Raymond Bosworth v JBS Australia Pty Limited - [2013] FWC 6455

[2013] FWC 6455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raymond Bosworth
v
JBS Australia Pty Limited
(U2013/8128)

COMMISSIONER DEEGAN

CANBERRA, 3 SEPTEMBER 2013

Application for unfair dismissal remedy - dismissal was unfair - compensation.

[1] This decision concerns an application pursuant to s.394 of the Fair Work Act 2009 (the Act) lodged on 3 April 2013 by Mr Raymond Bosworth (the applicant) seeking relief in respect of the termination of his employment by JBS Australia Pty Limited (the employer).

Background

[2] The applicant had been employed at an abattoir/meat processing plant at Longford in Tasmania since 1995. At the time of the termination of his employment he was 34 years of age and held the position of boning room foreman/supervisor.

[3] The applicant had commenced employment at the Longford plant as a floor boy when he was 16 years old and had held no other employment.

[4] The applicant was promoted to the position of boning room foreman on 12 October 2009. When first appointed he was given one week of training by the acting foreperson who then moved to another position in the plant. Initially the applicant was the only person with a supervisory role in the boning room as there was no boning room manager.

[5] About a month later a boning room manager, Richard Leslie, was appointed. He held the position for about two years before he left the company. The applicant had no direct supervisor for some months.

[6] In about April 2012 there were a number of redundancies at the plant. A new plant manager, David Muir, was appointed and the former second in charge to the plant manager, Greg Jenkins, took up the position of boning room manager.

[7] On 26 October 2012 the applicant met with his direct manager Mr Jenkins and Mr Prior, the HR Manager for the plant, and was put on a performance plan.

[8] A review meeting was held on 13 November 2013 with the same attendees.

[9] On 12 December 2013 the applicant had a positive discussion with Mr Prior and Mr Muir.

[10] On 18 January 2013 the applicant commenced a period of leave. He returned to work on 11 February 2013.

[11] On 28 February 2013 Mr Ginders, the Southern Area manager, visited the plant and identified a problem with the manner in which some tenderloin had been trimmed.

[12] At Mr Ginders’ direction an investigation was held into the tenderloin issue.

[13] On Friday 1 March the applicant was requested to make a statement about the incident. On Monday 4 March he was given a letter, told he was stood down and requested to respond to the issues raised in the letter. The applicant responded on 6 March. On 12 March the applicant was asked to attend a meeting at the plant the following day.

[14] The meeting was delayed until 14 March as the applicant’s union representative was unavailable until then. At the commencement of the meeting on 14 March, the applicant was handed a letter and informed his employment was terminated.

[15] In support of the applicant’s case statements were filed and evidence was given at the hearing by the applicant and by Mr Gregory Jenkins, former Assistant Plant Manager and Boning Room Manager at the Longford plant.

[16] For the respondent, statements were filed and evidence given by;

David Muir 1, Plant Manager, Longford

Bradley Seagrott 2, Human Resources Manager, Operations

Andrew Prior 3, Human Resources Manager, Longford

Jamie Ginders, Operations Manager, Southern Region, (an original 4 and a supplementary statement5)

The Applicant’s Case

[17] The applicant filed a statement of evidence 6. In his statement, the applicant explained that the ‘yield’ is the proportion of meat obtained from the bodies of processed livestock. He noted that having been killed and slaughtered the carcass of the animal is weighed and the measurement taken is the ‘hot weight’. The carcass is then chilled and processed the following day in the boning room. The weight of red meat packed in the carton after processing is expressed as a percentage of the hot weight of the carcass - this is the yield.

[18] It was the applicant’s evidence that part of his job was to ensure that meat was not wasted and yields maximised. When the applicant was appointed as boning room foreman he was not given any particular yield target but management considered that yields of about 72% were desirable and he aimed for that percentage. It was his evidence that yields can be affected by various factors, including the type of stock being processed, as the bone to weight ratio differed.

[19] According to the applicant, since the redundancies in April 2012 a great deal of pressure had been placed on the boning room. He conceded that there were problems in the boning room given the difficulties of retaining employees with a good skill set and issues associated with the physical layout of the room. It was his evidence that there were not enough experienced boners in the room and a number had been trained to perform only one particular cut. There was a high turnover of staff with many inexperienced staff being employed. These problems were exacerbated by the turnover in plant management and attempts to alter the layout of the boning room, which commenced, but never completed.

[20] In order to improve matters in the boning room, the applicant appointed a leading hand to assist him with the supervisory duties in the boning room but the position was removed by Mr Ginders at the time of the redundancies. At the same time, the supervisor on the slaughter floor was made redundant, and the applicant stated that he noticed problems with the carcasses coming to the boning room which impacted on the yields.

[21] It was the applicant’s evidence that while yields were always a topic of discussion at the plant they were never raised with him as a performance issue until the meeting that took place in late October 2012. It was at this meeting, with Mr Jenkins (boning room manager) and Mr Prior (HR manager) , that the applicant was put on a performance management plan which required him to achieve 72.5% yields in the boning room. The applicant believed that he was put on the plan as Mr Muir, the plant manager, did not have a proper understanding of why the yields were low, including the problems with the kill floor and the chain speeds. He also noted that Mr Muir had refused his requests to spend time training the pieceworkers. The applicant did not consider a 72.5% yield a realistic target.

[22] Although the performance plan was supposed to be reviewed weekly the applicant did not have a review meeting until 13 November 2012. The meeting, again with Mr Prior and Mr Jenkins, was very positive. It was the applicant’s evidence that the yield figures were slowly beginning to rise.

[23] Shortly after the review meeting Mr Jenkins was stood down. He then took some leave before resigning. During this period, the applicant again had sole responsibility for the boning room. He was, however, allowed to appoint a leading hand to assist him.

[24] At this time the applicant was trying to rotate the boning room employees through different positions but found it difficult as the employees required more training. The applicant claimed that when discussions about the need for training were held just after Christmas, Mr Muir conceded that he had been wrong in not allowing the applicant to conduct training in the quiet period the previous winter.

[25] The applicant also noted that about this time measures taken to rectify slaughter floor over-trimming had the effect of reducing yield percentages in the boning room.

[26] According to the applicant, in December 2012, Mr Prior had given him the impression that he was no longer subject to the performance management plan.

[27] In early January 2013, the recently appointed leading hand returned to his former job, as he did not like the pressure attached to the supervisory role. The applicant was told that the supervisor of the small stock area would assist him and cover him while he was on holiday. The applicant was on holiday from 18 January until 11 February 2013. It was his evidence that on his return to work the push for higher yield percentages continued.

