Crossland v Milstern Retirement Services Pty Ltd; Henry v Milstern Retirement Services Pty Ltd [2003] QIRC 215 (2003) 174 QGIG 1233

5 December, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1233 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement John Crossland AND Milstern Retirement Services Pty Ltd (No. B1108 of 2003) Wilhelmina Henry AND Milstern Retirement Services Pty Ltd (No. B1107 of 2003) COMMISSIONER FISHER 21 November 2003 Application for reinstatement – De facto relationship – Invalid reason – Anti-Discrimination Act 1991 – Office of Fair Trading – Written complaints – Officer requests permission to enter business premises – Consent to entry forms – Section 548 Property Agents & Motor Dealers Act 2000 – Section 140 Retirement Villages Act 1999 – Documents seized – Letter of counselling – Notice of termination – Breach of confidence – Failure to notify employer – Crossland dismissal found not harsh, unjust or unreasonable – Notice to be paid – Single or couple position – Case law – Henry dismissal found harsh, unjust or unreasonable and for invalid reason – Discrimination on grounds of marital status – Section 7(1)(b) Anti-Discrimination Act 1991 – Remedy – Section 80 Sanctions. -- 1 of 5 -- 1234 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 December, 2003 DECISION John Crossland and Wilhelmina Henry have each filed an application for reinstatement to their former positions of Manager with Milstern Retirement Services Pty Ltd (Milstern). Mr Crossland and Ms Henry were employed from 1 October 2000 until 16 July 2003 at the Urimbirra Retirement Village, Hervey Bay. During the whole of their employment Mr Crossland and Ms Henry lived in a de facto relationship. That has not endured after their dismissal. It is a relevant matter as part of Ms Henry’s case is that her dismissal was for an invalid reason, that is, discrimination on the grounds of marital status under the Anti-Discrimination Act 1991. The only evidence in relation to the applications was heard from the applicants and an officer from the Hervey Bay Office of Fair Trading. Mr Crossland advocated the cases on behalf of himself and Ms Henry. Milstern was represented by the present Manager of Urimbirra, Mr Garvin. Milstern did not call any evidence, missed the opportunity to put documentary material to the Commission but cross-examined both applicants and put submissions to the Commission. The circumstances of Mr Crossland’s and Ms Henry’s dismissals are not substantially in dispute. According to the evidence of Nikolaus Berceanu, Senior Investigations Officer, Hervey Bay Office of Fair Trading, residents from Urimbirra made representations to his Office in February 2003 about the administration of the Village. As neither he nor the Regional Manager was then appointed as an Inspector under relevant legislation they were unable to deal with the issues raised. Four written complaints were received by that office between 4 and 23 June 2003 about how Milstern was running Urimbirra. The nature of the complaints is broadly outlined in his affidavit and some appear to be serious. By the time these complaints were received both Mr Berceanu and his Regional Manager had been duly appointed as Inspectors. As a consequence of receiving the complaints Mr Berceanu attended Urimbirra at about 4.30 p.m. on Monday 30 June 2003. He went to the Manager’s Office but as no one was in attendance he then went to the door of the residence, which was in the same building, a short distance away. Mr Berceanu knocked on the door and introduced himself to Ms Henry by showing her his identity card and badge. He advised that he was an authorised Inspector from the Hervey Bay Office of Fair Trading and that he wished to speak to the Manager as he was conducting inquiries into a series of complaints against Milstern with respect to the Property Agents and Motor Dealers Act 2000 and the Retirement Villages Act 1999. Ms Henry took Mr Berceanu into the kitchen and introduced him to Mr Crossland. Mr Berceanu again produced his identity card and badge. He repeated that he wanted to discuss some matters with him concerning management issues of Urimbirra. Mr Crossland invited Mr Berceanu into the office. Mr Berceanu asked Mr Crossland for permission to enter his business premises for the purposes of conducting inquiries about allegations against the two abovementioned Acts. Mr Berceanu told Mr Crossland that he did not have to consent to his entry. If he declined to give his consent Mr Berceanu advised that he would apply for a search warrant under the respective legislation. He anticipated that such a warrant could be obtained in about 20 minutes. Mr Berceanu said the warrant could be obtained by contacting his Regional Manager (who would then seek that the warrant be issued by the Magistrate) and he would remain outside Urimbirra in his car until the warrant could be brought to him. Mr Crossland then consented to Mr Berceanu’s entry and signed two Consent to Entry forms – one under s. 548 of the Property Agents & Motor Dealers Act 2000 and the other under s. 140 of the Retirement Villages Act 1999. Ms Henry observed Mr Crossland signing the forms. There is some confusion about whether Mr Berceanu searched documentation for himself or whether