Mr Richard Paternella v Electroboard Solutions Pty Ltd

[2011] FWA 3323

[2011] FWA 3323

FAIR WORK AUSTRALIA

DECISION

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

Mr Richard Paternella
v
Electroboard Solutions Pty Ltd
(U2010/1260)

COMMISSIONER ASBURY BRISBANE, 27 MAY 2011

Application for unfair dismissal remedy - Valid reason for dismissal - Applicant behaved in abusive and aggressive manner - No warning given to Applicant - Management of Respondent condoned Applicant’s behaviour - Conduct after dismissal not relevant to consideration of whether dismissal was unfair - Conduct after dismissal relevant to credit of Applicant and to remedy - Dismissal unfair on the basis it was harsh - No notice or payment in lieu - Applicant s.457 visa holder - Compensation awarded with adjustments for contingencies and contribution of Applicant to dismissal.

OVERVIEW

[1] This is an application for an unfair dismissal remedy by Mr Richard Paternella under s.394 of the Fair Work Act 2009 (the FW Act) in respect of the termination of his employment by Electroboard Solutions Pty Ltd (Electroboard).

[2] As required by s.396 of the Act, it is necessary to decide a number of initial matters before the merits of an application under Division 4 of Part 3-2 are considered. These matters are not in dispute. Mr Paternella was dismissed on 5 August 2010, and the application for an unfair dismissal remedy was made on 16 August 2010, within the time required in s.349(2) of the Act.

[3] Mr Paternella was a person protected from unfair dismissal as defined in s.382 of the Act. Electroboard is not a small business as defined in s.385(c) of the Act, and the dismissal was not a case of redundancy.

LEGISLATION

[4] The procedures and remedies by which Fair Work Australia (FWA) deals with unfair dismissal applications are found in Chapter 3 Part 3 - 2 of the FW Act. As provided by s.381(2) those procedures and remedies are intended to ensure that a “fair go all round” is accorded to the employer and the employee.

[5] By virtue of s.385 of the FW Act, a person has been unfairly dismissed if FWA is satisfied that:

“(a) the person has been dismissed;

(b) the dismissal was harsh, unjust or unreasonable; ..”

[6] In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the following matters as set out in s.387 of the Act:

(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 the dismissal; and

(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.

[7] The criteria in s.387 go to both procedural and substantive matters, and FWA is required to weigh the evidence and material before it in light of those criteria and to decide on balance whether a dismissal is harsh, unjust or unreasonable.

[8] The concepts may overlap:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 1

[9] As a Full Bench of the Australian Industrial Relations Commission said in McLauchlan v Australian Meat Holdings Pty Ltd 2 the above extract is authority for the proposition that a dismissal may be:

• Harsh because of its consequences for the personal and economic situation of the employee;
• Unjust because the employee was not guilty of the conduct on which the employee acted; and/or
• Unreasonable because it was decided on inferences which could not reasonably have been drawn from the material before the employer. 3

EVIDENCE

Witnesses

[10] Evidence in support of the application was given by Mr Paternella on his own behalf. Evidence for Electroboard was given by:

• Neil Blair - National Video Conferencing Services Manager;
• Marie Bolton - Sole Director, who also conducted the case for Electroboard;
• Jim Kaliviotis - Brisbane Branch Manager;
• Kon Kaliviotis - Branch Manager - Victoria; and
• Graham Cherry - National Manager - Project Services Group.

[11] The evidence of Mr Paternella and the witnesses for Electroboard included a significant amount of hearsay. Much of the evidence was irrelevant to the matters in dispute. Mr Paternella tendered a document which was essentially a submission, and adopted it as his witness statement. The statement contained a litany of allegations in relation to Ms Bolton’s treatment of other persons who were not named, and complaints about Mr Paternella’s terms and conditions of employment. Ms Bolton’s statement primarily outlined what she was told by other witnesses about Mr Paternella, and many of the incidents alleged in the statements of other witnesses for Electroboard involved reports made by persons who did not give evidence. Further, a number of issues and incidents set out in the statements of witnesses for Electroboard were not raised with Mr Paternella during his employment.

[12] Ms Bolton conducted the case for Electroboard and during her cross-examination of Mr Paternella informed the Tribunal that she had not read the statements of other witnesses for the Company because she did not think that she was allowed to do so. Ms Bolton was given an adjournment to enable her to read the statements of her witnesses.

Background

[13] Electroboard is a family owned business which was started in 1986 by Ms Bolton and her former husband. The Company has offices in every state and territory of Australia and currently employs over 260 persons, including 16 on Temporary Business (Long Stay) - Standard Business Sponsorship (Subclass 457 Visa) (s.457 Visa). As previously stated, the Company employs a full time in-house legal counsel.

[14] Mr Paternella was recruited through an overseas advertisement for a Project Manager, and was employed on the basis of an approved business sponsorship under which he received a s.457 Visa entitling him to work in Australia. Mr Paternella commenced work with Electroboard on 19 January 2009 in the capacity of Project Manager. Mr Paternella was employed under a written contract of employment, which included a requirement that he provide a two year return of service for the visa sponsorship, subject to circumstances where he may be required or wish to return to his home country.

[15] The contract of employment between Mr Paternella and Electroboard was appended to the witness statement of Ms Bolton. 4 Relevantly, the contract indicates that Mr Paternella’s annual salary was $75,000 per annum and that he received a fully maintained company vehicle and a superannuation contribution of 9%. As a s.457 Visa employee, Mr Paternella obtained the cost of the flight from his home country to Australia to commence work and a living away from home allowance calculated in accordance with Australian Taxation Office rules so that a portion of his base salary was tax free. The matter of how the salary was treated for taxation purposes was not stipulated in Mr Paternella’s contract of employment. The contract of employment also states that Mr Paternella may be required to travel to other work locations including interstate and overseas locations, and that if this is required, appropriate arrangements will be negotiated with Mr Paternella’s manager.

[16] According to Ms Bolton, on commencing employment with Electroboard, Mr Paternella was provided with training in Sydney before going to live and work in Canberra, to undertake work on a project at Duntroon Academy. In November 2009, Mr Paternella was asked to relocate to Brisbane to undertake a Project at Amberley, and agreed to do so. From late May 2009, Mr Paternella undertook a temporary eight week role in Canberra.