[28] On 28 February Mr Ginders visited the plant. He raised a concern about the manner in which the tenderloins were being trimmed. The applicant saw that one tenderloin had been over-trimmed and took the fillet back to the slicer concerned to instruct him how it should be done. Mr Ginders was upset and swore at the applicant and the production manager, indicating that he had ‘had enough’.

[29] The following day, Friday 1 March, the applicant heard that Mr Ginders wanted action over the incident and the applicant was called to the office to make a statement. On Monday 4 March he was again called to the office, given a letter and asked for his response to the matters raised in it. The applicant was suspended on pay and on 6 March provided a written reply to the letter.

[30] On 12 March the applicant was telephoned and asked to attend a meeting the following day. The meeting was postponed until 14 March to allow the applicant’s union representative to attend. The applicant and his union official met with Mr Muir and Mr Prior on 14 March. The applicant was handed a letter terminating his employment. There was no discussion about the termination. The applicant was paid one month’s salary in lieu of notice together with his leave entitlements.

[31] Since his termination, the applicant has made efforts to find work but this was difficult as he had limited education and only one job since leaving school. At the hearing, he advised that he had recently gained some casual work at a game meat processor and was hopeful of securing a permanent position in the future.

[32] When cross-examined the applicant agreed that his position description required him to provide leadership to the boning room, including managing staff and ensuring the attainment of production objectives, which included achieving the red meat yield sought by the employer. He also agreed that he was responsible for making sure that the operators were performing their role correctly.

[33] The applicant denied that the attainment of the yield percentage had been a consistent requirement during the entire period he was foreman stating that while the yield was of high importance no benchmark was ever set until his performance plan was introduced.

[34] The applicant agreed that he had tools available to him to enforce discipline in the boning room including the use of ‘foreman’s reports’ and, ultimately, termination of employment, and stated that he had used both. He conceded that it had been his preference to deal with matters on the floor one-to-one.

[35] It was put to the applicant that the redundancies in April 2012 did not impact on the number of staff in the boning room. The applicant disagreed, stating that the leading hand position was removed at the direction of Mr Ginders and the occupant of it given a redundancy.

[36] When questioned about training the applicant accepted that it was his responsibility to train those on the floor and claimed that, when the manning was sufficient, he had trained as many as possible. He stated that the MINTRAC records evidenced this. He further claimed that in order to do the training he would have liked to have done he needed support from management so as to be able to have a training team located outside the team performing the normal work. It was within the power of management to agree to the expense of such training. He denied that he ever had sufficient staff to remove people from the team for training as he needed 80 people on the floor each day before he could remove the four he required for the training.

[37] The applicant claimed that, on a number of occasions, he had raised the matter with Mr Prior, who had taken the view that it was the applicant’s responsibility to deal with absenteeism. The applicant took the view that his job was to get the production from the staff and it was for Mr Prior, as HR manager, to deal with employees if they did not turn up for work. When it was put to him that Mr Prior claimed that he was unaware if people were absent, the applicant stated that it was HR who had to be notified by workers if they were not coming to work, and that each worker was then required to report to HR to obtain a clearance before presenting for work on the floor.

[38] The applicant described the efforts he had made to train boners and slicers using a ‘buddy system’. He stated that ideally more experienced workers would train ‘outside the team’ but this became impossible in busier times of the year with higher chain speeds and the demands on the workers. It was for this reason that he had requested an ‘above the team’ dead rail system for training. When it was put to the applicant that a much more effective system of training had been adopted at the plant since his termination the applicant replied:

‘I’d say to you this would be the dead rail training which, again, I’ve got no backing in saying that but I’m led to believe by workers that it has worked for two days since I’ve left, but a dead rail system which I’d fought so hard to get was to start the week after I was terminated, and I believe it did. There was a trainer appointed, which would be Kelly Smith, and there was notices put up and there were trainers that were going to be outside the team, well and truly outside the team, to train, two boners, one slicer. They were in place and were ideas and thoughts that initially had come from myself, that I had set up and that they are now doing. So, yes, it has changed. I understand what they’re doing.’ 7

[39] It was also put to the applicant that he had been given assistance to do his job as a number of senior staff from other plants had been sent to the plant to provide help and advice. He agreed that some of the visiting staff had been helpful but on other occasions ideas implemented by those staff had led to customer complaints and were discarded. It was the applicant’s evidence that the staff that visited from the Dinmore plant took the view that the Longford employees were doing a good job with what they had. It was also the applicant’s view that two of the visits by other staff were of little assistance.

[40] When questioned about his failure to meet the red meat yield requirements the applicant replied, ‘I bore the responsibility for the red meat yield the entire time that I was in the position. There were outside contributors which have been labelled as excuses. That’s fine but I’d never had it put to me that I wasn’t trying.’ 8 He claimed that when management put him on the performance plan rather than showing support for him it came as a surprise:

‘At that point I was being asked to, in my opinion at times, on the day with the cow if we were doing high numbers of service kill, there were so many contributing factors that – a good red meat yield for cow is 60, 61. That’s a really good outcome of skinny cow. The fat cow that go over the scales with their excessive fat, they’re going to be deemed down as well. They’ll get 71. But on those days there I was still asked and there was no leeway at all to look at and say, “Oh yes, we’re going to get 72.5 out of these cattle that are only going to ever produce 71 at their best.”’ 9

[41] He claimed that in the circumstances the yield percentage set by management was unrealistic and it was for that reason that it was a surprise to him. He would not sign the plan as he was aware that the yield percentage was not achievable in the time allowed.

[42] The applicant conceded that the performance plan was a formal process and that he was told it could result in his termination. He also knew that he was specifically being asked to use foreman’s reports more often, and to observe all the boning and slicing techniques to ensure that everything was being done to specification. He claimed that while he was told the performance plan would be reviewed weekly, he had only one review, on 13 November, more than a fortnight after the original meeting. He denied that the discussion with Mr Muir and Mr Prior in December was a performance review in the nature of the one held on 13 November. He claimed that it was not a pre-planned discussion but a general conversation about how things were proceeding. He also noted that the tone of that conversation was also very positive. He reiterated his evidence that Mr Prior had said to him, about that time and following a visit by Mr Ginders, that he would not see the performance plan again.

[43] When questioned about the events that led to his termination, the applicant agreed on his return to work from holidays on 13 February, that emails had been sent to him about the need to ensure that the best yields were obtained from the tenderloin, a very expensive cut of meat. The applicant conceded that when Mr Ginders visited on 28 February he had found a tenderloin that had been over-trimmed and that the applicant had agreed with his appraisal. It was the applicant’s evidence that he immediately raised the matter with the responsible slicer and showed him what he was doing wrong.