relevant documents were handed to him by Mr Crossland and Ms Henry. Resolution of that point is unnecessary here. What is not contested is that Mr Berceanu seized various documents. The next day Mr Berceanu returned with the Regional Manager and seized some rental receipt books. Further material was provided to the Office of Fair Trading by Mr Crossland on 3 July 2003. The Commission understands that prosecutions against Milstern by the Office of Fair Trading are pending. Neither Mr Crossland nor Ms Henry contacted the head office of Milstern in Sydney on 30 June 2003 when Mr Berceanu arrived. Mr Crossland said that by the time the business with Mr Berceanu had concluded it was past the closing time of head office and he did not have access to the mobile or private home telephone number of the sole Director, Millie Phillips. Mr Crossland rang the head office at about 8.15 a.m. on 1 July 2003. The Office Manager gave him the private number of Ms Phillips. Mr Crossland rang Ms Phillips and advised of the events of the previous evening. According to Mr Crossland, Ms Phillips enquired why Fair Trading had visited. He replied that a resident(s) had complained and the Office was to return. Ms Phillips asked Mr Crossland to write what had happened and to fax the information to her. Mr Crossland omitted to tell her at that time or put in writing that he had signed the Consent to Entry Forms. Ms Henry also had a conversation with Ms Phillips that morning when she rang the office at Urimbirri. In that conversation Ms Phillips demanded a list be prepared by Mr Crossland of the documents taken. On 2 July 2003 Mr Crossland received a fax from a Solicitor acting on behalf of Ms Phillips seeking information about the visits by the Office of Fair Trading. In reply to the fax Mr Crossland disclosed for the first time that he had signed the Consent to Entry forms. It seems that by this time Ms Phillips’ Solicitor had learnt of Mr Crossland’s actions in this regard. Minutes later Mr Crossland received a “Letter of Counseling” (sic) from Ms Phillips. This letter took issue with Mr Crossland’s failure to advise that he had signed the Consent to Entry Forms and asked him to advise why he did not: “1. Advise the company that these documents were required before handing them over. 2. Advise why you signed the Consent Form without authority.”. The letter further stated: “This is a serious matter dealing with breach of confidence and needs your serious consideration and immediate reply. Without an appropriate response I will have to consider your position with the company on an ongoing basis.”. A further letter was received less than fifteen minutes later and was described as an addendum to the letter of counselling. It sought information about what Mr Crossland was told was the purpose of the entry. Although Mr Crossland provided a written response as requested, some of his comments were unhelpful. Shortly after providing his response Mr Crossland was dismissed. The time between the issuing of the letter of counselling and the issuing of the notice of termination was less than two hours. The reason given for the dismissal was unprofessional conduct calculated to cause damage to the employer. Two weeks’ notice of termination was given. Both Mr Crossland and Ms Henry concluded their employment on 16 July 2003. The letter of termination extended to Ms Henry. It said: “Your partner, though not specifically mentioned is included in the decision. She is part of the management team, and responsible to act in a proper managerial manner.”. -- 2 of 5 -- 5 December, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1235 It is unclear from the letter of termination what conduct of Mr Crossland was considered to be unprofessional. In his submissions Mr Garvin said that the dismissal occurred because Mr Crossland had failed to notify his employer that he had signed the Consent to Entry forms and this constituted a breach of confidence. Further, Mr Crossland had breached the confidentiality clause of his contract of employment. Mr Garvin said that Mr Crossland’s failure to notify Ms Phillips of his actions caused her to be put to expense in trying to find out what had happened. Had a warrant been obtained then Milstern would have been better placed to understand the basis of the search. In considering whether Mr Crossland’s dismissal was harsh, unjust or unreasonable, I will take into account the following matters identified by Mr Garvin as being the reasons for the dismissal: • failure to notify the employer about signing the consent forms; • breach of confidence; and • breach of confidentiality clause. Failure to Notify Employer about Signing the Consent Forms On Mr Berceanu’s arrival Mr Crossland made no attempt to contact Milstern’s head office. Mr Berceanu arrived before head office closed yet Mr Crossland did not initiate contact at that stage to either inform his employer of the situation, to advise that documents were to be seized or to seek advice about how he should respond. He clearly had a window of time in which to try to contact head office. Mr Berceanu said that had Mr Crossland sought to contact head office he would have allowed Mr Crossland the opportunity to do so. If consent was not given then Mr Berceanu would have