Simon Gilbert v Picton Press Pty Ltd T/A Picton Press

[2015] FWC 7001

[2015] FWC 7001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Gilbert
v
Picton Press Pty Ltd T/A Picton Press
(U2014/15039)

COMMISSIONER WILLIAMS PERTH, 19 OCTOBER 2015

Termination of employment.

[1] This matter involves an application made by Mr Simon Gilbert (Mr Gilbert or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is the Picton Press Pty Ltd T/A Picton Press (the respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

Background

[3] Mr Gilbert was a Printing Press Operator who had worked with the respondent since 2006. In mid-2014 the respondent introduced a new type of printing press into its operations. All the Printing Press Operators including Mr Gilbert undertook a period of training on the new printing press. Ultimately in October 2014 the respondent dismissed Mr Gilbert because he was not achieving the level of performance they expected of him and they did not believe that his performance was likely to improve to a satisfactory level.

[4] At the hearing of this matter Mr Gilbert gave evidence as did Mr John Davis (Mr Davis) who had been employed as a Printer with the respondent until 22 August 2014. For the respondent evidence was given by Mr Murray Scott (Mr Scott) the Operations Manager, Mr Graham Jamieson (Mr Jamieson) the General Manager, Mr Dennis Hague (Mr Hague) a working Director of the respondent and Mr Bradley Hall (Mr Hall) the respondent’s Data Services Manager.

Evidence and findings

[5] Having considered the witness evidence in this matter I make the following findings.

[6] The respondent undertakes all types of offset and digital printing work. They print flyers, brochures, posters, point-of-sale materials, calendars and stationery items.

[7] Mr Gilbert was first employed in August 2006 as an Assistant and after a year was promoted to the position of Operator of one of the respondent’s then five Komori colour printing presses.

[8] In October 2013 the respondent purchased a 10 colour KBA Rapida printing press. The respondent’s plan was to transition from operating three offset presses to operating just the KBA press.

[9] The respondent involved staff including the Printers in planning the changes to introduce the new KBA press including a redesigned layout of the factory to improve workflow, the pattern and structure of shifts so operations could be changed from three presses to a single press and the training needs for the KBA press.

[10] As part of the new arrangements it was decided that the KBA press would be manned with a Printer at both end. Each Printer was to be jointly responsible for the volume and quality of the output of the press and this was discussed with the Printers over several meetings. This arrangement would mean that rather than having a Printer with a Print Assistant having two Printers would allow each Printer to get time both at the console end and the back end of the KBA press. The evidence of Mr Scott is that having operated the KBA press using this system now for over nine months that this works well.

[11] The respondent provided information to the Printers about the design and features of the KBA press including literature, DVDs and access to online resources.

[12] The respondent committed to its Printers that they would not make anyone redundant because of the introduction of the KBA press.

[13] Mr Gilbert’s evidence is that prior to June 2014 Mr Scott met with the Printers and showed them a short video about the KBA press and told them about its various features.

[14] The respondent arranged for an experienced Trainer from the KBA manufacturer “Jan” to attend the site to provide training to the Printers.

[15] Operating the console is the more difficult part of learning to operate the KBA press. The evidence is that generally during the training the Printers spent half of their time operating the console and the other half of the time at the back end of the press.

[16] Mr Gilbert’s evidence was that during these periods of training he along with the other Printers were still required to keep production going and performing other general duties.

[17] The evidence is that there were a number of teething problems with the KBA press during the period of its introduction and whilst the Printers were undergoing training.

[18] I find that all Printers including Mr Gilbert were affected in terms of their being some negative impact on their training by the teething problems and the need to undertake normal printing tasks throughout the period of training.

[19] Mr Scott’s evidence which I accept is that the standard formal training period for printers to be trained up on the KBA press is four weeks.

[20] Mr Gilbert’s evidence is that he was rostered to undertake this training between 9 June 2014 and 20 June 2014 along with three of his printing colleagues. Mr Gilbert also received a further two weeks training between 16 June 2014 and 4 July 2014. During this latter period his evidence was he got a lot more time on the console which controls the KBA press.

