Dawes v Crane Australia Pty Ltd [1993] QIRC 156 (1993) 143 QGIG 136

136 QUEENSLAND GOVERNMENT INDUSTRJAL GAZETTE f4 Jun e, I 993 ################t##l##########################f/###11###### QUEENSLAND INDUSTRIAL REL,\TIONS COMMISSION JnJustnal Relat1ons A et 1990 I I . 37 - apr)lication for reinstatement l:kris Cbud ia Daw<s AND Cra ne Australia Pty . Ltd. (No. BI of /993) COMMISSIONER 8 1. 00MF I ELD 24 May 1993 Reinstatement - Te rn1 inat ion of Employment Wheth er employee t~nn inat ~d ovvn s~rv i (:l?s or w as l.!n11inat~d Rt! l i:thil ity of Witn<sses - Tem1ination was harsh, unjust. unfa ir - In tervention of Co mmi ss ion to pnne ct interest of employee - l:klief by empl oy er t ha t it ac ted fairly •- Arbi t rnkd ll,lallcr Reinstateme nt not appropriate E mp loy<c!Employer relationship cannot be re- estab lished - 3 months pa y as compensat i,rn awarded -- Costs awarded. DEC ISION T his is an app li cat ion by [kris C laudia [)awe~ for reinstatement t<> her position as Oflice Administrator/ Sales Ckrk with Crane 1\ustr alia Pty. Ltd . Although the app lication for rein st atement was o nlv rece ived in the oflice of th< Ind ustria l Registrar on 4 January I 993 -·- some 24 da ys af\er "separation" wi th Crane Austral ia Pty. Ltd. the employe r did not contest that the applicat ion was o ut of t ime and agre ed that the mailer should he dealt w ith on its merits . ll.frs Dawes (the :1pp licant) comn,etK~d emp l oymen t with Crane Australia Pty. Ltd. (the respondent) o n 14 Augus t l 982 as a Saks Ckrk at its ollicc in Salisbury . The company spccialisc:s in the sak of "a lws in the pctro chemical and relat c:d industries. During the entire period of the applicant's employ ment the ,1tlic<! lwa rehouse (lf the respondent 111 Quansland was on ly stalled by a maximum o r 2 persons. namdy the Brandi t\1anager from ti me to time and the appl icant. The initial Queens land }.-tanager. a ,\lr W. worl-cd w ith the appl icant until l11s dqrnrture in Mav 1987. During t he last six months of this scr\'icc Mr W was engaged on a part-t ime hasis ,,n)y. usually worl;ing about 3 days per W<!ek. In May 1987 a .'vtr D was employed as Q ueensland Manager unt il Jam,a~· 1992. when he was disrmsse d from oflice. A Mr S. Livy was s<!kcted in February 1<, manage the ()ueensla nd h randt and , aft er ar proximately 2 wecb of fa mi liarisation in th~ h ead ollice and sou thern branch omces. too h. up his p,,sition in the Queens land o llicc o n 9 t-.-1:trch 1992. Because of' the nawre of the company's busine ss the various hrnnch manag~rs were frequen tl y :1b sent from the ofi icdware.house \'isiting clien ts al various locations in f3r i$bane. dS~\vhere in the State. and intuswte . During this pNi,)d the app licant was left in sole c(,ntrol of the oflic~ and wns n.:::-pon!--ihk for the (initial) liaison between the respondent and clients. Add itional ly. in the period b,•tween the depar1ure of Mr D in January and the co ,nmcncement of Mr Livy in Quecnsb1nd 111 March t he app licant al so owrs ighted the n 1<1ve of the company from its Sal isbury locat i<>n to ne w premises at Coo1)ers Plarns. The duties of the applicant during he r period of emp loyment were quite diverse. rang,ng from the perfonnan ce of clerical l'unctions. ope nin g an d cl osing o f the ot1Jce and the ward1ouse and collec ting the mail to un loadi ng va h· es and crates off tn>cks using the c<>mpany's forklift . As the ,ipp licant joking ly obser\'ed during her eviden,,e "I m ight admit that when I '"" fiN<t empl oyed with the Company I \,vaf,;.n't 1.!111p loy!!d hi!cm1 se of my look$. I \Vns .l.!!nph)y(!d hec:wse I looked a;; though I could be ,trong enough thai ,! a valve dropped on my foot it wouldn't hm1 me . I wasn't afrnid of getting my hands di11v .". 4 June, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 137 During the period covering the absence of a manager and includ ing th e shift in premises. a sales representative fr,>m the Sydney head office was transfr1Ted to Queensland for about three weeks to assist with clerica l work and th< transkr of st<>~k h> th< n <" loc:,tion. In January 1992 the husband of the appl icant 1~11 ill and on 20 Febn,ary l 992 was d iagnosed as having a tenninal ill ness. ·111 is was at about the time of lhl.! transfor of prem ise!'~ and h~fllr~ th~ arrivt1I of Mr Livy. The applicant imme di ately infonned the Managing Director of the respondent. Mr McLeod . of this d"vch,pment. Following hi s d ischarge from hospital ' "' 27 March I 992 tlw app licant's husband underwent radium treatm ent requiring frequent transport to and from hospit:i l and addit ional attention fr,Hn t he applicant. On 23 July the applicant was in volvs>d in a car accident whils t commuting to ·work and thi$. c0 upl~d wi1h a d c:1c.; ri l)ration in her hu sband's condi ti on . caused her to app ly for 3 weel-s kaw which was granted from 31 Ju ly 1992. In suhse,1ucnt d ,,cussions between t he app li can t and the respo ndent. primarily Mr 1vkLeod. an arrangemen t wa.s entered into whereby the app licant w,>uld take 4 weeks annual leave and long sl.!rvil"e l i.eav< in .:td\·an~~ in order t0 allow her to s tay at home to :,tt end to he r sic k hushand . This "a., at the sug gesti(ln of the responden t in resr,,nse to a ,·,,mmen t fr,,m the applicant that she might need to rc"gn. Th e respondent had ac ted in .lulv to engage a Tcmp.,rarv emplovee from an agency to ~<>ver the 3 ,\ eeJ.: ahscncc lhun ., I .l ulv. and th is engagement W i\S ~xtended on an "i n ddinit(' .. hasi~ to ...~«.\vcr the applicant's abs~nce on annunl ka v~ and Ii.mg :,;...! n ·1ci: kav(' and any other absencl.! . Bc.!cause of lh e ~ircum$lan.:e~ ~,i- th (' app li c..•ant'~ husband the! abscncl! (a nd th\.' engagement o f lh c: Ti:111po r ary) ~l)U l d not be quant ified. In the early part o f Nowmba the applica nt apparen ll ~· made con tact with t he resp0ndcnt to disrnss her !in ure bec·ausc ,if her ~on~cn 1s ab ou 1 her period of <) h sc:-nc...'t:: and th~ t'ac:t that hc:-r long s~rvice kav~ ln advanc~ was n ~a ri ng ~.\ h ausli\.Hl. f\fr ~kL.:od is alleged 10 have info mtcd the appl ica nt that s he "1\ ,,u ld he 1,,11 kcd after, that she had ban a I,,~•al emp loyee for <>Wr I O vca rs and th.,t these things don't go unnotic~d" . On l I November the a pplicam's h usband rassed aw ay and on (or aroun d) that day she s p,> ke to ~ lr Livy I<> infonn lum ,,f th is fact and to advise him t)f h L"r dl!~irt' to r~turn to wm·k as s()on a~ po s~ihk Mr I.ivy apparently sug gested it would he hesl to ,~ait a l inlc whi le before thi: ,·1pp l icant rt!lun1t!d tn ,vork and :11T ~mg<.:mcnt ~ \\ .!re made a fow days later for th(!tn l() nh ~('t for lun~h t.)ll 18 November to d1~1..."us~ the retum. At this lun ch.:on l\lr Livv :ipparentlv ak 11 cd th< :1pp li ca nl h> the fact that hi: had some conc~n1s '1bout tht.!' , ,,ay that w.,)rk wa~ hc"ing p~rtOnned an d ahout thl.! ,vav she wor~cd " i 1h hirn . lh: also c,,p lained that the ollice syst ems had bee n changed during her absence and that when sh(;' ri:tunl.!d th.!r~ W(Hild he:- ;\ m 11 Hhcr l,r changes in o nice p roced ures and repo11ing rc,1uirem.:nts. ~lr Livy als<• indica ted that the Tempo rary empl,,~•ce wou ld be retained fo r 3 weeks to help the applicant settk in. to assist in a majo r con tract then under way and to assist wi th the preparation for a hid 1,,r ,uw thcr contract. Arrangements we re made t..1 c..),·~r the g;1p h<!t\\ l'.'~n the 'o!Xpi ry of th l! long $1.!rv ii:I! l~a\'i: in ad\'an.:c and thi: ri:•l..'t.'mn11.:1h:e mi:nt date of 7 December as paid ~id: leave . The appl ican t retumed to w<>rk ,,.1 '-lunday 7 ))cccm her 1992 and a number o r ewnts occurred Juring that "ech. wh ich k,1 to the services of the applicant being "severed" later that wee~. T he r~sp ondent argues that the :tpplicant's acti,>ns 11ere such that she t~m)inatcd h~r own s~rvicl!s wh il st th ~ applic..:ant argut!s that h~r Strv ices were tt'nl,inal(!"d hy t ht." r..:spt)ndc n t. \Vh il st there at'!! manv :_.:imilarit1es in thi.: ('Vid ~n.: 1.~ of th.: applicant comparl.!d to \!\'idl!,;~e prl) du1.:.:-d hy th..:- tc:-~1h 1od\.'lll th \!r..:- ar-.: nlso a numb(r of m~jor dis~·r\!p:mci~s. 'The bidcnrc Evidence was drawn on hchal l' ,,r the a pplic:rnt through herself :1nd a Mr Weeks (an emplo~·e e of a cl i,·nt of th e rc,pondcnl) . Ev idence for the respondent was drawn fn,,n ~l r ~kLcod. :>. Is Parh.in (lhe Temporary emplove.-, from Julv h> the c'UIT..,tll tim.-,) and ~lr Livy ~-luch of lh.., .-,vid.-,n,, served h> pm, id.., a h:ic~gi\1111al kaumg up t,, the cwnts hct,\ecn 7 and 11 De,'c lllher 1')92. indu,i,·,·. \\ hich art' scparaldy dealr wi th hdow . \~'i tlHHlt t..:nnvassing th:H -.:, id.:11~-.: ;n deta il tht;" following point~ Wt!re dr :1, , n to th~ Comm1s~ion's :llknlion. Mr McLeod ha d on several occasions spoken to the applicant ahout her re lat ions hip wilh Mr l) (and vice versa) and that the poor wo r king rda ti (lnsh ip between them co ntributed adversely to the perfomrnnce of the branch. That after l\fr Livy became manager son ,e compla ints were made about the perfo m,ance of the applicant and Mr McLeod had occas ion to speak w ith her abou t h ow important it was to work along w ith Mr Livy in hannony: that she had to coopera te with him: and that she had to comp ly wit h his d irections. Thal apart from th ese occasions there had b een no other warn i ngs to ~lrs Dawes about he r perfonnance since she was emp l oyed in 1982. Mr Weeks ga ve evidence th at he had for several yea rs been required to place o rders with the respondent and in doing so usually co mmunica ted w ith the applicant. lie testified that some time p riM lo December 1992. when a del ivery was be ing made by Mr Livy, he enquired as to whe n Mrs Daw es might rctum to work because "over the years I had deve loped a rapp(lrt with Mrs Dawes and had become occupationa ll y friendly with her". "T o my surprise I was told by Mr Livv that he did not think lhal she wou ld he retuming to em pl oy ment \\It h h,s company because of her age . Mr Livy said in effect, that a perso n yo unger than Mrs Dawes wa s prefoTTed, as a replacem ent. because Mrs Dawes was too o ld" . lvlr Week.s als,1 test ified that in earlv December when he aga in contacted the co mpany he was· su rpri sed to find that h ,s call was answered by the applicant a nd he t ol d her that he had not exp ected ha to return to he r emp loym ent there. He test ified th:ll the applicant su bsequentlv co ntacted him al home ,,,, the Th ursdav 111ght (>f that we e k to fu rth er qu~stion him a bout his surprise that she had returned 1,, work. and that he re lated the ear lier conversation with Mr Livy . Mr Weeks further testified that Mr Livy subset1ucnt ly visited his worl; place and attempted to spcal; to him abou t the conversation that th ey had had ab out Mrs Dawes f'u ture employment. with Mr Weeks dec lining to discuss the matter he,·ause he had been as h.ed to g iw evidence in t he proceedings th at the app licant had initiated aga inst the respondent following her dismissa l from em rlovment. Ms Parkin gave evidence that when sh~ start ed work with the respondent she fou nd the ,,tlice very unorganised with 110 logical mdhod of li ling wi th dup licat,on and wasted t 11ne arising because of the systems that were being used. Ms Parkin also indicated that th e applicant w:is not interested in wha t she was bei ng shown and that she left I\ ork at around 11 - 11.30 on T uesdav 8 December "because I cou ldn't wo rk wi th Beris . I lwd no intentions of sp ending another thr~e weeks li ke the day and a-half I'd already spent with hd'. She adm itted tlrnt she had told the applicant and Mr Livy that she was going home because she was ill. The Events o,(MonJay - Decemher / 992 During the cours~ ,,r this day the applicant enquired frnn1 t-.fr Li,-y as to whe th er s he wou ld be able 10 rark her car in the warc)mus< (~1r Livv's rnr wa s block ing the entrance) as had bee n the ,·ase during her e mire clHf)l,,yment owr the last ten years. ~!r Livy ,·xp laincd th,it d uring the applic-,rnt 's ;1bsence on leave the procedures had cha nged and no-(>nc was a ll owed to park the ir car in the ,v;ir~house. Duri ng the course of that day Mr Li vy had occasio n to reprimand the applicant for ., negative . l0ud. verbal reac tion to the n~w procedures wh ich she was being shown by Ms Parkin. Mr Livy in fon ned the applican t that no-one lil;ed changes. h<! didn't like it any n1<>rc than she did but unfortunately they had l \1 accept il. I le ad,·ised her to "s it back . relax. take it easy. listen and it w i ll al l fall into place" . Mr Li vy sta ted that he treated this as a verbal warning . Lat er that afternoon the applicant and Ms Parkin we re invited to mo,·e their cars into the ward1ou.se hy ~1r l. 1\'Y hec:n1se of an appn) aching thundersto nn. • -- 1 of 4 -- 138 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [4 June, 1993 The Events of Tuesday 8 f)ecemher i'J9] Mr Livv left the offic.: at around 9.00 a.n1. t,) atll!nd a meeting with a client about the proposed slwt-duwn (ahov.:). At around 11 ~ 11.30 Ms Parkin advised the applicant that sh.: was ill and was going home. Ms Parkin contacted Mr Livv hv b.:ep.:r at th.: dient's establishment and infr)rn1ed him that she· w~sn't feding wdl and would be going home. At around lunch time: on this day the applicant alleg.:s that sh.: attempted to speak to Mr McL.:nd in Sydney to raise com:ems about being "very uncomfortable since her rdurn". l\1r ~kLeod's si:cretary was on the switchboard and the followmg exchang.: 1s alleged to havt: occurred:~- "Gav said that she would have lvtr l\kLeod call me alld ,-he askid me how I was and 1 said. 'Gav, l t~d thlC' wdcome mat is definitely not out for me'. (jay's W(;rds to me were. 'Oh Fkris. i feel so sorry for you. I thought something like this might happen."'. The applicant claims that Mr l\kLeod rdumed h"°r call that afternoon whcr.: she reikrated her concerns that the welcome mat was not out and that she was no long.:r allowed to park hlC'r car in the warehouse. She claims tu lwve had 1)11IV a v.:rv brief c,,nvasation with Mr McLeod because she treated it as· conlidcntial and ceased the conversation v.rhen Mr Livv returned tn the warehouse. 1\lr lvlcLeod does not recall any such c1;nv<!rsation on this day. When Mr Livy returned to the warehouse he found the applicant's car parkect' in th.: ward10use. _Mr Livy agrees that the first words he said to the applicant upon his return were to the eJled "vou'd do anything to detj me. For two pins I'd give y,rn a month's n·otice" He did not ask whv the car was there. The applicant stated to the Commission that she ·had pur..:hased some perishables and that she had driven the car into the war.:house so a:-; not to leave the vehicle in the sun and that it v.as h<'r intention to shift tht' car before Mr Livy returned. Mr Livy then gave evid.:nce that h<' had questioned the applicant as til what her problem \\as: she had Cclllle inll, \\orl on the seventh with guns blazing. not wanting to tall to anvbu,h: \.\ 1th111 two hours she was cursing and abusing a sysknL and h,· ,aid to ht'r "Go home tonight and think about 11. Change vour attitude What is wrong?" The Events of WeJnesJay 9 necemher /99:} Shortly after the commenc<'ment of work 011 this da\' the applicant spoke to Mr Livy and apologised for parkmg her 1.·ar in th;.; warehouse the previous day and for anvthmg that she 1111ghi have said or done. and stn:'.ssed the importance ,if her continued empl,,yment and her foar of dismissal. The applicant then became quite emntional rderring to her deceased hm:hand. She allq!,<'S that \lr Li\\ said that mavbe she just ;,needed a little jolt". 1\lr L1vy de111es making tl11s latt.cr statement. Later that morning Mr Livv became c1mcerned that \ls Parlin had not returned for work and made c'ontac:t with her lwm<' to enquire as to her well-heing. lie did not make cont ad initiallv \\ ith Ms Parkin hut gave evidence that :\h Parkin\ family indicated io him that she would not be r,!llm1in~ because her vie\\ \\ a;. "th-:re \\ a;, nn point in my heing then: to try and help train thi, iady. because sh<' doesn't want to learn". Mr Livy then apparently phoned l\1r l\lcLeod in SYdnc\· to discuss with him the car parking incident and th..: prnbkms \\ hich had occurred on Mondav. \lr \kL<'od decided to phone the applicant because "Beris ~vouldn't take any 1wti;;e of what \larian was trving to explain to her about the ll<'W svstem and lw\, 1_1 \\ oldd operate a~d as a r.::sult of that I li:lt that I_ had to ring B-.:ns and I rang her and talked to her about the car pad,mg ~ituat1011" The following exchange het,,e,.11 \lr !ker ("110 represented th<' respondent) and ~fr l\lcLeod is rcle\'ant ··vuestion Did YOU makt' ;ill\' indication tu her that he1 emplo.yment was in j~opardv? . No. n,rn,. at all Qu.:stion Did you speak to h~r 111 ll!m1s" that ..:ould have heen construed as a verbal \\ ,tmmg Yes. in fact l think I told her that ~he could take it a~ ,1 v.:rbal warning.". The Events of Thursday }() Dec·rn1her /99] Upon reflection of the discussion with :-.trs D,rnes "f the previous day. wherein she had mad<' a comment along th,· lines that Mr Livv had "had th.: busines~ handed to him on a plat.:". Mr McLeod· gave evidence that he detcnnined to write to the applicant tn issue her a written warning. Having written the letter he phoned the applicant at approximately 4.00 p.m. (Sydney time) to inforn1 her that a privat.: and confidential envelope was being sent via air courier and that he would discuss the contents with her the following morning. After enquiring about the timt: that th.: courier bags normally arrived he states that he arranged to phone her at approximately 9.00 a.m. Mr McLeod stated that when he explained to the applicant that he was sending up a personal and confidential letter and that he would ring her the next morning to discuss it with her the applicant claimed that she knew what it wa,.<; and that sht' was "being sd up". Mr McLeod's evidence during the proceedings on this point is a.s follows:-·- "Question I low long did Ill general tenm that phone conversation last. was it lengthy or very brief! . No, it was bnef. I explained to her that I was sending up a personal confidential letter. I asked her 1f she would look at it and I would ring her the next mommg to discuss it with her, sh.: claimed that she knew what it was. she reckon<'d ~he'd be.:n set up and I said, 'Look. JUSt read the letter and we'H discuss it tomorrow after you've received 1t.' I did also refer back to what sl;e said about Stan being handed the business on a plate and she ~aid, 'Oh yeah. I'm sorry about that.' So she apologised about that and tht:n I as I said, she once again rep<'ated that she'd been set up and I said, 'Read the letter when you get it and we'll discuss it th.:n.' And that was tb.: .:xtent of the conv.:rsalion. it \\ as verv sho11 I couldn't see any scnst' m discussing ¼hat· was in the letter until she'd got it." The applicant ~late~ that sh..: made notes of this c,mversation later that evt'ning and disputes Mr McLcods v.:rsion or ev-:nts. The applicant's notes are stakd to he as follows· "McL.:od said that tht're was a personal letter amvmg for me 111 the air-bag the following morning and he wanted to advise me ahout it prior to my rt'cei ving it II c said we had come to the pa11ing of the ways and he was giving me a months pay in lieu of notice. which would pay me up until the end of January. lie said I was being dismissed because I wasn't willing to accept the c\1a11ge~ that had been made, I couldn't get along with Livy, nor could I get along with D and whv slwuld I nc:ed to park mv car in the warehouse McLec)d said we had \\01ked the ~amc way smce \\' and it was prohablv a good icka to have somebody ne\Y to the ..:ompanv to mtroduce new procedures. He was referring to th..: wav the oflice functioned relating to internal pap.:1wo;k and the fiiing syskm. McLeod was referring to Livy and Parkin's ideas Mel ,eod said he would sp.-:ak to me at 9 c/clock the following morning after I had received a Idler I took this phone call in the office. I am not sure if L1vy was in th.: offile at the time l spoke to \1cLeod. When I hung up after speaking to McLeod LivY \\as sitting ill the otlicc and I said to him 'l inder the circumstan..:es do vou mind if l go home'. It was now 4.30 p.m., thirty minut.:s from knock off time and I couldn't see any point in staying for thi11v minutes, besides I was upset about McL..:c ► d di;,rnissing me. Livy said, ':'io, you go home I'll see you in the morning"' \1r Livv's evidence is that when he am ved back at the otlice at approximatefy 4.00 p.m. (Brisbane time) the applicant had packed her personal it.:ms and :-.aid to him "Cndi:r th.: circumstanc..:s there 1s not much point my staying" and kfl. However prior to leaYing ~h.: infonned \fr Livv that Mr McLeod would be ringing her at 9 o'clod-.. the following mo'ming \fr Li\y then phon-:d Mr McLeod to enquire did h.: know what wa.s happening. Mr McLeod infonned !v1I Livy that he had written a letter of warning. that he'd discussed it with thl': applicant and that th.: letter would be in the mail-hag that night. it would h~ sent under separate cover. private and confidential. with a copy for Mr L1vy During that evening the applicant locakd Mr Week~ through the telephone book and discussed with him his comment earlier in the week ahout his surprise at her return to work and the comments which arc alleg..:d to have been made by Mr Livy to Mr Weeks (above). 7 he h·vents of Fnda; 11 Decemher 1992 Mr \!cLeod phoned th..: applicant at approximately 9.00 a.n1. (Brisbane lime) to discus~ the conknts of the letter couri..:red the 4 June, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 139 previous evening. l 1 nfortunatdy at the time that l\lr McLeod rang the courier-bag had not arrived. Th.: following exchange hetween Mr Beec who represented the respondent, and Mr McLeod al page 90 of th.: tran~cript is relevant:-~· Question "Can you enlighten us as to the detail of that discussion? Well. once again the letter hadn't arrived but Beris had convinced her:-elf for som<' reason. that it was a letter of termination. she convinced herself that we'd set her up. I don't know what that proof was. We then discussed her attitude and the fact that she walked out the dav before when she told Stan apparently that she cottldn't st'e any point in staying. bt:cause as I said. she convinc.:d herself that the letter was a letter of tcm1ination and it got to the stage where l thought well you k.now if that's the attitude. let's go ahead and tenrnnate her. you know if she t~els that way. That's what I said to hec we should mutually th.:n agr.:.: tu a tcnnination. because m; I sav. she was definitelv con,·inced that that was a letter· of tennination." • and furth.:r at page 91 Question "And what view did you tal,,.e of that developm.:nt (leaving the otlice the pre\ ious afkrnoon )'> W cl l. she did tell him that she would be back in th"° nlC'xt morning to get the lettec so at that time I thought that she would b.: back anyway. I thought well it's just one of those heated things that she's stonned out and she'll come back tomorrow and on,·<' sh.: received the letter well mavbe we could discuss it fo11her. because as I said •11nfo11t111atclv it didn't aJTive on time. In any of thost' phone convt'r:,-ations was it ever vour intention I o t"' r mi n at<' \In Dawes' employment') No. thlC' intt'ntion wasn't there. the intention wa!:-n't th.:re when I initiallv nlllg her. hut I mean as I said, the convcrsaticln just ddc1iurated and we were starting to go through oid ground about hm, she felt she'd been st'l up. complaints about the way that Stan ran the operation and it was just things that we'd been over before. I couldn't :,;ee much scnse in going over the same things agai11.". In his sworn affidavit \lr McLeod pres,·nkd the following evidence about the same i111:ident· "At 9am (Brisbane time) nn the moming of the 11th December. 1992 I teleplhlnt:d l\lrs Dawes as arranged lo discuss the letkr with her linfortunatelv th<' cnuri<'r hag had not he,:n ddi\'ert'd Mrs Dawes th.:n told me that she kne,, the cunt<'nts of the letter. \\'hen asked what she thought the c11ntent,; of the letter might be Mrs Da\\es replied that she /,rw1r it Has a Lctt.:r ,,f Tennination. In view of the attitude that she had adopted i.e. ,-h<' appeared to have convinced hersdf that she was being tcm1 inated. I did not foe! obliged to e:-.:ph1in lh<! 1:011te11ts of tl1..: ktt.:r any forthe1. and in view of her feelings. sugg<'skd that it might hlC' h<'tll"r for all parties concerned if we were to mutuallv tenn inate the association. The conver:,ati1,11 co11ti1111ed to dckriorate with \lrs D:mo still insisting that sht' had heen sd up. as nothing \\as being achieved and bearing in mmd the comment she had made about there heing no point in staying, l then \c)ld 1-.lrs Dawes that all outstanding mon1e:- owed to her would be forwarded tu her horn e address.". The applicant then apparent!