proceeded to obtain a search warrant. The Consent to Entry forms seek the consent of the occupier of the premises, in this case, the occupier of Urimbirra Retirement Village, to the entry of a duly authorised Inspector. In his evidence Mr Berceanu said at the time of attending upon Urimbirra he believed that Mr Crossland as the Manager was the “occupier” for the purposes of the relevant legislation. He indicated that Crown Law advice received subsequently confirmed this belief. He said the advice was that the authority to sign a consent is derived from the fact of Mr Crossland’s status as an occupier and not whether or not he had authority from a third person. Mr Garvin, appearing for Milstern, argued that the occupier was Milstern and not the Manager. I am told that the matter will be decided in Court proceedings initiated by the Office of Fair Trading and the resolution of it is best dealt with there. I can accept that the arrival of an Inspector from the Office of Fair Trading might be disconcerting. I can further accept that Mr Crossland felt he had little alternative but to sign the Consent to Entry forms in light of Mr Berceanu’s advice that a decision not to do so would result in a warrant being obtained in a very short time frame. Added to this was the fact that the Consent to Entry forms had been made out in Mr Crossland’s name by Mr Berceanu. It is easily understood why Mr Crossland then believed he had authority to sign them especially when he was also Milstern’s appointed Manager of the property. In light of these circumstances Mr Crossland’s decision to sign the Consent to Entry forms is more easily understood. That Mr Crossland did not initially inform Ms Phillips of his signing the forms is bewildering. His explanation for his omission was that the forms were addressed to him and he felt it was more important to relate that the authorities had been there. Having considered all of the evidence and observed Mr Crossland in giving evidence I am of the view that the omission was deliberate and his explanation disingenuous. Breach of Confidence Mr Garvin contended that Mr Crossland’s action in signing the Consent to Entry forms constituted a breach of confidence. Mr Garvin did not elaborate. Breach of Confidentiality Clause Mr Garvin submitted that Mr Crossland acted in breach of clause 10 Confidentiality of his employment contract. This clause provides that: “You owe a duty of confidentiality to the Company and shall not, except with the prior written approval of the Company, disclose to any third party during your employment or thereafter, any information relating to the Company’s affairs which may come into your knowledge in the course of your employment.”. For reasons explained later I doubt whether the employment contract applied. In the event that it did then I do not consider clause 10 is relevant to the events in question. Claims for breach of confidentiality usually arise in circumstances where it is alleged that an employee has disclosed confidential information, used the employer’s time or facilities or uses trade secrets or business information that the employer has entrusted to the employee for the purpose of promoting the employer’s business. None of these circumstances arise here. However, there is also a basic obligation on the part of an employee to honestly and faithfully serve the employer’s interests and not abuse any trust or confidence placed in the employee by the employer. It seems that this is the breach of confidence and perhaps the breach of confidentiality to which Mr Garvin referred. Context The above mentioned reasons will be further considered but first Mr Crossland’s alleged unprofessional conduct must be seen in context. Thus, in my view, the Commission ought to consider whether Milstern had prior knowledge that the Office of Fair Trading may seek to attend upon Urimbirra to investigate complaints and in those circumstances what, if any, advice was given to Mr Crossland and Ms Henry. The evidence of Mr Crossland and Ms Henry was that they had each personally informed Ms Phillips that residents were discontented and were likely to complain to the Office of Fair Trading. Mr Crossland said that in February 2003 he had a conversation with Ms Phillips in a solicitor’s office where he told her that complaints from residents were likely to be made to the Office of Fair Trading. Ms Henry recounted several conversations to this effect with the latest advice being given to Ms Phillips in early June 2003. Ms Phillips is said to have replied “Well, let them. I’m sick and tired of being threatened.”