Crogan v Tony Hoelscher Design [1995] QIRC 24 (1995) 148 QGIG 341

340 QUEE SLAND GOVERNMENT I NDUST RI AL GAZETTE I 10 February, 1995 10 Fe bruar y. 1995] QU EENSLAND GOVE R NMENT INDUST RIAL GAZETT E ;{41 Ql ll\ENSLAND IN DU~ 1RI Ai. Rt:I A I IONS COMC\ IISSI ON lnd11s1rw l Rdm,011.1 IC/ /990 s 297 - application for rn111pcnsatillll Su~an Carmel Cnw,1n AN D {,\ o. Jrt - of 19!1I) CO\IC\I ISSIONI R ~\\'/\t-. JO Jan ual'} I <)\15 /\ p pli cu tion for com pcn ~atmn - l' mh11t 1nnary c 111 ploymcn1 l 1n~a11,facto ry \\or !,. perfonnancc - Applicant c,pcricm:cd 111 ha1rdre,~mg indu,tr~ - No clear fonnal \\Jming gl\cn 1:mplo~er had ,.,hd rca,nn fo r 1ennmat111g cmplo~mcnt /\pplicant', pc, fo1111,111c c and .:apacity 1101 ,ttti,factor~ ,. 288. ~- 29 1. s. 292 mid s. 2'>7 of the /11du s1rial Rt'l"tinns 1, 1 /990 - !-.cheduk I• ! len111nati on 01 I mplo~mcnt Recommendation - Procedure prior to or .it the time of 1cnninatiun s. 8} rnmaincd " 1th111 lnd11.11rwl RL'l1111mn .Jct /!J()() Emplo) er fa iled to uc t in procedurally foi, 111 a11m:r - Compen,ation aw.1rd ed DI<. ISIO I he applicant m t hi s 111a11er. Mrs ~u,an Cro ga n ,ccks rclicl' re[!~rdmg her dismi,)ill from the cmplO) c•f l'cmJ I loebthcr DC )IJ!O. The m111al appl1tat1on maJc b) Mrs CrogJn ,pccifically sccJ.., rc1rn,1,11cment to her fo nncrl ) he ld po,1111in of Salon ( o-ordinalor " ith the respo11de111 <:o mpan~ .in d li.> r compcn,ation a, 10 loM \\agcs and other compcnsatol'} am,,unL, tbi, ( ,,mmis,wn ma~ deem appror11atc. I h" ,iprhcation ""' ,uh,c4uentl) amended 10 a cl.11111 for .-1,111pcnsa1 io11 alone and not ti ,r rcinstntcmcnt. ll mh the applicant and the employer \\'\;re lega l! ) rcprcsrntcd 111 thi, matter I h.: uppl icant. heing emplovctl 011 26 Arril 1994. "a s d ismis,c<I fn>m cmplo)mcm w ith the rc,pnndcnt on 22 June 19<14 "ith such tcn11111at111n to tJl..c effect a~ fn>m 24 June 199 4. ,t pcri()(! ol cmplo) mcnl las1111g ,omc eight \\Ceks and three dd) ~- rtie primar) rc;i~on~ profkrcd h> the emplo)cr for the termi nat io n \\Ctl l to: - I Jilurc tu hJIJnc.: the ,Jinn·s ti ll. I ailurc to undertake h.111l..1ng procedures propcrl). Fa ilure 10 prope rl y rnarrnge t he appo int ment hnok fo r t he s.ilon: l ·,nlurc to cn,urc th at d1cnt ca rd , \\Crc tilled in corrccth ,ind likd in alphabetical order. and , I ,1 ilun.: t11 rc, pon d gcncrally 1(1 t he require111ents (>f the p,isi tion. It "a, ~ubmrud h) the emplo) er th,11 dc~pue repeated cnrnurnfcmcnt to r.:c ti t;v the,..: 1tllcgcd pnlhi<:rn~ the arplicant l'c1ilcd to nwdily her rracticcs in m.:cordan(c \\ ith the ~·mploycr·, rc4uirc111c111s Bri1•f )l;1ck i: r1111 ntl of 1\pnliwl!! l 'nor to co111111c11e111g cmplO) 111::nt \\ rth thl' rc,pondcnt. the applicant haJ accumulated some :! I ~car, e,rcncnce in the h,11rdrc~~111g 111tlu,tr) Thi, c,pcricncc 111c-ludcd undertnkinl.! :m .ippr..:ntk..:,hip in hu ir M)ling a, 1, cll a, ,,1111 ing ,md opcrn 11n i lt <.:r O\\ll huirdrcssing t,u,inc,, for 1-t ~,:,ir,. Dti0f_l 1)0( -- 1 of 3 -- 342 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ I 0 February, 1995 The applicant had met Mr J\. (Tony) Wynne-1 loclschcr some time prior to her appointment through the course of her business. Before proceeding to assess thee\ idencc before the Comrni,sion as it goes to the question of the cessation of employment. one issue arose which needs to he determined at the outset. !his relates to whether the applicant \\ as ernpi(l', ed as a probationary employee for a period of three months. as claimed h: the respondent hut denied h, the applicant ] his issue needs to he clctenninecl because. despite the fact that the /11du.1trwl Rcla1io11s Ac! I 990 (the ;\et) docs not pre cluck probationary emplo: ces from the protection of the dismissal prO\isions of that ;\et (as docs the lndus/r/{/1 Re/ot/011.1 Act /9f!8 (Cnrnth)). I belic\C that particular obligations attaching to both employers and cmplo,ecs differ during a probationary as opposed to a non-probationary period of employment. Jn this case. the employee denies that either Mr or Mrs \Vynnc- l loclschcr (the