[44] It was put to the applicant that the matters he had raised in his response to the company after he was stood down were raised too late. The applicant agreed that he probably should have used his foreman’s reports more often but claimed that he did use discipline. He agreed that since becoming foreman in 2009 he had attended three on-site supervisor training sessions.

[45] Gregory Jenkins filed a statement of evidence. 10 Mr Jenkins had worked at the Longford plant for a total of 27 years and had been assistant plant manager for 7 or 8 years until around April 2012 when the position was made redundant and he was offered the position of boning room manager. According to his evidence, Mr Jenkins resisted the change at first as the boning room was one area that he knew little about but Mr Ginders had assured him he would be given all the help and training he needed. It was his evidence that the promised assistance did not materialise.

[46] Mr Jenkins stated that he had been largely responsible for appointing the applicant as boning room foreman in 2009. He believed that the applicant’s performance in that role was very good. He noted that the boning room itself was a very old facility designed to deal with fewer cattle than were processed by the plant in 2012. He credited the applicant in assisting him to understand the boning room operations. He claimed that although he never provided him with the assistance he had promised, Mr Muir had put him on a performance management plan in late 2012 requiring him to increase the yields in the boning room.

[47] Mr Jenkins stated that the main problems in the boning room were problems over which neither he, nor the applicant, had any control. Poor quality work had been performed on the slaughter floor as that floor had an inexperienced manager as a result of the redundancies that occurred in early 2012. In addition, the boning team itself was largely inexperienced, with only about three boners who were really experienced. Problems were increased with dissatisfaction and poor morale caused by changes made by the employer to the bonus system which reduced the remuneration of slicers. It was Mr Jenkin’s evidence that this change had led to a decrease in yields.

[48] According to his evidence, towards the end of 2012 Mr Jenkins was told by Mr Muir to place the applicant on a performance management plan. Mr Jenkins had disagreed with the direction and told Mr Muir that it was wrong to do so as “[t]his bloke gives his all every day, his heart is always in it” 11. On 26 October 2012, Mr Jenkins did as he was asked but explained to the applicant that it was not his call. Mr Jenkins also delivered the first review of the plan on 13 November 2012.

[49] It was the evidence of Mr Jenkins that he did not recall Mr Muir making even one suggestion as to how yields might be increased, and that senior management in general ignored yield improvement suggestions and suggestions for how yields could be measured more accurately. It was his evidence that the contributions made by Mr Ginders on his visits to the boning room were not helpful. When Mr Jenkins suggested to Mr Ginders and Mr Muir that he needed to understand the operations of the boning room he was told he did not, he needed only to organise people. The sole assistance Mr Jenkins received was from the applicant.

[50] In November 2012, Mr Jenkins was stood down over a labelling mistake, he took some personal leave and then handed in his resignation in January.

[51] Under cross-examination, Mr Jenkins agreed that he had strong, and negative, feelings about the employer. He denied that he rejected training offered by Mr Muir, stating that he had been given only one day’s notice and it was impossible to arrange his attendance. He also denied that Mr Muir had organised for him to visit another plant but that he did not go because he was on leave. Mr Jenkins stated that he did visit the other plant during his leave, having organised the visit himself as Mr Muir had failed to make any arrangements despite repeated requests.

[52] It was also the witness’ evidence that when he was required to put the applicant on a performance plan he had told Mr Muir and Mr Prior that he, not the applicant, was accountable as he was the manager. He explained that while the yields in the boning room were less than expected by the company there were important differences between the Longford boning room and those at other JBS plants. The facility was outdated, and not built to deal with the number of cattle that were being put through.

[53] Mr Jenkins denied that he was just making excuses for what was poor performance on his own part and that of the applicant. He also claimed that Mr Prior did not consider there was any point to the performance management plan imposed on the applicant, despite it being put to him that Mr Prior claimed that this was not the case.

The Respondent’s Case

[54] It was the evidence of David Muir, who had been the Plant Manager since May 2012, that the applicant had been responsible for 110 employees, 95 of whom may have been on the boning room floor at any one time. As boning room foreman he was responsible on a daily basis for setting up the boning room, checking that his direct reports were performing their tasks correctly, ensuring production was being performed to specifications, training his direct reports and managing any performance or conduct issues.

[55] Mr Muir’s evidence covered the boning room performance targets and the manner in which he considered the applicant should have been able to influence the yields obtained. He stated that he had informal discussions with both the applicant and Mr Jenkins about the yields between August and October 2012. He noted that the applicant had claimed that the boning room was underperforming due to lack of properly trained operators and the inability of operators to rotate. According to Mr Muir the applicant ‘reiterated on several occasions’ that he thought it was the role of senior management to sort out training and rotation issues in the boning room. Mr Muir believed that it was the applicant’s job as boning room foreman to ensure rotation of operators. Mr Muir conceded that the physical layout of the boning room was ‘not the best’ he had seen but noted that despite the difficulties with the layout the boning room continued to process a large volume of carcasses.

[56] According to Mr Muir, he decided in consultation with human resources representatives, Bradley Seagrott and Andrew Prior, to put the applicant on a performance management plan. He noted a slight improvement in the applicant’s performance between the imposition of the plan and the first review meeting and a similar slight improvement in red meat yields and the rotation of boners and slicers by the time of the discussion held on 11 December. He claimed to have been positive about the applicant’s performance.

[57] It was Mr Muir’s evidence that after the applicant returned from leave on 13 February 2013 he failed to maintain the improvement in yields and did not train or rotate operators as required. Attached to his statements were various emails sent by Longford staff during the latter half of February noting problems with workmanship and red meat yields 12.

[58] Mr Muir was present on 28 February when Mr Ginders identified tenderloin which had been over-trimmed. An employee, who performed the duties of Ausmeat monitor (quality assurance and responsible for checking the specifications of the various cuts) was summoned together with the applicant, and Mr Ginders’ views made known to them. After the incident Mr Ginders directed Mr Muir to investigate the issue of poor workmanship in the boning room. Mr Muir arranged the investigation with Mr Prior. The applicant, Chris Shennan the production manager, the Ausmeat monitor and the acting boning room manager, Dane Grant, were all interviewed and statements obtained from them.