. Both Mr Crossland and Ms Henry said that Ms Phillips scoffed at suggestions of possible complaints and importantly did not issue any instructions to either of them about steps to take in the event the Office of Fair Trading arrived at Urimbirra or otherwise made enquiries. None of the evidence given by Mr Crossland or Ms Henry of Ms Phillips’s prior knowledge was challenged under cross examination. Accordingly, the Commission accepts that Milstern had been forewarned that complaints from residents to the Office of Fair Trading were probable and that Milstern did not instruct its employees on how to respond in that event. In my view, Milstern’s neglect in providing any instruction to its employees negates much of its criticism of Mr Crossland’s actions, in particular, that he signed the Consent to Entry forms without authority. However, it seemed that the overriding concern expressed by Mr Garvin was the failure of Mr Crossland to notify Ms Phillips of his signing the Consent to Entry forms. I have already been critical of Mr Crossland’s explanations. Even if it is accepted that Mr Crossland had inadequate time to contact the head office of Milstern on 30 June there is no plausible excuse for not disclosing this information to Ms Phillips in the first telephone call and waiting until 2 July 2003 to disclose it, by which time the employer had learnt of Mr Crossland’s actions from other sources. It was information that was vital and relevant to the employer’s business and an employee has a responsibility to disclose such information to their employer. Failure to do so raises questions about the trust and confidence between an employer and an employee. -- 3 of 5 -- 1236 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 December, 2003 However ill-defined in the letter of dismissal, the reason to dismiss Mr Crossland related to his conduct. In my view the procedural aspects of the dismissal were perfunctory but nonetheless Mr Crossland was given an opportunity to respond to the allegations before he was dismissed. Even taking into consideration that circumstances in which Mr Crossland found himself I consider, subject to some comments that I will make shortly, that the decision to dismiss him was not harsh, unjust or unreasonable. The dismissal was not summary. Two weeks’ notice was paid on termination. Section 83 of the Industrial Relations Act 1999 provides that an employer may dismiss an employee only if the employee has been given the period of notice required by s. 84. In the case of Mr Crossland he was entitled to three weeks’ notice, one week of which is on account of his age and length of service. Clearly Mr Crossland was not paid correct monies on termination. Thus Mr Crossland was not dismissed in accordance with the Act and for this reason the dismissal itself can be found to be harsh, unjust or unreasonable. Added to this is that under the letter of appointment that Mr Garvin relied on Mr Crossland was entitled to four weeks’ notice on termination. In my view, this was the appropriate period of notice to be paid to Mr Crossland. Accordingly, the Commission orders that Mr Crossland be paid an additional two weeks’ wages. The dismissal of Ms Henry was for failure to act in a proper managerial manner. Her precise failings were not detailed in the letter of termination nor were they put to her in cross-examination or raised in closing submissions. Whatever the conviction of the employer might have been about Ms Henry’s failings it is inappropriate for me to address matters that are entirely speculative on my part and have not been specifically raised in evidence. There has been nothing put before the Commission regarding Ms Henry’s alleged conduct that can lead me to a conclusion other than that the dismissal was harsh, unjust or unreasonable. Ms Henry has also submitted that her dismissal was for an invalid reason, viz., discrimination on the grounds of marital status under the Anti- Discrimination Act 1991. Mr Garvin cross-examined Ms Henry about her contention that it was not necessary for a couple to occupy the position of Manager. She gave evidence – disputed from the bar table by Mr Garvin – that in her view it would be possible to have one person in the position of Manager with any excess hours being distributed to the gardener or relief managers. Further, Ms Henry gave unchallenged evidence that the position of Manager at Urimbirra was advertised through an employment agency. Mr Crossland applied for the job but both he and Ms Henry were interviewed. Apparently the residents of the Village decided that they wanted a couple to occupy the position. Both were employed in the position of Manager. Ms Henry presented as a credible witness whose evidence and I accept the evidence that she gave. Mr Garvin attempted to introduce into evidence an employment contract for Ms Henry and Mr Crossland dated 13 October 2000. It contained the signature of Ms Phillips and the purported signature of Ms Henry. The contract was not admitted because it had not been discovered to Ms Henry in advance of the hearing nor could the original be produced at the hearing. Ms Henry said that she and Mr Crossland only received an employment contract in May 2003. That contract, which is titled Letter of Appointment, was admitted into evidence, was dated 13 October 2000 and was signed by Ms Phillips alone. It appointed Mr Crossland as caretaker/gardener of Urimbirra Village and Ms Henry was described as being responsible for the running of the Village office. The specified hours of work were 30 per week for Mr Crossland and 18 hours per week for Ms Henry. It also provided a joint salary. An invalid reason for dismissal under s. 73(2)(m) of the Industrial Relations Act 1999 is defined in Schedule 5 Dictionary of the Act to mean “discrimination (a) that would contravene the Anti-Discrimination Act 1991.”