[21] None of the Printers including Mr Gilbert had ever previously used a KBA press which is quite different from their previous machines and involves new technology and is highly automated.

[22] Mr Scott gave evidence of the number of hours of formal training each of the six Printers received as follows:

“Printer Hours of training

Gilbert 219
Davis 162.5
Curry 149.37
Dalziell 139.66
Jensen 35.75
Laws minimal” 1

[23] Mr Gilbert in his evidence broadly accepted that these figures would be correct although his evidence was that he believed he and Mr Davis had about the same amount of training. 2

[24] Considering this evidence then I find that Mr Gilbert received more hours of training than any other Printer on the KBA press.

[25] I find that whilst Mr Gilbert’s training hours would at times have been interfered with by the teething problems the KBA press was experiencing and the need for him to undertake normal printing tasks there is no reason to find that Mr Gilbert’s training was more negatively impacted by these issues than the training of the other Printers.

[26] Mr Gilbert’s own evidence is that Mr Gavin Dalziell and Mr Craig Curry, both of whom had received less hours of training than himself, were entirely proficient operating the KBA press after their training. 3

[27] On 13 August 2014 the respondent called Mr Gilbert and Mr Davis into a meeting with Mr Jamieson, Mr Hague Mr Scott and Mr Kennedy, another Director. Mr Jamieson and Mr Hague told both Printers that their production was not up to speed that they were not operating to the standard the respondent required. Mr Gilbert replied that he and Mr Davis had only been working on the new press for a couple of weeks without the Trainer and Mr Gilbert explained that he was still trying to learn how to use the new press and was trying his best. The evidence I accept is that at this meeting Mr Hague said to Mr Gilbert words to the effect that “you should walk if you are not up to the job.”

[28] Mr Gilbert agrees that at that meeting he was asked whether there were specific areas in which he needed help. Mr Gilbert was not able to identify any specific areas but understood that he was not running the presses as fast as the respondent wanted him to and that he wasn’t changing over as quickly as they wanted him to. 4

[29] Later that day Mr Davis tendered his resignation and his evidence was that he did not want to work there anymore because he believed his job had become untenable.

[30] Subsequently meetings were held with Mr Gilbert and the respondent on 29 August 2014, 23 September 2014, 30 September 2014 and 8 October 2014.

[31] Mr Gilbert agreed that at the meetings on 13 and 29 August 2014 and 23 September 2014 concerns about his performance were raised with him and he had an opportunity to discuss those concerns and respond to them.

[32] Mr Gilbert conceded that over this period he at times had trouble with the console technology including the setting up of cameras.

[33] Mr Gilbert on a number of occasions told the respondent’s Managers that he wished to be put with a more experienced person rather than Mr Bruce Ramsey (Mr Ramsey). Mr Ramsey following Mr Davis’s resignation was paired with Mr Gilbert. Mr Ramsey was only employed as a Print Assistant and even though he was an experienced Printer he had therefore not been trained on the console end of the KBA only the feeder end. Consequently the point Mr Gilbert made was that Mr Ramsey was not able to help Mr Gilbert problem solve console issues.

[34] On other occasions Mr Gilbert told the respondent that he felt as though he just needed more time on the KBA press.

[35] At the 29 August 2014 meeting Mr Gilbert conceded he was struggling with the KBA press and for example when certain error messages would come up he did not know what to do. Mr Gilbert told Mr Jamieson at this point he was not fully proficient on the console. 5 Mr Gilbert said he wanted more on-the-job training and in response Mr Scott arrange for Mr Curry to give Mr Gilbert a further eight hours on-the-job training on 4 September 2014.6

[36] Considering the evidence of the respondent’s witnesses I find that over the following month it became apparent that Mr Gilbert was not achieving the standard of performance on the KBA press they required of him.

[37] On 30 September 2014 it was Mr Gilbert’s evidence that Mr Jamieson asked him to attend a meeting in the board room where he was told that the Directors were not happy with his performance. At this point Mr Gilbert had been working on the KBA press for approximately 15 weeks. I accept the evidence of Mr Jamieson that he told Mr Gilbert that not only had his performance not improved it had gone backwards.

