an agency which provides carers to aged persons. Mr North was first employed by Inhomecarers as a carer, on a casual basis, on or about 11 February 2008. Around 30 June 2008 the employment relationship changed to what Inhomecarers and Mr North considered to be permanent part-time employment and which was contractually described as such in writing. That employment relationship was not based on a system of regular hours. Rather, Mr North’s hours of work varied significantly in different fortnightly periods. The evidence indicates that the hours of employment were equal to or exceeded the hours of a full-time employee for a considerable part of its duration.

[3] The critical incident of the employment relationship between Mr North and Inhomecarers concerns his assignment exclusively to shifts of work as a carer for Professor Alan Shaw. At the time of the termination of Mr North’s employment on 25 November 2009 he had been working on this basis for the substantial proportion of his employment.

[4] The application was listed for conciliation conference by telephone with Ms Sonja Terpstra, a conciliator, on 23 December 2009. The matter did not settle in the conciliation conference of 23 December 2009. On 18 February 2010 the application was listed for Conference/Hearing before me on 14 and 15 April 2010. Directions were issued with the notice of listing dated 18 February 2010 directing Mr North to file submissions, witness statements and other documentary evidence upon which the applicant sought to rely by noon on Monday 22 February 2010. Inhomecarers was directed to file submissions, witness statements and other documentary evidence by noon on Tuesday 9 March 2010.

[5] At the Conference/Hearing of 14 and 15 April 2010 Mr North appeared on his own behalf. Mr William Mountford appeared for Inhomecarers. On 14 April 2010 Mr Mountford raised a jurisdictional objection to Mr North’s application alleging that Mr North was not terminated, but rather, abandoned his employment. Mr Paul Hickman gave evidence in support of the jurisdictional objection by Inhomecarers. Mr North gave evidence on his own behalf.

Jurisdiction

[6] The first issue I will address is an objection by Inhomecarers to Fair Work Australia hearing the application. For Fair Work Australia to deal with an application for relief in relation to a dismissal of an employee the dismissal must conform to the description set out in s.386 of the Act which is set out below:

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[7] Fair Work Australia must deal with a jurisdictional objection under s.386 of the Act before proceeding to deal further with an application filed under s.394 of the Act. The provisions of s.396 of the Act apply to Inhomecarers’ jurisdictional objection and are set out below:

“396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[8] Inhomecarers’ submitted that the termination of Mr North’s employment was not at the initiative of Inhomecarers. Nor, it was submitted, did Mr North resign. Rather, Inhomecarers says Mr North abandoned his employment.

[9] The evidence led by Inhomecarers is that the employment of Mr North as a carer for Professor Shaw became untenable due to the Professor’s wish that Mr North no longer be assigned to him. This is reflected in a letter to Mr North of 26 November 2009 which states:

“Dear Marc,

Upon client request please be advised you are no longer required to attend Prof. Allan Shaw’s care effective immediately.

Thank you for all your effort and hard work.

Kind Regards,

Paul Hickman.”

[10] Pursuant to the provisions of s.396 of the Act, after hearing evidence in relation to the termination of Mr North’s employment, I decided that the employment relationships was terminated at the initiative of Inhomecarers.

[11] I gave reasons for my decision at paragraphs 1280 to 1285 which are set out below:

“THE COMMISSIONER: I'll deal with the jurisdictional objection in a summary fashion now. I'll offer a very brief summary of reasons for my conclusion. Should either party, or the party aggrieved by my decision, wish to appeal the decision I will provide more extended, elaborate, and edited reasons for my decision. I intend to dismiss the jurisdictional objection. In my view the letter of 26 November, in the circumstances of this case, constituted a clear expression that the employment was no longer viable, and that there was no expectation on the part of the employer that the employment would continue. I reach this conclusion having regard not only to the contents of that letter, that is the letter of Mr Hickman of that date, but also in relation to all of the circumstances surrounding the manner in which the employment came to an end.

It is not necessary for an employer to utter the word termination for employment to be terminated at the initiative of the employer. The question of whether or not employment is terminated at the initiative of an employer has to take into account all the relevant factual circumstances. It is not uncommon for employment to come to an end in blurred and confusing circumstances, without written or verbal expression of the intention to bring the employment to an end, clearly stated for the purpose of understanding. I have taken into account the propositions concerning alternative work that may have been available to be offered to Mr North. These circumstances are all rather fraught, both in terms of the intention, if any, of the employer to continue the employment relationship and any enquiries that might have been made by Mr North.

