Timothy Naden v ACM Group Ltd t/a Advanced Credit Management / Accounts Control Management Services
[2010] FWA 8071
•28 OCTOBER 2010
[2010] FWA 8071 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Timothy Naden
v
ACM Group Ltd t/a Advanced Credit Management / Accounts Control Management Services
(U2009/14558)
DEPUTY PRESIDENT SAMS | SYDNEY, 28 OCTOBER 2010 |
Application for unfair dismissal remedy - dismissal for misconduct - procedural fairness - remedy ordered..
[1] This decision will determine an application lodged by Mr Timothy Naden (‘the applicant’) pursuant to s 394 of the Fair Work Act 2009 (‘the Act’) in which the applicant seeks relief from his alleged unfair dismissal on 3 December 2009, by ACM Group t/a Advanced Credit Management / Accounts Control Management Services (‘the respondent’).
[2] Shortly stated, the applicant was summarily dismissed for misconduct in that it was alleged that he had breached the respondent’s sexual harassment policy. The incident which gave rise to the allegations involved the applicant lying on the floor of the office and allowing a female member of staff (Ms Lele Saufoi) to ‘crack’ his sore back. It became a matter of some debate as to whether the applicant asked the female employee to ‘crack’ his back or whether she had volunteered to do so. In my opinion, resolving this issue is crucial to determining this matter, as it goes directly to the question of whether the applicant’s conduct constituted ‘unwelcome’ sexual harassment, as defined by the respondent’s own definition of sexual harassment as:
Sexual harassment is any form of sexual attention that is unwelcome. It includes unwelcome touching or other physical contact, remarks with sexual connotations, smutty jokes, requests for sex, or the display of offensive materials such as pictures, posters or computer graphics.
[3] In resolving this issue, a major evidentiary difficulty arose for the respondent’s case in that the female employee - a crucial witness in my opinion - was not called by the respondent to give her version of events. I shall come back to this matter later.
[4] The application was unable to be resolved at a conciliation on 15 January 2010, and subsequently allocated to me for arbitration on 6 and 7 April 2010. However, three adjournments were sought by the respondent (and conceded by the applicant) on the grounds of the respondent’s primary decision maker (Ms C Vieira-Choy) being hospitalised and requiring a significant period of recovery. The adjournment applications were appropriately supported by medical certificates and reports and were granted by the Tribunal. The matter was eventually heard on 1 October 2010.
Evidentiary Background
[5] The applicant was a Team Leader working in an open plan office. He was responsible for around 20 employees, including Ms Saufoi. He had commenced employment on 9 March 2009. There was no dispute that the applicant has experienced severe back pain for 20 years and this was known to Management and to other employees. The applicant acknowledged that the staff members in his team were responsible to him and were required to obey any lawful instruction given by him. However, he strenuously denied ever directing or asking Ms Saufoi to ‘crack his back’.
[6] The applicant deposed that often when he got up from his desk he was in obvious pain and others were aware of it. On the day in question, Ms Saufoi offered to ‘crack his back’ and said she had done it before for family members. It would not take long and she was confident she could help ease his pain. He said he did not refuse because he did not believe it was inappropriate and he had witnessed other employees being given a massage in the office. The applicant said the incident occurred during a 15 minute break in a vacant cubicle adjacent to his desk and out of the way. He had lain on the floor on his stomach when she ‘cracked’ his back. After a few minutes, it did not seem to be working. One other person, Mr Shane Feaks, was in the vicinity. Another employee, Ms Ashleen Adello came back from her break and witnessed what happened next. The applicant’s supervisor Ms Roslyn Confos came across the scene and directed the applicant to get up, which he said he was trying to do at the time. As he felt embarrassed and was having difficulty getting up, he asked those present to turn around. Ms Confos then informed Ms Vieira-Choy, State Operations Manager, National Human Resources Manager, of the incident. Ms Vieira-Choy called the applicant into her office and when he told her what had happened, she had said that he should have known not to touch anyone in the office. She asked him if he knew he had signed a sexual harassment agreement and he denied knowing about it. In any event, he said he did not believe he had done anything wrong. Ms Vieira-Choy then sought advice from Head Office and was told to dismiss the applicant on the spot, which she did. She then spoke to Ms Saufoi. Ms Vieira-Choy said Ms Saufoi told her that the applicant had asked her to ‘crack his back’ and she did not know what to do because he was her Team Leader and she just did it. She was very sorry. No other persons were interviewed and Ms Saufoi was not disciplined for her involvement in the incident.