[38] I accept the evidence of Mr Jamieson that Mr Gilbert’s response was to the effect that they should just see how things went. Mr Jamieson expressly told Mr Gilbert that if his performance didn’t improve his job would be in jeopardy. Mr Jamieson mentioned that if Mr Gilbert thought this was not a role he could now fulfil they could discuss with him an exit strategy.

[39] Mr Gilbert suggested he should be made redundant but Mr Jamieson rejected this but said that his continued poor performance could lead to his dismissal.

[40] There was some discussion about the possibility of further training. Mr Jamieson proposed that they meet again the following day to discuss what could be done to help Mr Gilbert.

[41] This day 30 September 2014 however proved to be the last day that Mr Gilbert worked because on the following day he presented a medical certificate declaring him unfit to work.

[42] Subsequently Mr Jamieson arranged a further meeting with Mr Gilbert on 8 October 2014. In attendance was also Mr Hall and Mr Robert Slater (Mr Slater) who was Mr Gilbert’s support person.

[43] Mr Gilbert agreed that at this meeting Mr Hague had told him that he had the lowest job throughput compared to the other Printers on the KBA press and there are issues with his job quality. 7 Mr Hague asked Mr Gilbert whether there were specific areas in which he needed help.8

[44] Whilst there are some contest about exactly what was said at this meeting I accept that the notes made of that meeting provided as an attachment to Mr Hague’s statement 9 broadly reflect what transpired.

[45] The respondent’s position in that meeting was that Mr Gilbert had been provided with more than enough training and support and had not been singled out by the respondent but his performance on the KBA press was below the required standard. Mr Gilbert said he would not be leaving and they would have to make him redundant but the respondent told him he would not be offered redundancy as his position needed to be filled and that if he can’t efficiently run the press after all of the training they may have to consider dismissal.

[46] It was discussed that the respondent would set the minimum acceptable standard as the average of the combined other shifts which would be measured. They would then provide reports so that Mr Gilbert and they could together identify any shortfalls in his performance compared to this standard. The respondent advised they expected to see a marked improvement in his performance over future weeks.

[47] The evidence is the meeting ended with the expectation that Mr Gilbert would return to work the following day 9 October 2014. 10

[48] Mr Scott’s evidence is that Mr Gilbert sent him a text message on 9 October 2014 advising that he was sick and consequently he never took up the opportunities discussed with him at the meeting on 8 October 2014 and the arrangement for the future that his performance would be measured against an average of the other shifts was not put into place.

[49] Mr Gilbert continued to be absent from this point onwards. Mr Gilbert’s evidence which is not contested is that he was unfit to work from 30 September 2014 onwards and that he had doctor’s certificates for this period. 11

[50] Mr Gilbert’s evidence is after this meeting on 8 October 2014 he contacted the AMWU and one of the union’s Organisers Mr Alan Lindsay (Mr Lindsay) who told him he would arrange a meeting with Mr Jamieson to discuss the situation.

[51] This meeting occurred on 22 October 2014 in attendance was Mr Gilbert accompanied by Mr Lindsay from the union and his support person Mr Slater and Mr Jamieson with Mr Hague.

[52] I am satisfied on the evidence that the notes of the meeting taken by Mr Jamieson 12 reflect the discussion that transpired in the meeting.

[53] Mr Jamieson had previously requested by email he be advised who would be attending with Mr Gilbert. At no time had Mr Jameson or Mr Hague been advised Mr Slater would be in attendance.

[54] Separately the evidence is that neither Mr Jamieson nor Mr Hague had an intention of dismissing Mr Gilbert before this meeting commenced.