\· I\ ailed around the \\ arelwuse f,lr a short time forth.: arrival of the letter. \\'h"°n it diJ not ,11Tive she left. Before leaving she alleges that l\lr Livv infonn..:d her that he would send the letter on to her home. l\lr Lin c1111knds that she "implied that she was going up to l\loMnoka and. would call ha,·k to pick up the letter". ll1e applicant did not return and \fr Livy then apparently determined that the kiter should be sent hacl,,. to head 0111cc hecaus..: it was marked private and confidential. The applicant claims that around Wednesd:w of the follnwing week sh1: phoned Mr Livy to enquire about the letter and alkge~ that sh.: was advised that it had 1,e..:n "thro\\n intn the \\astepap<'r basket" because it ''contained drive!". \lr l.ivy d<'nies sa\'ing these \\Ords. Mr Livy is alleged to have agreed to pass on a request for a copy of the letter to h<' fonvarded to the applicant. Th<' applicant also claims that she spoke to Mr }.1cLcod's secretarv (in his absence) some time after this to seek a copy of the letter only to be advised that th.: secretary did not hav.: authority lo send it on No copy of the letter was made available to the applicant apparently until around the time of the conference proceedings under section 11.37(4) of the Act. The Submissions of the Applicant and Respondent The Applicant Mr Stcinilz, for the applicant, presented submissions which were designed to primarily highlight his client's version of events and to show that her services were km1inated by \fr McLeod. He highlighted the applicant's good employment record over more than ten years wher1: she had r.:ceived no verbal or written warning~ (although he concedes she was counselled) compared to the situation in the final week of employnwnt wher.: she received twc., verbal warnings and a written warning was prepared. Mr Steinitz also asked thc Commission to compare the evidenc<' of the various witnesses and to detem1i11.: which of the witnesses and their evidence was credible Mr Steinitz also put that the evidence showed that it would not he possible for a proper employer/employee relationship to b.: re- created in a two person ollice in circumstances wht'rlC' the applicant would be working with Mr Livy and drew to the Commission's attention a number of decisions as to an appropriate remedy in all of the circumstanc<!s. The JfrsponJem lvlr Beer_ who appeared for the respondlC'nt. presented fairly brief submissions in suppo11 of his client~'s contention that Mrs Dawes had made an assumption in regard to the written warning and, in spite of being counselled that sh.: should wait tu read the Jette,, acted on those assumptions the atl',:ct h;.;ing to tern1mate ha own employm.:nt "and this occu1Ted on lh<' afternoon of JO December" Mr Beer then went on to highlight some of th<' difficulties \\-hich th.: company had experi<'nced with the applicant during her employment noting that she \\asn·t a kam worker and prd'erred to work within the safrtv and St'curity of familiar and well-understood \\ork practices even if' they were inefficient. outdated. time-wasting and a duplication of effo1t. I k rejected the content ion about a potential conspiracy lo dismiss the applicant (advanced hy i\1r Steinitz) noting that if the companv \\as of a mind to dispense with the applicant's services they could have done ~o much earlier. and more simplv. bv not having suggested to her to take long ~e1vic.: kave to alkml to her husband's illness On the contrary. it was argued, the company had shown every concern for the applicant by holding her job open and by making ever,' effo11 to ease her hack into the workforce by extending the p.:riod of service of th.: Temporary emplovee. 1\1r Bet'r th,•n submitted: ''Commissioner. to invoke vour powers under the Act to reinstate or in conscqucnccs of not being able to reinstate to order compensation or c.11dcr other cusb. Mr Steinitz would, in our view. have had to have demonstrakd a specific dismissal has in fact oc<:urred. Mrs Dawes in comments she made on that atkrnoon of 10 December. and I quote fro111 .:videuc~ put !lH\, ard by \fr Li vy. 'l'nder the circumstanc<'s th,:re i, not much point in rnv staying', leaving her work place before the ordinary finishing t1111e of 5 p.m. efl~ctively tem1inatcd her own employment.'. No alt.::mativ<' submissions w.:re advanc<'d by :-.tr Bea. It was not contended in submissions thaL if that (primar,·) ~uhmission "'·as ovem,led. the Commission should find that there was a mutual krn1ination on 10 December 1992. Mr Beer also did not address the Commission nn whether th.: tenrnnation ,.,.as sufficientlv harsh, un,ust or unfair as to warrant the intervention of the Cornm.ission and.· if it did. what an appropriate remedy might be. -- 2 of 4 -- 140 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE l4 June, 1993 Nonetheless, the Commission has considcrcd thcsc is'-ucs itsdf in arriving at its decision. \\bether employee te1minatcd her own sc1vin-s or ~-,L-; tenrinated The respondent. through Mr Jk..:r. conkndcd that the applicant tenninated her own services by virtue of hcr acti,,m, on Thursday I 0 Ikcember 1992 where, acting on a presumption that a letk,: (of warning), which she was to he sent owmighc was in fact a dismissaL she chose to leave hu work place betorc the ordinarv finishing time of 5.00 p.m. on that dah::. It is clear that the applicant did lcan: her \\ork pla.:e prior to 5.00 p.m. on that day but what is not clear is the~ time ~1r Livv in his sworn statement, prepared on I] January I 993. 111d1catcd that 111s return to the office on 10 Deccmher was at approximately 4.00 p.m. after which the applicant infom1<'d him that "undcr th<' circumstarn:es there is not much point my staying". The applicant claims that this event occurred at around 4.30 p.m. ~lr McLeod claim~ that the telephone conversation (leading to this statcmcnt hv the_ applicant to Mr Livy and then her departur.:) ,,ccurred much carlter, probablv 3.00 p.111. (Brisbane time). In an:-, event \lr Livy. as a person shown in C\ idcncc lo he ahk to "hire and fire", did not regard such action as the arpl1cant terminating her services and nor did he challenge (<1r seck to challenge) the applicant as to why she \\as icaving for that dav Neither Mr Mcl,eod nor lvlr J,iyy actcd the fullowing da) as if the applicant had tcrn1inated her servic·<'s with 1'.lr \lei .t'.od ha,ing given evidence that he thought 1t was "just one of those h.:atcd things. that she's stonncd out and she'll com.: hack to11H11Tow (See also transcript p. 96 "I hadn't takcn it that she'd lctt") Based on the evid<.'ncc Mr Beer's bland contention must fail. lbere is no evid.:nce to supp,111 the contention that thc applicant tenninatcd her own services. nor did thc respondent ad at anv time as if the respond.:nt had tc:nninatcd hcr services ,ln Thur~da, 10 December. What is clear is that ~lr ~lcLeod faced with a !