[7] In oral evidence, the applicant conceded that he had signed an acknowledgement of the respondent’s policies and was aware of what was expected of him in the workplace. He knew he was responsible for his own behaviour and discrimination might not necessarily come in the form of a written complaint. The applicant agreed that after his dismissal he had contacted Ms Saufoi on ‘facebook’ about these proceedings. She was very upset about what had happened. The applicant denied choosing a cubicle out of the way because he knew what he was doing was wrong. He denied being angry and argumentative when he was confronted with the incident and said he was ‘stunned’ at being dismissed.
[8] Mr Shane Feaks provided a statement and gave oral evidence in the proceedings. Mr Feaks was sitting within one and a half metres of the incident. He said that he observed the applicant having trouble with his back and had heard Ms Saufoi ask him if he would like his ‘back cracked’. She did not appear uncomfortable. Mr Feaks said when Ms Saufoi emerged from Ms Vieira-Choy’s office after the incident, he had asked her why she was crying. She told him she had to write a statement saying that the applicant had intimidated her into ‘cracking his back’. She did so out of fear of losing her job. She was very distressed and believed it was her fault that the applicant was dismissed. Mr Feaks said she also told him that she had been told to alter her statement.
[9] In oral evidence, Mr Feaks elaborated on his statement as to what he saw and heard during the incident. In cross-examination, he was asked if he had been massaged in the workplace. He said he had been massaged twice by a friend, who was a masseuse, and who had also ‘cracked his back’. He agreed that he was not in authority over that person. Mr Feaks denied hearing the applicant ask Ms Saufoi to ‘crack his back’. Further, he deposed:
Yes, she asked how his back was doing, he said that it’s still a bit sore and she offered to crack it with a method that she knew recently.
[10] Ms Ashleen Abello gave written and oral testimony. She witnessed the end of the incident when she returned from her afternoon break with her manager, Ms Confos. When she saw the applicant on the floor she joked to Ms Confos that ‘Tim must be drunk’ and had passed out on the floor. When Ms Confos asked him what he was doing, he replied that his back was sore. Ms Arbello observed, after the applicant had left Ms Vieira-Choy’s office, that Ms Saufoi then went in. When Ms Saufoi came out she told her she was fearful as to what to do and had been required to write a statement that she did not feel comfortable with. Ms Abello said she had never felt threatened, intimidated or pressured by the applicant as her Team Leader. She had found him to be very supportive and helpful.
[11] In oral evidence, Ms Abello detailed what she witnessed on the day. She confirmed that when she and Ms Confos returned from a break she joked about the applicant lying on the floor. Ms Confos told him to get up, but it took him some time because he appeared to be in ‘immense pain’. She observed the applicant going into Ms Vieira-Choy’s office and then being escorted by her out of the office. Ms Saufoi was then called in and when she came out she asked her what had happened. Ms Saufoi told her that the applicant had been fired and the Company wanted a statement from her. She was not really sure what to do. Ms Arbello told her she could go to management with another staff member (as a support person). Ms Arbello said that Ms Saufoi made it very clear to her that she was uncomfortable writing a statement and, at one point, she was so stressed she was almost crying.
[12] In cross-examination, Ms Arbello agreed it was unusual that an employee would be on the floor or having their back ‘cracked’ at work. However, she had not felt awkward by the situation, as it had happened in the past. Ms Arbello said that the applicant had not asked for any medical assistance when he got up from the floor. Ms Arbello also said that Ms Saufoi was angry with her because she had said to her that it was her fault the applicant had been dismissed.