Reasons for the dismissal

[17] The reasons for Mr Paternella’s dismissal were set out in a termination letter dated 5 August 2010. Relevantly the termination letter states:

“We refer to issues concerning your attitude, inability to take direction and inability to interact with our staff including management and our customers as previously discussed with you in person verbally numerous times and documented by email.

We have not seen any significant improvement in your work and in our view your continuing behaviour and attitude constitute non-performance of your duties under your employment contract.

Further in addition your aggressive behaviour with a Senior Manager last week in Brisbane office and verbally and physically abusing our Brisbane manager today constitute misconduct. That behaviour will not be tolerated by the company.

Accordingly, as you were advised in the telephone conference this morning 5 August 2010 with Head Office in conjunction with your Manager in Brisbane office, your employment was terminated effective immediately without notice. ...” 5

[18] There was evidence of ongoing issues concerning Mr Paternella’s terms and conditions of employment and a series of discussions and altercations between Mr Paternella and the management of Electroboard in relation to these matters. There was a dispute about whether Mr Paternella was entitled to be paid in US dollars or Australian dollars. Mr Cherry said that Mr Paternella complained about this issue shortly after arriving in Sydney and stated that notwithstanding his contract he should receive a wage increase. Mr Cherry said that Mr Paternella became agitated about the issue and he had to counsel Mr Paternella about his attitude.

[19] According to Mr Paternella, he received an increase in his salary of $10,000.00 per annum in the first few months of employment because he was doing a good job. Ms Bolton agreed that initially Mr Paternella did do a good job, but maintained that she gave him the $10,000.00 increase because of his constant complaints that he was being underpaid and assertions that he should be paid in US dollars, and because the value of the US dollar was low against the Australian dollar.

[20] In relation to claims that he was not paid overtime, Mr Paternella said that Mr Warren Bolton told him when he started at the Duntroon Project, that he should do whatever it took to get the job done and that he could claim overtime. Mr Paternella said that he was working 50 to 60 hours a week on that Project when he first came to Australia.

[21] There were also disputes about accommodation when Mr Paternella relocated. According to Ms Bolton, when Mr Paternella returned to Brisbane from Canberra, he telephoned her and demanded that he live in an expensive apartment in the centre of Brisbane. To “keep the peace” Ms Bolton agreed to assist with an additional $350 per week towards Mr Paternella’s rent. Ms Bolton also paid $2,000.00 as a bond on the apartment, and Mr Paternella agreed to repay this amount.

[22] A letter recording this agreement, countersigned by Mr Paternella, was appended to Ms Bolton’s witness statement. That letter indicates that the $2000.00 is to be repaid by Mr Paternella when the six month lease expires; if he vacates the premises prior to that time; or deducted from his final pay if he leaves the employment of Electroboard. 6 Ms Bolton said that the amount has not been repaid by Mr Paternella. Mr Paternella contended that he was not entitled to receive the bond and that Ms Bolton should seek that it be refunded because she had paid it. Mr Paternella also said that he had not transferred the bond money to another property.

[23] Ms Bolton said that during the eight week period when Mr Paternella was working in Canberra from late May 2009, Mr Paternella refused to live in the standard motel accommodation and demanded self catering accommodation at a cost of $700.00 per week in addition to his living away from home accommodation. Ms Bolton agreed to this because the project was about to commence. Mr Cherry said that during discussions about the Canberra contract, Mr Paternella attempted to negotiate a return trip to Brisbane every two weeks during his deployment in Canberra. Mr Cherry told him that this was highly irregular and would not be agreed.

[24] Ms Bolton said that Mr Paternella telephoned her on a number of occasions to complain about projects, people he was required to work with, or to articulate his own demands. When Mr Paternella’s demands were not acceded to, he reacted aggressively and shouted. On one occasion Mr Paternella attended a meeting in Canberra with Ms Bolton and arrived dressed in jeans and a crushed shirt, and behaved in a manner that Ms Bolton described as aggressive and sullen. Ms Bolton said that when she raised these issues with Mr Paternella he told her that this was how he was in New York. Ms Bolton said that she told Mr Paternella that he was not in New York and he needed to sort out his attitude and conduct.

[25] Mr Jim Kaliviotis said that at the beginning of Mr Paternella’s employment, there was an incident where an expense claim submitted by Mr Paternella was not paid immediately and he launched an abusive and foul tirade against the Directors, involving swearing, and stormed out of the office. Mr Jim Kaliviotis also said that in the beginning, the Amberley project ran without incident, but after about two months he began to get reports to the effect that Mr Paternella’s attitude on site was causing issues with the customer, the builder, architect and installation staff. Mr Jim Kaliviotis said that on some five occasions during Mr Paternella’s employment in Brisbane, he had discussions with Mr Paternella about his behaviour and conduct on site. On every occasion, Mr Paternella became aggressive and confrontational.

[26] Mr Cherry said that in February/March 2009, he became involved in a dispute between Mr Paternella and Electroboard’s Purchasing Manager, Mr Montgomery, about Mr Paternella failing to comply with Electroboard protocols governing direct contact with suppliers. Mr Paternella argued that he could get a better deal with some suppliers than Electroboard Logistics. Mr Cherry told Mr Paternella that he had contravened correct procedures and acted in a condescending and antagonistic manner towards the purchasing manager. Mr Cherry said that he also counselled Mr Paternella about his aggression and hostility towards Electroboard’s Documentation Team Lead.

[27] In relation to this issue, Mr Paternella said that he did not have an argument with Mr Montgomery, but rather told Mr Montgomery that he had gotten a better deal on cable just by talking to the vendor. In response to the proposition that it was not Mr Paternella’s job to purchase cable; that this was inconsistent with the Company’s quality manual; and that he kept on talking to suppliers after he was requested to stop, Mr Paternella said:

“You’re right. I kept on getting you guys better deals on equipment. I was a bad employee for doing that I guess.” 7

[28] Appended to Mr Cherry’s witness statement was an email from Mr Daryl Fosberry, Electroboard’s IT Manager, dated 17 September 2009, in which Mr Fosberry made a formal complaint about Mr Paternella’s behaviour towards staff on the IT help desk. That behaviour is described by Mr Fosberry as aggressive and abusive. Mr Cherry said that he counselled Mr Paternella about the email. 8

[29] In relation to Mr Fosberry, Mr Paternella said when he first introduced himself to Mr Fosberry, he was grunted at. When Mr Paternella asked Mr Cherry “what the deal is” with Mr Fosberry, Mr Cherry apologised and said that Mr Fosberry treated everyone like that. In response to the proposition that he had been aggressive and abusive to IT staff reporting to Mr Fosberry, Mr Paternella said that staff members in all companies around the world do not get on and it is not an uncommon thing. Mr Paternella said that he had issues with a number of people in Mr Fosberry’s office.