--ituatinn a~ he saw it where the applicant was ..:onvinccd that she was bcing tenninatt:d ~d.:tennined "if that's the attitude. let's go ahcad and terminate her, you know if she feels that \\ av. That\ what I said to her, we should immcdiatel:,. th.:n agn.:c tu a tcrrninatiun". This evidence from Mr \lcLend \\as gi,,en three tttn.:-s in similar tcnns in thc proceedings. firstly. in the prepared al1idav1t (which the Commission is entitled to assume ,,as a considered ;tatement made outside th.: pn:~sure of examinatit,11 and cnlss- examination): st'condlv. the cvidencc recorded abo,·e at pages 90 and 91 of the transcript and. thirdly. in response to an invitation frnrn the' Commission for the witness to explain in his O\\ n ,, ords "tn,m gn to wo.: (sii:)" his version of cv.:nts on Fridav I I lkcemhcr. Ac..:ordingly there is no other position open to thc Commiss11rn other than to detennine that the applicant's ~crviccs ,,er.~ tennmat,:d bv Mr McLeod in the telephone conversation <'n Fmfav 11 December 1992 shortly after 9.00 a.m The Commission docs not accqll that there \\as a mutual termination at this timc and, 1f it had been argu..:d that thcrc ,, as. would have ddennined that any such allcgcd ·•mutual term1nat1011 .. was. in fact, a constructive dismissal. W<L;; the Temlination 11.ush, llnjtr-t or l;nfait'? In order for the applicant to accc~s the r.:mcdies a\'ailahle undcr section 11.38(1) of the Act it is ne..:c:ssarv (or th..: tcnninatinn to havc been so harsh. unjust and u11t:1ir as to ,varrant thc intervention or the Commission. "'!be question is whether the emplovcr has adcd sn harshlv and so abused his h:gal right that an inkrvcntil,n llf the arhitr:ii tribunal is necessary to secu,e ju:sti..:e hi the pa11icular cmplove.:: in relation to th,~ ,~111ploymcnt {vhich lie fon11crlv had," In The Local A 111hontles (exc!11d,ng Bnsnunel und .\/0111 Noud,· Etc A warJ -- State (1978) 98 ()(,1(3 1286. Sheahan. .-\cting President. citing with approval the vie\, of Ban, id,. C..I. in :'.'m1h iVest County C'ounc1/ v. /)unn (1971) 126 CLR 247 at 2~3 In considering whether the respondent has acted in a manner 111 th.: ,:unent cas.: whid1 would wammt the intcn·cnti,lll (lf this Commission, ii is ne.:ess;in, to lm,k hcvond th..: exchang.:: ,vhich occun.:d between ,1r \lei .e~ld. on behalf ·or the respondent. and the applicant on Friday 11 December 1992 to the lnt;ditv of ~'\'..:nts in :he period leading up to 11 Decemher. including the meeting between the applicant and Mr Livy on 18 December. a subsequent telephone conversation hctwecn Mr Mel ,cod and the applicant prior to her re- commencement of employment on 7 Ikcemher. as well as the events in th.:: week 7 to 11 Dcci:mbcr inclusive. It is unwise for the Commission to substitute its own views on what actually happened in the instant case but the Commission is entiticd to rely on th.:: .:vidence (and the Commission's observation of th.: demi:ano~r of witnesses) to fonn a view as to what on the halance of prohabilities, actually occurred. The Commission accept;; the <.'videncc of Mr Weeks that Mr Livy did stak the words. or words to the effect, that he 1s alleged to hav~ stated about it being unlikely that the applicant would return to work. Mr Weeks evidence was positive and cc,tain. On the other hand Mr Livy's almost rehearsed answers to questions al)(\ut Mr W .:eks. and his demeanour and .:vasiveness under cxamination on this issue (and others), cause the Commission to rejcct his version of .:vents. The actions of Mr Livv to take the applicant to lunch and to spell out his expectations upon her return to work clearly indicate that he was conv.:ying to the applicant that his expectations as to her work pcrfom1anc.:: and attitude \\ould be much diffcrent atl.:r her rctum than that which was accepted prior to JI July The is~ue of a \'Crha! warning on ht~r first dav of return and his thr..:at that "fr•r two pins I'd giYc vou a month'.;; notice" on her second day ~~ive _In the Commission a clear indication that hc was probably trymg to give the applicant "a jolt". as sh..: contends he stated to h"r on 9 D"ccmber. The Commission's obs..:rvations of the applicant during the cours.: of the presentation of her evidencc leads to the conclusion that she is dogmatic and tim1 to the extent of being obstinat.: in her views. She has had th.:: nm11ing of the oflice. and paperwork. vi11uallv to hcr~clf for 10 vears and clearlv had probkms coping with. ~nd accepting. the diangcs which w·er.: going on in i 992 Noncthcless. an employee of ten year's standing who has recently returned from a period of "f<.irccd leavc". invoiving significant tunnoil. is entitled to receive some -.:onsideration and a less severe method of having the emplover's concerns drawn to hcr attention. In the Commission's view lvlr McLeod is an innocent victim of the cvcnts which wcrc happ..:ning a thousand kilometres away and he was forc.:d to re!v on the version of .::vents being conveycd to him by ~tr Livy. Th.: event::. so convcyed revealed a situation where the compan)·. at consid<erable exp.:ns~ and inconvenience. had focilitakd th<' applicant raking annual leave and long service kavc to attend to her sick hushand. Coupled \\ ith this were the circumstances where 1'.lr L1vy (and Mr McL"od) wcrc unhappy with the applicant's pcrfomrnnc..: prior to her going on leave on 31 July hut were unable to propcrlv raise those concerns with her because of thc personal pressures already facing her as a result of her hu'.