Respondent’s Evidence
[13] Ms Vieira-Choy’s written statement was as follows:
On the 3rd of December, Roslyn and I were about to do a performance report on Tim due to non performance and consistency not do his work. On the way down the office, there was a lot of disturbance going on then Roslyn saw Tim lying in the middle of the cubicle, she advised him to get up and continue working. Roslyn then came to my office and said she saw Tim lying down on the floor in the middle of the cubicle, we called Tim in as we were going to anyway and I asked what he was doing this is when he confessed, stating that he had a sore back and Lele offered to crack his back . I advised you cannot do that as it can be deemed as Sexual Harassment, I advise you know what that means and he responded no, I stated that we have a policy that you have read and signed. He got very aggressive and said he saw nothing wrong with it, I explained that you are in a senior position (Team Leader) and should know better. I then sent him out to his desk and discussed the matter with Roslyn and contacted the CEO, and agree it would be safer for the staff if we terminated him. ACM Group does not condone this kind of behaviour and considering his previous complaints about been called a pervert in the office we acted and investigated the he then made threats to me, that he will drag this out and make sure he wins.
[14] In evidence in chief, Ms Vieira-Choy described the roles of Ms Confos and the applicant, the open plan office layout and the induction process for new employees. She said that it was not common place for employees to give each other massages at work, because it would be contrary to the respondent’s sexual harassment policy.
[15] In describing the events of 3 December 2009, Ms Vieira-Choy said she was in her office around 3:30pm when Ms Confos came in and told her that the applicant was lying on the floor in the middle of the cubicle and disrupting other staff. Ms Confos had told him to get up and he had asked those present to turn around while he did so. Ms Vieira-Choy said the applicant had said that Ms Saufoi was ‘cracking’ or ‘massaging’ his back. She said she was ‘overwhelmed’ and said ‘don’t you realise you can’t touch anybody in an office environment because you’re in a Team Leader or management position’. She added ‘are you aware that you signed a sexual harassment agreement?’ He said he was not aware and saw no problem with what had happened. She then discussed the matter further with Ms Confos who expressed extreme concern about the incident. Ms Vieira-Choy then called down to Head Office and was told to dismiss the applicant on the spot. She called him back in and did so. She said she then called Ms Saufoi into her office. Ms Saufoi was extremely distressed and told her that the applicant had asked her to ‘crack his back’ and she did so because he was a Team Leader. She had not known what to do and was very sorry for doing it.
[16] In cross-examination, Ms Vieira-Choy said that the applicant had told her that Ms Saufoi had offered to ‘crack his back’ and that he saw nothing wrong with it. She explained that he was dismissed because he was a Team Leader who saw nothing wrong with staff touching each other and that he said he was unaware of the respondent’s sexual harassment policy, even though he had signed an acknowledgement to the contrary. Ms Vieira-Choy confirmed that she spoke to Ms Saufoi after the applicant had been terminated. She said that Ms Saufoi was extremely distraught and upset and she had to console her. She said that Ms Saufoi had told her that the applicant had asked her to ‘crack his back’. Ms Vieira-Choy believed the applicant was in a position of authority and should have known better.
[17] In re-examination, Ms Vieira-Choy said it was her responsibility to ensure the safety of staff and that sexual harassment, discrimination or any of the type of similar behaviour is not tolerated in the office.
[18] Ms Confos’ statement was as follows:
On 3rd December 2009 at approximately 3.15pm I saw Tim lying on the floor in the cubicle area. When I asked him is he ok and what he is doing, he said he’s ok and just to give him minute. I then said he cant lie on the floor and Ashleen can’t get to her desk to sit down as he was in the way. He asked those around him to turn around so he could get up. (sic)
I then informed Cassandra Vieira what took place and Cassandra asked Tim to come into the office.
