Ms Isabel Nohra v Target Australia Pty Ltd

[2011] FWA 2534

[2011] FWA 2534

FAIR WORK AUSTRALIA

DECISION

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

Ms Isabel Nohra
v
Target Australia Pty Ltd
(U2010/874)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 15 JUNE 2011

Resignation/termination at the initiative of the employer - harsh, unjust or unreasonable

[1] Ms Nohra commenced employment with Target Australia Pty Ltd (Target) in 1985. The exact date is not agreed. Target submitted that Ms Nohra commenced employment at some time in August of that year. Ms Nohra gave evidence that she commenced in April 1985. In 2004 Ms Nohra was transferred to the Bankstown store as Store Manager.

[2] In 2009 a Mr Green was appointed as the new Bankstown District Manager. Mr Green’s appointment was not a happy event for Ms Nohra. Until then Ms Nohra’s career had been relatively uneventful. I have set out some of the relevant factual history - both contested and not contested below. It is not necessary for me to resolve most of the contested issues between these parties. They provide context, and it is on that basis that I have set them out below.

On or around 30 April 1985 (Ms Nohra) or August 1985 (Target)	Ms Nohra commenced employment.	Date contested 1
Mid-2004 (Ms Nohra) or April 2004 (Target)	Ms Nohra transferred to the Store Manager position at the Bankstown Store	Not contested
October 2007	Ms Nohra received a first warning regarding the Bankstown Store not meeting expected performance standards.	Not contested
July 2008	Ms Nohra received a second disciplinary warning for similar issues.	Not contested
July 2009	A new District Store Manager (Mr Green) became responsible for the Bankstown Store.	Not contested
	Ms McLeod advised Mr Green that Ms Nohra had been previously asked to consider taking on a Store Manager position at the Bass Hill store, that Ms Nohra had refused and indicated that if she was ever directed to become Store Manager at another store she would resign.	Not contested
Early 2010	Ms Nohra provided suggestions to improve Target’s business, including: - a salary sacrifice scheme; - introduction of filament tape seals; and - removal of the toiletries department.	Contested 2
On or around 18 March 2010	On this date, and instances prior, Mr Green had been dismissive and/or curt with Ms Nohra and on this occasion he yelled at Ms Nohra.	Contested 3
March 2010	Another store audit was conducted by Target. The result was alleged to be unfavourable.	Contested 4
25 March 2010	There was a meeting between Ms Nohra and Mr Green. Ms Nohra found Mr Green to be rude and dismissive. Ms Nohra alleged Mr Green made a ‘Ku Klux Klan’ comment. Mr Green disputed this but admitted referring to the relevant district as a “cult”.	Contested 5
On or about 31 March 2010 (Ms Nohra) 1 April 2010 (Target)	Ms Nohra had a meeting with Mr Green and Ms Roach at the Carlingford Store. Ms Nohra was stood down with pay.	Not contested
8 April 2010	A further meeting was held between Ms Nohra, Ms Coats and Mr Green. Ms Nohra informed Target that the poor audit result was due to understaffing. - Mr Green recommended that Ms Nohra be transferred to the Rockdale Store. - Ms Nohra indicated concern over the travel time between the Rockdale Store and her home. - Mr Green informed Ms Nohra that her employment may be terminated if her performance did not improve.	Not contested 6 Not contested Not contested Not contested 7
12 April 2010	A telephone conversation took place between Ms Nohra and Mr Green. - Ms Nohra again raised her concerns about travel time and her family responsibilities. - Ms Nohra stated that she felt stressed by the workplace situation and provided a doctor’s certificate to verify that she was unfit for work until 18 April 2010. - Mr Green told Ms Nohra that a transfer to Rockdale was her “onlyoption”.	Agreed Agreed Disputed 8
	In a telephone conversation between Ms Nohra and Ms Roach Ms Nohra advised that she did not wish to transfer to Rockdale store due to the impact on her family responsibilities arising from the travel time of 1hr 55min.	Not contested
On or about 20 April 2010	At a meeting between Ms Nohra, Ms McLeod and Ms Roach Ms Nohra requested that she be relocated to either the Macarthur, Hurstville or Bass Hill stores due to the comparative ease of travel to those stores compared to a transfer to the Rockdale store.	Not contested
	Ms Nohra became unwell (medical certificate obtained).
On or about 26 April 2010	At a meeting between Ms McLeod, Mr Green, Mr Morley and Ms Roach concerning available options, a decision was made that the other stores suggested by Ms Nohra were not suitable and that Rockdale would be the best fit. The Target National Succession Plan was considered. Various other discussions were held between these persons to the same effect around this time.	Not contested
27 April 2010	Ms McLeod and Ms Roach telephoned Ms Nohra and advised her of Target’s decision. Ms Roach advised Ms Nohra that Target would advise further of its decision in a week’s time.	Not contested
30 April 2010 30 April 2010 (R) On or about 4 May 2010 (A)	Ms Nohra supplied a letter to Ms Roach, providing for a resignation effective 3 December 2010, stating her reason which was the length of travel time if forced to relocate. Ms Nohra noted that her resignation was to be accepted in the ‘format attached’, making reference to her leave requests which were also contained in the letter. - Various leave requests were made by Ms Nohra. These incluced carer’s leave between 5 May and 14 September 2010 to care for her mother-in-law (stroke following surgery). Ms Nohra also made a complaint about Mr Green’s management style.	Not contested
	Ms Roach provided a copy of the letter to Mr Green who advised her that Target should accept Ms Nohra’s resignation.	Not contested
	Ms Roach telephoned Ms Nohra to confirm that Target accepted her resignation but would not continue to employ her until December 2010.	Date disputed 9
4 May 2010	Target wrote to Ms Nohra accepting her resignation but notifying her that it was electing to cease her employment as at 3 May 2010. Target also advised her that one month’s pay in lieu of notice would be provided along with any annual and long service leave entitlements owing as at 3 May 2010. The letter was signed by Mr Green.	Not contested