employers) mentioned a period of probation to her at the time of appointment to the position of Salon Co-ordinator Opposed to this. the employers state that it \\as standard practice for them to onl) appoint on a three months probationary basis. Certain!). the ,,eight of e\idcnee (from both the cmplo)crs and all the employees of the salon who g,ne c,idence) goes to establishing that it ,rnuld he high!) unusual and unlikely that the employers \\ould employ any employee other than on probation. There ,,as also direct e\ idcncc gi,-cn that certain employ ccs recall comersations. in the presence of the applicant. to the cflect that the applicant was on a three month probationary period of employment. As \,ell. pro-forma documentation \\as tendered to the Commission by the employer showing that correspondence sent to unsuccessful applicants for other positions with the employer detailed that the successful employee ,,as cmplo) ed on a trial basis. On this point. Jt is diflicult to disregard the evidence ol so man) as ,,ell as the pro-forma documentation tendered by the ernpl(n er. As such. I accept that the applicant had been placed on a thr·cc month probationary period of ernplo, ment. It is unfortunate that some form of documentation referring to prclbation did not pass hct\\ecn the parties at the tirnc of appointment to this position. Cii\ell that it would be simple to do so. it is surprising that employers do little more than mention the point to employees. The lack of formal it, on this point makes one \\ondcr about the importance an emplo, er might place 011 this particular period of employment. '.\oncthcles,. I accept that the applicant \1as placccl on probation 1<,r a period of three months at the commencement of her cm rim ment. \\°hat 11"\'' frnm thi,'' !°rom m: c. this period of employment is different from other than probationar\ periods of employ rncnt Ohligalions placed 011 both employ er and employee arc to the ctkct that \\hile this is a period of trainin12 and nrnnitorin12. it is als,1 a period of cmplo,mcnt \\here the parties c,111 assess. at the end of the probationary pcrrocl. ,,hether the \\Orking rclatJonship is dc1cloping satisfactorily or not. In the C\Cnt that the cmplo:, er has pro\ idcd n:a~onahlc training. assistance and guidance ancl dues not make unreasonable demands upon the employ cc or has unreasonable or unarticulated expectations of the cmplovee. and the emplo,ee has not responded satisl)1ctoril) to the,e expectations. this foilmc could constitute a \alicl reason l<lr disrniss;d Dcpcn,Jcnt upon the particular circmn:-itanccs of th'..; ca;-;c being consid·:rcd. ll could he stated thc1t m er the length ul° the probation 1,.._·nzid the ~rnp!oycc cannot reasonably he c"".pcctcd to ha\ c as ,,ell ,h somcunc ,drn had pc1sscd be, ond the rro[--.;ili\Hlar) -.:tagc. hut at the end of the probat1nnar:, period could rc,honc1bl:, tic c,pcctcd to ha, c impnl\ cd perfonnancc to the ~l~mcbrd required ,\g.ainst this hachgroun1..L l \\ ill li\'.-,r_>,:~ the c, ;,Jenee put bci,,rc me in this matter The issues referred to under "Reasons fur Dismissal" if vie\\ed singularly may not appear to constitute sufficient reasons for dismissal. Cumulatively. they could create the basis for genuine concern for any employer. Relevant to this \\ hole question. h(rnevcr. is the fact that the employee (although on probation) was ,1 person well cxpcricncccl in the hairdressing industry and who could be seen as one who might not need extensi,e or detailed training. She was emplo) eel in this position because of her length) background in the industry and the fact that she hacl successfully operated her own hairdressing business for many years and the emplo) ers expected. not unreasonably in 111) , icw. that she would need little training or supervision during this probationary period On the issue of the till being constantl 1 "out". I accept the evidence of the applicant that mention was made by her cmplo) er of ,,hat appeared to be a perennial problem with the till at the commencement of her employment. lt appears as fact that more than