Cassendra, Tim & myself were present. When Cassandra asked why he was on the floor in the office he said he had a sore back. He then said that Lele suggested to him that she could crack his back. Cassandra then asked him if he allowed Lele to touch him and he said yes. She asked him if he was aware that no one can touch anybody in the work place and he said he was not aware of this. Cassandra asked him if he was aware of harassment and he said no. Cassandra then advised Tim it formed part of his employment contract.
Tim was then terminated due to the above.
A meeting then took place with Cassandra, myself and Lele. Cassandra asked Lele what happened and she said that Tim had asked her to crack his back. So she attempted to crack his back.
[19] In oral evidence, Ms Confos said she is a Section Manager responsible for approximately 50 to 60 staff. On 3 December 2009, around 3:15pm she was heading back to her office when she saw a group of four or five staff standing around one cubicle. The applicant was lying face down on the floor. She asked him what he was doing. He said something about his back and she directed him to get up. He asked the others present to turn around. She then went to Ms Vieira-Choy’s office and told her what had happened. She could not recall if the applicant told her he was getting his back ‘cracked’. In cross-examination, Ms Confos acknowledged that the applicant had previously informed her of his back problems.
SUBMISSIONS
[20] The applicant submitted that the ‘cracking of his back’ was at Ms Saufoi’s request and that it was innocent and amicable. It had a therapeutic, not a sexual intent. He had never been intimidating or abusive, but had always been supportive and encouraging as a Team Leader. He said Ms Vieira-Choy’s investigation was limited to a verbal report from Ms Confos, interviewing him and further discussion with Ms Confos. Neither of them had witnessed the incident and no one, most particularly Ms Saufoi, were interviewed before he was dismissed. He said there was no history on his part of any inappropriate behaviour and Ms Vieira-Choy had acted irrationally and unfairly. He sought a finding that he was unfairly dismissed and three weeks compensation for the time he was without a job.
For the respondent
[21] Mr P Bodisco of Counsel said that there was little in dispute as to the factual circumstances in this matter. The applicant was a Team Leader and staff had been disrupted when the Team Leader inappropriately interacted with a female employee, over whom he had authority. The incident occurred in an open plan office and the female employee was upset and put in an awkward position. There was a power imbalance and the applicant was responsible for his own behaviour. Even if Ms Saufoi was the instigator, the applicant should have resisted her request, as he was fully aware of the respondent’s policies. Mr Bodisco submitted that Ms Vieira-Choy had not acted capriciously or fancifully. She was not spiteful or prejudiced. The factual matrix was taken into account by her, including the applicant’s admissions. He said employees cannot give informed consent to the touching of other staff, because the staff could be victimised or taken advantage of by the power imbalance. There was no dispute that the touching was inappropriate or that there was a power imbalance. Ms Vieira-Choy had a responsibility to address the employer’s liability in these circumstances.
CONSIDERATION
Legislation and Relevant Principles
[22] In determining an application under s 394 of the Act, Fair Work Australia (FWA) is mandated to take into account those matters identified in s 387 of the Act. That section is expressed as follows:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
[23] There can be no doubt that the matters identified in s 387 continue the long established and frequently cited principle of the industrial meaning of the term ‘harsh, unreasonable or unjust’ in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; 61 IR 32, where the High Court, McHugh and Gummow JJ said at page 72:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before ht employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted”.
[24] Section 387 also incorporates matters which are obviously directed towards issues of whether or not the dismissed employee was denied procedural fairness. Referring again to the decision in Byrne & Frew v Australian Airlines Limited, their Honours observed in the next two paragraphs:
“The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation. In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl 11(a).
That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable. But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second”.
[25] It must also be added that even if the dismissed employee is able to demonstrate certain procedural deficiencies in the process up to, and including dismissal, these may not, in every case, be of sufficient importance or magnitude to outweigh the seriousness of any misconduct the employee may have been found guilty of. In addition, the legislature has specifically adopted the doctrine of many years standing which was referred to in Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95, of ‘a fair go all round’: see s 381(2) of the Act. In my view, that principle is to be applied as an overarching consideration to individual findings that the Tribunal may make as to a particular dismissal being either ‘harsh, unreasonable or unjust’. Nevertheless, the legislative intention is clear. All of the matters, unless not applicable to a particular dismissal (as is the case here in respect to s 387(e) of the Act), must be taken into account before FWA makes a finding that a dismissal was either ‘harsh, unreasonable or unjust’.
