Sham Sunder v MSS Security Pty Ltd

[2015] FWC 7008

[2015] FWC 7008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sham Sunder
v
MSS Security Pty Ltd
(U2015/8003)

COMMISSIONER BISSETT MELBOURNE, 14 OCTOBER 2015

Application for relief from unfair dismissal - falsifying timesheets - leaving work early - working for another company without permission – no loss of trust and confidence – reinstatement.

[1] Mr Sham Sunder has made an application pursuant to s.394 of the Fair Work Act 2009 seeking relief from unfair dismissal.Mr Sunder was employed by MSS Security (MSS) as a security guard. His employment was terminated on 12 May 2015 because he left the site at which he was working on 2 May 2015 without authority.

Background

[2] Mr Sunder was employed by MSS in 2010 as a casual employee for a short period of time. In June 2013 he commenced a further period of work for MSS and in March 2014 he was employed on an on-going basis.

[3] On 2 May 2015 Mr Sunder was not rostered to work. At about 7.30am he received a call from Mr Clement Ochana asking if he was available to work from 8.00am – 6.00pm that day at the Darwin Alcohol Assessment Treatment Services (DAATS) as the rostered employee was not able to work. Mr Sunder agreed to work, arrived for duty and signed on at 8.00am.

[4] MSS provides a 24 hour security service at DAATS. It has one employee rostered to work a 12 hour shift from 6.00am – 6.00pm and another from 6.00pm – 6.00am. In addition it has a further employee rostered on for the day shift. Mr Sunder filled this day shift position.

[5] Mr Ochana was also rostered to work that day and worked from 6.00am to 6.00pm. At 6.00pm a night relief guard was due to report for work and would relieve Mr Ochana.

[6] It is accepted practice within MSS for security guards to be able to leave up to 15 minutes before the end of their shift in circumstances where they are being replaced by a guard coming onto shift, they have completed a handover to the on-coming guard and they have completed 12 hours at work (i.e. they arrived at work prior to the commencement of their shift).

[7] Sometime around 5.30pm Mr Sunder was collected by a friend and shortly thereafter presented to work for another security company at the Hidden Valley motor sports complex.

[8] Mr Sunder was seen working at Hidden Valley for another security company a short time after 5.30pm on 2 May 2015 by Ms Toni Thomas, State Operations Manager NT for MSS. She was aware that he was working the 8.00am – 6.00pm shift at DAATS. She spoke to Mr Sunder about what time he had finished at DAATS and what time he had signed off.

[9] On 5 May 2015 Mr Sunder was sent a letter of allegations in relation to the time he left his shift at DAATS on 2 May 2015, the times he put on his time sheet for work that day and his working for another security company without permission. Mr Sunder was called to a meeting to respond to these matters on 7 May 2015. At that meeting Mr Sunder provided a response in writing to the allegations in which he indicated that:

• On 2 May 2015 was his rostered day off and he had committed to work at another job from 5.30pm;



• He accepted that what he did that day was wrong and contrary to company policy;



• This was the first mistake he had made in his employment with MSS.

[10] At the meeting on 7 May 2015 Mr Sunder indicated that he did not understand English very well so could not respond to questions asked of him. Some specific questions were therefore put to him in writing that day to which he responded that:

• He left the DAATS site between 5.30pm and 5.40pm;



• He had spoken to Mr Ochana in relation to leaving the DAATS site between 5.00pm and 5.30pm;



• Toni Thomas is his direct manager;



• He did not have permission from Ms Thomas to work for another company.

[11] Mr Sunder attended another meeting with respect to the allegations on 9 May 2015.

[12] On 11 May 2015 Mr Sunder was advised of the breaches in relation to his actions on 2 May 2015 (the ‘show cause’ letter). He was asked to state any reasons as to why his employment should not be terminated. That day Mr Sunder replied and stated that he was sorry and sad that he had let MSS down, promised it would not happen again, said he was hard working and punctual and is flexible in meeting the needs of MSS. He advised that he had a wife and child who relied on him, had no other income and would have trouble surviving in Darwin if he did not have a job. He expressed his regret for the incident.

