Cains v Wadepack Limited [2003] QIRC 10 (2003) 172 QGIG 890

890 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 February, 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Patrick Bernard Cains AND Wadepack Limited (No. B1150 of 2002) VICE PRESIDENT LINNANE 29 January 2003 DECISION [1] On 2 January 2003 I released a decision in this matter finding the dismissal of the Applicant to have been harsh, unjust and unreasonable. In that decision I did not deal with the issue of remedy preferring to give both parties the opportunity to see if they could resolve that matter. In particular I asked the parties to consider whether re-employment was practical. [2] The parties sought the assistance of the Commission and Commissioner Swan convened a conference on 21 January 2003. The parties were unable to resolve the issue of remedy. I am thus only concerned with that issue. [3] The Applicant was dismissed from his employment on 10 July 2002. He had been employed with the Respondent and/or its predecessor since December 1998. The Applicant was thus employed for approximately three and a-half (3½) years. [4] The Applicant was in receipt of a salary of $40,186.00 at the time of dismissal. The Applicant had been required by the Respondent to lease a motor vehicle during the course of his employment. During the period from approximately September 1999 to the date of dismissal the Applicant received a further amount $12,759.98 being monies in excess of the cost of running such a vehicle i.e. in addition to the costs of running the motor vehicle the Applicant received a further approximate amount of $4,250.00 per annum in addition to his salary. [5] On dismissal the Applicant was paid the equivalent of eleven (11) weeks’ pay based on an income of $40,186.00. At the time of termination of his contract of employment the Applicant was left with a residual amount of $15,000.00 to pay off the lease of the motor vehicle. [6] Under s. 79(1) of the Industrial Relations Act 1999 it is only if I consider “reinstatement or re-employment would be impracticable” can I order compensation in circumstances where a dismissal has been found to be harsh, unjust or unreasonable. In the decision of 2 January 2003 I found that reinstatement was not a remedy that was open to me. I have, however, also formed the view that there is no evidence before me on which I could conclude that re-employment would be impracticable. [7] The fact that the Applicant was a printer by trade was raised during the course of the evidence. The Respondent, through its Managing Director, Ashod Nassibian, stated that in terminating the Applicant’s employment he intended sending additional printing work to Brisbane from Sydney and Melbourne. Subsequent to the dismissal of the Applicant the Respondent employed an additional printer. On my view of the evidence there was no material to suggest that there was an inability on the part of the Respondent to re-employ the Applicant as a printer, although I concede that it was only during the course of the hearing that Mr Nassibian became aware that the Applicant was a printer by trade. [8] I currently lean towards an order for the re-employment of the Applicant as a printer. I will, however, give the Respondent an opportunity to address me on why re-employment of the Applicant would be impracticable relying on the evidence before me on 28 October 2002. I will also give the Respondent an opportunity to address me on the effective date of any order for re-employment of the Applicant if such an order is finally made. [9] The Respondent has until 4.00 p.m. on Monday, 3 February 2003 to file a written submission dealing with those two matters. That written submission should also be served on the Applicant by the same deadline. [10] Should the Applicant wish to respond to the Respondent’s written submission he has until 4.00 p.m. on Wednesday, 5 February 2003 to do so. Order Accordingly. D.M. LINNANE, Vice President. Hearing Details: 2002 28 October 2003 2 January (Decision Released) 21 January (Conference) Appearances: Mr R.G. Walters of Walters & Co, for the Applicant. Ms V. Lincoln of Printing Industry Association of Australia, for the Respondent. Released: 29 January 2003 -- 1 of 1 --