Powell v Simple Computing Australia Pty Ltd
[1997] IRCA 41
•07 February 1997
DECISION NO:41/97
\
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - When termination of employment is a penalty out of proportion to the conduct complained of, such a termination is unlikely to be for a valid reason - OPPORTUNITY TO RESPOND TO ALLEGATIONS - Impossibly short time limit meant no real opportunity to respond - REINSTATEMENT IMPRACTICABLE - COMPENSATION.
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ASSOCIATED JURISDICTION - BREACH OF CONTRACT - Pay in lieu of notice.
Workplace Relations Act, 1996, ss: 170DB(2), 170 DE(1), 170DC, 430
Fargie -v- Freedom Foods (Aust) Limited, IRCA, Parkinson JR, 14 October 1996, unreported.
Kerr -v- Jaroma Pty Limited, IRCA, Marshall J, 7 October 1996, unreported Nicolson -v- Heaven & Earth Gallery Pty Limited (1994) IRCR 199
North -v- Television Corporation Limited (1976) 11 ALR 599
May -v- Lilyvale Hotel Pty Limited (1995) 68 IR 112
Perrin -v- Des Taylor Pty Limited (1995) 58 IR 254
Williams -v- Printers Trade Services (1984) 7 IR 82
.
POWELL -v- SIMPLE COMPUTING AUSTRALIA PTY LIMITED
NI 1977 of 1996
Before: PATCH JR
Place: SYDNEY
Date/s of hearing: 6 & 7 FEBRUARY 1997
Date of judgment: 7 FEBRUARY 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 1977 of 1996
BETWEEN:
NEIL CASEY POWELL
Applicant
AND
SIMPLE COMPUTING AUSTRALIA PTY LIMITED
Respondent
MINUTES OF ORDERS
7 February 1997 PATCH JR
THE COURT ORDERS THAT:
As compensation for the unlawful termination of his employment the respondent is to pay the applicant within 21 days of today the sum of $6500 (gross).
As damages for breach of contract for unpaid pay in lieu of notice the respondent is to pay to the applicant the sum of $3317.74 (gross) within 21 days of today.
Any sum paid by the respondent to the Commissioner of Taxation within 21 days of today in respect of the amounts in Orders 1 and 2 is to be regarded as having been paid in pro tanto satisfaction of the judgment debt.
If the applicant wishes to pursue his claim for interest, written submissions are to be filed and served by the applicant within 7 days of today, or that claim will be dismissed without further hearing.
Any written submissions which the respondent wishes to submit in respect of the applicant's claim for interest shall be filed and served within 14 days of today.
No order for costs.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 1977 of 1996
BETWEEN:
NEIL CASEY POWELL
Applicant
AND
SIMPLE COMPUTING AUSTRALIA PTY LIMITED
Respondent
REASONS FOR DECISION
Delivered ex tempore - revised from the transcript
7 February 1997 PATCH JR
The applicant claims that the termination of his employment was unlawful and seeks compensation under the Workplace Relations Act, 1996 (“the Act”). The applicant also puts forward various claims, based on breach of contract, in the associated jurisdiction of the Court under section 430 of the Workplace Relations Act, 1996 (“the Act”). The respondent claims by way of set-off an advance on expenses in the sum of $1000 and the value of five computer modems in the sum of $2284.38.
BACKGROUND FACTS
The respondent is a company which produces computer modems. The applicant was a sales representative for the respondent and was employed from 1 March 1995 until 4 July 1996. He spent most of his time, "on the road" visiting customers, making sales. He spent approximately 1 day a month in the office of the company in Sydney. On 1 July 1996 the respondent company was taken over by another computer company, Banksia Technology Pty Limited, but it maintained its separate identity.
From that date Mr Anthony Miller became the Sales and Marketing Manager. He was the most senior company officer actually on site at the company's office. Also from 1 July 1996 Ms Sue Van Wynen became the Operations Manager of the respondent company. This was also as the result of the takeover by Banksia.