. Section 7(1) of the Anti-Discrimination Act 1991 prohibits discrimination on the basis of listed attributes including at (b) marital status. However, an “exemption” to discrimination on the grounds of marital status is provided by s. 31 of the Anti-Discrimination Act 1991. It provides as follows: “Workers are to be married couple 31(1)It is not unlawful for a person to discriminate on the basis of marital status- (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in the terms of work that is offered; or (d) in failing to offer work; or (e) in dismissing a worker; if – (f) the work is for one of 2 positions that the person wants held concurrently by a married couple; and (g) the workers are required to live in accommodation supplied by the person. (2) In this section- ‘married couple’ includes 2 people who are de facto spouses to each other.”. To sustain an argument that the exemptions applied Milstern needed to establish that it wanted this position to be held by a married couple, noting that s. 31(2) provides that “married couple” includes de facto spouses. If Mr Garvin’s contention that the conditions under which Mr Crossland and Ms Henry were employed were those contained in the letter of appointment the exemption cannot be found to apply. They were employed in separate and distinct roles for a different number of hours each week. The only condition suggestive of a single position was the joint salary. The reality was very different however. On 27 February 2001 Ms Phillips wrote to Mr Crossland and Ms Henry appointing them as permanent managers at Urimbirra. A further letter from Ms Phillips dated 13 June 2003 said: “The work covers every aspect of management and requires one of you to be on the premises 24 hours a day 5 days and nights per week.”. The evidence of both Mr Crossland and Ms Henry was that they each worked and were paid for 24 hours a week. In his submissions Mr Garvin said that one wage was provided but that Mr Crossland and Ms Henry were paid separately. In light of this evidence the Commission needs to consider the application of the exemption provided by the Anti-Discrimination Act 1991 to the actual employment situation. A similar matter was considered by de Jersey P in Rebel Liquor Pty Ltd t/as Black Nuggett Hotel-Motel, Moranbah v Felicity Ann Best (1996) 155 QGIG 539. In that matter Ms Best and her husband had been employed to manage the Black Nuggett Hotel-Motel under a written contract styled as a “service agreement”. Included in the service agreement was a clause which, in circumstances where one partner of the Management left employment of the Company, gave the company discretion to terminate the employment of the remaining partner, to adjust their emoluments or to offer a redundancy package. Ms Best was dismissed because she declined to accept redeployment, offered pursuant to the clause of the service agreement, consequent upon the dismissal of her husband. The Commissioner who heard the matter decided the dismissal was harsh and not for a valid reason. -- 4 of 5 -- 5 December, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1237 The matter was considered on appeal where for the first time s. 31 of the Anti-Discrimination Act 1991 was raised. The appeal was heard under the provisions of the Industrial Relations Act 1990 which provided that a reason is not “valid” if “based” on an attribute for which discrimination is “prohibited”. That language, taken from s. 291(2)(b) of the Industrial Relations Act 1990 mirrors the language of s. 7(1) of the Anti-Discrimination Act 1991. In so providing, s. 291(2)(b)(v) made no qualification by reference to the various exemptions provided in the Anti-Discrimination Act 1991, including s. 31. In the Black Nuggett matter de Jersey P found that the structure of the Industrial Relations Act 1990 was such that the applicability of an exemption was not relevant to the determination of the validity of a dismissal under that Act. The Industrial Relations Act 1999 now provides that a dismissal is for an invalid reason if it is for any one of a listed series of circumstances, which includes discrimination. The structure of the present Act permits the Commission to take into account the exemptions under of the Anti-Discrimination Act 1991 even if they are not specifically raised in proceedings in the Commission in the first instance. This is so because discrimination is not limited to being based on a prohibited attribute. However, in order to trigger the exemption under s. 31, two conditions must be satisfied viz. the work is for one of two positions the person who proposes to discriminate wants held concurrently by a married couple and the workers are required to live in accommodation supplied by the person. In this case there is no equivalent provision to the clause found in the service agreement in the Black Nuggett matter. Even were the discredited Letter of Appointment (previously referred to as the employment contract) dated 13 October 2000 be found to apply, the only relevant clause is clause 14 Licence to occupy Managers Cottage at Village. This clause provides that “While you are in the employ of the Company and only while you are in the employ of the Company, you will have the right and licence to occupy the Managers Cottage at the Village on the following terms and conditions:”. Those terms deal with such