one person had access to the till and under those circumstances. unless the employer develops a method of operation where it can be assured that only one person operates the till. then an) prospect of blame being attributed to one employee is limited. I did not pcrcei\ e that there was any question over the applicant's honesty in this re12ard. but rather the question went to her competence in monitoring this facet of the employer·s business. As such. I sec this problem as one for the employer to rectify through the introduction of better procedures. I am unable to sec this situation as a problem of the applicant·s mrn making and consequently. any blame being solcl) directed towards the applicant is misplaced It was claimed by the emplo)er that the applicant clid not properly prepare the daily banking material and that the task, when perl<mncd by the applicant. took much too long. There was evidence before the Commission showing the mistakes which had been made hy the applicant. !he mistakes ,,ere not major in nature. but their consistency was apparent The mistakes mainly went to adding up mistakes. amongst other matters. It is surprising that problems of this nature occurred. h<l\\CYer. the e,idcncc spoke for itself and \,bile mistakes ,,ere slwm1 to ha\c occurred by other employ ecs. this appears to ha\ c been an area of deficiency on the part of the applicant. Ciiven that the task itself "as not complc,. the mistakes sug12est a lack of concentration to detail on the rart of the applicant and l acknowledge that this would have caused the employer a degree of concern. I also accept that the employer ensured that instruction \\as 12i\ en lo the applicant by another employ cc as to the pcrl<mnanee of these duties in a correct manner. The appointment book ,,as seen hy the employer to be one of the most critical items in the hairdressing industry Despite the fact that on occasions the applicant \\as told h::, ~lr Wynne-I loclscher that "she ,,as making the appointment book sing". there \,ere a series of complaints made about the applicant·s failure to ensure that the appointment book was kept in an appropriate manner. The complaints \\cnt to matters such as double booking clients. scttin12 appointments on the \\Tong days etc. Ther·e \\as e\ idcnce from a number of\\ itnesses to this effect. The employer claimed to ha\e addrcsc,cd this percei\ ed problem mth the appointment book in a 111cctin12 \\ith staff This meeting appeared to have occurred some short period or time before the applicant's dismissal. A slight impnl\ ernent \\as noticed in the keeping of this book alier the meeting I accept that the appointment book is of great significance to a hair salon and gi\ en that most of the responsibility for the proper keeping of the book lay in the hands of the applicant. I am unabk lo disregard the \\eight of e, idcncc that shows that the <1pplicant may not ha\e been performin12 in this area of her \\ork to a ,tandard satislactory to her employer ,\ further area of concern crntrcd upon the question of client cards. These ,,ere also \ it.:\\Cd as hcing of prime significance in a hair salon in that they represented a collation of rclc\ ant information c()nccrning ec1ch client - eg the type of haircut the client had. colours i3<JOI_ I DOC JO February, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 343 and chemicals used in the hair together with other relevant information. The e\ idence sho,,s that it was the stylist's responsibility to record on the card what hair treatment the client had undertaken. The complaint was that on occasion. \\hen the cards \\ere not proper!) filled in by the stylist. the applicant \rnuld file the card away. often not in alphabetical order. The employer stated that the applicant had been spoken to regarding the incorrect iilin12 of the cards. but that other problems ,, ith regard to the cards did not come to light until after the applicant had ceased her employment. Certainly. the issue of filing cards alphabcticall 1 was of concern to the employer and should ha,e been a problem easily rectified. That 