Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (for Patze) v Queensland Marine and Industrial Pty Ltd t/a Cairns Slipways Pty Ltd [2004] QIRC 109 (2004) 176 QGIG 394

394 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2 July, 2004 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 Application for reinstatement Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (for Uwe Patze) AND Queensland Marine and Industrial Pty Ltd t/a Cairns Slipways Pty Ltd (No. B110 of 2004) VICE PRESIDENT LINNANE 22 June 2004 Unfair dismissal application – Applicant summarily dismissed for using a false time card – Applicant not made sufficiently aware of the potential of summary dismissal for altering time card – Circumstances did not warrant summary dismissal – Dismissal found to be harsh, unjust or unreasonable – Reinstatement and reemployment found to be impracticable – Compensation ordered – Industrial Relations Act 1999 ss 74, 78 and 79(2). DECISION [1] This is an application by the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) on behalf of a member, Uwe Patze, seeking the reinstatement of Mr Patze to his former position of boilermaker with Queensland Marine and Industrial Pty Ltd trading as Cairns Slipways (Respondent). The application is made pursuant to s. 74 of the Industrial Relations Act 1999 (Act). [2] Mr Patze commenced employment with NQEA Australia Pty. Ltd. (NQEA) in or about June 1994. The Cairns Slipways part of the NQEA business was, during the course of Mr Patze’s employment, transmitted to the Respondent. The Respondent is a wholly owned subsidiary of NQEA. Mr Patze continued to work as a boilermaker at the Cairns Slipways until his employment was summarily terminated on 15 January 2004. He thus was employed by the Respondent for a period of 9½ years. [3] Whilst some personality issues had arisen between Mr Patze and his foreman, Beau Cooper, during the last six months of his employment with the Respondent his employment history had been good. The evidence generally would suggest that Mr Patze was a very good boilermaker. [4] It was an incident that occurred on 14 January 2004 which resulted in the termination of Mr Patze’s employment. According to Mr Patze, he arrived for work at approximately 6.56 a.m. on that day and filled in his name on a time card. At approximately 7.15 a.m. Mr Patze was informed by Mr Cooper that he was to commence ducting work on the port side of an aluminium catamaran boat. Prior to this, Mr Patze had been doing the same type of work on the starboard side of the catamaran and that work on the starboard side had not been completed. According to Mr Patze’s evidence the following discussion occurred: Mr Patze: “There is no point me starting that side until I have finished this side. Someone else will just have to take over this side”. Mr Cooper: “You make my life hard for me”. -- 1 of 6 -- 2 July, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 395 Mr Patze: “I am going to have to pack up my tools from this side of the boat and move them over to the other side of the boat while someone finishes this side of the boat. This whole job has been a stuff up from day one – we have not had the right tools and there are not enough tools to go around”. Mr Cooper: “I suppose you’ll go and see Ley James”. [5] According to Mr Patze’s evidence Mr Cooper then walked away and did not return. [6] Mr Cooper has been the foreman in charge of the Respondent’s boilermaker team for approximately 7 years having been employed at the Cairns Slipways since February 1979. According to Mr Cooper, Mr Patze could generally be left to perform his duties with limited supervision particularly when doing repetitive tasks that he had previously performed. Mr Cooper’s evidence was that he was aware that Mr Patze was going on leave on Friday, 17 January 2004 and as he had completed some significant steps on the fan housings on the starboard side of the vessel he thought it would be most cost effective to ask Mr Patze to perform the same work on the port side of the vessel. [7] It was Mr Cooper’s evidence that Mr Patze expressed some objection to having to pack up his tools and move from one side of the vessel to the other and questioned why he was being directed to move. Mr Cooper’s evidence is that he told Mr Patze that another boilermaker could finish welding the starboard side. Mr Patze then started to argue saying that he “would rather finish off the starboard side”. Mr Cooper then said that he wanted him to do the work on the port side. Mr Cooper could recall Mr Patze saying that he did not have a curve-o-marker to help him do the job properly. [8] Mr Patze said that a curve-o-marker would have made the job he was doing easier and would have reduced the time taken to do the job. The curve- o-marker is not a tool usually carried by boilermakers but another employee had used such a tool on the starboard side of the catamaran and Mr Patze was impressed with its capabilities. The curve-o-marker is a tool for marking lines on pipes so that they can be connected to other pipes easily. