Paul L Quinlivan v Norske Skog Paper Mills (Australia) Ltd

[2010] FWA 883

[2010] FWA 883

FAIR WORK AUSTRALIA

DECISION

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

Paul L Quinlivan
v
Norske Skog Paper Mills (Australia) Ltd
(U2009/12027)

VICE PRESIDENT LAWLER MELBOURNE, 8 FEBRUARY 2010

Unfair dismissal – decision on the facts – whether the making of an order to restore lost pay under s.391(3) and the matters specified in s.391(4) require evidence of earnings for the period between the reserving of a decision and the making of an order for reinstatement.

[1] This is an application under s.394 of the Fair Work Act (FW Act) for an unfair dismissal remedy by Mr Paul Quinlivan who was dismissed by the respondent, Norske Skog Paper Mills (Australia) Limited, on 7 September 2009. The applicant was dismissed for two species of misconduct alleged to have occurred on 2 September 2009:

(i) Breach of safety policies and practices in the form of a repeated failure to wear personal protective equipment (PPE) in the form of safety glasses despite prominent signage requiring safety glasses to be worn and despite being repeatedly reminded and required to wear safety glasses during the course of work on 2 September 2009.

(ii) Refusal to obey a lawful direction given by Mr David Bruce, a team leader, that the applicant not modify a tool and use it in the manner proposed by the applicant.

Background

[2] The applicant has been employed at what is now the Norske Skog paper mill in Albury since 1990 in a variety of roles. The mill is a very large operation. Since 2003 the applicant has worked in the Recycled Fibre (RCF) plant warehouse as an operator, mainly operating a forklift or loader within the warehouse.

[3] The RCF plant is regularly shut down to enable programmed and other maintenance to be carried out. On these occasions it is common for operators and other employees who do not normally work within the RCF plant itself to be rostered to perform tasks associated with the maintenance to be performed during the shutdown. Such a “shut” occurred on 2 September 2009. On that day the applicant and another employee, Mr Hislop, were tasked to clean the Pre-Screen Feed Tank. This is a tank in which staples accumulate as a large mass at the bottom of the tank. During a “shut” the tank is drained and the staples are manually removed through a hatch in the side of the tank. The tank usually contains hot water and is drained before cleaning commences. I accept that the inside of the tank is nevertheless a warm and damp environment. The task of removing the staples is heavy work: millions of stapes collect at the bottom of the tank and stick together to form a large heavy mass. Significant effort is require to detach lumps of staples and haul them from the tank.

Findings in relation to misconduct

[4] During a “shut”, including the “shut” on 2 September 2009, there is prominent signage at all entrances to the RCF plant and in other places reminding employees that safety glasses must be worn.

[5] The applicant accepted that he removed his safety glasses on a number of occasions while he and Mr Hislop were working on the task of removing the staples, including after being challenged by supervisors about not wearing safety glasses and being told to put them on, although there is a dispute about the number of occasions that this occurred and the surrounding conversation.

[6] On the respondent’s version, at about 7.30 am Mr Bruce noticed that the applicant was not wearing safety glasses. He told the applicant to put the glasses on and reminded him of the signage near the front of the plant that stated that safety glasses were to be worn at all times during a shut down in the RCF plant. The applicant was discourteous in his response and told Mr Bruce words to the effect “There are bigger issues to worry about. Go and fucking look at them.” At about 9.00 am at the Pre-Screen Feed Tank Mr Bruce again challenged the applicant and Mr Hislop about not wearing safety glasses. 1 Mr Bruce contacted Mr Andrew Read who said he would bring some safety glasses over for the applicant and Mr Hislop (who wears eye glasses). After his conversation with Mr Read, Mr Bruce noticed that the applicant was wearing his safety glasses on the end of his nose (which defeats the eye protection purposes of wearing the glasses). At about 10.00am Mr Read walked over to where Mr Hislop and the applicant were working and noticed that neither of them was wearing safety glasses. Mr Read told the applicant that where they were working was a safety glasses and hard hat area. The applicant said words to the effect: “The glasses are uncomfortable and they keep fogging up.” Mr Read then pointed out the safety risks of not wearing glasses and said “what would it be like if you injured your eyes and you were unable to see your daughters again.” The applicant then put on a pair of safety sunglasses (which were not appropriate for the work he was doing). Mr Read then said words to the effect “You need to put the transparent safety glasses on” to which the applicant replied with words to the effect “Yeah right, okay”. At about 10.45am Mr Bruce again noticed that neither Mr Hislop nor the applicant were wearing safety glasses. He informed Mr Read. Mr Read approached the applicant and offered him some more safety glasses. The applicant responded by saying he did not need them because he already had a pair then said words to the effect: “We shouldn't have to wear PPE and Dave [Bruce] should fuck off.” At about 11.00 am, Mr Bruce again noticed that the applicant was not wearing his safety glasses. When Mr Bruce asked him to put them on the applicant said words to the effect: “I can't fucking see through them.” The applicant then retrieved his safety glasses from where they had been hanging on some pipe work and put them back on.