[55] Mr Jamieson at the meeting noted that Mr Gilbert had not returned to work since 30 September 2014 and that this meeting was an opportunity to talk to him face-to-face. Mr Jamieson in his evidence says he mentioned that it was interesting that despite Mr Gilbert having been certified unfit for work for three weeks, since 30 September 2014, he had managed to come to the workplace twice during that time being on 8 October 2014 and now 22 October 2014 to meet to discuss his performance and employment. Mr Jamieson’s evidence was that he said he was frustrated that Mr Gilbert had not taken up the opportunity over this time to identify specific areas he needed help in so that the respondent could target the respondent’s efforts to assist him in a mutually agreeable way. 13

[56] The respondent reiterated its position that Mr Gilbert had received more than adequate training but was not performing to the reasonable standard they required.

[57] Mr Lindsay asked whether the company was willing to assist Mr Gilbert return to the workplace and put a support plan in place to enable him to progress to the required standard. The possibility of a buddy system was discussed. Mr Jamieson’s view was that this would be an additional cost to the respondent. The respondent in response asked what Mr Gilbert thinks he needs to improve in to which Mr Gilbert replied he needed to be put on the KBA press with an experienced Printer. The respondent noted that previously Mr Gilbert had said that he required no further training.

[58] At some point during the meeting Mr Slater accused the respondent of harassment and bullying towards Mr Gilbert referring to an OHS incident some months ago. Mr Jamieson at this point categorically denied any harassment or bullying and accused Mr Slater of insulting the integrity of the company with no knowledge of the background. Mr Gilbert was asked whether he agreed he had been bullied and harassed and he agreed he had not been, however Mr Slater did not apologise for his remarks.

[59] Mr Hague’s evidence was that Mr Slater was very aggressive in the first meeting on 8 October 2014 and on that occasion had also accused the respondent of harassing Mr Gilbert.

[60] Mr Jamieson agreed he took offence to the statements Mr Slater had made and that they irritated him.

[61] After some further discussion Mr Jamieson, Mr Hague and Mr Slater left the room. Approximately 5 to 10 minutes later Mr Jamieson and Mr Hague returned to the meeting and stated that nothing that Mr Gilbert had said had made them think that there was likely to be any proven improvement in his performance in the future and consequently they had decided to terminate his employment.

[62] Subsequently a letter of termination was provided to Mr Gilbert. That letter details the history of the performance concerns the respondent had with Mr Gilbert and the various discussions and meetings about this.

[63] The letter goes on to state that unfortunately Mr Gilbert’s responses to their concerns have continually been unsatisfactory and his responses offer no prospect of addressing their concerns. The letter states that Mr Gilbert has given the respondent no basis to think that providing him with even more time on the KBA press might improve his performance.

[64] The letter advises that he is to be dismissed with four weeks’ pay in lieu of notice.

[65] The respondent also paid Mr Gilbert one week further personal leave so that he was effectively paid through to 26 November 2014.

[66] Mr Gilbert earned $59,904 per year whilst working with the respondent.

[67] Mr Gilbert earned $1,400 from some casual work before gaining new employment on 2 March 2015.

[68] Mr Gilbert in his new employment has been earning $80,000 per year.

Consideration

[69] Section 387 of the Act, set out below, lists those matters the Commission must take into account when considering whether or not a person’s 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.”

[70] Much of the evidence in this matter is not in dispute. From early June 2014 the respondent introduced a new printing press and commenced to train its Printers including Mr Gilbert in its use.

[71] The evidence is that as the formal training progressed all Printers other than Mr Gilbert and one other were performing their duties on the new printing press to a standard the respondent viewed as at least satisfactory. The fact the other Printers who were in a similar position to Mr Gilbert were achieving at least the standard of performance the respondent required demonstrates that this standard the respondent expected was reasonable.

[72] Considering the specifics of Mr Gilbert’s circumstances I accept there may have been some disadvantage to him from having been paired with Mr Ramsey from 29 August 2014 which may have had some negative impact on his performance. However Mr Gilbert’s substandard performance had already been identified and had been discussed with him on 13 August 2014 prior to this occurring. In any event whatever disadvantage being paired with Mr Ramsey meant for Mr Gilbert this was more than compensated for by the fact that Mr Gilbert received significantly more training than other Printers and continued to work on the new press and gain experience on it through to 30 September 2014.