11 appeared not to ha,e been aclequatelv corrected \rnuld create justifiable frustration 011 the part of the employer given the substantial number of clients involved. More general issues ,,ent to questions concerning the applicant's demeanour in the salon and o,cr the telephone towards clients. It was claimed that a number of clients had complained to the salon about the coldness of the applicant's approach. In response to this particular problem. the employer (Mrs Wynne-Hoelscher) stated that she had dealt with this matter by telling the applicant to "relax and enjoy the job". rather than by telling her direct!) there were any complaints. what they consisted of and by \\horn they were made. /u well. there was evidence that the applicant had approached the employer (Mrs Wynne-Hoelscher) to complain that she didn't lecl that the employ er respected her ,md that she believed that the employer was "breathing do\,n her neck". -1 he applicant also states that the employer \\as treating her like a child and that staff \\ere afraid nfthe employer and that they lelt "down-trodden". Re\ iewing this. one must question whether the ernplo) er ful!illcd its obligations under the probationary period of employment to the employee. The employers \\CIT constantly questioned during this case as to ,,hen and how they brou12ht their concerns to the attention of the applicant. Mrs Wynnc-l loelschcr referred to a series of discussions she had held \\ ith the applicant over a period of time touching upon these issues. I accept the cmployer·s e\idence on this point that she did meet \,ith the applicant and did raise generally matters of concern. The employer's method ofdealin12 \\ith problems. hm1e\·er. could best be encapsulated in the follcming comments made b) the employ er:- ••.. its not my style to rub someone's nose in their rnistal-;cs: its simply to encourage them into another ,my of doing thmgs". In essence. the employer held the belief that rather than d\,ell on the detail of mistakes or concerns. it was more productive to be a source of encouragement to employees if ,md \\hen a particular problem arose. The employer claimed that ,,bile issues of concern ,,ere raised \\rth the applicant (ancl '\.1rs Wynne-I loclschcr produced diar·y mites to the effect) during the short period of employment. discernible chan12cs in the employee's performance and attitude \1crc not apparent as a result of these discussions. Indeed. it was clear from the C\ idcncc that the applicant dicl not kno\\. by ,,ay of fo1111al warning. that her employment \\a, in serious jeopardy. liming said that. ho,,c,cr. l ,,,nild lind it odd if the applicant clid not appreciate that there ,,ere some concerns held hy the employer with regard to her general \\Ork performance. Conclusion I ha, c considered all of the C\ idencc put before me in this matter. All has not been listed in this decision. but has been dul: considered. All ,,itnesses called by the employer attested to rhe fact that the employ er 0111:, employed staff on probation. For rc,hons cited earlier. I ha\ c accepted this evidence. Many witnesses attested to the fact that there were real and ob,ious problems \\ ith regard to the applicant's ,,ork performance and that genuine attempts were made to rccti fy some of the problems. I accept that e\ idcncc as reflcctinu the real situation 1,ith the applicant in the perfomiancc of her duties.' On the question of probation. a period of up to three months probation is not an unreasonable period of time in \Vhich to revie\1 an employec·s performance (\Vilcox J Sicholcon 1· fleavcn and forth c;a/lerv 1994 ALIR No. 232 a: 5). During this period of time. I accept the C\ idcnce that there were deficiencies in the applicant's performance and that these issues ,,ere dealt \\ith. on some occasions. in a general rather than specific manner by the employer. I have given consideration to the rationale espoused by the employer for dealing with employment related problems in the manner in ,,hich it did. I also have taken into account the nature of the industr) and understand