I've also had regard to the unusual nature of the employment relationship. The parties have entered into a relationship which has been described as part-time employment. The way in which the relationship has been conducted does not conform to the orthodox understanding of a part-time employment relationship. It appears that the hours of work have fluctuated enormously during the period of the employment relationship. I am told that there were no hours of work agreed for the part-time employment relationship on a weekly basis, that the hours would be as required. So it seems to me that this relationship was highly informal. It would not conform to the general typology of part-time employment and seemed to have a mixture of the characteristics of casual employment and part-time employment. Both parties operated the employment relationship on this particular understanding.

Given that at the time of the employment relationship ending the only person to whom the applicant had been assigned was Professor Shaw, and that there was seemingly at that time a lack of work available other than with Professor Shaw, it seems to me that the decision of the employer to respect Professor Shaw's wishes that Mr North no longer be his carer meant that there was no available work at the time that Mr Hickman wrote the letter of 26 November 2009. It is therefore inherently more probable than not that the effect of this letter, in all of these circumstances, was such that the employment relationship at that point ended. If this was not the case one would expect, particularly as it was the responsibility of the employer to inform Mr North of Professor Shaw's decision, that some discussion of the future disposition of the employment relationship, and the intention of the employer in light of Professor Shaw's decision, would have been required. The only expression which appears in this respect is the letter that I have referred to which Mr Hickman wrote, which says as follows:

Hi Mark. Upon client request please be advised you are no longer required to attend Professor Alan Shaw's care effective immediately. Thank you for all your effort and hard work.

In the circumstances under which that communication was issued it is hard to see how the employment relationship was to continue. Mr North was exclusively assigned to Professor Shaw as a carer. He was working in an employment relationship of an informal and slightly confused nature, that employment relationship essentially involving Mr Hickman rostering Mr North to work with Professor Shaw. There is no expression at any point in the evidence of any other intention on the part of the employer at the time that that letter was issued. Nor was there, until February thereafter and after the application in this matter was filed, any proposal of an affirmative nature of a continuation of the employment relationship. I accept Mr North's evidence that when he was contacted about his relationship with the company, subsequent to him filing his application in this matter, that the nature of the communication, as set out in the substantive witness statement which was filed in this matter, was that an enquiry was being made about Mr North's perceptions of his status in relation to the employment. It is for these reasons and others which will not be elaborated at this point I have decided to dismiss the jurisdictional objection. I do not believe it has been made out on a proper basis of evidence.”

[12] Inhomecarers did not take issue on appeal with the decision as set out above. Nor was I requested to provide more extended reasons for the decision as offered.

[13] It was not put to me that Inhomecarers is an employer to which the Small Business Fair Dismissal Code applied. Nor was it submitted that the dismissal of Mr North was a case of genuine redundancy. Mr North is therefore a person who has been dismissed within the meaning of the Act. Mr North’s application is within the jurisdiction of Fair Work Australia and must be dealt with.

[14] Having determined the jurisdictional objection, the proceedings reconvened on 15 April 2010. I sought the preferences of the parties as to whether the application should proceed in conference or whether I should proceed to determine the matter by hearing and arbitration. At the request of the parties, I proceeded to hear and arbitrate the application. Mr North and Mr Andreas Paterakis gave evidence on behalf of Mr North. Ms Narelle Gates, Mr Carlos Cravo and Mr Paul Hickman gave evidence for Inhomecarers.

[15] I will now turn to consider whether or not the dismissal of Mr North was harsh, unjust or unreasonable.

Statutory Criteria

[16] When considering an application for relief in relation to an allegedly harsh, unjust or unreasonable dismissal of an employee Fair Work Australia is required to take into account criteria set out in s.387 of the Act which is set out below:

“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

[17] A valid reason for the termination of an employee’s employment will be a sound defensible and well founded reason.

[18] The reason for the termination of Mr North’s employment is the conclusion of Inhomecarers that it could no longer roster Mr North to work as a carer for Professor Shaw. As has already been noted, at the time of the termination of Mr North’s employment, he was not engaged for any other client. Moreover, on what is before me there was, at the time of Mr Hickman’s letter, no other client to whom Mr North would be assigned which would have provided the same regular hours of work.

