Mr Paul Abboud v Lencrow Group Pty Ltd

[2016] FWC 5401

[2016] FWC 5401

FAIR WORK COMMISSION

DECISION

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

Mr Paul Abboud
v
Lencrow Group Pty Ltd
(U2016/6102)

COMMISSIONER ROE MELBOURNE, 10 AUGUST 2016

Application for relief from unfair dismissal.

[1] Mr Abboud was employed by Lencrow Group Pty Ltd (Lencrow) and its predecessor from November 2007 until 21 March 2016. The transmission of business occurred on 12 March 2013. There is no evidence that prior to that Lencrow informed Mr Abboud in writing prior to 12 March 2013 that his period of service with the old employer would not be recognised. An employment contract was signed with Lencrow on 28 February 2013. That contract does not say that the service with the old employer will not be recognised.

[2] Mr Abboud was dismissed at the initiative of Lencrow Group on 21 March 2016 for alleged misconduct. It is not suggested that the dismissal was for reasons of redundancy and the other requirements for protection from unfair dismissal are satisfied. The dismissal was without notice and no payment was made in lieu of notice. The dismissal followed a meeting on 11 March 2016 at which certain allegations were put to Mr Abboud and Mr Abboud provided a response.

[3] The issues which were raised with Mr Abboud prior to the dismissal at the 11 March 2016 meeting were:

• Allegation that he used the fuel card on two cars contrary to the company policy which Lencrow says restricted the use to the company car (i.e. one car).



• Allegation that he used e-bay to sell a part that belongs to the company.



• Allegation that he was selling the part without authorisation to remove it from the premises.



• Allegation that he misused express post bags and some of them have been used for personal purposes.

[4] Other issues were included in the dismissal letter as follows:

• Downloading company information on an external hard drive.



• Using his private company to do business by purchasing a battery for a friend. Operating a private business is in breach of the employment contract.



• Stock missing following stocktake.

[5] The parties agree that:

• The alleged valid reasons for dismissal were advised to Mr Abboud.



• There was no refusal to allow a support person.



• The matter related to alleged misconduct and not unsatisfactory performance.



• The respondent is a large business with no dedicated human resources staff.

[6] The relevant issues for determination are:

• Was there a valid reason for dismissal?



• Did Mr Abboud have an opportunity to respond to the reason? It is accepted that Mr Abboud had the opportunity to respond to some of the reasons at the meeting on 11 March 2016. These reasons were relied upon in the termination letter but the termination letter also contained three other issues.



• Was Mr Abboud warned about his misconduct?



• Was dismissal a proportionate response to the misconduct or were reasonable alternative approaches available?



• Was the dismissal harsh because of the employer’s failure to pay significant entitlements including long service leave to Mr Abboud and the unauthorised deduction from his outstanding annual leave payment of alleged telephone data costs?

[7] The employer also sought in the proceedings to rely on a contention that the failures surrounding the stocktake could also be considered unsatisfactory performance. The employer also sought to rely on an allegation that Mr Abboud had improperly downloaded 8 gigs of data on his mobile phone which had incurred a charge of almost $800.

The allegation concerning use of the fuel card

[8] The employment contract provides for the following:

• “The company will pay the employee a vehicle car allowance as shown in item 8 of the attached schedule”.



• The schedule provides for: “vehicle allowance: $12,000 per annum paid weekly with your salary plus company fuel card”.



• “The company will pay for a maximum of $600 fuel per month and $200 telephone calls per month”.

[9] The contract also includes a clause related to expenses. 1 However, that clause relates to reimbursement of “travelling, entertainment and other expenses”. I am not satisfied that the clause relates to the issue of vehicle expenses which are dealt with separately in Clause 7 of the contract.

[10] Attached to the contract is a document signed by the company and Mr Abboud on 12 March 2013. That document is entitled “Vehicle Policy and Possession Agreement”. The following clauses of that document were referred to in proceedings:

• “the fuel issued with the vehicle is not to be used outside the Sydney Metropolitan area unless its use is conjunction with this vehicle agreement.”



• “….should permission be granted for me to take the assigned vehicle outside of the Sydney metropolitan area on my own time I agree to meet all costs during that time including fuel/ oil/ insurance excess and towing.”



• “transfer of the vehicle and or fuel cannot be made to another individual without the prior approval of the Company Manager concerned.”

