Ferndale Pty Ltd (previously known as Rebel Liquor Pty Ltd t/as Black Nuggett Hotel-Motel, Moranbah v Best [1996] ICQ 60 (1997) 154 QGIG 52

52 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 1997 ########################################################## QUEENSLAND INDUSTRIAL COURT lndu.Hrial Relations Act 1990 s.295 - application for reinstatement Ferndale Pty Ltd (previously known a, Rebel Liquor Pty Ltd t/m; Black Nuggett Hotel-Motel, Moranbah AND Felicity Anne Best (No. 8773 of /994) COMMISSIONER EDWARDS 20 December 1996 Compensation Reconsideration Appeal Decision of Industrial Commission Dismissal Application lead to $29,000 Compensation Awarded by Commission - Proper Name of Company Respondent discriminated against under the Anti-Discrimination Act 199/ -Amount for Discriminatory Practices - Amount of Compensation Reduced to $28,500. DECISION On 17 October 1996 the President in C59 of 1996, 153 QGIG 539--541 decided as follows:- "I therefore allow the appeal to the extent of setting aside the Commissioner's order for payment of compensation in the sum of $29,000. I order that the matter be remitted to the Commissioner so that he might reconsider the amount of the compensation to be ordered in light of these rea<;ons. The appeal is otherwise dismissed. I reserve to the parties liberty to apply within relation to the question of costs.". In light of this decision the Commission listed the matter for hearing. On 19 November 1996 Messrs Martin and Homeman-Wren of Counsel advised the Registrar as follows:- "Re: QIRC Application No. 8773 of 1994 and QIC Appeal No. C59 of 1996 Further to the above matter which has now been remitted to Commissioner Edwards for reconsideration of the amount of compensation to be ordered we advise that when the matter wa, before his Honour, Justice de Jersey, P .. it was indicated to his Honour that counsel for the parties would agree upon the proper name for the employer and advise the Court accordingly. We advise that it is agreed between the parties that the proper employer of the applicant at all material times was FEMDALE PTY LTD. (ACN 010 713 229)." At the hearing on 13 December 1996 the Commission rejected a request by Mr O'Donnell to recall Mrs Best. The respondent acting on legal advice detem1ined not to recall any witnesses. In providing details on the manner of determining the amount of compensation of $29,000, the Commission refers to Chenery & Klemzii Nursing Home:-- "The object of the compensation is to restore the employee as far as practicable to the financial position in which the employee would have been, but for the wrongful dismissal. Compare Chenery i,. Kelmzix NursinK Home (1988) 55 SAIR 544, 551-2 and subsequent cases in this Commission.". About eight months elapsed between the date of dismissal and the date of the Commission hearing. Mrs Best advised in evidence that during that period she had applied for positions. After moving from Moranbah to Tamborine Mountain she applied for a couple of positions on the Gold Coa<.;t. She indicated that difficulties were experienced because of the fact that she had been dismissed. Poor to leaving Moranbah she worked on a casual ba,is with BHP Guesthouse. The Commission is satisfied that Mrs Best made satisfactory efforts to mitigate her loss by efforts to obtain employment. Her experiences and efforts over the eight month period provided to the Commission an insight into the difficulties she encountered in attempting to find acceptabk compatible work. The Commission wa<; of the opinion that a further lengthy period would elapse before she would be in a position to re-establish herself to a level similar to that which existed prior to her harsh dismissal on 19 July 1994. Mrs Best wa<. born at a hotel and had a lifetime a,sociation in the hotel industry. In view of her efforts over that eight month period the Commission envisaged that it could take her up to a further twelve months to regain confidence and re-establish herself in her chosen industry. The Commission therefore provided a sum equal to the salary between the date of the dismissal and the date of hearing with the addition of the period so estimated. In 8832 of 1994, 149 QGIG 457-462 Swan C stated:- "In making this decision, I have taken into account, amongst other things: a) the nature of the dismissal and surrounding factors; b) Mrs Orr's age; work background; specific work related skills; capacity to gain alternative employmeni a<; a Senior Legal Secretary; superannuation, reasonable period of time in which Mrs Orr might be able to find appropriate employment. In many respects, the latter component is a factor to which I attribute particular weight (see Chenery v. Kelmzig Nursing Home (55 SAIR 545)). This amount is awarded in the form of a 'global sum' of compensation (see Chenery).". In considering the level of compensation I do not accept the argument of Mr Agnew that it is necessary for the Commission to be advised of the actual costs before the Commission may make an appraisal. Even though specific quantification had not been provided the Commission is prepared 10 make a decision based on the evidence recorded. For Mrs Best she must rely on her experience and reputation. M such Mrs Best wa, faced with a difficult future and the fact that she wa~ dismissed after a lifetime of work in the industry. Her age would enable her to restore her confidence and rehabilitate herself. Mrs Best found it necessary to relocate her family and to purchase items for her children. The family would have incurred no such expenditure had the dismissal not occurred. In his decision the President made reference to the fact that the Commission may have been influenced by the inclusion of items to which it is not appropriate to give consideration when making such determination. The Commission indicates it wa, an element of surprise that a reputable Company would subject a woman to such discriminatory practices. This may have resulted in the Commission being influenced to take cognisance of this fact when the amount wa<; being determined even though it wac; minimal. The loose use of tem1inology may have created the impression of a penalty. It is not the intention of the Commi<;sion to subject the Company to a penalty. Accordingly, the opportunity is being taken to discount the amount of compensation awarded. In relation to superannuation, long service leave or other fonns of leave the Commission would not envisage any reason why Mrs Best could not have enjoyed a long career with the Company as her progression within the structure On dismissal Mrs Best was paid an amount of $5,864.87 Between the date of dismissal and the date of hearing she received an income of$1000. 22220_1.OOC 10 January, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE On consideration of the factors provided the Commission determined the sum as follows: Loss of Income Less paid on dismissal Less Income TOTAL $35,000 $ 5,865 $29,135 $ 1,000 $28,135 An appropriate amount wa, added to cover contingencies. The Commission accordingly detennined that a sum of $29.000 be appropnate. In view of the fact that the Commission may have incorporated an amount for discriminatory practices, I hereby reduce the amount of the onginal compensation by the sum of $500 The Commission hereby orders that an amount of $28,500 he paid b FemJale Pty Ltd to Mrs Best A formal order will be · d b h y upon request. , . issue y t e Registrar KL EDWARDS, Commissioner. Appearances:- Mr J. O'Donnell, Federated Clerks' Union of Austral· N h Q B · • ,a, ort ueensland ranch, Umon of Employees on behalf of the applicant. , Mr_C. Agnew and with him Mr L. French of Queensland Hotels A .. . U f E I be . ssoc1at1on nton o mp oyers on half of the respondent. ' Operative Date: 20 December 1996 Decision Amount of Compensation Relca<;ed: 20 December 1996 ########################################################## 53 -- 1 of 1 --