[59] It was Mr Muir’s evidence that he took the decision to stand the applicant down as ‘he was responsible for the performance of the particular task’. No others interviewed were stood down. Mr Muir considered the response provided by the applicant on 6 March and formed the view that the applicant was ‘largely making excuses for his performance and the performance of the boning room’. Mr Muir did not accept the applicant’s claims concerning lack of employees, high chain speeds, lack of training or of differences between the Longford and other JBS plants.

[60] As a result of the investigation, the Ausmeat monitor was verbally counselled, the production manager was counselled and a note put on his file, while Mr Grant was not disciplined as he had only been in his role as assistant foreman for a short time. Mr Muir held the applicant ‘responsible for the consistent failure of the boning room to meet performance targets, in particular the red meat yield’. 13

[61] Mr Muir’s evidence was that the termination of the applicant’s employment was appropriate having taken into account his ‘ongoing poor performance, including his failure to increase red meat yields, despite being supported by JBS and placed on a performance monitoring program’ with ‘achievable targets and strategies for reaching those targets’ 14.

[62] According to Mr Muir, he had noticed a considerable increase in morale in the boning room since the applicant’s termination. He also noted that tenderloin yields had steadily increased.

[63] Mr Muir denied the applicant’s claim that it was his fault that training was not arranged for operators during the quiet period, stating that it was the applicant’s role to arrange training.

[64] When cross-examined, Mr Muir stated that it was senior management in Melbourne who set the yield targets for the plant and that he was unaware of how the target was determined. He agreed that Mr Jenkins, the boning room manager at the time Mr Muir arrived at the plant, did not have a great deal of experience in the boning room. He also agreed that Mr Jenkins had not been in the position of boning room manager since about December 2012 and that over that time the applicant had reported to the production manager, Mr Shennan. He claimed that Dane Grant, the foreman at the lamb end of the boning room, had also assisted during that period and that he was a qualified butcher. He reiterated his earlier claim that Mr Grant was assisting the applicant during that time but conceded that he had been described by Mr Prior as Acting Boning Room Manager. He claimed that the description given by Mr Prior was not accurate.

[65] Mr Muir was directed to an attachment 15 to Mr Prior’s statement which contained a statement by Dane Grant that referred to him giving directions to the applicant. Mr Muir did not concede that this meant that Mr Grant was the applicant’s supervisor.

[66] Mr Muir agreed that there was a process to be followed before the applicant was required to issue ‘foreman’s reports’ and that the applicant both followed the process and issued reports. Mr Muir claimed that the reports were not issued as frequently as he would have liked.

[67] Mr Muir conceded that the applicant had wanted to train operators during the winter period when it was quiet and the chain speed was slower but was prevented from providing the intensive training because of the cost in extra manning. Mr Muir agreed that he had made the decision not to allow the training to take place. He claimed that there were also insufficient people to allow training to be conducted because of high absenteeism at the plant. Mr Muir also agreed that the applicant had argued for ‘dead rail’ training to be conducted so that a longer period of time could be devoted to it, and that had eventually been agreed to. The training was arranged to commence in the week the applicant had been stood down but did not occur as there were not enough people and the room wasn’t ‘flowing properly’.

[68] Mr Muir reiterated his evidence that the physical layout of the boning room was not the best and that it was an old facility.

[69] While he did not concede that Mr Jenkins had disagreed with the applicant being subjected to a performance management plan Mr Muir did agree that Mr Jenkins had said that the applicant ‘gives his all every day’ and that ‘his heart is always in it’.

[70] When questioned about the performance management plan Mr Muir could not recall whose idea it had been to require the applicant to reach a 72.5 % red meat yield by 31 October, three working days after the first performance meeting, but considered it a reasonable requirement.

[71] Mr Muir acknowledged the improvement made by the applicant by 13 November. He agreed that it was about this time that Mr Jenkins had ceased performing the role of boning room manager and the applicant had appointed a leading hand to assist him. While he was unable to state whether yields increased while the leading hand was in place he did agree that the person did not stay in the job for long as the pressure was too much.

[72] It was Mr Muir’s evidence that the discussion with the applicant in December 2012 had been positive and that a further review planned for 18 January 2013 did not occur. He was unable to explain why that meeting did not go ahead.

[73] When cross-examined about events that occurred after the applicant returned from holidays, Mr Muir conceded that the production manager, Mr Shennan, had sent emails in the period indicating that deficiencies in trimming on the slaughter floor was causing the boning room staff to ‘chase yields that aren’t there’ 16 He agreed with that assessment.

[74] Mr Muir was unable to recall much of the conversation that occurred with the applicant during the incident over the tenderloin on 28 February but agreed that Mr Ginders got worked up and that after talking to the applicant and the Ausmeat monitor had said “Okay. It’s dealt with. Done. Let’s go to the kill floor.” 17. It was his evidence that later that day Mr Ginders told him he wanted the over-trimming of the tenderloin in the boning room investigated. Mr Muir took part in the interviews conducted on 1 March and stated that only the applicant was stood down as the area was his responsibility. According to Mr Muir, Mr Ginders had the final say in the termination of the applicant’s employment.

[75] Mr Muir was questioned about his evidence concerning the opportunities available for the training of staff in the boning room. He believed that, at certain times, there were sufficient staff in the boning room to allow training to occur and that the applicant did not train operators whenever he was able. He conceded that if more than four people were away the applicant could not train any of his people. Mr Muir agreed that the company used the MINTRAC training system to provide and record details of training and kept those records.

[76] Although Mr Muir reiterated his earlier evidence that the applicant was in charge of the chain speeds in the boning room he stated that this was only ‘theoretically’ given the requirement for production targets to be met.

[77] When questioned about the graph 18 tendered in evidence for the employer which showed tenderloin yields from October 2012 until May 2013, Mr Muir agreed that it showed a steady increase in yields for the period. He also conceded that no evidence had been tendered by the employer setting out red meat yields for the period since the termination of the applicant’s employment. He agreed however that while some yields had exceeded 73% three had been yields of less that 71.5% as well. It was Mr Muir’s evidence that since the applicant’s employment was terminated the company had employed a new boning room supervisor and a new boning room manager.

[78] Bradley Seagrott, the Human Resources Manager Operations for the employer, is responsible for overseeing various people management issues in Victoria, South Australia and Tasmania. According to his witness statement 19, the employer does not have a formal employment management process or policy. Performance problems were generally dealt with initially by an informal discussion, followed by warnings, as appropriate. A process was implemented over the previous twelve month period so as to make individuals aware of business expectations. This process involved:

Development of a performance monitoring program;

Attendance at performance monitoring meetings weekly or fortnightly for a few months, with a meeting only every three or four weeks where there was improvement; and

A period of up to 12 months to complete depending on the number of performance issues to be addressed.