In March or April 1996 the applicant took 25 modems from the company's headquarters to Tamworth to support a customer (Harvey Norman Tamworth) at a technology and agricultural show.
I am satisfied on the evidence that 12 of those modems were purchased by Harvey Norman and eight were returned. There was a discrepancy of five. That is to say, five of those modems have never been accounted for. I am satisfied that the number of modems that the applicant took was 25 because of the fact that the serial numbers for 25 modems were written on the invoice (Exhibit 9) in the hand of the employee who picked them off the shelves in the storeroom.
The applicant received two memo's, one dated 20 May 1996 and another dated 20 June 1996, asking him to inform his employer where the five missing modems were. He also received several verbal requests in the period of 2 or 3 months prior to the termination of his employment on 4 July 1996. The applicant, I am satisfied, did not respond in any meaningful way to those written and verbal requests for information.
DID THE APPLICANT RESIGN OR ABANDON HIS EMPLOYMENT, OR WAS HIS EMPLOYMENT TERMINATED AT THE INITIATIVE OF THE RESPONDENT EMPLOYER?
On 4 July 1996 the applicant was summonsed to a meeting. Present at the meeting were Mr Miller and Ms Van Wynen, the new management team. Also present was Mrs Liz Rodrick, the former co-owner of the business who had been responsible for the company's book-keeping.
Mr Miller demanded an explanation for the five missing modems. The persons present took the applicant through Exhibits 9, 10 and 11, the documentation which established the fact that the modems were missing. The applicant, I am satisfied, became increasingly annoyed. I am satisfied that he did swear at that meeting, he did say the word, "fucking" in the context of saying that he didn't know where the modems were and he thought they were at Harvey Norman, Tamworth, or back with the respondent.
Towards the end of the meeting, Mr Miller said to the applicant words to this effect, "You have to give me a reasonable explanation as to where they are by 5 pm today or I'll consider calling the police or dismissing you".
This, in effect, was actually (without directly saying so) an allegation that the applicant had stolen the five missing modems. The applicant, as would most people in his position, took it as such. I am satisfied that Mr Miller did not, at that time, actually believe, and still does not actually believe, that, the applicant had stolen those five missing modems. He was, of course, entitled to an explanation as to why they were missing, and he was entitled to be suspicious, but that falls considerably short of being satisfied that the applicant had stolen the modems.
Mr Miller made the reference to the police and gave the 5 o'clock deadline in an effort to secure a prompt response from the applicant as to the whereabouts of the modems or the applicant's knowledge of what might have happened to them.
In any event, after Mr Miller had given the applicant the 5 pm deadline and had made the reference to the possibility that the police would be called or the applicant might be dismissed, the applicant became very angry. He either left the office of his own volition or was told to leave by Mr Miller. In any event, the applicant did leave the office in an angry frame of mind.
I accept the applicant's evidence, (it being consistent with the evidence of the witnesses for the respondent), that shortly after he left Mr Miller's office he tried to phone the responsible person at Harvey Norman Tamworth, a Mr David Ragg. I accept the applicant's evidence that he was unable to contact Mr Ragg and was informed by whoever he spoke to that Mr Ragg was sick. I accept that the applicant told those present with him in the general office outside Mr Miller's room immediately after that phone call that the applicant could not contact whoever it was he was trying to telephone at Harvey Norman.
Whether or not the applicant actually mentioned the name David Ragg was a matter in contention, but to my mind it does not really matter. The applicant certainly said to those present that he had tried to contact the person (whoever it was) at Harvey Norman and had been unable to do so.
I am satisfied that the applicant, still angry at the accusation that he had stolen the modems, swore in the office, again using the word, "fucking". I am satisfied that the applicant said something to the general effect of, "They're fucking accusing me of stealing the modems".