[30] Mr Cherry said that generally Mr Paternella has acknowledged his propensity to upset and antagonise people during discussions with Mr Cherry, and attributed this to his upbringing in New York. In Mr Paternella’s view his behaviour was not rude or overbearing, he was merely being forthright and a “straight shooter”. Mr Cherry said that he advised Mr Paternella on many occasions that his behaviour and attitude were not acceptable and needed to change. Mr Cherry said that Mr Paternella’s behaviour was tolerated and it was hoped that it would change and he would sort himself out.

[31] In relation to the matters raised by Mr Cherry, Mr Paternella said that he had discussions with Mr Cherry about these matters, but did not understand those discussions to be counselling. Mr Paternella said that Mr Cherry was agreeing with him and attempting to placate the situation. Mr Paternella also said that when he got yelled at by customers because Electroboard was not doing its job, “yelling goes downhill” and he had to “get on” staff.

[32] Mr Blair gave evidence about an incident on 3 December 2009, during which Mr Paternella entered his office while he was conducting a meeting with a customer/supplier, and said in an arrogant and abrupt manner: “move your car”. Mr Blair said that he was recovering from back trauma at the time and could not move easily without pain. Mr Blair told Mr Paternella that he would move his car in approximately ten minutes, and Mr Paternella repeated the demand that it be moved immediately, before leaving the office.

[33] After the meeting concluded, Mr Blair requested that Mr Paternella step into an empty office to discuss the incident. Mr Paternella responded by stating that if Mr Blair wanted to “bollock” him then he could do it on the way to the car park and started walking to the car park. Mr Blair asked another employee to get his car keys and move his car. Before that employee returned, Mr Paternella came back into the office and put his face inches from Mr Blair’s face, and said that he was “pissed off” that Mr Blair made him wait to move the car.

[34] Under cross-examination, Mr Paternella said that he recalled the knocking on Mr Blair’s door and asking him to move the car. Mr Blair said that he would be a few minutes. Mr Paternella said that he waited patiently and then stormed in and said “I need you to move your car now”. Mr Paternella said that he did this because he had a meeting to go to. On the following day Mr Paternella had a discussion with Mr Jim Kaviliotis and Mr Blair about the incident and agreed that it would not happen again. Mr Blair and Mr Paternella were cordial to each other after the incident. Mr Paternella agreed that it was embarrassing for Mr Blair and for the customer in his office at the time

[35] Mr Jim Kaliviotis also outlined issues between an installation supervisor, Mr Scott Dickson and Mr Paternella, and complaints from Mr Dickson about aggressive, rude and condescending behaviour on the part of Mr Paternella. In early June 2010, Mr Jim Kaliviotis held a meeting with Mr Dickson and Mr Paternella to attempt to sort out their differences and to assist them to work together. Mr Paternella displayed aggression at the meeting and would not back down or apologise for his behaviour. Appended to the witness statement of Mr Kaliviotis was an email from Mr Dickson to Mr Paternella dated 11 June 2010, wherein Mr Dickson expresses his desire to work together amicably in the future; states that he is direct and can give the impression of being aggressive; and also states that Mr Paternella is giving the impression that he dislikes Mr Dickson. 9

[36] Mr Jim Kaviliotis said that he counselled Mr Paternella on or around 20 January 2010 in relation to overuse of his mobile telephone for personal calls. Mr Kaviliotis also said that he counselled Mr Paternella on another occasion in January 2010 in relation to Mr Paternella being rude and agressive because approval for payment of an invoice for repairs on Mr Paternella’s company vehicle was not processed quickly enough for Mr Paternella who was going away for a weekend. Mr Paternella stormed out of the discussions.

[37] There was evidence of an email sent by Mr Paternella on 29 June 2010, wherein he publicly admonished a consultant on the Amberley project, stating that the consultant had not designed a project properly and had simply provided a “boiler plate” specification. As a result, a complaint was made to Mr Jim Kaliviotis by an employee of the consultant, who indicated that he was sick of Mr Paternella and that the consultant would not work with Mr Paternella again. The chain of emails was appended to the witness statement of Mr Jim Kaviliotis, who said that he had to sort out issues on the Amberley Project, while Mr Paternella undertook the eight week contract in Canberra. On 29 June 2010, Mr Jim Kaliviotis sent an email to Mr Graham Cherry stating that a consultant had telephoned him to express disgust at the behaviour of Mr Paternella and that it may be wise to remove Mr Paternella from the Amberley project. Representatives of the major builder that Electroboard regularly worked with also said that the company would not work with Electroboard if Mr Paternella was the project manager.

[38] Mr Cherry said in his evidence that as the Amberley project was close to completion, it was decided that Mr Jim Kaliviotis would oversee any remaining works, and that Mr Paternella would have no further involvement.

[39] Mr Kon Kaliviotis said that he was in Brisbane in the last week of July 2010, and a number of discussions with Mr Paternella in that week. On 27 July 2010 there was a discussion during which Mr Paternella became loud and aggressive and verbally attacked Ms Bolton accusing her of ruining his personal relationship because she would not pay for airfares for him to come back from Canberra to Brisbane each weekend to visit his girlfriend while he was working in Canberra. According to Mr Kon Kaliviotis, Mr Paternella went on for fifteen minutes in a loud and aggressive manner and made offensive comments about education consultants employed by Electroboard and Mr Jim Kaliviotis. Mr Kon Kaliviotis said that he was concerned for his personal safety during this discussion and had a discussion with Mr Jim Kaliovitis that evening, where they agreed that Mr Paternella was out of control. There was also a discussion about the possibility of Mr Paternella moving to Sydney to work under Mr Cherry.