[26] Despite Mr Bodisco’s best and courageous efforts, the respondent’s case suffered from two fundamental and fatal flaws which must ultimately lead to a conclusion that the applicant’s dismissal was both substantively and procedurally unfair. Firstly, the respondent failed to call the most crucial witness to support its case - the employee who ‘cracked’ the applicant’s back, Ms Saufoi. It seems to me that her evidence was vital if the respondent was to discharge the onus it bears in a summary dismissal case to prove that, on the balance of probabilities, the misconduct had occurred. Whether the respondent was protecting Ms Saufoi from the stress of giving evidence in the Tribunal or whether her evidence would not have helped the respondent’s case (Jones v Dunkel inference ((1959) 101 CLR 298)) is moot. Although it seems a sensible and logical conclusion to draw that Ms Saufoi’s upset and distress had probably more to do with a fear of losing her own job and that she was upset that the incident, in which she had a leading role, had cost the applicant his job, rather than her being distressed or pressured by the incident itself.
[27] That said, it is not for the Tribunal to advise a party how it should conduct its case, particularly where that party is ably represented by legal practitioners who make forensic decisions about the conduct of their client’s case.
[28] The reality is that the Tribunal only has the evidence of the applicant himself and another corroborative witness, Mr Feaks, who both deposed that it was Ms Saufoi who had initiated the ‘cracking’ of the applicant’s back. Given that there is no contrary evidence, their evidence is the only evidence on this question before the Tribunal and must therefore be preferred. It follows that the respondent’s onus of proving the applicant’s misconduct has not been discharged. I would add the following: in hindsight, it may have been unwise, if not a little silly, for the applicant to have taken up Ms Saufoi’s offer. Even so, on any objective analysis, the incident could not be characterised as sexual harassment as generally understood in the community, particularly having regard for the definition of sexual harassment under the Anti-Discrimination Act 1977 (NSW) and the Federal Sex Discrimination Act 1984, both of which define the term in exactly the same way as:
Meaning of sexual harassment
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
[29] In addition, I make the above finding because the key word for present purposes is ‘unwelcome’. Having earlier found that it was Ms Saufoi’s suggestion to ‘crack’ the applicant’s back, the incident can, in no way, be described as ‘unwelcome’. Even putting aside the innocent and non sexual nature of the contact itself, a person who initiates physical contact of an innocent nature can hardly be said to have been ‘offended, humiliated or intimidated’. Given the circumstances, I find that no reasonable person could possibly come to a conclusion that this incident constituted sexual harassment in a legal or practical sense. Moreover, the incident did not constitute a breach of the respondent’s own policy: see par 2.
[30] It must follow that there was no valid reason for the applicant’s dismissal, as required by s 387(e) of the Act. While that might appear to be determinative of the matter, the second fatal flaw in the respondent’s case was the following:
[31] Even on the respondent’s own evidence, it failed miserably to afford the applicant any procedural fairness in respect to his dismissal. It is a matter which I consider relevant under s 387(h) of the Act. The investigation of the allegations against him was perfunctory and grossly inadequate. It was not contested that the applicant was summarily dismissed by Ms Vieira-Choy before anyone else was interviewed; most notably Ms Saufoi. In other words, the only version of events Ms Vieira-Choy had was the applicant’s, notwithstanding there were at least three other witnesses to all, or part of the incident. On one view, the respondent, to that point, was obliged, as a matter of natural justice, to accept the applicant’s explanation that it was Ms Saufoi who was the initiator of the ‘back cracking’. After all, it was also what he had told Ms Confos and what he had consistently maintained from the outset. Yet, Ms Vieira-Choy dismissed him without testing his version of events against anyone else’s. Moreover, Ms Vieira-Choy’s evidence was that when she rang someone, presumably senior to her, to obtain advice as to what to do, she was instructed to dismiss the applicant immediately. That is, the actual decision maker, whoever he/she might have been, did not have anyone’s version of events to consider. This was a gross and blatant denial of procedural fairness. It constitutes one of the poorest examples I have seen of procedural unfairness in a summary dismissal case. It is little wonder that Mr Bodisco struggled to defend his client’s position in this regard.