[79] It was also Mr Seagrott’s evidence that the process was designed to be a consultative process with the employee and the manager working together to achieve the goals.

[80] Mr Seagrott requested Mr Prior to prepare a performance management plan for the applicant in October 2012 following discussions he had with Mr Ginders about the performance of the boning room at Longford. Mr Seagrott approved the plan before it was implemented and spoke to Mr Prior about the importance of meeting with the applicant and providing feedback throughout the process. Mr Prior had advised him that some improvement had occurred before Christmas 2012 but declined in January 2013.

[81] According to his statement, Mr Seagrott was contacted by Mr Ginders following the tenderloin incident. As a result, he instructed Mr Prior to conduct an investigation utilising the employer’s complaints policy. He also assisted Mr Prior to prepare letters to the employees following their interviews, seeking further responses.

[82] It was Mr Seagrott’s evidence that after the investigation was completed he took part in a telephone conference with Mr Ginders, Mr Prior and Mr Muir. At the conclusion of that conference it was Mr Ginders’ decision to terminate the applicant’s employment as:

The applicant was able to identify that the tenderloins had been over-trimmed but had taken no action to rectify the problem;

The applicant’s reasons for the over-trimming given during the investigation were lack of staff; high chain speed, lack of training and ‘other matters well within his control’;

Despite having adequate training and knowledge the applicant continued to make excuses for his poor performance;

The applicant did not show proper leadership, was not willing to discipline staff, and did not have a willingness to properly manage the boning room; and

The applicant had been given ample opportunity to improve his performance but had failed to do so.

[83] According to Mr Seagrott, Mr Ginders decided to terminate rather than warn as the applicant had already been on the performance management program without any improvement. He was the only person terminated given that he was the boning room foreman and therefore ultimately responsible for the boning room.

[84] Under cross-examination, Mr Seagrott confirmed that performance management meetings were supposed to occur weekly or fortnightly and would only drop back to monthly if a person was showing improvement. He was unable to elaborate on the type of period of the supervisory training the applicant was given other than to say each session would probably have lasted two or three hours.

[85] It was also the evidence of Mr Seagrott that Mr Ginders had stated during the telephone conference that the applicant knew the tenderloin had been over-trimmed but had failed to take any rectifying action and that the group had concluded that the chain speed was within the control of the applicant. There was a group discussion about the conclusion that the applicant had repeatedly shown he could not lead the boning room and did not have a willingness to properly manage the boning room.

[86] Finally, Mr Seagrott confirmed that it was not cost-effective to train during the quiet period in the plant.

[87] Andrew Prior held the position of Human Resources Manager at Longford since 10 September 2012. According to his statement 20, he attended plant management meetings each morning and first encountered the applicant at such a meeting at which the witness claimed to have spoken about the importance of informal discipline and the use of the foreman’s reports.

[88] Mr Prior’s evidence went to the training given to the applicant during his employment and the manner in which the applicant’s performance monitoring program had been implemented. He noted the matters that were raised with the applicant on 26 October and the tasks that were set for him. Mr Prior also took part in the review meeting that was held on 13 November 2012. He stated that a number of matters were raised at that meeting, in particular, the fact that there had been no improvement in the red meat yield. The lack of rotation of staff in the boning room was also raised.

[89] According to Mr Prior, a further performance monitoring meeting took place on 11 December 2012, while one planned for 18 January 2013 did not take place. The applicant was on leave from 21 January but Mr Prior expected that he would continue on the performance monitoring plan when he returned on 11 February 2013, as neither the red meat yields nor the rotation of operators had improved.

[90] Mr Prior claimed that following the tenderloin incident on 28 February he was directed by Mr Ginders to conduct an investigation into poor workmanship in the boning room. He also claimed that Mr Ginders had told him that every time he visited the Longford plant he raised the issue of poorly trimmed tenderloins with the applicant but that the applicant only offered excuses.

[91] In conducting the investigation, Mr Prior:

Obtained a series of emails between plant staff concerning red meat yields;

Arranged interviews with, and took statements from

- The applicant;

- Dane Grant, the Acting Boning Room Manager

- Chris Shennan, the Production Manager and

- Sharon Brown, the Ausmeat Monitor.

[92] A record of each of the interviews was attached to Mr Prior’s statement. Once the interviews were conducted, the applicant was stood down as, according to Mr Prior, he was the person with the greatest influence over and responsibility for the performance of the boning room.

[93] All interviewees were requested to respond to letters sent by the employer. After the responses were received, Mr Prior took part in the phone conference with Mr Ginders, Mr Muir and Mr Seagrott. At this conference, Mr Ginders decided that the applicant’s employment should be terminated. According to Mr Prior, during that conference Mr Muir and Mr Ginders agreed that the applicant had shown improvement prior to taking leave in January but that any improvement had since deteriorated. Mr Ginders stated that the applicant’s performance was worse than before he was put on the performance monitoring program. Mr Ginders then decided the applicant’s employment should be terminated on the basis of his consistent failure to reach the performance objectives set for him.

[94] Mr Prior took issue with a number of claims made about him in the applicant’s statement, in particular, denying that he had told the applicant that the performance monitoring was at an end at the meeting on 11 December.

[95] Under cross-examination, Mr Prior agreed that the applicant would attend management meetings only if the boning room manager was absent. He also agreed that the applicant had three supervisor training sessions, on 6 August 2009, 25 May 2011 and 5 August 2011 and that these were only a few hours each session.

[96] Mr Prior conceded that the applicant was not the only problem identified with the boning room. He stated that the ultimate responsibility for the performance management of the applicant rested with Mr Muir, his line manager, and his own responsibility was to ensure that there was due process. He agreed that Mr Jenkins was not happy about the decision to put the applicant on the performance monitoring program. He agreed that in the first performance meeting the applicant had claimed that Mr Muir did not have a proper understanding of why the yields were low, that problems on the slaughter floor were affecting yields and that chain speeds were also a problem. He also conceded that the applicant had advised of difficulties in rotating workers who did not want to move positions.

[97] It was put to Mr Prior that the applicant had provided a formal rotation plan as requested by Mr Jenkins at the performance review meeting held on 13 November. He conceded that a ‘basic rudimentary plan’ had been provided which needed development ‘but it wasn’t a bad start’. 21 He also agreed that the applicant’s capacity to rotate workers depended upon him having sufficient people to allow that on any given day. According to the witness, staff numbers were within the applicant’s control and one of the problems was the number of people on annual leave at any one time. Mr Prior had given the applicant ‘a folder to manage the approved absenteeism. In the front of that folder is how many people you can have off at any one time and then take into account your sick leave, et cetera, so that you've got enough people: (1) to run the room; and (2) to continue your training...’22. He agreed that high levels of absenteeism can affect the ability to rotate and train staff.