that terminology used as \\ell as methods of approach may differ from what \,ould be usual in a less customer oriented area of employment. In re,iching my decision. I have taken into account the fact that the applicant is a mature person \\ ith considerable expertise in the hairdressin12 industr). She had successfully operated her O\\ll hairdressing business for many years and should have been well ,erscd in the operational requirements of hairdressing salons t'cncrally. The requirements placed upon an employer during this probationary period would. in tl11s instance. not be as stringent as those which would have been required were the employee a youn12. inexperienced or nc\1 employee in this industry or in the workforce generally. ft is reasonable to assume that the employer beliC\ ed that the applicant may not have required as detailed supervision as other employees mi12ht. ln these special circumswnces. I believe that the emplo)er did fulfil its obligations during this probationary period of cmplo)mCnt. I determine that the employer did ha, e a .. \ al id reason .. for terminating the employment of the applicant during the course of her probationary period of emplo:mcnt (sec s 291.(1) of the Act). The "rnlid reason" relates the applicant's capacity and perfonnancc (sec s 291.(l)(b)(i) of the Act) I hmc considered s 291.(2)(a) in that it provides that a reason for dismissal is not valid if "h,l\·ing regard to the cmployec·s conduct. capacity or pcrform,mcc and the operational requirements, the dismissal is harsh. unjust or unreasonable ... I do not belie\e this to be so and in respect of s 291.(2)(b) there ,,as nothing arising in the e,idcnce to indicate that any of these matters formed part of the reason to dismiss. The cxistcnce of a ,·alid reason and the prO\ is ion of a reasonable opportunity to respond to particular allegations. which \\OLJid include some formal indication that employ mcnt ,, as in jeopanJ:,. arc requirements to be addressed beltirc a l,m ful dismissal can occur. There \\as an c,pectation (ri12htfull\ held. in m, view) on the part of the employer that the applicant ,,ould show more capacit) than she did during the early stages of her employment In holding this\ JC\\. I ha\ c taken into account the applicant's background and experience in the hairdressing industry. It \\Ou!d he against the ,,eight of e\idence (dctailccl in this decision) to lind that the applicant's performance and capacity ,,ere at a satislilctory level (not\, ithstanding the probationary penod of employ rnent). !laving detcnrnncd that. I lind that the employer did not proceed fairly to terminate the sen ices of the applicant. In this regard. the general thrust of the Legislation requires thdl an employee at least be ,,arned with regard to any perecivecl dcliciencies. In this case. on the emplo)er·s own admission. this did not occur. With regard to the question of \\ hethcr the employee should rccc1n: a written formal \\clrJ111112. I would state as lollo\\S:- JllJOI I DOC -- 2 of 3 -- 344 QUEENSLAND GOVERNMENT INDUS TRIAL GAZETTE I I O February, 1995 .. l)h·ision :'i - Dismissa l Subdi,·ision I - Ob,iec1 and in1erprc1:11ion O bjcc l of l )i,· is ion s 288 statcs:- Thc obj ec t o fl his Di vi sion is to gi ve effect lO·· (a) the Tcn 11 imtli on of Empl oyment Con vent ion : and (b) the Terminati on or Empl oy ment Rec ommendation 1982 (t he English text of wh ich is se t 011 1 in Sched ule 13 ): . Schedule 13 - Tcnninution of Emplo yment Rec ommenda tion - Proc edu re prio r to or at th e time of termin a ti on s 8. state.:- The employmen t of a worker should not be tenninalcc.l fo r unsc1 tisl;1<.'l Or)· perf(> nn ance. unk:ss the employer has gi ven lo the , qirkcr ap propria1c i nstruct i on~ and wr i tt en warni ng and the worker continues to pcrfom1 his duti es unsa1isfoctori ly alk r a r easona b le pcriod orti rne fo r improvement has cl apse<J"' . Sch edul e 13 con ta ins recommend at ions which provi de guidance in the mailer or terminati on of em ph>ym cnt. In my view. the recommendations arc not legall y hinding but giv