Estoppel Argument

[3] This application has been the subject of a previous hearing and decision. 10 Ms Nohra lodged her application 20 days outside the 14 day time limit prescribed by the Fair Work Act 2009 (the Act). Commissioner Roberts heard Ms Nohra’s application to have the time for lodgement extended. He decided that he needed to reach a preliminary conclusion as to whether or not Ms Nohra had resigned her employment or had her employment terminated by Target before determining the extension of time application. Commissioner Roberts concluded that the termination of Ms Nohra’s employment occurred at the initiative of Target. I have extracted below the relevant section of his decision which helpfully contains Ms Nohra’s letter of resignation.

“Background

[6] Ms Nohra was first employed by Target on or about 30 April 1985. She joined Target when she was about 15 years old and her employment lasted for 25 years, until 5 May 2010. The manner of the ending of the employment relationship is in dispute. Ms Nohra contends that her resignation letter stated that it was not to be effective until 3 December 2010. Ms Nohra, according to her letter to Target of 30 April 2010, intended to take the period between 3 May 2010 and 3 December 2010 in the form of a combination of rostered days off, carer’s leave, recreation leave and long service leave. Ms Nohra further claims that the letter of resignation was submitted in circumstances that amount to a constructive termination of employment.

[7] Target maintains that it was entitled to accept Ms Nohra’s letter of resignation with effect from 3 May 2010 and fulfil its obligations by the payment of 4 weeks’ salary in lieu of notice. Target further claims that ending the employment relationship before the date desired by Ms Nohra does not constitute termination of employment at the initiative of the Company.

[8] In the particular circumstances of the case before me, I will not take the usual path of determining the extension of time issue first. If there was no termination of employment at the initiative of the employer, then the question of granting an extension of time would be moot. Accordingly, I intend to consider the resignation issue first.