[98] It was Mr Prior’s evidence that the meeting that occurred on 11 December 2012 between the applicant, himself and Mr Muir was much more positive. He believed that the applicant was told that it was a performance monitoring meeting and that the applicant was given a copy of the monitoring form. He recalled the applicant and Mr Muir discussing what had been happening in the room to ensure that the red meat yield was up, that they were positive improvements and those things should continue.

[99] According to Mr Prior there was to be another performance management meeting on 18 January but it did not occur. The applicant was going on leave and ‘it just ran out of time’ 23.

[100] Mr Prior was questioned about the emails attached to his statement. It was his evidence that Dane Grant had been the foreman of the lamb boning room and had been moved to the beef boning room to help cover Mr Jenkins’ absence. He agreed that one of the emails referred to the problem of finding a leading hand for the boning room and noted that when the leading hand left there was little interest in the job. He claimed he had made it clear that it was his view that there should be a leading hand but he could not convince anybody else, including the applicant.

[101] The witness agreed that another of the emails referred to the training that the applicant and Dane Grant were doing, but claimed that it had not really got under way at the time as the people were pulled back into the team.

[102] Mr Prior’s understanding was that the basis for the applicant’s termination was his ‘failure to improve through the performance management process and the investigation of the tenderloin incident directly reflected back to that’ 24.

[103] Jamie Ginders, Operations Manager for Southern Region JBS Australia, had been employed in that position since 7 November 2011 with responsibility for six of the twelve processing plants operated by the employer.

[104] In his statement 25, Mr Ginders detailed the manner in which the red meat yield is determined and the factors which might cause this yield to vary. He also described how particular performance targets are to derive ‘opportunities’ from particular cuts of meat. It was his evidence that from October 2012 he had weekly video meetings with Mr Muir and Mr Shennan, the production manager, during which yield targets were discussed and the top ‘five opportunities’ identified for the Longford plant. In January 2013, at one of these meetings Mr Ginders advised the attendees that he wanted a focus on tenderloin opportunities. He informed Mr Shennan and Mr Muir that he wanted the Quality Assurance employees to inspect every tenderloin to ensure they were trimmed correctly and to specification. Despite this, the value of lost tenderloin opportunities remained constant. According to Mr Ginders, he was advised that the applicant was made aware of these requirements.

[105] Mr Ginders’ evidence also went to the training that he arranged for the applicant in 2012 and his instruction to Mr Muir that the applicant be performance managed. According to the witness, he perceived no change. He stated that in late November 2012 the applicant had approached him and advised that despite giving 120% things did not seem to be improving. Following this, Mr Ginders organised for some senior staff from the Dinmore plant to fly in to assist the applicant.

[106] According to his evidence, on 28 February 2013 during a visit to the boning room, Mr Ginders identified that ‘each of the tenderloins had half of the illiacus muscle trimmed in breach of specification’ 26. He then spoke to the applicant and the Ausmeat monitor. The applicant also identified the problem with the tenderloins. After making his displeasure apparent, Mr Ginders left the boning room and during a conversation with Mr Muir directed him to conduct an investigation to discover why there was such bad workmanship in the boning room. He was concerned that the applicant, who had an Ausmeat qualification and had also identified the problem, had done nothing to fix the issue.

[107] Following the investigation Mr Ginders took part in the telephone conversation concerning the applicant’s future employment. In conjunction with Mr Muir, he decided to terminate the applicant’s employment on the basis of:

his continued failure to perform according to the reasonable yield, tenderloin opportunity and general people management targets set for him;

his repeated inaction to remedy the lost tenderloin opportunity; and

because he could identify the over-trimmed illiacus muscle but continued to do nothing to fix the problem.

[108] According to his evidence, Mr Ginders ‘was told by Mr Muir and Mr Prior that the investigation process had shown that Mr Bosworth was repeatedly advised both verbally and by email of the issues in respect of the tenderloins and the corrective actions required to fix the problems’ 27. He also took into account the applicant’s length of service and considered whether there was any alternative position in which he could be employed.

[109] Mr Ginders did not terminate Mr Grant as he ‘had been moved into the Assistant Boning Room Foreman role temporarily in order to assist the applicant’ 28. The Ausmeat monitor had a note put on her employee file and a verbal warning as, according to Mr Ginders, she had raised the matter of the tenderloins with the applicant.

[110] By his supplementary statement 29, Mr Ginders tendered evidence which he claimed showed that the lost tenderloin opportunities at the Longford Plant had greatly improved since the applicant’s employment was terminated.

[111] Under cross-examination, Mr Ginders stated that the red meat yield target set for the Longford plant was a target set at a meeting of plant managers and applied to the Brooklyn plant as well. He conceded that skinny cows would not yield 72.5%. He also conceded that the layout of the Longford plant was not as good as some others.

[112] Apart from the one occasion which prompted the visit of the Dinmore staff, Mr Ginders could not recall the applicant asking for help.

[113] It was Mr Ginders’ evidence that on 28 February none of the tenderloins in the boning room had been cut to specification. He agreed he identified one tenderloin and had a conversation with the applicant about it. He was not aware that the applicant had already spoken to the slicer responsible before that conversation. He also claimed that he had asked for an investigation into the tenderloin opportunity not wider problems with the boning room.

[114] Mr Ginders stated that he was angry that his instruction that every tenderloin be inspected by the QA people had not been followed. He claimed that lost opportunities for tenderloins had been mounting for the previous four weeks.

[115] When questioned, Mr Ginders denied that one of the reasons for his decision to terminate the applicant’s employment had been the applicant’s failure to take action when he identified that the tenderloin had not been properly trimmed.

[116] According to the witness, before the telephone conversation in which he decided to dismiss the applicant, he reviewed the information obtained from the investigation with Mr Muir, Mr Seagrott and Mr Prior over the telephone. He was unable to recall the telephone conversation. 30 Nor could he recall whether he believed the applicant was still being monitored in February for his performance. He agreed, however, that it was his decision to terminate the applicant’s employment.

[117] When asked about the graphs attached to his supplementary statement, Mr Ginders conceded that the graph was based on the premise that the applicant was terminated on 1 March not 14 March, which resulted in an error in the annualised calculation supposedly demonstrated through the graph. He also conceded that for the last week the applicant actually worked (the week ending 3 March), the tenderloin opportunity was considerably reduced. Mr Ginders did not concede that the graph showed a downward trend in lost opportunities that actually commenced in the week ending 3 March. He agreed, however, that the figures showed a big jump in lost tenderloin opportunities in June 2013.