I am satisfied that the applicant complained about the treatment he perceived himself to have received from Mr Miller in the office and on more than one occasion used the word, "fucking" in the general office. The applicant admitted that on at least one occasion he used that word in the general office.
I am satisfied that Mr Miller, in response to the applicant's language and behaviour in the office, said to the applicant something to the effect that he, the applicant, could not continue to behave like that and to leave the office. The applicant, I am satisfied, did so after Mr Miller had said that to him.
The applicant also gave evidence that, after he told Mr Miller that he could not contact David Ragg, Mr Miller had said something like: "I am afraid you are out" - in effect terminating the applicant's employment.
I do not accept that Mr Miller said anything to that effect. I accept the evidence of the respondent's witnesses that the applicant was not told anything which, on objective analysis, could be taken to be a dismissal during that scene in the office.
However, I do accept that the applicant believed that his employment had been terminated during that scene in the office. The applicant was very angry at what he perceived to have been an accusation that he had stolen the modems. He was behaving in a rude and intemperate manner. Persons in that state of mind frequently put a twist on what is being said to them.
I am satisfied that the applicant misconstrued something that Mr Miller said, probably the instruction that he could not continue to behave like that and to leave the office, and thought that his employment had been summarily terminated. This explains why the applicant returned a short time later and demanded his pay. Or, as the witnesses said, demanded, "my money". That was not a resignation by the applicant. He said that in the mistaken belief that his employment had been terminated.
The applicant having been told that no cheques could be written at the premises, because all the cheque books had been moved over to the premises of Banksia, shortly thereafter left the premises. He never returned. In particular he did not return to work on the morning of 5 July 1996.
That was not an abandonment of his employment. He did not return to work on the morning of 5 July 1996 in the mistaken belief that his employment had been terminated by Mr Miller.
Sometime in the late morning of 5 July 1996, Mr Miller and Ms Van Wynen decided to terminate the applicant's employment. I will deal with the reasons for that decision later in this judgment. As a result of that decision Mr Miller and Ms Van Wynen signed a letter, exhibit 12. That letter was dated 5 July 1996, was addressed to the applicant and had the heading, "Re termination of employment". The text of the letter signed by both Mr Miller and Ms Van Wynen was as follows:
This is to confirm that as of July 4, 1996 you have been dismissed from the employment of Simple Computing Australia Pty Limited, due to misconduct.
In my opinion the termination of the applicant's employment was effected by the communication of that letter to him. It was therefore a termination of employment at the initiative of the employer.
WAS THE APPLICANT GUILTY OF "SERIOUS MISCONDUCT", SUCH THAT THE SUMMARY TERMINATION OF HIS EMPLOYMENT WAS JUSTIFIED?
The only reference to serious misconduct in the Act is to be found in section 170DB(2). That section defines serious misconduct to be:
Misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period.
At common law a summary termination of employment was considered to be, "a drastic step". See Williams v Printers Trade Services (1984) 7 IR 82 at page 85, per Toohey J. In considering the term "misconduct" in the context of a summary dismissal, Smithers and Evatt JJ in the oft cited case of North v Television Corporation Limited 1976 11 ALR 599 said, at pages 608 and 609, that it was:
Conduct so seriously in breach of the contract that by standards of fairness and justice the employer could not be bound to continue the employment.
In my view the failure to meet the rigid 5 pm deadline set by Mr Miller was not "serious misconduct". This was the first time that the applicant had been told that his job was jeopardy as a result of the fact that five modems were missing. Despite the fact that the applicant had not explained earlier when he had been asked, there was no compelling reason for such a deadline. It was only imposed to pressure the applicant into giving a rapid response. Further more, it was no fault of the applicant’s that he could not contact Mr Ragg.
Nor, in my opinion, was the applicant's behaviour in the office "serious misconduct". It is true that the applicant's behaviour was an intemperate, rude and bad tempered display. No doubt those present were offended.