Evidence

[13] Mr Sunder says that he sometimes worked casual shifts for other security companies when he is not rostered to work for MSS and that other MSS security guards do likewise. He says he was not aware of any workplace policy that prohibited such work.

[14] In his oral evidence Mr Sunder said that, in accepting to work the overtime shift for MSS on 2 May 2015, he forgot that he had agreed to work at Hidden Valley that evening. He says that he received a reminder during his crib break. He spoke to Mr Ochana who told him he could leave 15 – 20 minutes early and did not tell him to contact Ms Thomas to get permission to leave early. He agrees that when he left there was only one guard on duty (Mr Ochana) and that the night shift employee coming on to relieve Mr Ochana had not yet arrived.

[15] Mr Sunder’s evidence is that a friend came to pick him up because his car had stopped working.

[16] Under cross-examination Mr Sunder said he left between 5.30 and 5.45pm although later said it was between 5.35 and 5.45pm and that Mr Ochana had told him to leave. He says he started work at Hidden Valley between 5.30pm-5.45pm.

[17] Mr Sunder said that, despite his written evidence that he arrived at work at 7.45am he had, in fact, arrived at about 8.00 or 8.05am. He says that, regardless of the time he actually arrived (whether it was before or after 8.00am) he signed on at 8.00am.

[18] Mr Sunder said that leaving 20 or 30 minutes early ‘is nothing’ and suggested that other employees had left this early before this incident.

[19] Mr Ochana gave evidence that that he told Mr Sunder that he should speak to Ms Thomas about leaving early. He says he last saw Mr Sunder at about 5.15pm and was not aware that Mr Sunder had gone because his car was still parked outside DAATS. He received a call from Ms Thomas prior to 6.00pm asking him if Mr Sunder was at work. He rang Mr Sunder who said he had left work and had been picked up by a friend.

[20] Mr Ochana agreed that it was the practice that if a relieving guard arrived early and handover was completed the guard being relieved could leave up to 15 minutes early but sign off at the regular sign off time.

[21] Ms Toni Thomas’ evidence is that is it acceptable if handover is complete for a guard who is being relieved to leave up to 15 minutes early if they have completed 12 hours’ work. She says that to leave earlier than 15 minutes would require specific permission. Her evidence is that Mr Sunder was engaged to work the day shift at DAATS on 2 May 2015. In this respect he would not be ‘relieved’ as the day shift finished at 6.00pm. The night shift guard was to relieve Mr Ochana.

[22] Ms Thomas’ evidence is that when Mr Sunder worked past his normal finishing time because, for example, the relieving guard was late, he would sign off at the later time.

[23] Ms Thomas says she was at Hidden Valley in a personal capacity on 2 May 2015. She says that she is aware that some MSS guards work at Hidden Valley for another company with permission but that, prior to 2 May 2015 she had not seen Mr Sunder there. She contacted Mr Ochana at 5.39pm who told her he thought Mr Sunder was still at work at DAATS. She says she spoke to Mr Sunder who told her he had knocked off from DAATS at 5.30pm but had put down a finishing time of 6.00pm.

Submissions

Mr Sunder

[24] Mr Sunder accepts that he did leave work early on 2 May 2015. He submits however that his actions were not serious enough to justify dismissal. He submits that, on an objective analysis of the facts, the reason for dismissal is not defensible or justifiable.

[25] Mr Sunder says that the Commission should take into account that he has no history of warnings for poor performance or misconduct, that it was common practice for employees to leave work early if there was another guard present, it was common practice for MSS guards to work for other security companies and that leaving his shift early on 2 May 2015 did not cause any detriment to MSS.

[26] Further, Mr Sunder says that he was denied procedural fairness. In discussing the same matter at each of the meetings attended by Mr Sunder MSS was simply ‘going through the motions’.