Resignation versus termination

[9] It is not in dispute that Ms Nohra tendered a letter of resignation dated 30 April 2010. It is instructive to quote that letter in full:

“To Jennifer Roach,

It is with great regret that I feel and have to resign from my position as a Store Mgr; due to some obvious facts.

One being the business not taking into serious consideration the travel time of (1 hrs + 55 mins) to & from Rockdale target store, which I personally find unreasonable, where there are stores that can be easily accessible; per our discussion on the 20/4/10. To loose (3 hrs & 50 min) a day in travel time a day & that if all transfers go well with public transport.

I have also had a personal blow where my mother in-law has in the last two weeks has suffered a STROKE after a routine operation and with much thought I feel the need to care for her whilst she tries to recover in my home, So could you please accept my resignation in the format attached as I need to access help from the health Services & do not wish to be penalised by exceeding the thresholds for the financial year.

Could you please assist by processing my leave as follow:

RDO’s 3/5 - 4/5 ([illegible] as at 10/4)

CARERS LEAVE 5/5 - 14/9 (stat declaration + doc certificate will follow)

ANNUAL LEAVE 15/9 - 19/10.

LONG SERVICE LEAVE 20/10 - 3/12.

My last day being 3/12/10.

Thanking you for a wonderful 24 YRS My only regret is the last 10 months with Michael Green. (DIST MGR 16) and his mgnt style, it has a lot to be desired and really needs to be addressed, as eventually it will be a risk to the business & allow it to be open to litigation.

Regards

Isabel Nohra”

(my emphasis)

[10] Ms Nohra had been through a protracted process with Target concerning the Company’s wish to transfer her from the Bankstown store to the Rockdale store. That proposed transfer was canvassed at length during proceedings but, in my view, there is no need to do so in this decision. In brief, Ms Nohra’s letter of resignation shows on its face that she did not intend the employment relationship to end almost immediately but rather, for it to end prospectively on 3 December 2010. Target’s action in purporting to accept the resignation but making it immediate was indisputably a termination at the initiative of the employer. Ms Nohra’s resignation letter was highly conditional and may, or may not, have constituted a constructive dismissal. That issue does not matter at this time as Target intervened to actively terminate the employment relationship immediately. Even if Ms Nohra was voluntarily standing on a metaphorical high ledge announcing that she would jump from employment in about seven months’ time, it was Target that then pushed her.

[11] I therefore find that the termination of Ms Nohra’s employment occurred at the initiative of Target and therefore the Tribunal has jurisdiction to entertain her application for relief subject to the granting of an extension of time for the lodging of her application.”

[4] Mr Currie of Counsel, representing Ms Nohra, submitted that I was estopped from determining this issue because it had already been determined by Commissioner Roberts. I do not accept this submission. I have considered the conduct of the application before Commissioner Roberts and have decided that the question of whether Target terminated the employment of Ms Nohra or she resigned is still open before me.

[5] Target reserved its position before Commissioner Roberts. Although Commissioner Roberts was persuaded that he needed to determine this matter prior to considering the extension of time application, I do not believe that Target was in a position to present all of its arguments. Target always made it clear that it wished to further contest this issue. It is entitled to have a full hearing on this issue separate from what Commissioner Roberts considered was necessary in the extension of time hearing unless Commissioner Roberts had notified both parties and set down the application for hearing of both issues and then heard both parties fully on both issues at the hearing before him in August 2010.