[7] The applicant claims that he was spoken to about not wearing glasses on three occasions: twice by Mr Bruce and once by Mr Read. He gave evidence, supported by Mr Hislop, that he was having problems with visibility because the light in the tank had gone out and with the safety glasses fogging up because of the warm, damp environment and perspiration (the task requiring significant physical effort). These problems were exacerbated by a recent deterioration, albeit relatively minor, in his eyesight (a matter supported by a note from his optometrist).

[8] The applicant agrees that he used abusive language towards and in relation to Mr Bruce, which he acknowledged was inappropriate, but says that this was in the context of having already injured his back as a result of the difficulty in performing the work. I accept that evidence and I also accept that, at the workface, the mill is a work environment where a certain amount of swearing is tolerated albeit that the applicant’s abusive language certainly transgressed what would have been regarded as acceptable.

[9] I prefer the respondent’s evidence in relation to the occasions that the applicant was told to wear safety glasses. I note that Mr Bruce’s evidence is corroborated in material respects by Mr Read who was an impressive witness and who confirmed that he spoke to the applicant twice about not wearing his safety glasses.

[10] I turn now to the alleged failure to follow a lawful direction given by Mr Bruce.

[11] The applicant and Mr Hislop were having trouble removing the mass of staples from the tank. They were using a tool in the form of a long pole with a hook at the end. The applicant determined that the task could be performed more effectively if a D-shackle was welded to be pole: the mass of staples could then be dragged out with mechanical force supplied by a forklift dragging the tool via a sling attached through the welded shackle. They went to the mechanical workshop to implement this modification to the tool. The applicant was proposing to weld the shackle himself, however, in the end the shackle was welded by Mr Goldsworthy, a mechanical fitter. The modified tool was then used to continue the task of removing the staples. Mr Goldsworthy gave convincing evidence that the welding occurred at 6.45am: he was in the crib room reading a newspaper at the time the applicant spoke to him about the welding and he had a specific recollection of looking up from the paper and seeing the clock on the crib room wall showing 6.45 am.

[12] There was an issue between the parties in relation to be extent to which the respondent tolerated or acquiesced in employees modifying tools at their own initiative. I am satisfied on the evidence that, to the knowledge of the applicant, such modifications have been made in the past without attracting the adverse attention of management and that, although the process was not explicitly condoned by management, there was no clear prohibition on that practice that was brought home to he applicant.

[13] On 2 September 2009 Mr Bruce was acting in the role of engineering and technical support during the "shut" of the RCF plant. Mr Bruce claims that he had a conversation with the applicant at approximately 6.40am in the following terms:

Paul: "We are having trouble removing the staples from the tank. Can you have shackles welded to the pipe so that we can help this link to it to use a forklift to drag the staples out of the tank?"

Myself: "Don't do that because it is not safe."

[14] If this conversation occurred then the modification and use of the modified tool was contrary to Mr Bruce's explicit direction. The respondent's investigation accepted Mr Bruce's account and, consequently, found that the applicant engaged in misconduct in the form of a refusal to obey a lawful direction.

[15] It is well established that where an employer relies upon misconduct and such conduct is denied by the employee the tribunal must be satisfied on the balance of probabilities on the evidence before it that the misconduct occurred.