[27] The show cause letter was sent to Mr Sunder on 11 May 2015. Mr Sunder replied to this at 11.00pm that day. The decision was taken to dismiss Mr Sunder was conveyed to his at about 1.00pm on 12 May 2015. Mr Sunder submits that the length of time between receiving Mr Sunder’s response to the show cause letter and the decision made to terminate his employment suggest that his response to the show cause letter was not properly considered.

[28] Further, Mr Sunder says that, while MSS was aware that Mr Sunder’s first language is not English, it failed to take this into account in providing him greater time to respond to them.

[29] Mr Sunder says the Commission should also take into account that other employees have not had their employment terminated for working for other security companies; that he has worked for MSS for some five years with no history of poor performance or misconduct and his personal and financial circumstances.

[30] Mr Sunder seeks reinstatement but, should the Commission determine this is not reasonable, compensation.

MSS Security

[31] MSS submits that, in deciding to dismiss Mr Sunder, it took into account the training provided to Mr Sunder, Mr Sunder’s knowledge of policies and procedures, that Mr Sunder was aware when he accepted the additional shift at DAATS that he would not be able to complete the shift but accepted it anyway, the contractual responsibilities of MSS to DAATS, the seriousness of a guard leaving his place of duty and falsification of time sheets.

[32] MSS submits that the falsification of timesheets and leaving work without permission prior to the end of a shift constitute a valid reason for termination. Whilst it accepts that a guard may leave early when the relieving guard has arrived and a handover is complete that was not the situation of Mr Sunder this day. He was not being relieved as he was filling in the day shift position.

[33] MSS says that Mr Sunder was given adequate opportunities to respond to the matters raised with him and, when he said he had language problems, questions were put to him in writing and he was given an opportunity to respond in writing.

[34] MSS says that Mr Sunder has given inconsistent responses as to the time he left work at DAATS on 2 May 2015.

[35] MSS says it considered Mr Sunder’s personal circumstances before making a decision to terminate his employment.

[36] MSS does not accept that Mr Sunder should have difficulty finding alternative work – it submits that the unemployment rate in Darwin is 4.2%, lower than the national level of 6.3%.

[37] MSS says that reinstatement is not a viable option as it has lost trust and confidence in Mr Sunder. Further it says that it only employs 54 permanent and 19 casual staff in Darwin. It says that, should the Commission decide to award Mr Sunder compensation in determining an amount the Commission should take into account the steps taken by MSS to educate employees in its policies and the disregard of Mr Sunder for these policies.

Findings

[38] The facts of this matter are, broadly, not in dispute.

[39] Whilst there is a disagreement over Mr Sunder’s period of employment with MSS I accept that he was employed for a short period in 2010 and has been employed on an on-going basis from 2013 until he was dismissed on 12 May 2015.

[40] Mr Sunder agreed to work an additional shift at DAATS on 2 May 2015. Whilst the exact time is in dispute I am satisfied, on the basis of the evidence, that Mr Sunder left DAATS at least 30 minutes prior to his scheduled finish time of 6.00pm but that he signed off at 6.00pm.

[41] I am satisfied that it was common practice for employees to sign off up to 15 minutes in advance of their scheduled finishing time in circumstances where the employee who was to relieve them had arrived at work the handover had been completed and they had completed 12 hours at work. It is nonsensical to suggest that MSS would condone staff leaving prior to the relieving staff arriving where this would result in fewer guards being present than was required. On this matter I do not accept Mr Sunder’s evidence that other employees leave up to 30 minutes before the end of their shift or that 20 or 30 minutes ‘is nothing’.

[42] In this particular circumstance Mr Sunder was not being relieved as he was working the daytime shift. For this reason there is no basis on which Mr Sunder could have assumed it was acceptable that he leave the workplace without permission.

[43] I have carefully considered the evidence of Mr Sunder and Mr Ochana. In this case I prefer the evidence of Mr Ochana that he did not give Mr Sunder permission to leave the workplace early but rather that he told Mr Sunder he should call Ms Thomas and seek her permission to leave early. I found Mr Ochana to be clear and open in his evidence. Mr Sunder meandered in his evidence and gave little attention to detail such that I do not find the detail in his evidence reliable.