[32] In turning to the other matters in s 387 of the Act, it is apparent from the evidence, that the applicant was notified of the reason for his dismissal (s 387(b) of the Act); although as I have earlier established, the reason told to him by Ms Vieira-Choy was not a valid one. I also accept that the applicant was given an opportunity to respond to the reason (s 387(c) of the Act). He has consistently maintained that Ms Saufoi had initiated the ‘back cracking’. He has not wavered in that explanation, although I note that there was some criticism of the applicant (denied by him) that he told Ms Vieira-Choy that he was unaware of the respondent’s sexual harassment policy. In oral evidence, and faced with his signature on the policy document acknowledging he had read and understood the policy, he willingly accepted that he had been aware of the policy and understood what it meant. However, he did not believe that the policy applied to the incident for which he had been dismissed. For the reasons earlier expressed, I accept that his belief was understandable and I agree with it.
[33] There was no evidence that the applicant asked for a support person to be present when he was dismissed (s 387(d) of the Act). This may be, of course, because he did not believe he would be disciplined, let alone dismissed for what had happened. It would seem that he had no warning of his dismissal and that must also constitute a further failure by the respondent to afford him procedural fairness; another matter I consider relevant under s 387(h) of the Act. In addressing subsections (f) and (g) of s 387 of the Act, I do not consider the respondent’s size or its lack of human resources expertise are relevant to the procedures followed by it in effecting the applicant’s dismissal. It is plain that the respondent is not a small business, considering the applicant was a Team Leader for around 20 employees and Ms Vieira-Choy’s evidence was that she had responsibility of around 230 staff. In any event, the procedural flaws I have earlier identified, were so obvious and so profound that even the most inexperienced manager would have not embarked on a course of summary dismissal, without at least interviewing Ms Saufoi before dismissing the applicant and testing his explanations against others who had witnessed the incident. In this respect, I note that it is almost incomprehensible that Ms Vieira-Choy is the National Human Resources Manager and conducted herself on that day as if she was almost completely ignorant of, or chose to ignore, the most basic tenets of affording an employee natural justice in circumstances of summary dismissal.
Remedy to be ordered
[34] The applicant obtained alternative employment three weeks after his dismissal. He only seeks compensation for the three weeks he was out of work, pursuant to s 390 of the Act. This is commendable. In view of him having obtained alternative employment, I am satisfied reinstatement would be inappropriate in this case and that an order for payment of three week’s compensation is appropriate in all the circumstances of the case. There are no grounds for discounting this amount. In so deciding, I have had regard for all of the criteria for deciding compensation under s 392 of the Act; noting, in particular, that the order will in no way effect the viability of the employer’s enterprise; the applicant’s relatively short service; the remuneration the applicant would have received if he had not been dismissed and his mitigation of loss by obtaining alternative employment relatively quickly.
[35] Pursuant to s 387 of the Act, I find that the applicant’s dismissal on 3 December 2009, was ‘harsh, unreasonable and unjust’ both substantively and procedurally. Pursuant to s 392 of the Act, I intend to make an order of compensation to the applicant of three weeks wages at his weekly rate of pay (including superannuation) at the time of his dismissal. The amount so ordered shall be paid within 14 days. Orders giving effect to this decision will be issued separately.
DEPUTY PRESIDENT
Appearances:
Mr T Naden, unrepresented
Mr P Bodisco of Counsel, for the respondent
Hearing details:
2010
SYDNEY
1 October
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