[16] I do not place any weight on the applicant's contention that the conversation could not have occurred because Mr Bruce did not commence work until after the welding had been undertaken by Mr Goldsworthy. None of the applicant’s witnesses saw Mr Bruce arrive at site on that day and it is entirely possible that Mr Bruce arrived early as he claimed.

[17] The applicant and Mr Hislop, who were in each other’s presence at all material times, gave evidence denying that conversation of the sort alleged by Mr Bruce. Indeed, on their evidence they did not see Mr Bruce until well after the shackle had been welded to the tool.

[18] In this context, Mr Hislop stated that the first time Mr Bruce spoke to them was in relation to the applicant not wearing safety glasses. In paragraph 61 of his statement, Mr Hislop stated in relation to this first conversation with Mr Bruce that “it was well after 7am at the time, and this was the first time we had seen Dave that day."

[19] Mr Bruce disputed that the correctness of this evidence saying "I spoke to them both before 7.00am and RCF trades (Lincoln Weidner, Darryn McKimmie and Greg Corrigan) support this.” In his oral evidence Mr Bruce confirmed that those three employees were present at the time of the disputed conversation. None of those three employees were called to give evidence. Mr Bruce suggested, as an explanation for their absence, that the level of noise in the mechanical workshop was such that these witnesses would have been unable to hear the conversation. I make two observations in relation to this:

(a) Mr Bruce indicated dimensions during the hearing that suggested that the workshop was not a particularly large room and it is by no means clear that all three of the employees would not have been able to hear the conversation if such a conversation occurred.

(b) More significantly, the applicant’s case was that there was no conversation at all between the applicant and Mr Bruce prior to the shackle being welded to the tool. The evidence of the three employees, if they were witnesses to the fact of there being a conversation, even if they could not hear what was said, was clearly relevant to a resolution of this central factual contest – the very point made by Mr Bruce in his statement. In the circumstances, the failure to call any of those employees gives rise to a Jones v Dunkel inference that the evidence of the three employees could not have assisted the respondent’s case. In the present context, this means that an inference should be drawn that the evidence of the three employees would not have assisted the respondent in establishing that the applicant and Mr Bruce were together and apparently conversing in the mechanical workshop at a time before the shackle was welded to the tool.

[20] I should also note that during the course of the evidence of the applicant and Mr Bruce I gained the impression that there was some level of animosity between the two men. Moreover, I had a sense of discomfort about some aspects of the evidence of Mr Bruce. On the other hand, I was impressed with the evidence of Mr Hislop on this issue. In all the circumstances I prefer the evidence of the applicant and, more particularly, Mr Hislop - fortified by the Jones v Dunkel inference to which I have referred - to the evidence of Mr Bruce on this issue.

[21] On the evidence before me I find on the on the balance of probabilities that no conversation of the sort alleged by Mr Bruce occurred and, accordingly, I find that the applicant did not engage in the misconduct alleged by the respondent in that regard.

Disciplinary history

[22] When an employer relies upon an employee’s disciplinary history in deciding whether a further instance of misconduct warrants dismissal, a consideration of whether there was a valid reason for the dismissal will typically, if not necessarily, require a consideration of the disciplinary history relied upon by the employer. I turn to consider the applicant’s disciplinary history.

[23] In 1995 the applicant received a written warning for breaching an isolation procedure. Details of that breach were not provided in the evidence.

[24] In June 2003 the applicant was subject to a written counselling in relation to an incident at the Thurgoona Training Academy. The applicant was due to attend a course at that facility. He arrived late on account of difficulty finding the address of the academy because of the absence of street signs. When his late arrival was remarked upon by one of the trainers he said words to the effect: “Some fucking signs would help”. This was a relatively minor incident.

[25] In October 2004 the applicant was resting his feet on the dashboard of his loader and stretched himself. The pressure of his feet on the windscreen caused the windscreen to crack. The applicant reported the damage and the accidental circumstances in which it was caused. The respondent produced written record of the counselling in relation to this incident. The applicant says that he did not receive a copy of the written record of counselling but acknowledged the incident.