[44] I do not accept Mr Sunder’s evidence that he forgot, until his crib break when he received a call from the other employer, that he was working that night at Hidden Valley. For a person who, on his own evidence, takes work whenever it is offered (including overtime shifts from MSS) I find it difficult to accept that Mr Sunder had forgotten the shift offered to him to work at Happy Valley that night. I prefer that Mr Sunder took the overtime shift at MSS knowing he had work at Happy Valley that night but without a clear thought as to how he might cover both the end of the MSS shift and the commencement of the Happy Valley shift.

[45] I am satisfied that the MSS Security Officer Standing Instructions form part of Mr Sunder’s contract of employment and that those instructions prohibit employment with another security company without permission of MSS. The Instructions indicate that a breach of this provision will result in termination of employment. Mr Sunder did not have permission to work for another security company. I am satisfied that Mr Sunder did not have permission to work for another security company.

[46] I am satisfied that Mr Sunder had completed training with respect to the Standing Instructions. The Standing Instructions were provided in writing and Mr Sunder demonstrated, in these proceedings, that he has the capacity to read material printed in English even if he might have difficulty understanding spoken English (although this was not evident in the proceedings where Mr Sunder understood and responded to questions put to him without the assistance of the interpreter for the most part of the proceedings).

[47] I therefore find that Mr Sunder did engage in misconduct in that he:

• Left his workplace at DAATS prior to the end of his shift;



• Falsified his timesheet by signing off at 6.00pm when he had left the workplace 30 minutes earlier;



• Worked for another security company without the permission of MSS.

[48] On Mr Sunder’s evidence he was advised of the allegations of inappropriate conduct by letter on 5 May 2015 and was invited to a meeting to discuss the matter on 7 May 2015. He attended the meeting on 7 May 2015 where he later provided Ms Thomas with a written response and where the matter was further discussed.

[49] On 7 May 2015 Mr Sunder received a written request for further information which he provided in writing to Ms Thomas on the same day. A further meeting was scheduled with him on 8 May 2105. Mr Sunder attended that meeting.

[50] On 11 May 2015 Mr Sunder received another letter where he was asked to ‘show cause’ as to why his employment should not be terminated for his misconduct. Mr Sunder was invited to provide a response to that letter which he did. Mr Sunder again met with Ms Thomas and Ms Jensen on 12 May 2015. The decision to terminate Mr Sunder’s employment was taken after this meeting and Mr Sunder was advised by letter dated 12 May 2015.

[51] That the same matters were discussed at each of the meetings with Mr Sunder is not an indication that MSS was ‘going through the motions’ as submitted by Mr Sunder. Given the circumstances that gave rise to the meetings it is difficult to know what else would be discussed.

[52] I find that Mr Sunder was given an adequate opportunity to respond to the allegations of misconduct. When Mr Sunder indicated that he was having trouble understanding the questions asked of him these were put in writing and he was given an adequate time to respond in writing. I do not accept that the time between the receipt of Mr Sunder’s response to the show cause letter and the decision to dismiss him was indicative of a failure to consider his response prior to the decision to terminate his employment having been made.

Unfair dismissal

[53] Mr Sunder is protected from unfair dismissal. The relevant consideration in this matter, in deciding if Mr Sunder was unfairly dismissed, is whether the dismissal was harsh, unjust or unreasonable.

[54] Section 387 of the Act sets out those matters to be considered in deciding if a dismissal was harsh, unjust or unreasonable:

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

(h) any other matters that the FWC considers relevant.

[55] I have considered each of these matters.

[56] For a reason for dismissal to be valid it must be sound, defensible and well founded. 1

[57] To the extent that leaving the workplace early and signing off at a later time is condoned by MSS in certain circumstances, Mr Sunder left work well outside the accepted period of early knockoff and in circumstances where he had not handed over to any other employee. There was no basis upon which Mr Sunder could have assumed that knocking off early without approval was acceptable.