[11] I am not satisfied that this document has any relevance to this case as Mr Abboud was not issued with a company vehicle and was based in Melbourne not Sydney. All of the points of the document are clearly subject to the following preamble. “In consideration of Pro-Fork Ltd… providing me with the use of a motor vehicle I agree to the following terms and conditions regarding its use and the use of its associated fuel”. However, to the extent that it may be indicative of the conduct which might be expected more generally in respect to the use of the fuel card it does not in any way limit the use of the fuel card for private purposes whilst in the metropolitan area provided that the fuel is not transferred to another individual without prior permission.

[12] There was no other policy affecting the use of the fuel card or the phone. Mr Abboud was not provided, prior to the process which led to the dismissal, with the fuel card monthly invoice or report nor was he provided with the phone account. There was no practice by which employees were expected or requested to check the accounts and reimburse for any private expenditure. Prior to the process which led to the dismissal no issues were raised concerning the use of the fuel card or phone with Mr Abboud.

[13] Mr Abboud requested that he be able to use the fuel card when he went on a holiday interstate in January 2015. Mr Komodromos agreed that Mr Abboud could use the fuel card whilst he was on holiday provided that the $600 cap was not exceeded for that month. It was accepted that the fuel card could be used for travel to and from work even though this is regarded as personal use for taxation purposes. Mr Komodromos also gave evidence that the company accepted that the fuel card could be used for both work and reasonable private use. He accepted that the $600 cap was designed in part to prevent misuse.

[14] Mr Abboud owns two cars. The main car is used by him and the other car is used by both him and his wife. Mr Abboud says that the fuel was mostly used for work purposes and for traveling to and from home. Mr Abboud gave evidence that he filled up the cars at his own cost about once a month. The data provided on the fuel card use 2 shows that over a 13 month period the average usage by Mr Abboud was approximately $550 per month. The data provided on the fuel card use shows that apart from one occasion during the holiday in January 2015 there was one occasion in September 2015 when petrol was claimed on the fuel card twice in one day. On that occasion Mr Abboud filled up the work car on the way home and then picked up his wife and children and took the smaller car to his parent’s house and filled up the smaller car on the way. Mr Abboud said that he stayed at his parents’ house regularly and went to work from that location on occasion. There are a number of occasions when petrol is claimed twice in a three day period.

[15] I am not satisfied that there was any policy or other instruction which prevented Mr Abboud from using more than one car for work purposes. Neither the car allowance nor the fuel card were limited to a particular vehicle. The fact that an e-tag was also issued to Mr Abboud and it is possible that the e-tag was registered to a particular vehicle does not alter this conclusion. Mr Komodromos was aware that on occasion Mr Abboud used a second car for work purposes and the fact that he did not raise that issue with Mr Abboud strengthens this conclusion. I am satisfied that it was reasonable for Mr Abboud to understand that reasonable private use of the fuel card was acceptable provided that he did not exceed the $600 monthly limit.

[16] Mr Abboud gave evidence that he uses the larger car most of the time for work purposes and that his wife does not drive much at all. He gave evidence that he would use the larger car for work purposes 60% of the time and the smaller car for work purposes 40% of the time. Mr Komodromos gave evidence that Mr Abboud only used the smaller car for work purposes occasionally.

[17] Mr Abboud and Mr Komodromos met on four occasions when the fuel card issue was raised. The meetings were on or about 18 February, 19 February, 24 February and 11 March 2016. There is no doubt that the issue of the fuel card was the primary matter which led Mr Komodromos to dismiss Mr Abboud. Mr Komodromos gave evidence that Mr Abboud was inconsistent and evasive in his responses to his questioning about the use of the fuel card. The evidence of what happened at the four meetings was as follows:

• At the first meeting which was called about other issues Mr Komodromos asked Mr Abboud if he had ever filled anyone else’s car with the fuel card. Mr Abboud denied that he had done this.



• On 19 February (Mr Abboud says that the second meeting where the fuel card issue was raised was on 22 February) the matter was further discussed and Mr Abboud explained that he did not like the house he was currently living in and so he would often collect the rest of his family and drive to his parents’ home and stay there. He would swap cars on the way. This explained why he used the fuel card on two cars.