[26] In February 2005 the applicant scraped the side of a fork lift that he was driving. He reported the damage and the circumstances in which it occurred. The respondent produced a written record of the counselling in relation to this incident. The applicant does not deny that the incident occurred but again says that he did not receive a copy of the written record of counselling. In evidence, Mr Burles agreed that this incident was an accident and not the applicant’s fault.

[27] In February 2006 a loader driven by the applicant collided with a support column in the RCF warehouse. The fixed radio in the loader was broken and the applicant had been provided with a hand-held radio. As he was reversing the loader it travelled over a clump of paper on the floor of the warehouse causing the hand-held radio to fall from the dashboard. The applicant instinctively reached out to catch the radio and, whilst the applicant was distracted in this fashion, the loader collided with the support column causing damage to both the loader and the column. The applicant reported the incident and the circumstances. The respondent issued a final written warning to the applicant in relation to this incident. The applicant says that he was verbally advised in a meeting attended by a union representative that a final written warning would be issued but that he never received it.

[28] In May 2007 a written counselling record was prepared in relation to the applicant failing to wear PPE, namely a high visibility vest. The applicant denies ever receiving the written counselling over this incident.

[29] In July 2008 a written counselling record was prepared in relation to the applicant obtaining a meal from the canteen without authority or payment. The applicant agrees that he was taken through this record or warning by Mr Burles. The applicant maintains, and I accept, that he believed that he was entitled to the meal (which had a modest value in the order of about $6) and that he said to the canteen attendant that he believed he was entitled to the meal and that if he was not so entitled he would pay for it.

Matters specified in s.387

[30] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account the matters specified in s.387.

S.387(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)

[31] There was no contest that the applicant’s repeated failure to wear safety glasses despite repeated instructions to wear them, even on the applicant’s version of events, constituted a valid reason for the dismissal, particularly in the context of the applicant’s disciplinary history. I have found that the other species of misconduct relied on by the respondent, namely failure to obey a lawful direction given by Mr Bruce in relation to the modification of a tool and use of that modified tool is not made out.

S.387(b) Whether the person was notified of that reason

[32] The applicant was notified of the reasons for his dismissal.

S.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[33] The applicant was given an opportunity to respond.

S.387(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

[34] The respondent allowed the applicant support persons to be present at all discussions relating to the dismissal.

S.387(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[35] The dismissal related to misconduct rather than unsatisfactory performance.

S.387(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 s.387(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

[36] The respondent is subsidiary of a large multinational corporation and its Albury operation is a very substantial enterprise. It has dedicated human resource management specialists. The procedures followed in effecting the dismissal were reasonable.

S.387(h) Any other matters that FWA considers relevant

[37] I have considered all of the evidence and circumstances relied upon by the parties. Matters of particular relevance include the following.

• The disciplinary history set out above.



• The applicant is 44 years of age. He is married with two daughters aged 9 and 11. He owns a house but has a mortgage of around $70,000. His wife earns about $6,000 per year from a small cleaning business. His wife also suffers from depression.



• The applicant left school at 16 years of age. He did not complete secondary school. He has no trade and has no post-school educational qualifications.



• Since the time of his dismissal, the applicant has made serious efforts to find work. He has been unsuccessful in finding another full time job and, despite his efforts, has only been able to find a very small amount of casual work.

• The applicant had almost 20 years of employment at the Albury mill.



• A statement of Mr Jason Ennis, the Assistant Line Manager of the RCF plant at the relevant time, was tendered by consent and without the witness being required for examination. Mr Ennis stated that “During a maintenance shut in 2008… I observed Paul [the applicant] not wearing safety glasses multiple times through the day. He was told to put them on all occasions and after the 4th time I saw that he was not wearing his glasses I said to Paul words to the following effect: ‘If you take your glasses off again, I will follow it up formally’. Paul did not answer. He put his glasses on.” Mr Ennis noted that he had never had to speak to any other employee so many times for not following procedures or wearing the required PPE.

[38] Other matters of relevance will be adverted to in my consideration of whether the dismissal was harsh, unjust or unreasonable.

Harsh, unjust or unreasonable?

[39] I approach a determination of whether the applicant’s dismissal was harsh, unjust or unreasonable on the basis of exposition of that expression in Byrne and Frew v Australian Airlines Pty Ltd² where McHugh and Gummow JJ observed:

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.