[58] It is apparent from the evidence of Ms Thomas that MSS does allow employees to work for other security companies, but they do so with approval. I can appreciate why MSS seeks to have some control over its employees working for other security companies. This is brought into stark relief by the conflicted situation Mr Sunder found himself in on 2 May 2015 when he tried to please both employers.

[59] Mr Sunder had received training with respect to the Standing Instructions and the reasonable requirement of MSS that approval be sought for further employment. It is evident that MSS did provide such approval. Mr Sunder however did undertake work for another security company without the approval of MSS.

[60] Mr Sunder also sought to accept payment from MSS for time he did not work. By signing off some 30 minutes after he actually finished work and without the time being made up elsewhere on his shift (it also appears that Mr Sunder signed on at a time before he actually started) Mr Sunder has sought to accept payment for work he did not perform.

[61] If the misconduct I was considering was just one of these three issues my decision as to a valid reason might be different. Mr Sunder however has exacerbated the first instance of misconduct (being employed by another company without approval) by leaving before the end of his shift in circumstances where he had not been relieved and then by claiming for the time he had not actually worked. The aggregation of these issues provides a valid reason for his dismissal.

[62] I am satisfied that Mr Sunder was notified of the reason for his dismissal prior to the decision being made to terminate his employment. I also satisfied that Mr Sunder was given an adequate opportunity to respond to the reasons for his dismissal. Due consideration was given the Mr Sunder’s language limitations by giving him an opportunity to respond both in writing and orally to the reasons for his dismissal. There can be no criticism of the steps MSS took to ensure Mr Sunder could respond to the matters it raised and the time it took to consider his responses.

[63] I am satisfied that MSS did not unreasonably refuse Mr Sunder the opportunity to have a support person with him in discussions relating to his conduct. In its correspondence inviting Mr Sunder to meetings dated 5 May 2015 and 7 May 2015 specifically encouraged Mr Sunder to bring a support person with him.

[64] Mr Sunder’s dismissal did not relate to performance matters.

[65] MSS is a large employer. I do not consider its size should impact on the procedures followed to effect the dismissal. I am also satisfied that it has access to human resource specialist and expertise such that this should not impact on the procedures followed.

[66] Mr Sunder has shown remorse for his conduct in leaving work early and working for another security company without permission. He put this both in writing and during his meetings with MSS. On being advised of his misconduct he expressed his regret immediately. I have no reason to believe that this regret is not sincerely held and the apology honestly given.

[67] Mr Sunder has been financially impacted by the decision to terminate his employment only having sporadic work since his dismissal. Mr Sunder supports his family, providing the only source of income to his household.

[68] Mr Sunder showed remorse for his actions immediately the matters were raised with him by MSS.

[69] Mr Sunder has no history of misconduct.

Conclusion as to harsh, unjust or unreasonable

[70] I have carefully considered all of the circumstances surrounding the dismissal of Mr Sunder. In particular I have taken into account the existence of a valid reason for dismissal and the impact of the dismissal on Mr Sunder in conjunction with the ‘practice’ of leaving work early.

[71] I have weighed the existence of a valid reason for dismissal against the impact of that dismissal on Mr Sunder’s personal life.

[72] In these circumstances I am satisfied that the dismissal was harsh. I reach this conclusion for three reasons. Firstly, while there was a valid reason for Mr Sunder’s dismissal and there are sound reasons for the existence of the policies of MSS, Mr Sunder did not leave DAATS with no security presence. Mr Ochana was present and remained on duty. Given the practice of guards arriving 15 minutes early to complete a handover it can be presumed that Mr Ochana was the only guard on duty for about 15 minutes (from 5.30pm to about 5.45pm) before his replacement arrived. A further 15 minutes later, once the handover was complete there would have only been one guard on duty at DAATS, a normal situation after 6.00pm. This is not to condone the actions of Mr Sunder but it is a matter I have considered. Second, I have considered the personal impact of the dismissal on Mr Sunder. He is the sole breadwinner for his family and has been unable to secure on-going work. He has secured part time work but is not receiving the wage he was earning at MSS. Whilst the unemployment rate in Darwin may be less than the national average this does not mean Mr Sunder, in circumstances where there is no evidence of any specific skills and where English is his second language, can or should be able to easily find work. Third, I am satisfied that Mr Sunder is genuinely remorseful for his actions on 12 may 2015.