But it has to be put in context. He was a young man aged on 23 at the time. That display of improper behaviour was in response to what he perceived to have been a serious and unfounded allegation of dishonesty. The applicant had no history of behaving in that way in the office.
WAS THERE A VALID REASON FOR THE TERMINATION OF THE APPLICANT'S EMPLOYMENT?
In Kerr v Jaroma Pty Limited, Industrial Relations Court of Australia, Marshall J, 7 October 1996, unreported, his Honour, after referring to the High Court Decision of Victoria and the Commonwealth, 1996 66 IR 392, said that:
A decision to terminate employment taken for operational reasons...
(I interpose here that the termination of employment in the present case was for conduct, not for operational reasons)
...from the subjective point of view of the employer would not necessarily result in a termination for a valid reason.
His Honour said that:
There must still be a reason for such a termination which on independent objective analysis is capable of being proved by the employer to be valid.
In Fargie v Freedom Foods (Aust) Pty Limited, Industrial Relations Court of Australia, unreported, 14 October 1996, Judicial Registrar Parkinson said:
For a reason to be relied upon for terminating a person's employment there must be a proportion between the matter relied and the penalty of termination proposed. When termination of employment is a penalty so out of proportion in response to the conduct complained of, such a termination is unlikely to be for a valid reason.
I adopt, with respect, what Judicial Registrar Parkinson said in that case. The respondent was entitled to an explanation from the applicant as to what had happened to those missing modems. (In saying this I do not accept that the rigid 5pm deadline was justifiable) The respondent was entitled to discipline the applicant for his rude and intemperate and unacceptable behaviour in the office on 4 July 1996. But, in my opinion, the termination of the applicant's employment for either of those reasons, or for those reasons taken together, was out of proportion to the seriousness of the conduct complained of.
If, after having been given a reasonable period in which to respond by Mr Miller (and that period could have been a relatively short period), the applicant wilfully refused to give what explanation he could as to the whereabouts of the five missing modems, then that wilful refusal could have amounted to a valid reason for the termination of his employment. But that scenario is not what happened in this case.
There was no valid reason for the termination of the applicant's employment. The termination of his employment was therefore in breach of section 170DE(1) of the Act and unlawful.
WAS THE APPLICANT’S EMPLOYMENT TERMINATED IN BREACH OF S.170DC OF THE ACT?
Section 170DC of the Act reads as follows:
EMPLOYEE TO HAVE OPPORTUNITY TO RESPOND TO ALLEGATIONS.
An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
(a) the employee has been give the opportunity to defend himself or herself against the allegations made or;
(b) the employer could not reasonably be expected to give the employee that opportunity.
In Perrin v Des Taylor Pty Limited (1995) 58 IR 254, at 256, his Honour, Moore J, discussed section 170DC of the Act. He said:
The purpose (of section 170DC) is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee's capacity.....
A second purpose of section 170DC is that an employee with whom an allegation has been raised may be able to persuade the employer, that while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. There may be extenuating personal circumstances or they may involve undertakings about future conduct.
His Honour, Wilcox CJ, considered section 170DC in Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199. At page 209 his Honour said this:
The paragraph does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170DC carries into Australian labour law a fundamental component of the concept know to lawyers as "natural justice", or, more recently, "procedural fairness". The relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well established in public administrative law. It was accepted into international labour law when Art 7 was inserted in the Termination of Employment Convention. Section 170DC is directly modelled on Art 7. The principle is, I believe, well understood in the community. It represents part of what Australians call "a fair go". In the context of section 170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself "against the allegations made”; that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk. Section 170DC(a) is not satisfied by a mere exhortation to improve.
Slightly further in his judgment, at page 210, in a reference to section 170DC(b) of the Act, his Honour suggested that in circumstances of urgency it may not be reasonable to expect an employer to give the dismissed employee an opportunity to defend himself or herself. Here, the short time limit imposed by Mr Miller made it impossible for the applicant to respond to the allegations in respect of which his employment was in jeopardy.