[73] Unfortunately, both for Mr Gilbert and the respondent, by the end of September 2014 it was apparent that Mr Gilbert was either unable to or unwilling to perform to the standard the respondent required.

[74] Mr Gilbert’s last day of work was 30 September 2014. From this date onwards he provided the respondent with medical certificates advising he was unfit to work.

[75] A meeting was held with Mr Gilbert on 8 October 2014. This meeting concluded on the basis that that he would resume work the following day and his performance from thereon would be measured against the average performance of other Printers doing the same work. Mr Gilbert however did not resume work on 9 October 2014 and doctor’s certificates were provided stating he was unfit to work.

[76] Mr Gilbert sought advice from the AMWU and on his behalf another meeting was arranged with the respondent’s management for the 22 October 2014. A very similar discussion was held at this meeting to that which had occurred at 8 October 2014 meeting. At the end of this meeting on 22 October 2014 the respondent decided to dismiss Mr Gilbert on the basis that his performance had not reached the standard they required and there was no expectation that he would be able to achieve this in future.

Valid reason

[77] I am satisfied that Mr Gilbert’s failure to meet the reasonable standard of performance the respondent required was a valid reason for his dismissal.

Notification of the reason

[78] I am satisfied that the respondent had notified Mr Gilbert on a number of occasions before he was terminated that his inability to achieve the reasonable standard of performance the respondent expected placed his job in jeopardy.

Opportunity to respond

[79] There were multiple occasions on which Mr Gilbert had the opportunity to respond to what was the valid reason for his dismissal.

Refusal of Support person

[80] The respondent did not refuse a request to allow a support person to be present at any discussion.

Warnings about performance

[81] It is clear from the evidence and the applicant acknowledges that repeatedly at a number of meetings it was made plain to him that the respondent was not satisfied with his performance and that his job was in jeopardy. 14

The size of the enterprise and the procedures

[82] The procedures adopted by the respondent were appropriate for a medium-sized enterprise.

The absence of dedicated HR expertise and the procedures

[83] The absence of dedicated HR management specialists or expertise in the enterprise did not cause the procedures to be adopted to be anything other than appropriate.

Other relevant matters

[84] The respondent’s position at the end of the meeting held with Mr Gilbert on 8 October 2014 was that he would resume work the following day and his performance from there on would be measured against others doing similar work. He did not resume work on 9 October 2014 and at the end of the meeting held on 22 October 2014 the respondent had decided that he would be dismissed.

[85] The respondent has not provided a clear explanation as to why its position at the end of the meeting on 22 October 2014 was so different to the position it took at the end of the meeting on 8 October 2014.

[86] The circumstances in which these two meetings were held were certainly different. Between 8 October 2014 and 22 October 2014 there had been a number of developments:

1. Mr Gilbert had not resumed work on 9 October 2014 as he had been expected to. The reason for that was that he was unfit to work.

2. Mr Gilbert had sought the assistance of the AMWU.

3. Another meeting to discuss Mr Gilbert situation was held on 22 October 2014.

4. At this meeting Mr Gilbert’s support person, Mr Slater, accused the respondent of bullying and harassing Mr Gilbert. Mr Jamieson was annoyed and irritated by Mr Slater’s unfounded accusation.

5. Suggestions put on Mr Gilbert’s behalf as to how he could be helped to improve his performance to reach the required standard, such as the respondent providing a “buddy” to work with him, were considered by the respondent to be either unreasonable or not likely to result in an improvement in Mr Gilbert’s performance.

[87] It is likely that the respondent’s management felt frustrated by the fact that Mr Gilbert did not return to work on 9 October 2014 as was expected and instead sought support from the AMWU. It is also likely and not surprisingly that they took offence at Mr Slater’s repetition of the accusations of bullying and harassment that he had first raised in an inappropriately aggressive manner at the previous meeting on 8 October 2014. It is reasonable to infer that the respondent saw these developments since 8 October 2014 and the absence of any new positive proposals by Mr Gilbert as indications that they were unlikely to make any progress in improving his performance.