[40] There was a discussion with Mr Cherry who thought that he may be able to use Mr Paternella in Sydney and matters were left on the basis that Mr Cherry would have a discussion with Ms Bolton. On 28 July 2010, Mr Kon Kaliviotis had a number of discussions with staff in the Brisbane office of Electroboard to seek their views about Mr Paternella. Mr Kon Kaliviotis said that he was told by education consultants, sales consultants and other staff that Mr Paternella was rude, arrogant and disrespectful to them and to customers and that they wanted nothing to do with Mr Paternella.

[41] At 3.00 pm on that date, Mr Paternella came to Mr Kon Kaliviotis and apologised for his behaviour on the previous day. Mr Kon Kaliviotis told him that his behaviour was unacceptable and that no staff wanted to work with him. It was suggested to Mr Paternella that his skill set might be more suited to the Sydney market where Electroboard does larger scale projects. Mr Paternella responded by making demands about Electroboard taking over a six month residential lease he had signed and flying him to Sydney immediately so that he could choose where he wanted to live. Mr Kon Kaviliotis responded by saying that the demands were unreasonable and the proposal was unlikely to work as agreement with Mr Paternella about the terms upon which he would go to Sydney would be impossible. Mr Paternella said that he was either going to Sydney or he would return to the United States, and left the meeting.

[42] Under cross-examination, Mr Paternella agreed that he did have a discussion with Mr Kon Kaviliotis about the possibility of going to Sydney. Mr Paternella said that he told Mr Kon Kaviliotis that if the Company wanted him to move to Sydney, then the Company would have to pay for the move or Mr Paternella “could probably” go back to the United States.

[43] That night after a discussion with Ms Bolton, it was agreed that Mr Paternella would not be happy no matter what the Company did, and that based on his previous conduct and issues, Mr Paternella would continue with his behaviour if he went to Sydney. It was decided to summarily dismiss Mr Paternella.

[44] A meeting was held on 5 August 2010 between Mr Jim Kaliviotis and Mr Paternella at 9.30 am in the Board Room of Electroboard’s Brisbane office, during which Mr Jim Kaliviotis told Mr Paternella that things were not working out and the decision had been made to terminate his employment. Mr Jim Kaliviotis said that he told Mr Paternella that if he wanted to return to the United States the company would take him up on that offer. Mr Paternella got aggressive and said that he was there on a four year visa and could not be dismissed within that period. Mr Jim Kaviliotis called Mr Cherry on the conference telephone to discuss the visa issue raised by Mr Paternella. Ms Paynter, Electroboard’s in-house legal counsel was also part of the conference call. Ms Paynter explained that the four year visa did not mean that Electroboard had to employ Mr Paternella for a period of four years. Mr Paternella demanded severance payment for the balance of his visa period, removal expenses back to the United States or wherever he was going, and his costs. Mr Cherry told Mr Paternella that he was being summarily dismissed and that no notice was required to be given to him.

[45] Ms Paynter advised Mr Paternella that Electroboard was required to report to the Department of Immigration that he was no longer employed, and that he had 28 days to find another employer sponsor or return to the United States. At this point, Mr Paternella grabbed the conference telephone handset and violently hung up, smashing the handset in the process. Mr Paternella then stormed out of the room. Mr Jim Kaliviotis followed Mr Paternella to the car park and requested that he return the car keys, company mobile telephone and laptop computer. Mr Paternella began to violently push Mr Jim Kaliviotis who did not retaliate but told Mr Paternella that he should stop. Mr Paternella did so, and apologised. Mr Blair said that he came to the car park and saw Mr Paternella violently pushing Mr Jim Kaliviotis. Mr Paternella desisted when he saw Mr Blair.

[46] Both Mr Blair and Mr Jim Kaliviotis attempted to reason with Mr Paternella about returning the Company’s assets. Mr Paternella said he would be back later to return the items and that his personal tools locked in the cage in the basement carpark were worth more than the “shit box car” anyway. Under cross-examination, Mr Paternella agreed that he did push Mr Jim Kaliviotis.

[47] At 4.00 pm on 6 August 2010 Mr Paternella returned to the office and had a discussion with Mr Jim Kaliviotis, during which he told Mr Jim Kaliviotis that he would be at work the next morning and demanded that his mobile telephone and IT network access be restored. Mr Jim Kaliviotis informed Mr Paternella that he had been dismissed and was required to return company assets. Mr Paternella stormed out of the office. Mr Paternella subsequently advised that he would return the Company assets provided he received a letter of termination.

[48] Mr Blair met with Mr Paternella at around 9.00 am on 6 August 2010 and gave Mr Paternella a signed letter of termination. Mr Paternella handed back the company laptop, but not the mobile telephone. Mr Paternella also advised that he would return the mobile telephone and the car when he had copied his contacts off the telephone, and demanded that someone drive him home with his personal tools when he returned the car. Mr Blair agreed that he would drive Mr Paternella home and did so at around 2.00 pm when Mr Paternella returned the mobile telephone and the car.

Notification of the reason for dismissal

[49] The reasons for the dismissal of Mr Paternella were outlined to him in a meeting with Mr Jim Kaliviotis on 5 August 2010, and in the letter of termination handed to Mr Paternella by Mr Blair, on 6 August 2010.

Opportunity to respond to any reason related to capacity or conduct

[50] The reasons for Mr Paternella’s dismissal related to his conduct. There is no evidence of any opportunity being provided to Mr Paternella to respond to reasons for the dismissal. Mr Paternella was called into a meeting on 5 August 2010 and was told that a decision to dismiss him had been made.

Presence of a support person to assist at any discussions relating to the dismissal

[51] Mr Paternella did not request the presence of a support person at discussions relating to his dismissal. There was no refusal for Mr Paternella to have a support person present. However, there is no evidence that Mr Paternella was told that the purpose of the meeting he was asked to attend on 5 August 2010, was to dismiss him. Accordingly, he had no opportunity to have a support person present in any event.