[19] Mr North challenged the validity of this reason for the termination of his employment. Mr North asserted that it was unlikely that Professor Shaw had expressed the wish that Mr North no longer be his carer.

[20] This presented something of a difficulty in relation to the evidence of this contested fact. Professor Shaw is a very elderly and infirm man who requires 24 hour care, which has been and continues to be provided by employees of Inhomecarers.

[21] The evidence of Professor Shaw’s wishes in relation to the carer being assigned to him, in the witness statements filed by Inhomecarers, was hearsay. Mr North expressed a wish that the Professor be called. I expressed some hesitation about the possibility that Professor Shaw might be summoned to attend. Mr North and Inhomecarers agreed to a procedure by which the Professor might address this issue which would yield relevant information of the Professor’s expression of his wishes in relation to his carers, which could be admitted and treated as evidence in the matter.

[22] On the basis of the evidence, I am satisfied that Inhomecarers reached the conclusion that it was not viable to continue to assign Mr North as one of Professor Shaw’s carers. The Professor’s answer to questions which were put to him as a result of the agreed procedure mentioned above does not entirely corroborate the evidence of Mr Hickman. However, it is sufficient to demonstrate that the Professor had expressed the view that he could not rely upon Mr North shortly before the termination of Mr North’s employment and in the circumstances of the case constitutes evidence supportive of the validity of the reason for the termination of Mr North’s employment.

[23] On the material before me, in particular the evidence gained from the agreed procedure to ascertain a relevant account of the expressed wishes and concerns of Professor Shaw regarding the suitability of Mr North as a carer, I am satisfied, as best I am able to be in the circumstances, that the combination of those wishes and the surrounding circumstances of the employer’s business constituted a valid reason for the termination of Mr North’s employment at the relevant time.

Notification

[24] It is clear from Mr Hickman’s letter referred to above that Mr North was formally notified of the reason for the termination of his employment. In addition, Mr Hickman verbally advised Mr North of the reason for the termination of the employment prior to the production of the letter of 26 November 2009.

Opportunity to respond

[25] On what is before me, the notification to Mr North of the termination of his employment and the reason therefore was advised to Mr North verbally shortly before the receipt of the letter of 26 November 2009 written by Mr Hickman which recorded in writing the reason for the termination of Mr North’s employment.

[26] When considering whether or not there was an opportunity to respond to the reason for the termination of Mr North’s employment I should have regard to the context in which the reason is notified and the circumstances obtaining at the relevant time so as to determine whether in all of the relevant circumstances can be properly characterised as a substantial “opportunity”. Mr North was informed during a telephone conversation with Mr Hickman that Professor Shaw no longer wished that Mr North be his carer. It is Mr North’s evidence that he was shocked by this news and that Mr Hickman was unwilling to discuss the Professor’s wishes or the possibility of other clients. Mr North attempted to call Mr Hickman back and to call Mr Mountford on 25 November 2009 shortly after his initial telephone conversation with Mr Hickman, to no avail. In an undated letter to Mr North, received by Mr North subsequent to the filing of his application with Fair Work Australia, he was advised that “if we do not hear from you within a reasonable period of time we will have no choice but to assume you are no longer interested in working with us”. That communication, in my view, post dated the termination of Mr North’s employment.

[27] I consider that there was a confused and very limited opportunity for Mr North to respond to the verbal advice of Mr Hickman in relation to Professor Shaw’s wishes. However, as for the continuation the employment generally the opportunity was insubstantial.

Representation

[28] On the evidence before me this question did not arise because Mr North did not seek to have a support person present at discussions relating to the termination of his employment.

Performance

[29] The reason for the termination of Mr North’s employment was related to the performance of his duties. The complaint from Professor Shaw is apparently related to an unsatisfactory performance of Mr North’s duties as carer during a night shift assignment. On the evidence before me I am doubtful that there was a warning within the meaning of the Act relating to this incident. However, I am satisfied that there was an active interaction concerning the specific incident, between Mr North and Mr Hickman, such that Mr North acknowledged the unsatisfactory nature of his performance in relation to that specific incident, apologised and ensured no repetition. Moreover, the incident which gave rise to this interaction was adequately explained due to a deficiency in Mr North’s hearing capacity.