• On 24 February (Mr Abboud says that the third meeting where the fuel card issue was raised was on 23 February) Mr Abboud was shown some of the fuel card statements for the first time. Mr Abboud says that he was allowed a brief look at the statements. Mr Komodromos says that Mr Abboud “again admitted that he had used the fuel card to refuel his wife’s car.” Mr Abboud says that Mr Komodromos “apologised for questioning my fuel expense and recognised that I never went over my monthly allowance limit but again asked if I had filled my wife’s car with fuel in the past year. I mentioned that I might have but cannot remember, and that I needed to clarify this as I was not one hundred percent sure.” 3



• At the show cause meeting on 11 March 2016 Mr Komodromos says that he was provided with a script to use by company head office and that he read out the questions from that script. Another employee present wrote down notes about Mr Abboud’s answers. That employee was not called to give evidence. In response to a question about the use of the fuel card on more than one car he responded “I have not used the fuel card on anyone else’s car beside my cars.” 4 The note taken by the other employee records Mr Abboud’s response as: “no only my car never check with Andria but did not, cant remember.”5 Mr Komodromos in cross examination said that Mr Abboud said: “Mina, I did not put petrol into anyone else’s car.”

[18] I did not find either Mr Abboud or Mr Komodromos to be convincing witnesses on this issue. Given that the note taken by the other employee of the 11 March 2016 meeting is not supported by either of the witnesses and that employee was not available to give evidence I do not accept that note. I reject Mr Komodromos’s evidence that Mr Abboud denied that he had put petrol into anyone else’s car. This makes no sense as the fuel records clearly show that petrol was put into more than one car on 29 September 2015 and Mr Abboud was aware of this and had agreed that this is what he had done on at least two prior occasions. I note that although Mr Abboud owns both cars he appears to accept the reference to the second car as “his wife’s car” in his statement quoted above.

[19] I am satisfied that Mr Abboud was evasive in the first meeting about whether or not he was using the fuel card for more than one car. Mr Abboud then accepted at the following meetings that he had used the fuel card for both of the cars that he owns.

[20] Although I do not accept the evidence concerning the responses made by Mr Abboud in the record of the 11 March show cause meeting provided by the employer, I do accept that Mr Komodromos read out the allegations from the script provided by head office. The question asked in respect to the fuel card is as follows:

“When we first discussed fuel you denied using it on other vehicles other than your own, then you admitted you had done it for several months – but without a formal investigation we believe from inspecting our statements from Motorpass this may have been going on for as long as 2 years or more. Do you have anything to say in response to this?”

[21] I accept from this question that Mr Abboud had previously told Mr Komodromos that he had used the fuel card on the second car on a number of occasions over several months. I am satisfied that Mr Abboud in response made it clear that he had not used the fuel card on any vehicle other than the two cars that he owned.

[22] Mr Abboud did not raise the claim that he used the second car up to 40% of the time for work purposes at the meetings or in his statement for the proceedings. This claim was first raised in the proceedings. I am sceptical about this claim but I accept that he did use both cars for work purposes.

[23] It is understandable that Mr Abboud was defensive when confronted about this issue by Mr Komodromos. Even on his own evidence Mr Komodromos raised the matter in an aggressive manner. I do not consider that the manner in which Mr Abboud responded was misconduct.

[24] I am satisfied that Mr Abboud did not abuse the fuel card. It would have been wise for him to consult the employer about the fact that he was using his fuel card on two cars. Given that there was clear policy and practice which allowed for the fuel card to be used for reasonable private use, that Mr Abboud’s expenditure was generally within the cap set, that the monthly statements were not regularly made available to employees and that the issue had never been previously raised with Mr Abboud there is no basis to find that Mr Abboud’s fuel card use forms part of a valid reason for dismissal. The employer, having discovered the issue, should have advised Mr Abboud and other employees that only one car could be used and clarify fuel card use policy.

The allegation concerning use of Australia Post express bags

[25] During final submissions Lencrow accepted that there was insufficient evidentiary basis to rely on this allegation. There is no evidence that Mr Abboud misused Australia Post express bags. There was no stocktake of the bags and a number of people had access to the bags.