[73] In reaching my decision I have balanced these considerations against my findings with respect to how early and the circumstances under which employees can leave early and the actions of Mr Sunder in leaving early.

[74] I therefore find Mr Sunder was unfairly dismissed.

Remedy

[75] Mr Sunder seeks reinstatement or, should this not be possible, compensation.

[76] MSS submits that reinstatement is not feasible as it has lost trust in the ability of Mr Sunder to provide the required services to its clients. Further it says that it only has 54 permanent employees and 19 casual employees in Darwin so that its capacity to bring Mr Sunder back into the business is hindered by its small size.

[77] In Perkins v Grace Worldwide (Aust) Pty Ltd  2 the Industrial Relations Court considered the loss of trust and confidence in an environment where employment had been terminated. The Court found that

[t]rust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage the relationship or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, No. 606/96, 13 December 1996). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Div 3 of Pt VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between the employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. 3

[78] In McLauchlan v Australia Meat Holdings Pty Ltd  4 the Full Bench found that the observations in Perkins remained relevant even though the language of the statue had changed.

[79] In Nguyen v Vietnamese Community in Australia 5 the Full Bench observed at [27] that:

An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

[80] In this matter MSS have brought no evidence as to why or how trust and confidence is lost in Mr Sunder to the extent that the employment relationship could not be re-established. Bland statements of a loss of trust and confidence are easily made but there must grounds for such a statement. In this case there is none.

[81] In the circumstances however I do not consider that MSS have provided a sound and rational basis for its claim of a loss of trust and confidence. Mr Sunder has engaged in misconduct for which there is no reasonable excuse. There is no evidence that he fails to take instruction or has at any other time failed to fulfil his duties as a security guard. I am confident that this incident will serve as a stern warning to Mr Sunder to never leave his position without approval in the future.

[82] I am satisfied that the employment relationship can be re-established. I shall therefore issue an order that Mr Sunder be reinstated to employment with MSS.

[83] I shall also order that MSS maintain Mr Sunder’s continuity of employment and his period of continuous service.

[84] I have decided that I should order that Mr Sunder be compensated in part for lost pay. At the time of this decision it is over five months since Mr Sunder’s employment was terminated. I am however mindful that his misconduct led to his dismissal and that I have found that this constituted a valid reason for his dismissal.

[85] Mr Sunder has had some employment after the termination of his employment. He was, at the time of hearing, employed on a part time basis with Woolworths. He does not have consistent hours each week.

[86] In these circumstances I consider that it is reasonable that Mr Sunder not receive all of his lost pay. I shall order that, upon reinstatement Mr Sunder should receive payment equivalent to 8 weeks’ pay less any amount he has earned in the 8 weeks’ prior to his reinstatement. A “weeks’ pay” in this case should be the average weekly earnings that Mr Sunder would have earned with MSS working the roister pattern he was on prior to the date of his dismissal. This amount should be paid within 14 days of the date of the order.

[87] I shall also order that superannuation be paid on any payment made to Mr Sunder.

[88] An Order will be issued with this decision.

COMMISSIONER

Appearances:

C. McKenzie of Darwin Community Legal Service for the Applicant.

R. Jansen of the Respondent.

Hearing details:

2015.

Darwin:

September 15.

 1   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 2 (1997) 72 IR 186.

 3   Ibid, 191.

 4 (1998) 84 IR 1.

 5   [2014] FWCFB 7198.

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