Constructive Dismissal

[6] I also reject Mr Currie’s submission that her letter of resignation was in fact a constructive dismissal. Ms Nohra’s decision to resign was her own considered decision arising from the decision of Target to transfer her to a store in Rockdale. Without resolving the exact period of travel time I accept that Ms Nohra would have had to travel for a considerably longer period, both before and after work, to the Rockdale store. As the crow flies the distance is not great. If Ms Nohra was a driver the trip would have been insignificant in terms of increased travel time. The travel time was a burden to Ms Nohra because of her inability to drive. She is unlicenced and, given her evidence regarding her lack of success as a learner driver, that is a sensible choice in her own interests and that of the general public. This inability is a personal circumstance peculiar to Ms Nohra. It does not arise from any personal or cultural traits that might impose an obligation on Target to give her special consideration. It does not arise out of her family obligations. I have concluded that it was a reasonable management decision to transfer Ms Nohra to Rockdale, taking into account all of the circumstances surrounding her employment, and that the decision did not amount to a constructive dismissal.

Resignation or Termination of Employment at the initiative of Target

[7] The preliminary issue for determination in this application was whether Ms Nohra’s employment was terminated at the initiative of Target. For the purpose of considering this issue, I am required by the Fair Work Act 2009 (the Act) to consider the following provisions:

“Section 385

What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a)  the person has been dismissed...”

and,

“Section 386

Meaning of dismissed

(1)  A person has been dismissed if:

(a)  the person's employment with his or her employer has been terminated on the employer's initiative...”

[8] If I find that Ms Nohra’s employment was terminated on the initiative of Target I am required to apply the following provision of the Act:

Section 387

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[9] For the purpose of considering remedy, if appropriate, the following provisions apply:

Section 390

“(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Section 391

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

Section 392

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.”

[10] Ms Roach is the Regional Human Resources Manager of Target, New South Wales and Australian Capital Territory. Ms Roach gave evidence regarding the reasons for Target’s decision to terminate Ms Nohra’s employment. Her evidence was that the decision not to continue Ms Nohra’s employment by letter dated 4 May 2010 was made by a number of people and that she made a contribution to that decision. 11

[11] In her evidence before me Ms Roach first indicated that the decision was taken for Ms Nohra’s benefit.

“But you were in any event part of this number of people who made the decision. Can you communicate why the decision was made; why the employment could not be continued until 3 December?---Because Isabel had written her intention to resign to look after her mother-in-law who had suffered a stroke, who was sick.

Yes?---And we made a decision that we were happy to accept her resignation but not for her to stay working until the 3rd of December.

Yes, I understand that. The question was why? Why did you decide that she had to go on 3 May instead of 3 December?---Well we just felt that that was the best thing for Isabel. She could have time to look after her mother and - - -

You made this decision with a view to the welfare of Ms Nohra?---We wanted to be fair. We just - we were given a letter saying that she wanted to leave the business.

Resign as of 3 December. So why wouldn't you let her resign as at 3 December? That was her intention. She's an adult female who gives you an answer that that's the date she wants to resign. Why would that not be an appropriate date for resignation?---They didn't feel that it was appropriate for her to continue in the business.

(my emphasis)

[12] Ms Roach then gave evidence that Target’s decision was related to Ms Nohra’s performance. This position was difficult for Ms Roach to maintain since, if Ms Nohra’s proposition had been accepted, Ms Nohra would not have returned to work and her performance, poor or otherwise, would have been irrelevant. Ms Roach subsequently conceded that the significant and decisive issue was the amount of leave that Ms Nohra would have been entitled to had the prospective date of her resignation been accepted, and her employment not interrupted by the letter from Target dated 4 May 2010.

“Why not is the question?---Because she was not performing her job.

So you made a decision to bring the termination forward to 3 May based on her poor performance?---Not termination. Her resignation.

Don't you worry about what we call it here. That's not your problem. What I want to know is what was the reason that you decided not to let her go on 3 December but to let her go on 3 May, and that it was because she was not performing.

------

THE SENIOR DEPUTY PRESIDENT: ------

How did you imagine that her poor performance was going to affect - if it was her proposal that she left on 3 December and it was predominantly her position that she wouldn't be returning to do any work in the meantime because she would use her accrued leave - setting aside whether she was entitled to it or not - but her proposition seems to be she was going to go on her accrued leave and leave in December. How was her poor performance a matter that would prompt you to make her leave earlier, since she wouldn't be performing any work in the meantime?---Well it's just not something that the business does. The business doesn't let anybody take all their entitlement and still technically be employed by the company.