The allegation concerning the download of information onto an external hard drive

[26] It is accepted that Mr Abboud was allocated a work laptop. The laptop was allocated to him seven years ago. There is no challenge to Mr Abboud’s evidence that he was able to use the laptop for personal and work use and that he used it for work when travelling and at home and that he regularly took the laptop home. I also accept Mr Abboud’s evidence that not all company information on the laptop was on the central company server. This would occur because there were work matters which Mr Abboud attended to whilst not at work. Mr Abboud says that he was told by the company in writing and also by Mr Komodromos in particular to back up his laptop. Mr Abboud says that one of the external hard drives he had contained personal information including family photos whilst the other was used to back up his laptop. Mr Komodromos says that he did not tell Mr Abboud to back up his laptop. It is not necessary to decide whether Mr Komodromos told Mr Abboud to back up his laptop because I am satisfied that this was a reasonable and appropriate action by Mr Abboud. I am also satisfied that there was no instruction or policy against Mr Abboud backing up the laptop. I am also satisfied by the evidence of Mr Komodromos and Mr Abboud that there were no documents on the laptop or the hard drive which were marked “confidential”. Mr Abboud accepts that the documents were and remain company property and it would be inappropriate and potentially harmful for the business for some of these documents to be given to others outside the company. There is absolutely no evidence that Mr Abboud compromised the company’s interests and/or provided any sensitive information to those outside the company. Mr Komodromos gave evidence that there were a few company documents on the laptop or the hard drive which did not directly relate to Mr Abboud’s work. The specifics of this matter were never put to Mr Abboud. There could well be a reasonable explanation. There is no basis for this issue being a valid reason for criticism of Mr Abboud let alone a valid reason for dismissal.

The allegations concerning the stocktake

[27] It was accepted that Mr Komodromos was responsible from time to time for stocktakes. However, it was also accepted that Mr Komodromos was not responsible for stock security. It was also accepted that many other employees had access to the relevant stock and that premises in which some of the stock was kept were not particularly secure. It is also accepted that Mr Abboud was allocated to different work at certain times. Stock was then recorded in two groups – the missing stock was recorded in one list named pro-fork and the remaining stock in another list.

[28] In November 2014 the company moved premises. At that time $20,000 worth of stock was missing from the area of work that Mr Abboud was involved in. There was no suggestion at the time of any negligence or inappropriate conduct on the part of Mr Abboud. On 8 March 2016 Mr Komodromos asked Mr Abboud to do a stock take of items in both lists. Mr Komodromos requested this stocktake by the next day. Mr Abboud provided a stock take for the main stock list but not for the pro-fork stock. Mr Abboud was however able to locate some $10,000 worth of this stock over the next few days. Mr Abboud was then suspended at the meeting on 11 March 2016. Mr Abboud gave evidence that it was impossible to do a full stocktake in the 24 hours allocated by Mr Komodromos. Stock was located in a number of different places.

[29] I am not satisfied that the evidence established any wrongdoing by Mr Abboud in respect to the stocktake. I am also not satisfied that any poor performance was established. If there was poor performance it was never put to Mr Abboud and there was no opportunity to address the issue.

[30] This matter does not contribute to any finding of valid reason.

The allegation concerning invoicing a supplier used by Lencrow to purchase a part for a friend

[31] Mr Abboud asked for approval to assist a friend to obtain a part from a supplier used by Lencrow. It is not necessary to go into the details of this matter. Approval was given for Mr Abboud to arrange the purchase with the supplier. This was an isolated one off incident. It was not raised with Mr Abboud at the 11 March 2016 meeting or prior to the dismissal. Mr Abboud did not have an opportunity to respond to the issue prior to the dismissal. The issue of concern for Lencrow was that in purchasing the item from the supplier Mr Abboud used his private ABN. Lencrow alleges that this is in breach of Clause 3.4 of the employment contract which states:

“the employee will not work (whether for remuneration or other benefit) for any person other than the company in any capacity whatsoever whether full time or part time and whether or not such work could compete with the company, without the company’s prior consent which will not unreasonably be withheld.”

[32] Lencrow also alleged in the dismissal letter that Mr Abboud by making this purchase was acting in competition with the company in direct breach of his duties as an employee.

[33] There is no evidence that Mr Abboud was carrying on another business other than using his ABN to assist a friend with this purchase. The suggestion that Mr Abboud was acting in competition with Lencrow is ludicrous. I am satisfied that Mr Abboud understood the consent included consent for him to purchase the item for the friend. Mr Komodromos understood that the consent was for Mr Abboud to arrange the purchase. I accept that there may have been some misunderstanding but there is no basis to conclude that Mr Abboud’s actions were misconduct. I do not consider that there has been any breach of the employment contract and if I am wrong about that matter any breach was unintended and trivial.