en th at the ohj cct of the dismi ssa l prov isions is to g 1w effect IO the rccomm en dations. it would fo llow that. at the very kast. the Commission should con sider these recom me ndations (in conj unction with the particul ar circu ms tances or the cc1 sc al hand) whc~n de lennini ng whetht:r a dismis sa l i s har sh. unj us 1 or u nrcaso1 w hk . Then: is no requirement to fo ll ow th e recom me nd at i on 10 the letter. and . in this ve in. wh ik the absence 01".1 , ,Tit1en " 'arning is not fatal lo th e cmplovcr·s dai m 10 have dismi ssed an e1npl O)CC l awfull) . the general thr u~t of 1he n.:commendati on is th a1 an c111p l<>y ce should al lcasi have had some type or li)rmal warn ing that th e con ti nuation of their .: mpl(): ment is under qucslion. In t he 1: ircu 11 1stan ces of this c ase. all or th<.' c vi d~ncc goes lo showi11g that the appli<:an l , va s never m ade aw are that her em ploymen t was i n j eopa r dy . The empl oycr did hel i 1:vc that m, em ployee with nous would have hec n aware that pro hlc. ms wc n:: :,p parcn l (and on this point. I agree wi th the tmp lnyer, panicuhirly gi,·<.: n the bac kground and cxpericncc of this pani1;u l ar em pl oyc1:) hut ii \\ Ou ld he g.<.> ing 100 f;tr to sugg<.:s l th at t he employee bc li e\'cd her positi<)ll would not be r crn i nc<l . J\ rcl iance by the employer soiely <•n this consideration \\Ould be co 111 rary 10 t he th rust or t he J i~missal l.cgi,;l ation. I liin n e<l the view. after considering all M 1hc cvi <l c·n cc in thi~ maucr as we ll a:, observi ng t hc w ilness cs giv ing e,·i d.: nc:e. that the cm ploy m<.:n t rc lati (> nship had very li mited pros pects of success hcynnd t he stage it h ad readi ed at the timc or termi na tion. I acc,:pl t he employer's cv id cnc(.' 10 t he clki:t that ti 1e ap pli can t wi ~hed to u nd erwkc her en1pl o v1111:nt in ,, manner contrilry I (> i hc requin:mcnls or the employer an d that the,c on-g.o i ng. <l i flic ull i cs (coupled w i th the app li cant· s gcm:rnl auitudc to warcl s the em ployer, particul arly M rs Wy nlli.: - llo cbchcr) did not auger we ll for a con ti nuing su c cess ful working rcl,uionship. I la, i ng <klermincJ thes e iss ue s. one nee d ,; lo rc,·icw the mcthoJ in which thc t..:m1inati o11 ,,f cmpl,lymcn t oe n irr e<l . The su gges tion has hcc ll put by the .:mpl oyi:. r that wh a1 occ um:d <1 t the pn in t of termination w.is that th ere wa s a mutual parting () f th e way,. The C\'idc 11 cc on th is point is th at the empl oyer. l<>nn ing " view th at the emph•y cc ,qs illi1c:-.ihk. 0 11 is:mcs such as rosters :111d ap preci<1ti ng 1hc hi, l Ny 10 t he c 111pl oy n1 cnl relationship. hdic ":d th at a, ··c' :1ch n l" us wan ted I \\ () di flcn:n l thi ngs out ,1r the ,amc j oh dc,crip110 11 . th,tl pcrha p, ii was ti me tha t we cal led it a day'·. It is alh:~c <l by the employer 1h a1 the ap pl ic:,nt respon<k d h) say m!? \\ or<ls to the dlcct of··Yc s. l th i nk th at , •;ou ld be a gond id ea·'. In n: la1ion tn the tcnn inution or c n1 ploy111e11L th e ap plic an t docs , ta lc th at he r rcc(>llccti on of c,·c1Hs is , i mil ar to th;it (>f 1he cmpl O) er·, . IH>\\ cn-r . ,he cl ai ms t lw l b ec au ~c ;,he: "as in a state of shock. sh e made no other comm en ts to he r employer o ther than accep ti ng the r equest to "" cal l i t a day ". The appli ca nt work ed a further two day, with the employer. not maki ng any further enqu ires or the employer . and there was evidence lo th e e flcc t that 1he appl icant had not se emed undul y dist resse d by her d i$ m iss al. In t hese circumstances. I have con si de r ed \,i1 c the r t he sit ua tio n. at the ti me nf dismissal. was su ch that the applicant simply ac qu i csc.cd to the employer· s request to rel i nqu ish her emp loyment crc,iting a situati on of tenninati on by agreemen t. The dillicu l ly I have w i th this propos it ion is that the em ployee was neve r warned. either ft mm1 lly or i nforn,al ly. th at her perfomrnn ce was such th at she should not expect to con ti nue in employment. In these circu m sta