Furthermore, the applicant was never given the opportunity, in respect of the allegation concerning his misconduct in the office, to respond, as that word is used in section 170DC of the Act.
There were no reasons of urgency, or otherwise, as to why, in the terms of s.170DC(b),
...the employer could not reasonably be expected to give the employee that opportunity...
to respond.
It follows that the termination of the applicant's employment was in breach of section 170DC of the Act, and unlawful for that reason as well.
THE CLAIMS IN THE ASSOCIATED JURISDICTION OF THE COURT
The applicant has, by way of Statement of Claim, made a number of claims in the associated jurisdiction of the Court. (Section 430 of the Act). I will go through the claims in that Statement of Claim in the order in which they appear in the document.
Payment in lieu of notice
The applicant claimed that it was an express term of his contract that his employment would not be terminated without 30 days written notice in advance or pay in lieu thereof. The respondent concedes that that was the case, adding the rider that it was entitled to terminate the applicant's employment summarily for serious misconduct. I accept the respondent's submissions as to the implied right of the respondent to summarily terminate the applicant's employment for serious misconduct.
However, as I have already found, in the circumstances of this case the respondent was not entitled to terminate the applicant's employment summarily. It follows that the applicant was entitled to 30 days written notice in advance of the termination of his employment, or pay in lieu thereof.
The applicant is entitled to 30 days pay based on his remuneration package, not simply the wages he was earning. His remuneration package is to be calculated by reference to Exhibit 2, which was a document signed by the applicant and Mr John Warwick, the former Managing Director of the company, on 22 March 1996.
Item 1 in Exhibit 2, base salary, $2000 per month, a total of $24,000 per annum.
Item 2, motor vehicle allowance, $500 per month, a total of $6,000 per annum.
Item 3, lease instalments of $665.57 per month, a total of $7,986.84 per annum.
Item 4, comprehensive vehicle insurance.
I calculate that to be, in the absence of any evidence, but taking judicial notice of what is commonly known to be insurance rates within the community, $750 per annum. That, in my opinion, is a conservative under- estimate.
Item 5, registration and third party comprehensive insurance.
Again, there was no evidence in respect to the quantum of that matter, but once again, taking judicial notice of what is commonly known in the community to be the rates for registration and third party comprehensive insurance, and making what I consider to be a conservative under-estimate, I allow $300 per annum in respect of that item in the agreement.
Item 6, an additional allowance of $110 per month, a total of $1320 per annum for item 7.
I find that the lease instalments of $665.57 per month were part of the applicant's remuneration package for the following reasons:
The applicant owned the car.
Those payments, although made by the respondent to the finance company (General Motors Acceptance) gave the respondent no interest in the motor vehicle. They were in effect a benefit provided to the applicant, and enabled him to obtain an asset himself - the car.
They were a direct benefit to the applicant, despite the fact that the applicant used the car for company business.
In my opinion those payments were a fringe benefit and were part of the applicant's remuneration package.
I include the sum of $110 per month, as referred to in item 7 of Exhibit 2, as part of the applicant's remuneration package for these reasons:
That sum of $110 per month was, in effect, a salary increase negotiated by the applicant when it became apparent to him and his employers that he could not afford to make all the repayments on the car that he had purchased in late 1995 or early 1996. That sum of $110 per month was the repayments that the applicant had to make on the $5000 personal loan that he had taken out in order to pay the deposit for the car.
Once again, it was a direct benefit to the applicant. Furthermore, Exhibit 2 stated that that payment to the applicant was to be, "Taxed as part of salary". It was part of the applicant's remuneration package.
The total of the applicant's remuneration package is $40,356.84 per annum. At that rate, for 30 days, the applicant is entitled to $3,317.74 damages for pay in lieu of notice which was not paid to him.
Unpaid wages
The applicant claims $602.31 (gross) being 1 week's pay due and owing said to be unpaid for his final week of employment prior to the termination of his employment. The respondent conceded that sum. Except for the respondent’s set-off claim, I would make an order in the terms claimed in the Statement of Claim.