[34] This matter does not contribute to any finding of valid reason.

The allegation concerning inappropriate use of the mobile phone

[35] Mr Abboud was allocated a mobile phone. He was allowed under his salary package “$200 telephone calls per month”. The telephone bills went to the company and the company paid them, including any charges for rental and data. The bills were not regularly provided to Mr Abboud to check. The issue of excessive or inappropriate use was never raised with Mr Abboud during his employment. It was not raised at the show cause meeting or in the dismissal letter.

[36] The issue raised for the first time in the proceedings was a charge for 8 gigs of data on a monthly bill. The telecom provider charged about $800 for this data.

[37] I am not satisfied that this charge is in breach of Mr Abboud’s employment conditions. The cap on charges related to telephone calls and not to other associated charges. The data charge may have been for personal use and it may have been appropriate for the company to bring the matter to Mr Abboud’s attention and if it was established that it was for personal use, to then request Mr Abboud to reimburse the amount. There is no reason to doubt that Mr Abboud would have responded reasonably to such a request. I am not satisfied that there was any misconduct in circumstances where personal use of the phone is not restricted other than by a $200 limit on telephone calls.

[38] This matter does not contribute to any finding of valid reason.

The advertising of the pump on eBay

[39] This allegation was raised at the 11 March 2016 meeting and Mr Abboud had an opportunity to respond. Mr Abboud gave unchallenged evidence that prior to the transmission of business to Lencrow the employer regularly asked him to sell stock on eBay using his personal eBay account. He also bought and sold items on eBay. As a result of this practice he had photographs of various stock items on his computer. He purchased a Rexroth hydrostatic forklift pump on eBay in 2009 for $500. Mr Abboud was seeking to sell this item and says that he used a photo of an identical item which belonged to Lencrow and was in its stock. He says that he used the photo because it was readily available whereas it would have been inconvenient to go to his parents’ place where the item he owned was stored and find it in amongst a number of other items. Mr Abboud accepts that it was inappropriate to use the photo of the Lencrow item. The item was advertised on eBay for sale at a starting price of $3899.00.

[40] Mr Abboud gave evidence that “…I put on responses to potential buyers “you will not be receiving this pump.” He added “You have to state this if the photo is not the actual item, even where it was an identical one.” 6 Mr Abboud did not put this note on the actual eBay advertisement but he says that he did put it on his response to potential buyers. Mr Komodromos arranged for a friend to pretend to be a customer for the item and Mr Komodromos says that Mr Abboud emailed that person in response with his bank account details. There is no direct evidence that Mr Abboud did not advise this person that the pump in the picture was not the item being purchased. Mr Abboud gave evidence that he told potential purchasers that the pump in the picture was not the item purchased. There was some evidence concerning a purchaser with a different email address to the person whom Mr Komodromos had arranged to trap Mr Abboud. Although there is some doubt, I am satisfied that Mr Abboud did advise potential purchasers that the item for sale was not the item in the picture.

[41] I am satisfied that the item in Lencrow’s stock is identical to the item owned by Mr Abboud. Lencrow had purchased the item for around $3500. Mr Abboud produced photographs of the item which he owns and it was established that the other item is in Lencrow’s stock. There is no evidence to suggest that Mr Abboud removed the Lencrow item from Lencrow’s premises. Mr Komodromos had his suspicions but I am satisfied that there is no reasonable basis to suspect that Mr Abboud took the item from the premises.

[42] When confronted with the allegation Mr Abboud told Mr Komodromos that the “photo of the item on eBay is a Lencrow pump but the actual pump being sold is mine”. Mr Komodromos confirms that this is what Mr Abboud said.

[43] I am not satisfied that Mr Abboud sought to sell an item belonging to Lencrow. However, I am satisfied that his actions in using a photo of the Lencrow item understandably led to suspicion and a justifiable loss of confidence in him. I am also satisfied that his actions in using the photograph were inappropriate and did constitute misconduct. It was both lazy and careless. Mr Abboud immediately explained the situation as soon as it was raised with him.

[44] I am satisfied that the misuse of the photograph was misconduct. However, it was not serious misconduct. In isolation it is not conduct which could form a valid reason for dismissal. It is a matter which would justify a warning.

Was the dismissal unfair?