Of course, this is not an exhaustive statement of when a dismissal will be harsh, unjust or unreasonable.

[40] The applicant’s dismissal was neither unjust nor unreasonable. The issue is whether it was harsh.

[41] From the perspective of the personal and economic situation of the applicant, the dismissal was a disaster for the applicant. For a man of the applicant’s age and poor educational profile, it is unsurprising that he has not been able to find another job despite great efforts to do so. Realistically, the applicant faces the prospect of long term unemployment or underemployment. His family faces severe financial hardship. There is a real risk that he will lose his house. His marriage will suffer increased stresses. His wife’s depression could well be exacerbated. All these circumstances are likely to impact adversely on his young daughters.

[42] On the other hand, the misconduct constituted by the applicant’s repeated failure to wear safety glasses and his disdainful and abusive responses to Mr Bruce and Mr Read amounted to relatively serious misconduct. The respondent is a very large enterprise and on the evidence it takes occupational health and safety seriously. Its managers are required to give effect to safety policies and procedures. Quite apart from an employer’s legitimate interest in minimising its exposure to civil liability arising out of injury to any of its employees, the obligations imposed on employers by State occupational health and safety legislation are onerous. Employers are entitled to treat conduct that may expose them to prosecution or civil liability seriously. Employers are entitled to have employees take safety rules seriously. On most of the occasions that the applicant removed his safety glasses on 2 September 2009 he must have done so conscious that he was breaching the requirement to wear them and the specific instructions that he have received from both Mr Bruce and Mr Read. On one occasion he put on safety sunglasses which may be seen as reinforcing the disdainfulness with which he acted on that day.

[43] That said, given the applicant’s length of service and the serious adverse personal consequences of dismissal that typically obtain for an employee with the applicant’s age and educational profile, one would have thought that in circumstances such as those that obtained on 2 September 2009 it should have been brought home to an employee in the position of the applicant that a further breach could have serious consequences. In short, one would have thought that he should have been warned. In this case that is particularly so when the applicant had the experience of being repeatedly told to wear safety glasses by Mr Ennis on an earlier occasion without any disciplinary repercussions whatever.

[44] The applicant’s disciplinary history, notwithstanding that it relates mainly to incidents that were either accidents or relatively minor matters, is a factor against a finding that the termination was harsh.

[45] Weighting all these matters, in all the circumstances I have come to the view that, on balance, the termination was harsh.

[46] I have also come to the view that, while the applicant should be reinstated, the relative seriousness of his misconduct should be marked with a ‘sanction’ of significance by denying him most of his lost wages. In effect, he will have suffered a penalty of about three months pay – in the order of $18,000 – as a consequence of the misconduct.

[47] In reaching the conclusion that the termination was harsh, I do not intend any material criticism of the respondent: it was entirely proper for the respondent to treat seriously the misconduct constituted by repeated failure to wear safety glasses. Other employees of the respondent should not interpret this decision as in any way endorsing a disdainful or careless approach to safety or the respondent’s safety policies. If the applicant had substantially lesser service, had not been a middle aged man with very poor employment prospects for whom the dismissal has such serious personal and economic consequences or if it had been brought home to him at any time on 2 September 2009 that a further breach would have serious consequences, I would not have concluded that the dismissal was harsh.

Remedy

[48] There is no dispute that the applicant is a person who was protected from unfair dismissal within the meaning s.390(1) and Division 2 of Part 3-2 of the FW Act. On the basis of the findings I have made I am satisfied that the applicant was unfairly dismissed. In these circumstances s.390(1) confers a discretion on FWA to order a remedy by ordering the applicant’s reinstatement or ordering the payment of compensation to the applicant. However, under s.390(3) FWA must not order the payment of compensation unless FWA is satisfied that reinstatement is inappropriate.

[49] In all the circumstances I am not satisfied that reinstatement is inappropriate. In this context I note in particular that I gained the impression during the hearing that the applicant was genuinely contrite for his misconduct in relation to the wearing of safety glasses and the seriousness of that conduct had been brought home to him with all the force of novelty. I am satisfied that reinstatement is an appropriate remedy along with an order pursuant to s.391(2) maintaining the applicant’s continuity and his period of continuous service. For the reasons I have given I also consider it appropriate to make an order to restore lost pay under s.391(3) but only for period commencing on 7 December 2009.