Warning about unsatisfactory performance before the dismissal

[52] There is a conflict in the evidence about whether Mr Paternella was given warnings about unsatisfactory performance before the dismissal. Mr Blair, Ms Bolton and Mr Jim Kaliviotis gave evidence that after the incident between Mr Blair and Mr Paternella on 3 December 2009, it was decided to give Mr Paternella a formal letter of warning.

[53] According to Mr Blair, he drafted the letter with the assistance of Ms Paynter, Eletroboard’s in-house legal counsel. The letter was emailed to Mr Jim Kaliviotis who obtained Ms Bolton’s approval for the letter to be given to Mr Paternella. It was planned to give the letter to Mr Paternella at a meeting that had been arranged on 5 December 2009. There was an email chain wherein advice was sought by Mr Blair and Mr Jim Kaliviotis from Ms Paynter, in relation to the wording of the letter. The email correspondence indicates that the letter was written on 3 December and that the advice about it was provided by Ms Paynter on 4 December 2009.

[54] Mr Blair said that by 4 December 2009 he had calmed down. Mr Blair also considered that the Brisbane Branch of Electroboard had scarce resources and that the RAAF Amberley Project needed to continue without disruption. Mr Blair and Mr Jim Kaliviotis had a discussion and agreed that they wanted to avoid any further physical or aggressive response from Mr Paternella and were worried what Mr Paternella might do if they asked him to sign the letter. It was decided that Mr Blair and Mr Kaliviotis would not serve the letter on Mr Paternella, but rather, would show it to him, explain their concerns and let him know that his behaviour and conduct needed to change.

[55] Mr Blair and Mr Jim Kaliviotis said that there was a meeting with Mr Paternella on 5 December 2009 as this was the first date that was available. At that meeting the letter of warning was placed on the table and each of the items in the letter was discussed with Mr Paternella. Mr Blair said that he told Mr Paternella that what had happened on 3 December 2009 was unacceptable and he needed to control his behaviour in the future. Mr Kaliviotis told Mr Paternella that this was it and there would be no next time if the behaviour happened again. Mr Paternella was calm and accepted what Mr Blair and Mr Jim Kaliviotis had to say, and it was agreed that they would all move on amicably after the meeting.

[56] Under cross-examination, Mr Blair and Mr Jim Kaliviotis maintained that Mr Paternella was shown a copy of the warning letter at the meeting on 5 December 2010, and that each point in the letter was outlined to Mr Paternella.

[57] Mr Paternella maintained that he had not received the letter, and had never seen the letter until it was provided to him by Electroboard in these proceedings. Mr Paternella also maintained that he did not receive any warnings in relation to this conduct or work performance, and was dismissed without notice.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[58] Electroboard is a large employer, with over 260 employees. This is not a relevant consideration in the present case.

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

[59] Ms Bolton gave evidence that she does not believe in having a specific Human Resources Manager and all final decisions about employees are made by her, after discussion with Managers. Where Ms Bolton requires specific assistance with industrial relations matters or any other legal matter, she liaises with Ms Paynter, the Company’s in-house legal counsel. Ms Paynter was involved in the process of dismissing Mr Paternella and this factor is not relevant in the present case.

Any other matters FWA considers relevant.

[60] Mr Jim Kaliviotis said that when an employee leaves Electroboard, the usual practice is that the employee’s emails are forwarded to their Manager. In this case, Mr Paternella’s emails were forwarded to Mr Jim Kaliviotis. On 6 August 2010, an email addressed to Mr Paternella was forwarded to Mr Jim Kaliviotis. That email was from a company that is a competitor of Electroboard, and indicates that Mr Paternella was being considered for a position with that company. The email states that information on visa requirements is attached and that the application will take two to four weeks to process and cost approximately $3000. The email also states that the sender will make a final decision on the weekend and telephone Mr Paternella on Monday. 10

[61] Ms Paynter, on the instructions of Ms Bolton, forwarded a standard letter to Mr Paternella to remind him of his contractual obligations with respect to restraint of trade and confidentiality. The letter refers to Mr Paternella’s contract of employment and encloses a copy. The letter goes on to warn Mr Paternella that seeking employment with a competitor may breach those provisions, and that Electroboard will immediately take legal action against Mr Paternella if it becomes aware of a breach of the relevant provisions.

[62] Mr Paternella responded to this letter with an email sent to Ms Bolton, Ms Paynter, Mr Jim Kaliviotis and Mr Kon Kaliviotis at 2.46 pm on 18 August 2010. The subject of the email is “I want what is owed to me.” It is addressed as follows:

“Dear scumbags”

[63] The email goes on to assert that Mr Paternella is owed overtime plus a ticket to the United States for each of the three years he worked for Electroboard. It is asserted Mr Paternella has:

• been in touch with other former employees of Electroboard who will testify to bad working conditions;
• written to Electroboard three times and has not received a response; and
• been stranded in Australia illegally.

[64] There is a threat to take the matter to the media and to report Electroboard to various Government authorities and industry bodies in Australia and the United States. The demand for payment of claimed entitlements is expressed in the following terms:

“Facebook makes it easy to contact people don’t forget that you idiots. When you shit on people it will eventually come back and I am going to make it my focus to take a big American dump on you.

I committed 2 years, you owe me 2 weeks notice, 3 plane tickets one trip every year plus the mandatory trip back to the United States, plus overtime not paid, expenses to Canberra and my initial expenses to come here.

nothing less”

In conclusion, Mr Paternella goes on to state:

“Marie you are a miserable person and your own family hates you and your gonna (sic) be alone for the rest of your life. I told you not to push me around but you insisted now I will do what ever is in my power to make sure I get what I am owed and in the process further ruining Electroboards already bad name and image. This will go on in perpetuity weather (sic) or not I stay here in Australia go back to the United States or where ever I am.

I promise that.

I expect a reply before COB on Friday anything after that is too late.” 11

[65] At 2.52 pm Mr Paternella sent a further email to Mr Jim Kaliviotis and Mr Kon Kaliviotis stating:

“I am not fucking around with what I wrote. I will exhaust every legal avenue first.” 12

[66] On 11 November 2010, Mr Paternella sent a further email to Ms Bolton in the following terms:

“Marie

Facebook makes it easy to contact people from all around the world. I am done playing games with you I have given you more than ample time to act like a person about this. I am going to start contacting everyone Jim pissed off and fired in the Brisbane office, this is going to be my new hobby. It will take some time though because he really pissed off a lot of them.