matters as the payment of licence fee, maintenance, use, etc. In my view, because this clause is framed in terms of offering a right it does not require the “managers” to occupy the cottage. It only provides an opportunity to do so. Further, the Commission notes the employer’s requirement that Mr Crossland and Ms Henry perform after hours call. There is no doubt that residence in the cottage would assist in the timely performance of these duties but there is nothing before me to establish that such duties require the Managers to reside in the cottage. At best it could be considered to be highly desirable. Even if I am wrong that there is no “requirement” to live in accommodation supplied, Milstern has not satisfied the other condition, viz. that it wants the position held concurrently by a married couple. In the Black Nuggett case de Jersey P commented on the circumstances of the employment of Ms Best and her husband. He positively affirmed the submission made by Counsel for the Black Nuggett Hotel-Motel that Ms Best was approached as an individual, separately from her husband, prior to the execution of the service agreement, and hence the resultant service agreement amounted to a husband and wife management team agreement. However, de Jersey P said that the resultant agreement does not establish that the employer “wanted” the position to be “held concurrently by a married couple” in terms of s. 31(1)(f) of the Anti-Discrimination Act 1991. These facts have a degree of similarity to the matter now before me. The position was advertised as one position for which Mr Crossland applied. For undisclosed reasons, both Mr Crossland and Ms Henry were interviewed for the position and subsequently both were appointed. According to the submissions of the employer’s advocate, Mr Crossland and Ms Henry were paid separately. In my view no satisfactory evidence is before the Commission that the employer wanted the particular position to be held by a married couple (as defined). As de Jersey P said in the Black Nuggett case, the onus of establishing the exemption fell upon the employer. Accordingly, I have concluded that Ms Henry was dismissed for an invalid reason viz, discrimination on the grounds of marital status under s. 7(1)(b) of the Anti-Discrimination Act 1991. Remedy Reinstatement of Ms Henry is clearly impracticable. The employment relationship between her and Milstern has irretrievably broken down. Ms Henry seeks compensation and the imposition of sanctions for the dismissal being for an invalid reason. The purpose of compensation is to restore the person to the position that they would have been in except for the dismissal. The maximum compensation the Commission may order is an amount equivalent to six months’ wages the employee would have been liable to pay the employee but for the dismissal. When employed by Milstern, Ms Henry was paid $14.22 per hour and worked a 24 hour week. Ms Henry gained new employment on 29 September 2003. She spent two weeks in training and at the time of the hearing had worked for two weeks on a casual basis. Her new hourly rate is in excess of that received from Milstern but the employment is precarious. I calculate Ms Henry’s loss between the date of dismissal and the date of commencing her new employment as being $3,549.30. Given that Ms Henry’s dismissal was also for an invalid reason, the Commission is able to award a penalty against the employer under s. 80 of the Act to a maximum of 135 penalty units. The present value of a penalty unit is $75. There have been few decided cases to provide guidance on an appropriate penalty but in light of the circumstances of this matter I am disposed to award a high penalty. It was clearly the actions of Mr Crossland that led to Ms Henry’s dismissal. At no stage was Ms Henry informed of the allegations against her, given an opportunity to respond to them or explicitly told that her dismissal was also being contemplated. Milstern did not even have the courtesy of separately informing Ms Henry that she was dismissed. She was simply included by extension in the letter of dismissal that was addressed only to Mr Crossland. Added to this, no case was put against Ms Henry at the hearing. At all times she has been treated as if she were Mr Crossland’s appendage and not an individual. For these reasons I have determined that the appropriate number of penalty units to be awarded in this case is 120. Orders The Commission makes the following orders: 1. That Milstern Retirement Services Pty Ltd pay compensation in the amount of $682.56 to John Kenneth Crossland. 2. That Milstern Retirement Services Pty Ltd pay compensation in the amount of $3,549.30 to Wilhelmina Joan Henry. 3. That Milstern Retirement Services Pty Ltd pay $9,000 to Wilhelmina Henry as a sanction for her dismissal being for an invalid reason. 4. That Milstern Retirement Services Pty Ltd pay the amounts ordered in Orders 1, 2 and 3 within 22 days of the date of release of this decision. 5. That the amounts ordered in Orders 1, 2 and 3 be taxed according to law. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2003 23 October Appearances: Mr J. Crossland and with him Ms W. Henry, applicants. Mr J. Garvin on behalf of the respondent. Released: 21 November 2003 -- 5 of 5 --