[88] It is apparent that these new developments together negatively influenced the respondent approach to Mr Gilbert continuing in employment. Rather than being willing as they had been on 8 October 2014 to give Mr Gilbert a last chance to improve his performance they decided they were not willing to do so and would immediately end their relationship with him by terminating his employment.

[89] Considering the nature of the five new developments it was unreasonable for the respondent when making the decision to dismiss Mr Gilbert to take some of these into account. It was not reasonable for the respondent when deciding to dismiss Mr Gilbert to take into account the fact he had not returned to work on 9 October 2014 when this was due to illness, nor was it reasonable to take into account the fact that he had sought the assistance of the union and finally it was not reasonable to take into account the fact that his support person Mr Slater had behaved inappropriately in the final meeting. Only because I have concluded that the respondent’s decision to dismiss Mr Gilbert was influenced by these developments do I find that the dismissal was unreasonable.

[90] Consequently I am satisfied then that the dismissal of Mr Gilbert was unfair.

Remedy

[91] Mr Gilbert does not seek reinstatement and I note that he has gained other employment which he identifies as being better employment. In the circumstances then I am satisfied that reinstatement would be inappropriate and so will consider whether there should be an order made for compensation to be paid to Mr Gilbert.

[92] Section 392 of the Act sets out the criteria for deciding an amount of compensation to be paid in lieu of reinstatement.

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[93] There is no suggestion that an order requiring the respondent to pay compensation would affect the viability of the enterprise.

[94] Mr Gilbert had been employed for eight years at the time of his dismissal.

[95] Had Mr Gilbert not been dismissed I think all the evidence indicates that on the balance of probability he would not have achieved the performance standard operating the KBA press that the respondent required. My conclusion is that his employment with the respondent would have ended in the very near future had he not been dismissed as he was. Upon Mr Gilbert being fit to resume his duties my determination is his employment would have continued for only a further four weeks.

[96] Consequently the remuneration Mr Gilbert would have received if he had not been dismissed would have been a further four weeks wages.

[97] Mr Gilbert was earning $1,152 per week gross. Therefore the remuneration he would have earned if he was not dismissed was $4,608

[98] I accept Mr Gilbert has made reasonable efforts to mitigate the loss he has suffered by seeking other employment.

[99] After being dismissed Mr Gilbert has earned $1,400 prior to Christmas.

[100] Mr Gilbert then gained new employment on 2 March 2015.

[101] That new employment is paid at a significantly higher rate being more than 30% greater than he was earning with the respondent which is a matter that is also relevant in determining an amount of compensation. However Mr Gilbert gained this employment some months after the time at which I have determined his employment would have ended with the respondent and so I will not take this into account.

[102] A further matter which is relevant is that the respondent paid Mr Gilbert for one weeks’ personal leave in addition to the four weeks’ pay in lieu of notice.

[103] Consequently from the four weeks lost remuneration of $4,608 a deduction of $1,400 will be made for the amount Mr Gilbert earned and a further $1,152 will be deducted for the extra weeks’ personal leave paid.

[104] An order for the respondent to pay to Mr Gilbert within 21 days the amount of $2,056 gross from which tax will be deducted will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

C. Fogliani representative for the applicant.

M. Fisher representative for the respondent.

Hearing details:

2015.

Perth:

June 2.

Final written submissions:

Applicant, 20 July 2015.

Respondent, 6 and 20 July 2015.

 1   Exhibit R1 at paragraph 47.

 2   Transcript at PN351 to PN377.

 3   Ibid., at PN377.

 4   Ibid., at PN455.

 5   Exhibit A2 at paragraphs 43 to 45.

 6   Transcript at PN475 and Exhibit A2 at paragraph 54.

 7   Transcript at PN541.

 8   Ibid., at PN551 and PN552.

 9   Exhibit R3, Attachment DH3.

 10   Exhibit R4 at paragraph 16, and Exhibit R2, Attachment GJ4.

 11   Transcript at PN637 to PN639.

 12   Exhibit R2, Attachment GJ5.

 13   Ibid., at paragraph 98.

 14   Transcript at PN511 to PN520.

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