Do you understand what I do for a living. Part of my job is to research things and make things work.

Ohh btw everyone you know is on Facebook or Lindedin, starting with Warren.” 13

[67] The email then sets out the text of a message to “Warren” in which Mr Paternella refers to Ms Bolton as his “miserable ex wife” and states that he is taking her to court for an unfair dismissal and seeking damages, and that he wants to call him as a witness. Ms Bolton’s former husband did not give evidence in these proceedings.

[68] Mr Paternella said that he obtained a permanent full time position in mid September 2010, and his salary is $70,000 per annum. Mr Paternella also said that from the date of his dismissal, until he obtained that alternative employment, he was not permitted to work other than under a sponsorship arrangement, and was unable to obtain alternative employment until mid September because of that restriction.

SUBMISSIONS

[69] Mr Paternella submits that his dismissal was unfair because he had no warning of the fact that his employment was in jeopardy. There were issues which lead to Mr Paternella being unhappy with Electroboard and issues that lead to the Company being unhappy with him. According to Mr Paternella, these tend to happen everywhere around the world and are not exclusive to his employment with Electroboard. Mr Paternella further submits that he should have been given some notice and in circumstances where he had come from the United States to work in Australia, a period of at least one month to look for other employment, would have been appropriate.

[70] Electroboard submits that Mr Paternella was verbally warned on numerous occasions about his abrasive, blunt and aggressive behaviour towards customers, staff and management of the Company. Mr Paternella was also shown a formal warning letter on 5 December 2009 and its contents were discussed with him. When Mr Paternella showed no signs of improving his behaviour, the Company had no option but to summarily dismiss him. The emails sent by Mr Paternella after the termination of his employment, and tendered by witnesses for Electroboard, were said to be evidence of the behaviour which brought about his dismissal.

CONCLUSIONS

[71] I am satisfied that there was a valid reason for the dismissal of Mr Paternella. On the balance of probabilities, Mr Paternella did engage in aggressive and inappropriate conduct in relation to his colleagues and with respect to customers and consultants of Electroboard. In relation to this point, I accept the evidence of the witnesses for Electroboard about a series of issues and altercations involving Mr Paternella from the outset of his employment. I do not accept Mr Paternella’s evidence on these matters. In particular, I have given consideration to the following matters about which there is clear evidence.

[72] Mr Fosberry made a formal written complaint about Mr Paternella’s behaviour towards staff on the IT help desk. Mr Paternella’s response - to the effect that he had issues with Mr Fosberry and that it is not uncommon for staff members in companies around the world not to get on - misses the point. Similarly, Mr Paternella’s response to the complaint about his failure to follow purchasing procedures also misses the point. There was a quality assurance manual setting out responsibilities with respect to purchasing, and Mr Paternella was told to desist with his involvement in the process because it was inconsistent with the manual. In this context, Mr Paternella’s views about whether he could get a better deal on the price of cable, were irrelevant. In my view, the responses of Mr Paternella to these issues were indicative of a general propensity on his part to refuse to accept any responsibility for his inappropriate conduct.

[73] I also accept that Mr Paternella behaved in an intimidating and aggressive manner towards Mr Blair, in the incident of 3 December 2009, in relation to Mr Blair moving his car. That Mr Blair may have behaved in a civil manner in his dealings with Mr Paternella after the event, does not alter the fact that Mr Paternella’s behaviour was entirely inappropriate and that Mr Blair felt intimidated by it.

[74] The email sent by Mr Paternella on 29 June 2010, was an inappropriate comment about a consultant and I have no doubt that it caused the reaction outlined in the evidence of Mr Jim Kaliviotis and put the relationship between Eletroboard and the consultant at risk. Mr Paternella, on his own evidence, was a senior Manager of Electroboard, and should have known better than to have sent such an email.

[75] In all of the circumstances outlined above, it was open to Electroboard to form the view that Mr Paternella’s employment was not working out and that he should be dismissed. I am not satisfied that Mr Paternella had any opportunity to respond to the reasons for his dismissal. The decision to dismiss Mr Paternella was made before the representatives of Electroboard met with him on 5 August 2010, and in the absence of any discussion with him about the reasons for the decision. Although Mr Paternella did not request a support person at the meeting where his dismissal was discussed, this is hardly surprising given the fact that Mr Paternella had no idea about the purpose of the meeting. No weight can be placed on the fact that there was no unreasonable refusal by Electroboard to allow Mr Paternella to have a support person present at the meeting where his dismissal was discussed, in circumstances where he had no forewarning about the meeting and its purpose, and therefore no opportunity to request representation.

[76] I am also not satisfied that Mr Paternella was warned about unsatisfactory performance before his dismissal. I accept that there were discussions with Mr Paternella about various issues that arose during the course of his employment. However, none of those discussions were such that they could constitute a warning. I also accept that a letter of warning was prepared in advance of the meeting with Mr Paternella on 5 December 2009, and that it was intended to give that letter to Mr Paternella. However, Mr Blair and Mr Jim Kaliviotis decided not to give the letter to Mr Paternella, on the basis that they wished to de-escalate the matter and did not wish to antagonise Mr Paternella.

[77] Effectively, Managers of Electroboard tolerated Mr Paternella’s conduct for a considerable period of time. Rather than warn Mr Paternella that he had not performed on a particular project, or that he had antagonised other participants in the project, Mr Paternella was moved to other projects. When Mr Paternella engaged in conduct that it was believed was sufficient to justify the issuing of a formal written warning, it was determined that the need to redeploy Mr Paternella due to shortage of labour, outweighed the seriousness of the conduct.

[78] Given the evidence of Electroboard’s Managers that Mr Paternella refused to accept responsibility for his conduct, it was incumbent on those Managers to give Mr Paternella a clear warning that his conduct was a matter of serious concern and that if he did not desist, his employment would be terminated. This warning was not given. The overwhelming impression I gained from the evidence, is that Managers of Electroboard tip-toed around Mr Paternella because they were more concerned about having enough staff to undertake projects than they were about his behaviour. To move to summary dismissal without a clear warning and a reasonable time frame in which to improve performance, was in my view, unfair.