Size of the employer’s undertaking

[30] Inhomecarers employs approximately 40 people to provide aged care services as required. On what is before me, the nature of the employer’s undertaking, involving flexible and rotational rostering of employees on care assignments, may have given rise to a rather summary approach to the disposition of its workforce, commensurate with the fluctuating demand for services. However, I doubt that, objectively, the size of the undertaking was critical to the procedures which were followed in Mr North’s case. It may be that the subjective perception of Inhomecarers as a business of limited size and means, and the nature of the provision and rostering of carers could have induced a view that, regardless of Mr North’s status as a “permanent part-time” employee, his employment could be disposed of as if he were, in effect, a casual employee, whenever an assignment was no longer available. That is to say, when no work was available the employee would receive no payment and await, perhaps indefinitely, the occurrence of available assignments to clients. If this was the case then the approach taken to Mr North’s employment subsequent to him no longer being preferred as the carer for Professor Shaw could be explained accordingly.

Human resource management expertise

[31] On what is before me there was limited expertise in the field of human resource management within Inhomecarers and I consider it affected the approach taken by Inhomecarers to the termination of Mr North’s employment. I consider that Inhomecarers did not adequately understand the full dimensions of a part-time employment relationship and appropriate procedures for managing and terminating such an employment relationship, particularly having regard to the written contractual terms of the employment, which is discussed further below.

Other matters

[32] I consider it relevant that at the time of the termination of Mr North’s employment he was engaged as a permanent part-time employee under a written contract, which includes an express term that Inhomecarers would provide regular clients to him. This aspect of the employment relationship was a considered change from casual employment. Moreover, I consider it relevant that while there was very little otherwise available which could have continued the part-time employment relationship on the same basis at the time of the termination of Mr North’s employment, there were no efforts to provide other clients to Mr North and no clear contemplation of a period of notice of termination or a payment to Mr North as an amount in lieu of such notice. There was nothing in the reason for the termination of Mr North’s employment to justify summary dismissal on grounds of serious and wilful misconduct. Accordingly, if no other or very limited assignments of work were available to Mr North, then his employment should fairly have come to an end after reasonable attempts were made to provide him with assignments to “regular clients” in accordance with the written terms of the employment contract and a reasonable period of notice. In this respect, on what is before me, I find that there was more likely than not some work, other than on assignment to Professor Shaw, which Mr North could have performed. However, that work was limited, most likely would have been intermittent.

[33] The written terms of the offer of permanent part-time employment made by Inhomecarers which were accepted by Mr North are set out below:

“On behalf of Primcerers, it is my pleasure to extend the following offer of permanent part-time Carer’s position effective 30 June 2008.

You will be paid a base rate of $16.70 per hour weekdays and $20.85 per hour on weekends, $25.05 per hour on public holidays and overnight $118.05 which will be calculated and paid on your actual hours worked. The Agreement is based on the Home and Community Care Award.

Primecarers will provide you with regular clients, support in regards to your clients and regular feedback and monitoring.

Please send a signed copy of the letter of offer as soon as possible. Any queries please do not hesitate to call me on direct number 9852 6592.”

Harsh, unjust and unreasonable

[34] I have decided that there was an element of harshness and unreasonableness about the termination of Mr North’s employment in all the circumstances of the case. While I accept that there was not a great amount of work available at the time of termination which was likely to rectify the situation caused by the failure of confidence in Mr North’s role on the part of Professor Shaw, nevertheless, the action of termination without attempts by Inhomecarers to fulfil its obligation to provide regular clients and if unseccessful to provide notice of the end of the employment was harsh and unreasonable.

[35] Mr North made clear to Mr Hickman that he was actively interested to continue his employment, notwithstanding notification that he would not be assigned to work as a carer to Professor Shaw, prior to the letter of 26 November 2009. Moreover, Hickmans’ evidence, makes it clear that no offer of any work was ever made to Mr North and Mr Hickman made no contact and did little if anything of substance about the provision of regular clients or the provision of a period of notice after which the employment would end because of the decision of Professor Shaw, prior to the filing of the application in this matter.