But if people have got accrued entitlements why would they not be able to take them?---Accrued entitlements are annual leave and long service leave. Technically personal leave, if you don't use it you don't get it. If you don't take it you don't get it. It's not something on termination that's paid out.

So in effect this decision was one that - this decision was affected by the fact that if you let her resign in December she would have access to personal leave entitlements, and if you let her go in May she wouldn't?---Well she would have access to anything that she was legally entitled to have.

No, that's not my question. If she went in December, if she resigned in December if that was the effective date, then during that period she would've been able to access any accrued carer's leave that she'd had due to her. But if she went in May she would not?---Correct.” 12

(my emphasis)

[13] Ms Norah could have taken another path. She could easily have accepted the appointment to Rockdale and then notified Target of her need to access carer’s leave. At the expiration of her leave she could then have resigned. She did not behave in this fashion. She behaved in an honest and straightforward manner. She decided not to accept the transfer to Rockdale for proper and ordinary reasons. These reasons were her inability to drive and the distance involved in the transfer, as well as the intervening need to care for her mother-in-law who was unexpectedly in acute ill health following surgery. Instead, Ms Norah decided to apply to Target to access her carer’s leave, which she had accrued over the twenty-five years of her employment, and care for her mother-in-law before proposing that she resign on the date which she proposed in the same letter.

[14] Ms Nohra was still in employment when she became aware of the need for her to care for her mother-in-law. To the extent that there is any contest about the necessity for Ms Nohra to care for her mother-in-law I accept Ms Nohra’s evidence without reservation.

[15] I find that whilst Ms Nohra was still in employment and aware of the need for her to access her leave she notified Target of her intention to take leave, to refuse the transfer to Rockdale, and to resign subsequent to her period of leave. Ms Nohra’s resignation was conditional. She wrote “------so could you please accept my resignation in the format attached------.“

[16] Leave is of course a matter that requires consideration and approval. I am not aware of any basis on which leave could properly have been refused in these circumstances and I do not believe Target argues that. There was no material submitted by Target on this issue. Ms Roach read Ms Nohra’s letter but did not have a discussion with Ms Nohra about her need for leave. 13

[17] Target did not actually consider Ms Nohra’s leave application on its merits. If Target had refused her application Ms Nohra might have had to reconsider her proposal. Instead what Target did do was to opportunistically step forward and terminate the employment of Ms Nohra on 4 May 2010 to avoid her accessing the considerable leave she had accrued during her employment and to which she had proper cause to seek access.

[18] Ms Roach said that if you don’t use personal leave you don’t get it. It is not something that is paid out on termination of employment. That is a true statement but what Ms Norah decided to do was to seek to take her leave. Ms Nohra asked for it and to avoid paying it Target terminated her employment on 4 May 2010.

[19] Target’s Counsel, Mr Seck, made detailed submissions concerning the structure and nature of Ms Nohra’s letter of resignation. These arguments relied on a tortured and self-serving construction. Ms Nohra’s letter was not prepared by a lawyer but rather, in good faith, by a long time employee in a very simple form. It was an honest and complete disclosure of her circumstances at a time when self-serving secrecy regarding her intentions would have served her purposes better. It would have avoided Target’s opportunistic intervention and therefore these proceedings.

[20] I do not accept Mr Seck’s construction of Ms Nohra’s letter, not only because it is contrary to Ms Nohra’s clear intention when composing the letter, but also because his construction is not supported by its plain meaning when read as a whole.

[21] I have concluded that Target terminated Ms Nohra’s employment by letter dated 4 May 2010. I have also concluded that avoiding the obligation to pay Ms Nohra’s accrued leave was the reason for Target’s decision to pre-emptively terminate Ms Nohra’s employment. Target decided to terminate her employment with notice on 4 May 2010 to avoid paying her any personal leave accrued to which she had applied to have access.