[79] Electroboard is an enterprise with a significant number of employees, and is by no means a small business. That Electroboard does not have dedicated human resources expertise is a matter of choice on the part of the sole Director Ms Bolton, rather than a situation resulting from the Company lacking the financial resources to engage such expertise. Further, Electroboard has a dedicated in-house legal counsel. If anything, it would be expected that these matters would impact in a positive way on the procedures followed in effecting Mr Paternella’s dismissal.

[80] In addition to the specific matters identified for consideration in s.387 of the Act, FWA is required to consider any other relevant matter in deciding whether a dismissal is unfair, on the basis that it is harsh, unjust or unreasonable. In my view it is relevant that Mr Paternella travelled to Australia from the United States to work for Electroboard and was employed under a s.457 Visa. As such, Mr Paternella was in an extremely vulnerable position, in that if he did not secure alternative employment with an employer prepared to sponsor him, within 28 days of his dismissal, he could not remain in Australia.

[81] Mr Paternella’s capacity to obtain alternative employment was constrained by the fact that he could not take any available work but rather could only work under a sponsorship arrangement. Further, Mr Paternella’s capacity to obtain alternative employment in his field of expertise was, on the evidence of Electroboard, impacted by the terms of his contract in relation to restraint of trade and confidentiality.

[82] Because Mr Paternella was not given any warning that his employment was in jeopardy, he was denied an opportunity to attempt to obtain alternative employment. Further, Mr Paternella was not given notice that his employment was to be terminated, or paid in lieu of such notice. Electroboard had, on its own evidence, condoned for a considerable period of time, the conduct on which it relied to dismiss Mr Paternella. This is an indication that the conduct was not sufficient to justify summary dismissal.

[83] I am also of the view that this case raises the issue of whether conduct engaged in by an employee after that employee has been dismissed, can be relevant to deciding whether the dismissal is unfair.

[84] The termination letter included a reference to an incident of verbal and physical abuse, which occurred on 5 December 2010. That incident can only be the altercation in the carpark during which Mr Paternella physically pushed Mr Jim Kaliviotis. That conduct occurred after the decision to summarily dismiss Mr Paternella had been made and verbally communicated to him.

[85] There is also the matter of the three emails sent by Mr Paternella to Managers of Electroboard after he was dismissed, which were referred to in the evidence of witnesses for Electroboard. These emails were said to be indicative of the rude and abusive behaviour engaged in by Mr Paternella while he was employed by the Company and to constitute grounds for FWA to find that Mr Paternella’s dismissal was not unfair.

[86] There is no doubt that Mr Paternella’s conduct towards Mr Jim Kaliviotis on 6 August 2010 was entirely inappropriate. There is also no doubt that had that conduct occurred before Mr Paternella was dismissed, that it would have constituted grounds to dismiss Mr Paternella summarily. It is also arguable that had Mr Paternella been informed that he was dismissed and that he would receive a payment in lieu of notice, the conduct may have been sufficient to justify Electroboard withholding the payment in lieu of notice.

[87] The emails sent by Mr Paternella are nothing short of arrogant and abusive. Regardless of Mr Paternella’s views about his dismissal, they are inexcusable, particularly given that they were sent after he filed his application for an unfair dismissal remedy in Fair Work Australia.

[88] The emails appear to have been generated by an entirely reasonable letter from Electroboard to Mr Paternella which did nothing more than point out obligations he had entered into under his employment contract, and which arguably continued to be binding notwithstanding the dismissal. The emails also make claims which, on a plain reading of Mr Paternella’s contract of employment, are not sustainable. For example, there does not appear to be any basis for a claim for three air fares back to the United States, one for each year of service.

[89] In short, it is arguable that the emails display exactly the attitude and conduct that justified Mr Paternella’s dismissal. The question is if, and to what extent, these matters can be considered in deciding whether Mr Paternella’s dismissal was unfair.

[90] The issue of whether conduct an employer becomes aware of after the dismissal of an employee, can subsequently be relied on to establish whether or not the dismissal was unfair, has been considered in a number of cases. In McLauchlan v Australian Meat Holdings Pty Ltd 14, after reviewing a number of authorities, a Full Bench of the Australian Industrial Relations Commission held that in determining an unfair dismissal application under s.170CE(1)(a) of the then Workplace Relations Act 1996 (the WR Act), the Commission was bound to consider whether, on the evidence in the proceedings before it, the termination was harsh, unjust or unreasonable, provided that the evidence concerned circumstances in existence when the decision to terminate the employment was made. It was held that such evidence could relate to conduct engaged in by the employee during employment, but only discovered by the employer after the dismissal.

[91] Critical to this finding were the provisions of s.170CG(3) of the WR Act, which set out factors the Commission was required to have regard to in deciding whether a dismissal was harsh, unjust or unreasonable, which included: “any other matters the Commission considers relevant”. Further, the Full Bench considered that a valid reason for a termination was only one of the factors to which the Commission must have regard, and that the legislative scheme made it clear that the role of the Commission is to determine whether there was a fair go all round. These matters are found in the current provisions of the Fair Work Act and the observations of the Full Bench in McLauchlan remain relevant.

[92] The altercation with Mr Jim Kaliviotis on 5 August 2010, and the emails sent by Mr Paternella after he was dismissed, are not circumstances that were in existence when the decision to dismiss Mr Paternella was made. Accordingly, they are not matters that can be considered as part of the evidence relevant to whether the dismissal was harsh, unjust or unreasonable. I am also of the view that the altercation with Mr Jim Kaliviotis is not grounds for Electroboard refusing to make a payment to Paternella in lieu of notice. On their own evidence, Ms Bolton, Mr Blair and Mr Jim Kaliviotis had already decided that Mr Paternella was to be summarily dismissed, and this had been verbally communicated to Mr Paternella before the altercation occurred.

[93] However, in my view, the altercation and the emails are relevant to Mr Paternella’s credit as a witness, and in particular, Mr Paternella’s propensity to downplay and attempt to justify his abusive and aggressive behaviour. Mr Paternella conceded that he pushed Mr Jim Kaliviotis while insisting that he did not hit him. Mr Paternella also sought to justify his conduct by stating that he pushed Mr Jim Kaliviotis because he was being prevented from getting into a car that contained his personal effects, and he did not wish to be stranded in Spring Hill. I do not accept Mr Paternella’s attempt to justify his conduct. Indeed there are indications in various pieces of correspondence in evidence in these proceedings that Mr Paternella lived at Spring Hill.