[45] In deciding whether or not the dismissal was unfair I am required to consider the following:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

[46] For the reasons discussed earlier there was no valid reason for dismissal.

[47] Mr Abboud was notified of the reasons for the dismissal.

[48] Mr Abboud had an opportunity to respond to some of the matters which the employer considered formed the reason for dismissal. He did not have the opportunity to respond to others.

[49] Mr Abboud did not have the opportunity to have a support person but he was not refused access to one.

[50] Mr Abboud was dismissed for misconduct, not unsatisfactory performance.

[51] The company employs about 100 persons and does not have any dedicated human resource personal. I do not consider that this was a significant factor which explained the procedures utilised in the dismissal. Mr Komodromos had the benefit of assistance and advice from head office.

[52] In respect to other matters I consider that Mr Abboud was not warned about the issues concerning the use of the fuel card and telephone or the issues concerning the stocktake. These are matters which could not be reasonably pursued by the employer in the absence of clear policy and warning. Also in respect to other matters I consider that the dismissal was particularly harsh because unauthorised deductions were made from Mr Abboud’s annual leave payment and there was a failure to pay notice to which he was entitled and other outstanding entitlements due to the transmission of business which occurred a few years ago.

[53] Taking all the factors specified in Section 387 into consideration I am satisfied that the dismissal was harsh, unjust and unreasonable.

Remedy

[54] Mr Abboud seeks reinstatement. The only argument raised against reinstatement is that Mr Abboud’s misconduct has rendered the employment relationship untenable. For the reasons discussed earlier I do not consider that Mr Abboud has engaged in serious misconduct. In those circumstances there is no basis for finding that the relationship is untenable. I accept that there has been some loss of confidence in Mr Abboud due to his inappropriate use of the photo of the pump. However, I do not consider that this is of such an extent that it renders the relationship irreparable. Lencrow is a substantial company and I consider it has the resources to manage Mr Abboud’s successful integration back into the workforce. I will therefore Order reinstatement.

[55] I accept that some restructure of Mr Abboud’s position was being mutually planned by Lencrow and Mr Abboud in the lead up to the dismissal. There should therefore be some flexibility about the position to which Mr Abboud is reinstated provided that the position and the terms and conditions are no less favourable than those which applied immediately before the dismissal. In the event that Lencrow wishes to reinstate Mr Abboud to a different but equivalent position to that which applied prior to the dismissal, Lencrow must consult with Mr Abboud about the proposed position within five days of this Order. In the event that Mr Abboud does not consider that the proposed position is suitable and/or is on terms and conditions that are less favourable than those which applied immediately before the dismissal, Mr Abboud can apply for variation to this Order in respect to the specification of the position to which Mr Abboud must be reinstated provided that application for variation is made to the Fair Work Commission within seventy two hours of receiving advice from Lencrow concerning the proposed position.

[56] I consider it appropriate to also order that Mr Abboud maintain continuity of employment and that the period of Mr Abboud’s continuous service with the employer is maintained. I note that under the Act this will include the period of service prior to the transmission of business.

[57] I also consider it appropriate to make an order for the amount of remuneration lost, or likely to have been lost, by Mr Abboud due to the dismissal. I accept the evidence of Mr Abboud 7 that he has earned $2000 during the period since his termination. I also accept that because Mr Abboud is not currently employed he is unlikely to earn any income from employment during the period between the order for reinstatement and the actual reinstatement. I consider it appropriate to reduce the amount of remuneration lost by 15% in recognition of Mr Abboud’s misconduct in respect to the use of the photograph of the pump. The amount of lost remuneration will therefore be reduced by $2000 and then the resulting amount will be reduced by 15%. The lost remuneration is to be paid within 21 days of the Order. In the event that the amount of lost remuneration cannot be resolved either party can seek a variation to this Order to specify the amount.

COMMISSIONER

Appearances:

Mr G Dircks appeared for the Applicant.

Mr A Anderson appeared for the Respondent.

Hearing details:

2016

Melbourne

August 2

 1   Exhibit A1, Attachment PA2 at Clause 6.

 2   Exhibit L1, Attachment MK2.

 3   Exhibit A1 at paras 38 and 39.

 4   Exhibit A1 at paras 66 and 67.

 5   Exhibit L1, Attachment MK5.

 6   Exhibit A1 at para 88.

 7   Exhibit A2.

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