nce s. it is reasom1blc to accep t the appli ca nt· s submi ss io ns t ha t. in sho ck. she did not arg ue t he point w i th her employer. T he emp loyer did have an obligation under s 2?2 or the At:t to afford the employ ee a ..rcasonahlc opportunity .. l o defend against any all egations t>e ing mad..:. From t he submissions or both t he employer and t he appli calll , this did not occur. T he evidence is that. just prior to the appli cant · s tcnni nati on of employm en t. t he ap pli ca nt ha d made certai n r eq ues ts 10 the employer with regard LO the rosters etc... The employer stated to the applicant tha t she would investi ga te the question wi th her hu sb and. I underst an d this to be the man ne r in wh i ch th at particular me eting was brought to an en d. I <l o not accept the su bmission of th e employer that the appli ca nt had put an u lt i matum to the employer and consequen t ly did not believe that the empl oyee ex pec ted to be dismissed i f he r re q ue sts we re r ej ected by the em ployer . That be ing the case. I sti ll bclie"e il was rl!ason ab le for the employer to hold a view that the em ployment relati onsh i p. despi te co111 i nual suppnn, encour age men t and ad vice from the employer. wa s not c apab le. of cont inuing satisfactori ly. I la\'ing l< llmd that t he appli ca m was em ployed as a probationary and that a v al id r eason existed for t he dismissal rclat i,·c to the applican t' s perli in nancc and capaci1y hu t th at the employer failed lo c~creisc procedural fai rness pr ior to and al the execution or t he tcnni nation of employment. I 11111 st <.:(>nsi der wh at relief sho uld be offer ed to the ap p li cant. I h:1ve c on sid ered determining 1hal the .:mployer ··pa y out.. t he ouMan ding period or probatio n. gi ve n that I did not he li cve t ha t t he employment rel at ionship ,rnuld have con tinued beyond th e prn hat. i (1 nary period in any eve nt. J lowevcr. I do beli eve that this cmpl oy mcm ammg.cmcnt was di fferent fr o 111 others where th at so luti on 111ight he re,1,onablc. U nd er the par1 i cu lar circu ms tan ces of this case and for reaso ns cikd ear li er as they go to t he applicant's bilckground and experience. had the cmplo)cr pr\> perly ut i lised the dism iss al pro vi .s ions n f the /\c l the app lira n1 W\)uld ha ve on ly heen cnti llcd to one week "s notice or comp en sation i n li eu or noti ce ( se t: s 293. ( l )(i) and ( ii ) of the /\cl ). lkca u ,e I hav e a,:ceptcd that t he ap pl ica n1· s pc:: r fomiancc wa s dclicicnt. that t he ap pli cant appeare d tn di sl i ke Mrs Wyn nc - l locbchcr·s method of operation, and that she wa s at od ds w i th her employer con ce rni ng 1h c di r ec ti on of her jo b. and ac knowledging that the ap p li cant wo rk ed two days of her noti ce an d was paid the r1: 111a ining da ys in lieu of noti ce. I dctcr1J1 i nc lo awa rd to the applicanl an amount equi valent to o ne wcek"s pay. s 29 7.( 1) and (2) or 1h..: /\ et sta tes th at th e Commission ··ma,· make th e orders it c,,nsi t.lers appro pr iate lo put t hc emplo yee in the sa me posi ti on (as nearly a, can he clone ) as i f t he c rn plnyee had 11 01 been dismissed·'. In lhi, inslanct:. I bclie \'C that had th e em pl oyer undertaken a process wh i ch satis fi ed app ropr ia1 c proc ed ural foi mess req uirements, then t he ap pli c.int n,ay have stayed i n cm plo) men l for an ~xlra week. at be, 1. Such payment is to be pa id to the ap pl i~an t within on e wee k from the date or release of this de cision. 139 01 I. DOC I O February, 19 95] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE I order accordinglr . D.J\. SWAN. Commi ss io ne r. App,w ran c es : .. Mr N ()°Connor. wi th h im Mr Stev enson of M essrs Ma lk so ns. Steven s. Jacques Solici tors for the app lic an 1. Mr 11 /.i ll rnan. instructed by W ill ia m R Wi l son and Associa tes for the re spondent. Operati ve D ate: N/ /\ Dccision -- compensati on awa r ded Kelc asc d: 27 Ja nuary 199 5 ##################################### ### ##### ##### ##### 345 13901 I .DOC -- 3 of 3 --