[118] Finally, Mr Ginders agreed that the evidence attached to his supplementary statement showed that the red meat yield for the Longford plant had not been improved since the applicant’s termination.

Consideration and Conclusion

[119] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of his employment, the applicant was a person protected from unfair dismissal. The employer is a not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[120] Section 387 of the Act sets out those matters that must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable. I will now deal with each of those matters.

Valid reason

[121] The termination letter given to the applicant on 14 March 2013 was in the following terms:

‘The purpose of this correspondence is to confirm our discussions on the 13 March 2013 regarding matters related to our continuing concerns with aspects of your performance/ work behaviour.

In recent times you have been issued with a number of Performance Improvement Plans regarding your performance/work behaviour. These Performance Improvement Plans very clearly indicated that a failure on your behalf to address the concerns we had raised may lead to your termination of employment.

Despite the measures that have been taken, you have failed to satisfactorily address the matters that have been repeatedly raised with you. Similarly, when you were given an opportunity to respond to the allegations that were being made, you were unable to provide any satisfactory reasons to explain or mitigate your conduct. Given these facts, it has been decided that your employment is to be terminated.’ 31

[122] On all the evidence before me, the reasons given in the termination letter cannot be said to be ‘sound, defensible or well-founded’ 32. While the applicant was made subject to a performance monitoring/management (the terms are used interchangeably by the employer’s witnesses) plan on 26 October 2012, I am satisfied that the process did not continue past December 2012.

[123] In reaching my conclusions about the circumstances surrounding the implementation and cessation of the performance monitoring plan I have accepted, in full, the evidence given by the applicant. His evidence was clear and in no way self-serving. The evidence of the four witnesses for the respondent was vague, contradictory and designed to put their own actions in the best possible light. In particular, I note Mr Prior’s unconvincing explanations for the failure to conduct performance review meetings as programmed, or regularly. The lack of any urgency about such meetings supports the applicant’s evidence. The respondent’s witnesses contradicted each other’s evidence about the position held by Dane Grant in the boning room in February 2013. Clearly, Mr Prior was of the opinion Mr Grant was the Acting Boning Room Manager and the surrounding documentation supports this conclusion. Mr Muir claimed that Mr Grant was merely a foreman assisting the applicant and Mr Ginders was under the same misapprehension. It was for this reason that Mr Ginders did not consider Mr Grant to be the person with ultimate responsibility for the tenderloin trimming as at 28 February.

[124] Mr Ginders, who took the decision to terminate the applicant’s employment after a lengthy telephone conversation with the other three employer witnesses, was unable to recall anything about that conversation in his oral evidence, despite the fact that his written statement was fairly comprehensive. In this respect, I also note the identical descriptions contained in each of the witness statements about the telephone discussion. While each witness seemed able to recall the discussion in some detail for the purposes of the written statements, all were very vague when questioned about which of them had made the statements about the applicant’s performance that resulted in his dismissal.

[125] I accept the applicant’s evidence that he had only one formal review of his performance monitoring plan almost three weeks after it was initiated. That review on 13 November was, on the documentation provided, 33 positive with recognition given to improvements that were made. While a further discussion occurred on 11 December, I accept the applicant’s evidence that this discussion occurred in an ad hoc manner and was not described to him as a formal review. In any event, the discussion about his performance on that date was very positive. In this respect, I accept the applicant’s evidence that, at the conclusion of the discussion, Mr Prior indicated that he was no longer subject to performance management. The failure to hold any further review supports the applicant’s claim.

[126] On the basis of the evidence given by Mr Seagrott, a very senior Human Resources representative for the employer, it is clear that the applicant was not being performance managed in the manner that was the accepted process for the employer at that time. Meetings were not occurring weekly or fortnightly as would have been the case, according to Mr Seagrott, if the applicant was on such a plan and had been failing to improve.

[127] All the evidence supports the view that the performance of the boning room generally was improving. The emails for the period 13 February to 28 February 2013 from the Production Manager, Mr Shennan 34, acknowledged improvements that had been made and, while urging greater efforts, were not directed towards deficiencies on the applicant’s part but identified action to be taken by a number of staff.

[128] While the termination letter stated that the reasons given by the applicant for failure to meet the standards required of him were not ‘satisfactory’, it is clear from the evidence that the reasons raised by the applicant were not mere excuses but matters over which he had little or no control and with which he was given no assistance. It is apparent on all the evidence that despite the employer’s claim that the boning room was staffed to a sufficient level to allow the applicant to be able to train and rotate staff this was not the case in reality. Mr Prior’s evidence in this regard was unconvincing. It was clear that the boning room suffered from a very high absenteeism rate and I fail to see why dealing with this would be the applicant’s rather than a human resources responsibility.

[129] Mr Muir’s evidence supports the finding that any control the applicant may have had over the chain speed was illusory, given the production targets he was required to meet. His requests to be able to train staff during quiet periods so as to avoid training being interrupted due to production demands were refused by Mr Muir on cost grounds. Had he been allowed the resources to train staff during the quiet periods he may have been able to provide for proper rotation through jobs.

[130] I accept the applicant’s evidence that poor workmanship in the boning room was the result of lack of training, lack of staff and high chain speeds as a consequence of high production targets rather than any lack of discipline caused by the applicant’s failure to issue foreman’s reports. I note that the applicant accepted that he could have used these more often but I doubt that his failure to do so was the cause of the poor morale among staff. The applicant’s evidence that the employees were unhappy with changes to the bonus system introduced in late 2012 went unchallenged. It is instructive that the applicant was unable to find a suitably qualified employee who was prepared to take the leading hand role in the boning room as it appeared nobody wanted the pressure of that job.

[131] There was no evidence from the employer to support the claim that the 72.5% red meat yield required of the applicant was achievable or had been achieved at the Longford plant at any time after the applicant’s termination. There was evidence that training planned by the applicant for the week following his cessation of work was unable to go ahead due to lack of staff and production requirements, reasons which had been advanced by the applicant but rejected by the employer as ‘excuses’. All the evidence supports the applicant’s claim that the red meat yield target was not reasonable and that training and skill problems were not caused by matters within his control but by lack of support from senior management which prevented him from being able to properly train staff (production targets requiring high chain speeds; refusal to allow him to train during the quiet period because of cost, and failure by the human resources manager to deal with absenteeism appropriately).