[50] While the applicant will be reinstated, he should recognise that his misconduct was serious and appreciate how close he came to having the dismissal decision upheld. Moreover, the respondent should be entitled to deal with any further misconduct by the applicant as if he were on a final warning in relation to a failure to comply with an instruction from a supervisor in relation to observing safety policies.

[51] I propose to issue orders that:

• the applicant be reinstated to the position in which he was employed immediately before the dismissal;

• the applicant’s continuity of employment and period of continuous service with the respondent be maintained; and

• the respondent pay to the applicant a sum pursuant to s.391(3) representing a restoration of lost pay, assessed in accordance with the matters specified in s.391(4), for the period 7 December 2008 until the actual reinstatement of the applicant.

[52] Section 391(3) and (4) provide:

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.

(underline emphasis added)

[53] In the majority of unfair termination cases in the AIRC where an unfair termination hearing resulted in the ordering of a remedy, the AIRC reserved its decision for a period before issuing a decision and making orders. This will undoubtedly continue to be the case in relation to unfair dismissal hearings conducted by FWA. Where a decision on an unfair dismissal decision is reserved, FWA will typically have no evidence or information on an applicant’s actual earnings from other employment in the period during which the decision is reserved. There is an issue as to whether in such circumstances s.391(3) and (4) allow for an order restoring lost pay pursuant to s.391(3) without FWA first obtaining further evidence from the applicant while according procedural fairness to the respondent (that is, with the respondent being given an opportunity to test that evidence and, if necessary, call evidence of its own). In other words, when a decision has been reserved, can the requirement in s.391(4)(a) be satisfied in the absence of further evidence as to the applicant’s earnings from other employment since the time the decision was reserved? In my view, since s.391(3) is concerned with “remuneration lost, or likely to be lost”, FWA is entitled to take account of the matter specified in s.391(4)(a) on the basis of the state of the evidence at the conclusion of the hearing and the likely situation in the period following the decision being reserved. To conclude otherwise would necessitate the reception of further evidence on every occasion that FWA reserves its decision at the conclusion of an unfair dismissal hearing and finally decides to grant a remedy. It is unlikely that the legislature intended that outcome, particularly given the costs consequences necessarily flowing from what would effectively be a requirement to hold a further hearing in all such cases. Of course, as the period between the reserving of a decision and the giving of such decision increases, a point will be reached where it will not be sufficient for FWA to take account of the matter specified in s.391(4)(a) on the basis of the evidence as it stood at the conclusion of the hearing and a further round of evidence will be required.

[54] In the present case it is just under a month and half since this decision was reserved and I do not have direct evidence of the amount earned for that part of the period specified in s.390(4)(a) since the decision was reserved on 24 December 2009. Further, although there is evidence of the approximate amount ordinarily earned by the applicant, there is no evidence as to the precise amount ordinarily earned by the applicant.

[55] In the circumstances, on balance, although it would be open to me to do so, I do not propose to attempt a quantification of the amount of the order pursuant to s.391(4) without further resort to the parties. Rather, I will give the parties a short period in which to agree the date that reinstatement is to take effect and the amount of the foreshadowed order pursuant to s.391(3). In the event that the parties are unable to reach agreement on those matters by the close of business on 12 February 2009 the matter will be listed for a further hearing by telephone on Monday 15 February 2009 at 2.00pm for the purpose of establishing the precise level of the applicant’s usual earnings and the amount of any income earned from other employment since 24 December 2009 with a view to orders being issued on that day with reinstatement to take effect on Wednesday 17 February 2009.

VICE PRESIDENT

Appearances:

Mr J Kennedy for the applicant.

Mr G Jervis for the respondent.

Hearing details:

2009

Albury

December 17, 18

Sydney

December 24.

 1   It may be noted that I am not persuaded that the applicant lied to Mr Bruce about dropping his safety glasses in the tank.

² (1995) 185 CLR 140

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