[36] Inhomecarers evidence suggested that the necessary action to continue the employment in light of the cessation of the assignment to Professor Shaw was primarily Mr North’s responsibility. I reject this submission. At the time that Inhomecarers decided that Mr North would not be assigned further to Professor Shaw Mr North was an employee who, if the intention of Inhomecarer’s was to continue the part-time employment, was entitled to continuing payment and was subject to the control and direction of Inhomecarers as to the rosters of work and his duties. Mr North wanted Inhomecarers to perform this aspect of the relationship and had sought rosters of work. Inhomecarers had expressly assumed the responsibility to provide assignments to regular clients in the contract of employment. The alternative was the termination of the employment. Inhomecarers lack of direction as to the further conduct of the employment relationship including its failure to inform Mr North of any requirements of him, meant that Mr North was left in limbo and his employment effectively terminated without notice or payment in lieu thereof.

[37] Subsequent to the application being filed Mr Mountford contacted Mr North simply for the purpose of establishing Mr North’s perception of his relationship with Inhomecarers. I consider the enquiry of Mr Mountford was related to these proceedings, did not amount to an intention to continue the part-time employment, an offer of work or the provision of an assignment contemplated by the contract of employment.

Remedy

[38] Having decided that the termination of Mr North’s employment was harsh and unreasonable in the circumstances I turn to consider whether a remedy is appropriate in all the circumstances of the case. I think so. An appropriate remedy in accordance with relevant principle as considered below is, in my judgment, suitable and just to the circumstances of the case.

[39] I have reached the conclusion that reinstatement is not appropriate in the circumstances of this case. It is not sought and no case for such a remedy has been made out, consequently, such a remedy was not addressed by Inhomecarers.

[40] I consider that an order for compensation is appropriate in all the circumstances of the case. In my view Inhomecarers did not act in accordance with the mutually agreed terms of the employment relationship in response to the wishes of Professor Shaw. That assignment was not a term of the contract of employment as a specific task. Rather, multiple assignments and the provision of regular clients from among the clients of Inhomecarers was contemplated to be the basis of the part-time employment relationship.

[41] Section 392 of the Act sets out the matters which must be taken into account when ordering than an amount of compensation in lieu of reinstatement be paid. Those provisions are set out below:

“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.

(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.”

[42] There is no evidence that the order I consider appropriate below would affect the viability of Inhomecarers.

[43] The length of Mr North’s employment is not long but sufficient to justify a limited remedy in the particular circumstances of the case.

[44] In my judgment, and on the evidence and submissions, Mr North would most likely have left the employment not long after the termination whatever the efforts to provide him with regular clients had been due to the limited availability of such assignments. I estimate that Mr North would not have remained in the employment in these circumstances for any longer than 8 weeks.

[45] On what is before me I consider Mr North’s efforts at mitigation were reasonable.

[46] Mr North gave some evidence that he received remuneration equal to an amount of paid sick leave entitlement which I take into account in arriving at an appropriate remedy.

[47] There is no relevant amount under s.392(2)(f).

[48] There was nothing which I consider to comprise misconduct within the meaning of the Act which can be relied upon as a basis for reducing the appropriate amount in lieu of reinstatement.

[49] No consideration is given to any shock, distress, humiliation or hurt suffered by Mr North as a result of the termination of his employment. Such considerations are not permitted by the Act.

[50] There is no other relevant consideration.

[51] The appropriate amount is unaffected by the cap on the restrictions on the amount which may be awarded under s392(6) of the Act.

[52] I have decided that an appropriate remedy is an amount of 8 weeks pay less the amount of remuneration received by Mr North as accumulated paid sick leave entitlement.

[53] Mr North gave evidence that while his remuneration varied, it averaged $700.00 per week after tax. The evidence is somewhat incomplete on this subject. I have discounted this figure by 30% having regard to the limited amount of work which would have been available during the period between 26 November and 8 weeks thereafter.

[54] On the material submitted by Inhomecarers I reckon the amount paid on account of accumulated sick leave to be $1,400.00.

[55] The amount arrived at accordingly is $2,520.00 ($700.00 - 30% = $490.00; x 8 = $3920.00; - $1400.00 = $2520).

[56] The issue of taxation is not considered and will be left for Mr North to deal with.

[57] An Order will issue accordingly.

COMMISSIONER

Appearances:

Mr H North, Applicant

Mr W Mountford, for the Respondent

Hearing details:

2009

15 April

Melbourne

Final written submissions:

1 June 2010, final Submissions of Mr North

7 June 2010, final Submissions and Submissions in reply of Inhomecarers

15 June 2010, Submissions in reply of Mr North

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