[22] As required by ss387(a) I have considered whether there was a valid reason for the termination of Ms Nohra’s employment

[23] Seeking to give notice of an intention to resign on a future date, after accessing personal leave, is not a valid reason for termination of employment. Nor is it reasonable to respond to a conditional resignation from an employee and then accept it on different terms. Ms Nohra sought to resign for a perfectly good reason. A transfer had been offered to her which was not acceptable. Seeking to resign for an ordinary and appropriate reason as at a future date cannot be a matter of misconduct or poor performance. Just as an employer can offer a transfer within its reasonable managerial prerogative, an employee can refuse it. In these circumstances an employee can seek to resign on particular terms without exposing themselves to the risk of the social and financial detriments of termination of employment.

[24] I have concluded that there was no valid reason for the termination of Ms Nohra’s employment. Given my findings in this regard it is not necessary for me to consider the other subsections 387(b) - (g). Pursuant to ss387(h) I have considered Ms Nohra’s long period of employment with Target.

[25] I have concluded that the termination of Ms Nohra’s employment was harsh, unjust or unreasonable. It was harsh, unjust or unreasonable because there was no valid reason for the termination of her employment. It was particularly unjust because it deprived Ms Nohra, an employee of very long standing, of the possibility of accessing her accrued leave entitlements.

[26] I now have to consider what remedy is appropriate.

[27] In this case it is possible to calculate exactly how long Ms Nohra’s employment would have continued and therefore her loss. To calculate this loss it is necessary for me to determine the commencement date of Ms Nohra’s employment. I accept Ms Nohra’s evidence and find that that she commenced her employment at the end of April 1985.

[28] Ms Nohra’s loss is the value of her personal leave accrued but not taken from commencement of employment to the effective date of her resignation, less any moneys already paid. Ms Nohra has had no loss since termination of employment. She took leave from all work for rest and recreation following her mother-in-law’s recovery and is now, as a personal choice, working with disabled children at a considerably lower income level.

[29] Target has retained these moneys and they have earned interest to their benefit since the termination of Ms Nohra. These moneys should have been paid to Ms Nohra at the time of her application and been applied for her benefit.

[30] I will adjourn this application to allow Target to conduct the necessary investigations and perform the necessary calculation of the financial value of these entitlements and provide that information to me. A decision as to remedy will issue thereafter.

SENIOR DEPUTY PRESIDENT

 1   Statement of I. Nohra dated 26 November 2010, para 2; Outline of the Respondent’s Submissions, para 5

 2   Statement of I. Nohra dated 26 November 2010, paras 16-19; Statement of M. Green [undated], paras 43-45

 3   Statement of I. Nohra dated 26 November 2010, paras 21-25; Statement of M. Green [undated], paras 46-48

 4   Statement of J. Roach [undated], para 11 & Attachment G to that Statement: Audit Review; Applicant’s Outline of Submissions, para 5

 5   Statement of I. Nohra dated 26 November 2010, para 27; Statement of M. Green [undated], paras 49-55

 6   Although date agreed as being 8 April 2010, the Discussion Record provided as Attachment H to the Statement of M. Green [undated] is dated 8 March 2010

 7   Statement of M. Green [undated], paras 23 & 24 & Attachment H (not Attachment J as stated) to that Statement: Discussion Record dated 8 March 2010

 8   Statement of I. Nohra dated 26 November 2010, para 41; Statement of M. Green [undated], para 27

 9   Statement of I. Nohra dated 26 November 2010, para 54; Statement of J. Roach [undated], para 24

 10   [2010] FWA 6857 PR501309, Roberts C dated 22 October 2010.

 11   Transcript PN2434 - 2442

 12   Transcript PN2468 - 2471

 13   Transcript PN2454 - 2464

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