Berends v Gillilodge Pty Ltd [2001] QIRC 140 (2001) 168 QGIG 50

50 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 September, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Jay Berends AND Gillilodge Pty Ltd (Case No. B362 of 2001) COMMISSIONER ASBURY 6 September 2001 Termination of employment – Finding that applicant was constructively dismissed – Finding that dismissal was unfair – Finding that reinstatement or re- employment impracticable – Further evidence required to determine amount of compensation to be awarded – Further evidence provided by applicant in affidavit – Respondent declined opportunity to cross-examine applicant about contents of affidavit – Compensation awarded. DECISION In a decision released on 3 August 2001, I found that Mr Jay Berends (the applicant) had been unfairly dismissed, and that the remedies of reinstatement or re-employment were impracticable. I also found that insufficient evidence had been called by the applicant in relation to non-refundable remuneration received in the period following his dismissal, to enable compensation to be calculated. Accordingly, within seven days of the release of that decision, the applicant was directed to file in the Commission and serve on the respondent, an affidavit containing information upon which an assessment of compensation could be made. Within fourteen days of the release of that decision, the respondent was directed to advise the Commission in writing, of whether or not cross- examination of the applicant in relation to the contents of the affidavit was required. No advice has been received from the respondent. This decision relates to the amount of compensation to be awarded to the applicant. The purpose of such an award is to compensate the applicant for the loss caused by the dismissal (Griggs v Health Equipment Hire and Supplies Pty Ltd (1995) 149 QGIG 131 at 134). In a significant number of cases the Commission has formulated compensation according to the factors identified in Chenery v Klemzig Nursing Home (1988) 55 SAIR 54 and the global approach laid down in that decision, of considering those factors which are relevant to the particular circumstances of each case. In this case, I have considered factors which include: • the qualifications and experience of the applicant; • the fact that the applicant was employed on a casual basis; • the relatively short period of time which the applicant had worked for the respondent; • the fact that the applicant’s hours were reduced; • evidence that the hours of other casual employees were subsequently increased; • the fact that the applicant obtained alternative employment within a relatively short period of time. Section 79(2) of the Industrial Relations Act 1999 (the Act) provides that in deciding the amount of compensation to be paid to an employee found to have been unfairly dismissed, and for whom reinstatement or re-employment is found to be impracticable, the Commission must not award an amount which is greater than the wages the employer would have been liable to pay the employee for the six months immediately after the dismissal, paid at the rate the employee would have received immediately before the dismissal. In this case, the determination of an appropriate amount of compensation is made difficult by the fact that the respondent had reduced the applicant’s hours of work, prior to the dismissal. In my view, the limit on compensation provided by s. 79(2) is global in nature, and does not restrict the Commission as to how the amount of compensation, within that limit, is to be calculated. For example, I am not restricted in calculating compensation, by the fact that the applicant worked thirty hours per week immediately prior to his dismissal, provided that the total amount of compensation awarded is equal to or less than the maximum provided by s. 79(2) of the Act. I am not satisfied in the circumstances of this case, that the applicant would have continued to work only thirty hours per week. The evidence from the applicant’s own witnesses, indicated that hours for casual employees had been reduced because of advice about the provisions of the relevant Award, and were subsequently increased to previous levels, based on a change to that advice. The applicant was being paid an hourly rate of $14.75, immediately prior to his dismissal. Before the reduction in his weekly working hours, the applicant worked at least thirty-eight hours each week. The applicant was dismissed on 8 February 2001, and had obtained other employment by 22 March 2001. The applicant was employed on a casual basis by the respondent, and has obtained casual employment following his dismissal. The applicant received a total of $768.40 from Centrelink payments during the period from 8 February to 22 March 2001. I have brought these payments into account in the calculation of the compensation (Lucas v Steven Paul Lather trading as Radcliffe, Lather and Buckland and Another (1996) 153 QGIG 1542 at 1543). I have not taken into account the fact that the respondent had not paid the applicant for the week he worked prior to his dismissal, in determining the amount of compensation. The applicant is still at liberty to pursue such payment. -- 1 of 2 -- 21 September, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 51 I have decided to award the applicant compensation in the amount of $2,500. That amount is a global sum, which I have determined by reference to the factors outlined elsewhere in this decision. I order that Gillilodge Pty Ltd, trading as Campmart pay to the applicant, Mr Jay Berends, the amount of $2,500 within 21 days from the date of this decision. I.C. ASBURY, Commissioner. Released: 6 September 2001 Appearances:– Mr J. Berends, the Applicant, on his own behalf. Mr D. Matley of Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) for the Respondent. -- 2 of 2 --