Unpaid holiday pay
The applicant claimed the sum of $602.35 for unpaid holiday pay. However, the respondent asserted by way of defence that the applicant had taken 8 days holidays over the Christmas/New Year period at the end of 1995, which 8 days the applicant had not taken into account in the calculation of his unpaid holiday pay. The applicant in his evidence said that he was not sure whether or not he had taken those 8 days.
The respondent's evidence was clear and unequivocal: the applicant had asked for permission for those 8 days in advance, permission had been given, and they had therefore in all probability been taken. I accept that on the balance of probabilities the applicant did take those 8 days. He is therefore not entitled to any order for damages for unpaid holiday pay.
Money due and owing under the contract - unspent expenses bonuses
The applicant claimed that it was an express term of the contract that, if he spent less than his expenses budget of $7500 per 6-monthly period, 75 per cent of the remaining unspent money would be presented to the applicant in the form of a bonus. The respondent denied that the applicant was entitled to that benefit.
It is unnecessary for the Court to determine that issue because, in any event, there was no evidence from the applicant or from any other witness as to the amount of expenses that the applicant had claimed, apart from the first 6-monthly period. It was conceded by the applicant in his evidence that he had been paid that particular bonus for that first 6-month period. It follows that no order will be made in respect of that claim.
Money due and owing under the contract - motor vehicle expenses
The two items claimed under this heading in the statement of claim are for lease instalments of $665.57 per month and in respect of item 7 in exhibit 2 the allowance of $110 per month. Each of these items were, as I have said, part of the remuneration package. At the expiry of the 30-day notice period, the applicant no longer then being entitled to his remuneration (except by way of a statutory remedy), he could not claim under his contract of employment for money due and owing for part of his remuneration package.
This particular claim is covered by the order for 30 days pay in lieu of notice and to make a further order would be to enable the applicant to "double dip."
Unpaid sales incentive bonus, March/April 1996
The applicant claimed that, in or about March 1996, he and another salesman, Mr John Lantini, were offered a sales incentive of $1 per computer modem sold for the period of 1 April 1996 to 30 April 1996.
The applicant claimed that he and Mr Lantini participated in that sales incentive bonus scheme during that period. The applicant's evidence as to that matter was not particularly detailed. He did, however, assert that he and Mr Lantini were, in total, entitled to $800 bonus in respect of that scheme. It follows from that, that if the applicant is to be accepted, his entitlement was $400 as claimed in the Statement of Claim.
Mrs Rodrick, on the other hand, gave evidence that, in her capacity as the bookkeeper-accountant for the company, no such payment had been made (which does not conflict with the applicant's evidence in any event) and that, furthermore, it is probable that if such a scheme had been implemented she would have been informed about it so that she can make the payments.
On balance I accept the applicant's version of the events. Mrs Rodrick was not really, in my opinion, in a position to know one way or the other whether someone else in authority in the company had come to such an arrangement with the applicant and Mr Lantini. I would, therefore, but for the respondent’s set-off claim, make an order for $400.
REMEDY FOR THE BREACHES OF THE ACT
Reinstatement
The applicant does not claim reinstatement, and he has found another job. In those circumstances to order his reinstatement would be inappropriate and impracticable.
Compensation
The applicant's remuneration at the time of the termination of his employment was $40,356.84 per annum. The applicant is entitled to compensation at the very least for the period from the end of the 30-day notice period until he commenced employment with his new employer, Harvey Norman, Balgowlah, on 2 September 1996. That is to say, for the period from midnight on 2 August 1996 until midnight at the end of 1 September 1996, a period of 29 days.
In my view, it is not reasonable or appropriate to take into account the car lease payments after the first month, as the applicant, acting reasonably, should have surrendered the motor vehicle to the finance company by then in order to mitigate his loss.