[94] When he was cross-examined about the emails sent after his dismissal, Mr Paternella responded by saying that he had not carried out any of the threats in the emails and was trying to deal with the matter by legal means. That attempt at justification is equally unconvincing given that when the emails were sent, Mr Paternella had already filed his unfair dismissal application. The response given by Mr Paternella also skirts the issue of the extremely offensive and inappropriate content and tone of the emails.

[95] In my view, an employee dismissed for aggressive and abusive behaviour, who engages in a physical altercation with a Manager of the former employer and sends aggressive and abusive emails to the former employer, is liable to have inferences drawn about credit, in circumstances where that employee, under oath, generally disputes that such conduct was engaged in during employment. Those inferences may be drawn regardless of whether the conduct was engaged in after the dismissal. I am also of the view that such conduct is relevant to the matter of remedy, particularly when FWA is required to make assessments about contingencies, such as the likely time a dismissed employee would have remained in employment, if that employee had not been dismissed.

[96] Balancing all of the relevant factors, I am of the view that Mr Paternella’s dismissal was unfair on the ground that it was harsh. The dismissal was harsh because Mr Paternella was not given any warning that his employment was in jeopardy, limiting his opportunity to mitigate the loss of his job, and consequently his right to remain in Australia. The lack of warning also made the dismissal harsh because Mr Paternella had a limited time in which he could obtain employment with an employer prepared to sponsor him so that he could remain in Australia. Further, Mr Paternella’s dismissal was harsh because of the adverse impact on his economic position due to the fact that he was not paid notice on termination, and because he could not obtain alternative employment other than in the limited circumstances where he was sponsored by his new employer.

REMEDY

[97] Having found that Mr Paternella’s dismissal was unfair, on the grounds that it was harsh, it is necessary to consider the question of remedy. Mr Paternella was a person protected from unfair dismissal, and should be granted a remedy for his unfair dismissal. Mr Paternella does not seek reinstatement. Given his conduct, including the conduct he engaged in after his dismissal, reinstatement is not an appropriate remedy. It is also not a remedy I would grant even if it had been sought by Mr Paternella. I am of the view that in all of the circumstances of this case, an order for compensation should be made.

[98] The remedy of compensation is dealt with in s.392 of the Act in the following terms:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(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.”

[99] Considering the factors I am required to take into account in determining an amount of compensation, as provided in s.392(2) of the Act, I have come to the following conclusions. There is nothing to suggest that Electroboard is not a viable business, and I am satisfied, as required by s.392(2)(a) that the Order I intend to make will not impact in this regard.

[100] Mr Paternella was employed by Electroboard for some eighteen months, and I have taken this into account as required by s.398(2)(b).

[101] In terms of the provisions of s.392(2)(c) I am of the view that Mr Paternella’s employment would not have continued beyond a month from the date of his dismissal. It is more probable than not, given the email sent to Mr Paternella by a competitor of Electroboard, and received the day after Mr Paternella’s dismissal, that Mr Paternella had commenced exploring other employment options before his dismissal.

[102] I am also of the view that had a warning been given to Mr Paternella, it is more probable than not that he would have reacted in an abusive and aggressive manner and would not have adjusted his behaviour.

[103] An adjustment of 25% should be made for contingencies, including that in the event Mr Paternella remained in employment for a further month, he may have obtained other employment within that time, or engaged in some other altercation which would have resulted in his dismissal.

[104] I am satisfied that Mr Paternella’s conduct contributed to his dismissal and that an additional adjustment of 25% should be made to reflect this. Given the constraints on Mr Paternella seeking alternative employment, I do not intend to make any adjustment for failure to mitigate loss of employment in this case.

[105] Mr Paternella was paid an annual salary of $85,000.00, including the $10,000.00 wage increase paid to him. Accordingly, Mr Paternella’s weekly salary was $1,685.00. The amount of compensation based on four weeks’ salary is $6,540.00. For the reasons set out above, that amount is reduced by 25% for contingencies ($1,635.00) and a further amount of 25% ($1,635.00) for Mr Paternella’s contribution to the dismissal. The result is an award of compensation of $3,270.00.

[106] An Order will issue with this Decision that Electroboard Solutions Pty Ltd pay to Richard Paternella the amount of $3,270.00 taxed according to law, within 14 days of the date of this decision.

COMMISSIONER

Appearances:

Mr R. Paternella on his own behalf.

Ms M. Bolton on behalf of the Respondent.

Hearing details:

2010.

Brisbane:

December 13.

 1   (Byrne and another v Australian Airlines Limited, (1995) 185 CLR 410 at 465, 11 October 1995, Brennan CJ, Dawson, Toohey, McHugh, Gummow JJ per McHugh and Gummow JJ). See also Australia Meat Holdings Pty Ltd v McLauchlan, Print Q1625, 5 June 1998, Ross VP, Polites SDP, Hoffman C.

 2   Dec 648/98 S Print Q1625 per Ross VP, Polites SDP and Hoffman C.

 3   ibid at page 8 of 16.

 4   Exhibit 3 Witness Statement of Marie Bolton Annexure 1.

 5   Exhibit 3 Witness Statement of Marie Bolton Annexure 4.

 6   Exhibit 3 Witness Statement of Marie Bolton Annexure 2.

 7   Transcript 13 December 2010 PRN296.

 8   Exhibit 6 Witness Statement of Grahame Cherry Annexure 1.

 9   Exhibit 4 Witness Statement of Jim Kaliviotis Annexure 4.

 10   Exhibit 3 Witness Statement of Marie Bolton Annexure 5.

 11   Exhibit 3 Witness Statement of Marie Bolton Annexure 7.

 12   Exhibit 4 Witness Statement of Jim Kaliviotis Annexure 8.

 13   Exhibit 3 Witness Statement of Marie Bolton Annexure 9.

 14   Dec 648/98 S Print Q1625 per Ross VP, Polites SDP and Hoffman C.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR509970>