>hand's krminal illntc'SS It is not surprising that when ~1r ,1cL..:od re..:eivcd a report from l\lr Livv on 9 Dec.:rnb.:r that a .,verbal warnmg" had bcen given to the appiicant about her work attitudes and comments on Monday th.: 7th: her "v,ilful disobedience'' of an instruction not tn park in the warehouse on Tuesday the 8th: and th" advice that the Temporary cmployce had left the.company because of her inability to work with th.: applirnnt. he would hav.: perceived that th.: applicant nccdcd to be spoken to Ha rcaction. in which she d"nigratcd Mr L1\'y as ha\'ing "had the business handed 10 him on platter"_ not surprisingly disappointed and concerned lvlr McLeod so much that he dekrmined tD wrik a leth:r to the applicant expressing his corn:erns and warn mg h"r a~ to the company\ cxpectations of h~~r What is not clear from the evidencc is whether the applicant was given th.: opportunity m thc telephone conversation on 9 December which lasted mavbc five minutes to explain her version of eve11ts or wheth.:r 1vlr. :t\kLeod S()lclv relied on th..: version which was being presented tn him hv l\lr L(vy as the Qucensland branch manager. What is clear though. from the general eviden..:e. is that Mr McLeod fdt that he needed to suppo11 Mr Livv because he had turned •)Lit to he a valuable .:mployec with many good ideas and had abo turned the ()u.:en,land branch around. incn:asing ib sales quite significantly. The Commis~ion acccpts that the applicant prohablv did put through a call to ~fr McLeod on "ithcr the Tuesday or Wednesday to .:xpress her conc.:rns "that ~hc didn't foci verv comfo11ahle" and probably did have the cLime1satiu1J with \1r McLeod's secrctarv (recnrded alHn-e). The accumulation of these C\Cnt,:. namclv: thc meeting with Mr Livv on 18 November when hc laid dowri his expectations: the suh;,c:qucnt telephone: call from \lr \lcLeod where he spelt out the 4 June, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 141 need f<.)r the applicant to work \\ith Mr Livv upon h..:r return on 7 December: the "verbal warning" bv Mr Li\·y 011 \1Dndav the 7th: the innocent comment from Mr \\'..,cks that he was surpri:,,ed lo find the applicant back at work (as a result or \lr Livy\ comments): the threat of dismissal by Mr Livy on Tuesday 8 Dcc.:mhc'r: tl1" probable comments from \fr M..:Le,)d's sccretary that "she thought this might happen": and the telephone call from Mr l\lcLeod on 9 Deccmhcr to record his conc.:ms about what hc had be<.'11 told bv Mr Livv as to the events earlier that week. would ha,·e .:auscd son;,; doubts to e:-.ist as to the security of their cmplnvmcnt in any reasonably minded employee -~- let alone one of the applicant's age who had re,.:ently undergone significant trauma Not surprisingly, the applicant jumped to the conclusion that she was to he dismissed when she was telephom:d by Mr \lcLcod 011 the: afkmoon of Thursday I O December to inforn1 her that a private and confidential Jetter would be forwarded to h..:r b\' courier bag that night Mr McLeod's decisi,)n to decline to cxplain lo hcr the contents c,f that letter would have donc nothing to alleviate hcr anxiet, rather. the rcven;e would have occuncd. This culmination of events and thc appli..:ant's uhscrvation of diary entries going into tl1" nc'>-v vcar as to the pcrsonal travel anangements of the Temporary employee caused hc:.r to sc.::k out Mr W,~d:s on that evening t,l ft111hcr d1~..:uss \\ ith him his cnmmcnts .:arlier in the week. The failure of the letter to aJTivc th..: fnllowing dav prior to the telephone call from Mr McLeod \\Otild have d1111c 1wthing to help settle her genuine conccms. The allegations of having been "sct up", the gen..:ral break-down 111 the conversation, the suggestion that the applicant "kncw" she was being tcm1inated and the infi.)111,ation from l\lr Lin· fresh in his mind. caused Mr McLeod to :,,uggest terminating the emplovmcnt rdationship The failurc or \lr ~!cLe,)d to alc11 the applicant t,l the cnntcnts of the lettcr and his s..:izure nf her allet!,ations ,,r ha\'ing he..:n kmtinatcd to suggest to he, that if that "~vas th..: ..:a:-.: ma,·\ic we should either mutually agree nr (sic) a patiing of the wan" \\as in th.: Commission's vicv. a harsh and Lmjust action on hchalf of the re~pondcnt and one which wanants thc (.\,mmission's 111terY..:nti(,n. The failure of Mr Lin- tu either ~end the lcttcr on to the applicant on 10 December alter it amwd. or alter it \\as requested in the fol),_)wing week suppot1 the (\m1111ission's ,·ie\\ that \lr Lt\'\' was happy to see the applicant dcpa11 and that hc ,,otild 1wt therefore take anv action which would cause th..: appli<·ant h1 hecom..: aletied to th.: fa..:t that th.: letter was reallv one nf ,,amint', and nnt c•ne of t.:nnination as she had so ~learh ..:onvrnced .. hcrsclf In thc Commission's view if the applicanl had sighted lhe lcttcr in th..: f1.:\\ da\·s following h.:r tem1inat1on ~he,, nuld. in the ,.:ircum,-:Lmces of her age and ernployabilit:,-. alnwst ce11ainlv ha,·e again c,,ntacted ,1r McLeod to attempt tc, rcsuncct thc situation Th.: r.:actiom: of thc r"sp,rndcnt in not making a copv nf the kttcr avatlabl~ h, her denied her this ,)pportunity. !laving regard to thc facts ,,r this casc thc (\m1rnission dcte1111i11cs that its interventio11 is ,,a11anted t,, prutcct the: applicant aeainst what the Commi~sion hclic,·cs to have hc..:11 :rn unjust or unfair exercise of the empiover's right nf dismissal. See v Bank.u,Mn M.C. (1954) AR (:--.-SW) 573 approvcd in Suburbs /)1.1tnct A mhu/unce ( '0111mt1tee F f 1pp1ng ( 19~7) AR (;s.;S\\') 273 and cikd ½ith appnn;tl lr•, th.: Industrial Co1111 i11 Re ..~/uuni Jsu .\Imes Ud A ward (l9"i9) 44 ()(jJ(i 1422 at p 1423 lli,e Remed~· The applicant. through ~lr Steirntz. argued that the e,·iden..:e showed that a proper cmplovec cmplover relationship cnuld not hc r,~ereated in the instant casc. The Comrnis!<ion aerces with this contention. which was in accord ,, ith the e\'iden.:e .. or \lr Livv in response to a direct question from the Commi~si•,lll Consequently. having found that the actions ot' the ..:mplo\cr to di~miss the applicant ,,,er<' so har~h. unju~t or unfair to ,,,atTant its intervention. the Commission dctennrnes pursuant to scct1on II..18(l)(c) that an order und..:r paragraph 1l 3l<(l)(a) ()r ll 3l<(l)(h) is inappmp,iate. llan11g su de..:idcd the: (._\,mmi:-..