If the applicant had done that then he would have been entitled to a refund for the Comprehensive Motor Vehicle Insurance, that is to say, item 5 in exhibit 2.
I therefore do not take into account in the calculation of compensation under the Act those two items. Deducting those items from the applicant's remuneration package results in a remuneration package of $31,620 per annum. $31,620 divided by 365 to give the daily rate, times 29 to give the figure for the relevant period, results in an amount of $2,512.27.
The applicant is also entitled to compensation for his ongoing economic loss. In the first 22 weeks of his employment at his new employer the applicant earned, including bonuses, a total of $12,248. That comes to $556.75 per week, or $2,412.57 per month, or approximately $28,950 per annum.
The applicant is a young man, his income can only improve. Nonetheless it is clear that he is suffering a significant loss of income and that that will continue for some time. He is entitled to compensation for this - see the decision of Wilcox CJ in May -v- Lilyvale Hotel Pty Limited (1995) 68 IR 112. This significant loss of income is likely to continue, but gradually diminish in stages over the next 2 years or so. It is impossible of course to be precise about such a nebulous matter, but I assess $4000 as a fair sum to compensate the applicant for his ongoing economic loss from 2 September 1996.
Rounding off the total of $2,512.27 and $4,000 results in an order for compensation in the total sum of $6,500.
The respondent's set-off
The respondent claims $1000 by way of set-off, claiming that the applicant was advanced $1000 on expenses. That advance is clearly proven by, amongst other things, exhibit 2. The applicant could not say whether or not he had repaid that $1000. The respondent's witnesses, in particular Mrs Rodrick, gave clear evidence that they had searched for a record of a repayment and no such record existed. I therefore conclude that the applicant has not repaid that $1000, and allow that claim by way of set-off.
The respondent also claimed the value of the five missing computer modems, in the sum of $2284.38. That claim was based on the invoice, exhibit 9, given to the applicant when he took the modems, which was marked "sale or return". In my opinion, those items were given to the applicant in his capacity as an employee of the respondent. They never became his property.
It may well be that, if the respondent had sued by way of set-off for negligence, the applicant might have been liable to the respondent for his negligent handling of the modems, but no such claim was made.
The claim by way of set-off made by the respondent for $2284.38 for the five missing modems is therefore rejected.
As the amount to be allowed by way of set-off is virtually identical to the total of the amounts I would order in respect of the applicant’s claim for unpaid wages ($602.31) and unpaid sales incentive bonus ($400), and as I have rounded off the sum to be paid for compensation, I allow the set-off by not making orders in respect of those 2 matters.
ORDERS
The orders that the Court makes therefore are as follows:
As compensation for the unlawful termination of his employment the respondent is to pay the applicant within 21 days of today the sum of $6500 (gross).
As damages for breach of contract for unpaid pay in lieu of notice the respondent is to pay to the applicant the sum of $3317.74 (gross) within 21 days of today.
Any sum paid by the respondent to the Commissioner of Taxation within 21 days of today in respect of the amounts in Orders 1 and 2 is to be regarded as having been paid in pro tanto satisfaction of the judgment debt.
If the applicant wishes to pursue his claim for interest, written submissions are to be filed and served by the applicant within 7 days of today, or that claim will be dismissed without further hearing.
Any written submissions which the respondent wishes to submit in respect of the applicant's claim for interest shall be filed and served within 14 days of today.
No order for costs.
I certify that this and the preceding 18 pages
are a true copy of the reasons for decision of
Judicial Registrar Patch as recorded in the transcript
and revised by the Judicial Registrar.
Associate: Debra Scott
Dated: 28 February 1997
APPEARANCES
Counsel appearing for the applicant: Mr C R Burge Solicitors for the applicant: Peter O'Neill & Associates Counsel appearing for the respondent: Mr R F Crow Solicitors for the respondent: Holman & Webb Dates of hearing: 6 & 7 February 1997
0
5
0