Notification of the reason

[132] The applicant was notified of the reason for his termination in the letter of 14 March 2013.

Opportunity to respond

[133] The applicant was given an opportunity to respond to the matters raised during the investigation and responded in detail in his letter of 6 March 35. On the evidence, it would appear that very little of that response was taken into account or given any weight when the discussion concerning his future took place. Mr Ginders, when making his decision to terminate the applicant’s employment, appeared to be unaware of a number of pertinent facts and mistaken about a number of others.

[134] Mr Ginders was unaware that the performance plan had not been in operation since the previous December. Nor was he informed that the applicant had immediately dealt with the slicer that had over-trimmed the tenderloin on 28 February. Further he believed Dane Grant to be subordinate to the applicant in the boning room when he was in fact, the Acting Boning Room Manager. Mr Ginders also had been misinformed about the claim made by the Ausmeat monitor. She did not state that she had raised the matter of the over-trimming with the applicant but that she generally raised any issues with the product with the applicant, who handled them.

[135] The applicant was not given any opportunity to respond to those matters set out in the termination letter.

Support person

[136] The applicant was accompanied by his union representative at each of the discussions relating to his dismissal.

Warnings

[137] It could be said that the applicant was given warnings. What is also clear is that the applicant responded to those warnings, even where an objective observer may have concluded that the warnings were unwarranted. The performance management meeting that was conducted on 13 November noted that improvements had been made and the discussion of 11 December also recognised that progress had been made.

Size of the employer’s enterprise

[138] The employer is a large national employer and I am satisfied that its size is unlikely to have impacted on the procedures followed in effecting the dismissal.

Absence of dedicated human resource management specialist or expertise

[139] Clearly, the employer had human resources expertise both at the plant level and the Southern Operations level and those human resource specialists were heavily involved in the process adopted in terminating the applicant’s employment.

Other matters

[140] The applicant was responsible for 110 direct reports. When the redundancies occurred at the plant in April 2012, the applicant not only had his leading hand position removed (a position identified by him as vital for quality control), he also had an inexperienced boning room manager appointed as his direct manager. He was put on a performance monitoring plan against the wishes of his direct manager, who considered it unfair. Despite the boning room manager’s position being vacant from November 2012 until February 2013, he was expected to meet an unrealistic target for red meat yields, train and rotate staff with no management or proper human resources support while continuously supervising every boner and slicer under his control. He was supposed to achieve all this in an outdated boning room while maintaining high production targets with unhelpful chain speeds.

[141] It is apparent on the evidence that all the employer’s witnesses considered the applicant was failing in his job. One would normally expect a human resources manager to provide more support and accept more responsibility for training and absenteeism than appeared to be the case at the Longford plant. The performance monitoring plan implementation was hardly a human resources best practice and the documentation surrounding the investigation into the tenderloin affair seemed to misapprehend what was actually being conducted.

[142] In all the circumstances of this case, I find that the dismissal was harsh, unjust and unreasonable:

Harsh, as the applicant had worked for one employer for 18 years, and had given ‘120% every day’ whilst employed as the boning room foreman;

Unjust, as the applicant was terminated for perceived failures over which he had little control but had, in any case made efforts to address with little, if any, effective practical management support; and

Unreasonable as the reason given for his dismissal was that he had failed to make any improvement while being performance managed when in reality improvements were made and the performance management lasted only two months and did not continue past December 2012.

Remedy

[143] The applicant does not seek reinstatement. His position has been filled. I am satisfied that reinstatement is not appropriate in this case. In all the circumstances of the case, I consider that it is appropriate to make an award of compensation in lieu of reinstatement.

[144] Section 392(2) of the Act sets out matters which should be taken into account when determining an amount of compensation.

[145] There was no submission that any amount of compensation that might be ordered would affect the viability of the employer’s business.

[146] The applicant had been employed for more than 18 years. Had he not been dismissed, I am satisfied that there was no reason why he would not have continued in his employment indefinitely, possibly until retirement. He had had no other employment since leaving school at 16 years of age. I am satisfied that the applicant made reasonable efforts to mitigate his loss. He decided to take leave immediately after the termination, having been paid out his long service leave and outstanding holiday pay. I do not think this decision should impact unduly on my decision as to remedy as he was in an invidious position. He had been dismissed from his employment of 18 years, he is largely unqualified and skilled only in the particular work he had been performing. His evidence was that there was little opportunity for similar work in the location in which he resided. He had also lost his driver’s licence, which imposed limitations on his ability to find other work but had not impacted on his ability to perform the duties of his previous position.

[147] Since his termination the applicant had earned about $100 per week cutting and selling wood and, as at the date of the hearing, was hopeful of securing a permanent position with a game meat processing plant at which he had had four hours casual work at around $19 per hour. I have determined that the applicant’s compensation should be reduced by $2000 to take account of the monies earned by him since his dismissal.

[148] It is my intention to award as compensation in lieu of reinstatement the maximum amount available under the Act, reduced by $2000 for the reasons given above. That is, the amount of remuneration received by the applicant in the 26 weeks immediately before his dismissal, less $2000. On the evidence, this amount will not exceed the remuneration cap at s.392(5) of the Act.

[149] An order [PR541135] giving effect to this decision is published separately.

Appearances:

Mr C. Buckley with Mr T. Baker, for the Applicant.

Ms C. Symons of Counsel, with Ms M. Bulat, for the respondent.

Hearing details:

2013.

Launceston:
July 11,12.

1 Exhibit S1.

2 Exhibit S2.

3 Exhibit S3.

4 Exhibit S4.

5 Exhibit S5.

6 Exhibit B1.

7 Transcript PN195.

8 Transcript PN223.

9 Transcript PN228.

10 Exhibit B2.

11 Ibid, at Paragraph 21.

12 Above n 1, Annexure DRM-3.

13 Above n 1, at Paragraph 32.

14 Above n 1, at Paragraph 35.

15 Above n 3, Annexure ACP-18.

16 Transcript PN929.

17 Transcript PN965.

18 Above n 1, Annexure DRM-4.

19 Above n 2.

20 Above n 3.

21 Transcript PN1349.

22 Transcript PN1356.

23 Transcript PN1395.

24 Transcript PN1508.

25 Above n 4.

26 Above n 4, Paragraph 18.

27 Above n 4, Paragraph 23.

28 Above n 4, Paragraph 26.

29 Above n 5.

30 Transcript PN1655.

31 Above n 6, Attachment “RB10”.

32 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

33 Above n 3, Annexure ACP-9.

34 Above n 1, Annexure DRM3

35 Above n 6, Attachment “RB9”.

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