~iuo tum~ its mind lo what i~ an apprornatc level of compensatinn The applicant has been emplov.:d hv the rc~p,1t1dent "incc 14 August 1982 in a position of some trust. The crnploY..:r ha..., had some difficulties \\ith th.: appli..:ant a:,, lo her peifi.,1111ancc aod attitudes but none of these wcre rcgarded as sufficiently sev..:rc as to WaITant a warning in accordanc..: \\ ith thtc' 1.:,)mpa11y\ di:,;ciplinary poli,:ies until the week commcn..:ing 7 Dect'mher 1992. In the Commission's view the verbal and written warnings given to the applicant during that week were an overreaction to the circumstances which existed and a direct result of the intention of Mr Livv to alter the basis of the working relationship between the appl{cant and himself after her return on 7 December. TI1e Commission accepts that the respondent showed tolerance of the applicant during th.: period from (at least) the comm.:nccment of hcr husband's ii lness unti I she proceeded on leave on 31 July, after which the respondent incurred significant additional costs and inconvenience to itself to engage a Temporary employee to cover the mdefinitc absence of the applicant. Further, on termination of employment the respondent took action to extend "on paper" the applicant's employment until 31 January ~ involving six weeks pay in li..:u of notice -- which had the dT.::ct of giving her an entitlement to additional superannuation payments of approximately $6,500. However, it needs to he remcmber.:d that if the employer had not taken the action that was taken to terminate the applicants's services this additional entitlement to superannuation would have occurred on the applicant's fifty-fifth birthday on 16 Januarv 1993. The Commission acccpts that the respondent believes that is has acted extremely fairly toward the applicant for a lengthy period of time and. aft~r the applicant's services were tem1inated, took additinnal steps to cnsure additional financial benefits accrncd to the applicant. However. a further decision of Sheahan J. Acting Pr.:sid.:nt, in Re. BahinJa Co-opcratn·e Central A!J/1 ,\'oc,ery Ltcl 98 QGIG 1288 at I 2R9 is relevant to these proceedings·-· "'!lie jurisdiction in the Commission to order reinstatement arises.' as I have ~aid in anothcr case. if th..: Commissioner is sati~ficd that the dismissal of an employ.:e was unduly harsh 01 oppressive in th<' circumstances which the Commissioner fintl<i to have existed. This jurisdiction is enliven<'d. in mv view . even where on the faci~ as thc employer reasonablv • believe!> them tl) he the dismissal wa,; justified. In other words a di~mis:,,al may s<.'em to be lawti.i and proper and rcasonabk to the cmplovcr. hut on a considcration of the whole of the circumstances thc Commission after enquiry ma:' find it to have been undulv harsh. In N or1h IV est Count\' ( '011nc1/ v. Dunn (1971) 126. C.LR. 247 Barwick C.l had 'this to say on this topic (pag.: 251):- the question for the arbitral tribunal wht:n asked to ord.:r r<Ctnstatement 1s not whether the employer had a right of dismissal availahlc to him at the rclcvant time but whether the .:x.:rcise of that right was so harsh in all the circumstances as to have amounted in an industrial sense to an abuse of the power. One can well understand in an arbitration svs1cm the need to have a provision in relation t,J private empl;)yers which allow the examination of the circumstanccs of th<' dismissal and to grant the power to orda the s.:nant to h.: replace in his situation if the eircurn,aanccs so warranl."' Takmg mto account all of tl1" c1rcumstanc<.'s of this case induding thc issue of costs (below) thc Commission dctem1int:s that th~'. anwunt of compensation to hc paid pur~uant to scdio11 11 .18( I )(c) hy the rcspondcnt lO the applicant he three months at the so/my applying as at the date of tcnr1ination. This amount is to be paid bv 30 Jun<' 199.1. It the Ndcr as to costs (below) had not been dctennined the Commi~si,.ln \Vtluld haw d<.'cided an amount of 4.5 months. ('osts Mr Steinitz on behalf of the applicant pr.:senkd a strong argument seeking that costs be awarded to his client and refcned the Commission to carlicr decisions where costs had bec:n awarded or where the general principle of awarding costs wae spelt out. It is clear to th-: Commission that -- given the age. background and pcrc1:ived abilities of the applicant -~ it was in the interests of juq1ce that an agent was heard ,Jn behalf ,lf the applicant and the Commission so certifi<.'s in accordance with section 8. 18 of the Act. The Commi$.sion detcm1ines that the respondent be ord..:red to pa\' r"aHmable costs incurr.:d by the appli..:ant in having thi~ matter brought to the Commission for detern1ination and adopts the procedure detern1ined by Fi-;her C. in matter No. 8404 of 1991 as set out in 139 QGJG at page 68 as follows: ( 1) Mr Steinitz is r.:quired to :-.ubm it an itemised account of the costs incurred bv him in representing the applicant in this matter. -- 3 of 4 -- 142 (2) (3) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Tiiis account is to b~ submitted to the Industrial Registrar by close of business on Wednesday 2 June I 993. T he Co mmi ss i on wi ll mak~ a di!t~nninati \'ltl on r~asonahle. costs and advise lhc partie, of its de..:ision :1s lo the actu al quant um dl!l~ nnined as r~asonahh: hy d ose of bu~iness <.lll Friday 4 June 1993. Costs are to be paid hy 30 Ju n" 1993. In detennining to award costs in th is matter th.:, Commission indicates that it did so with g reat rduct:1n ,· c and was finally swayed by the fact that it is of henefil for tinanc ial rc,1 st)ns to hoth the respondent and the app licant if the amo unt of compensat ion is lower but is partly off-set by a trans fe r of costs from the applicant 10 the respondent. Th e Commissic)n endorses the statem ent of Fisher C. in the decision reforred to ab<ive where she says: - "I wi sh to c knr lv state that my decision in this ni:ll tcr is in rc spons\! to th~ Parti c ul ar ~i rcmiH•tances of th is cHs~. 1 am t,f th ~ v i.!w that th e Co nunissi4.Hl ~h ou ld r~main a jur i s<l i ..:1 i on where costs are not a ri?g ul..tr featurf!. It is not my ant 1! nt ion that thi s dec ision be seen as :i dcpai1ure fr om the philos <>ph y adopte d by this Co mm iss ion and one whid , I bdi.:,w is supported by 1h e majority of the indus lrial rd atio n~ c.Hnmunity and th e.! public. Rathl!r. th~ cir..~um st ances l)f 1his ~as..: di.:tat~d a di ffere nt response than usu :1 I. ". The Comm ission orders accordingly In detem1ining this matlt:r th e ClHl11niss ion indica1~s th j 1 ii ha:-: considered all of th e matuial h.:,forc it in thes<' pnicc~dings and has had the oppo rtunity of studyi ng each of the witn ess.:s. and th ei r demeanour, whilst the,· gave e,·idence. A. I.. HLOOt'-IFIEl.,D. C,Hnmiss i,m~r. A pp earances:- M r R. Steinitz for th e app li can l. Mrs 8.C . Daw es . .vlr R. Beer of the ~lctal T rades lndustrv r\ss,i ,ia t i,>n of Austrn lia. Quee nsland Branch. Un ion of Empl,,v,,rs. !'or Cr:111c Austra l ia l'ty Ltd. Operative Da1e : NIA Decision - Re in statcrne nl an d ( \,st~ Released : 24 /'.fay 1993 ######################################################### [4 Jun e, 1993 4 June, I 9931 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 143 -- 4 of 4 --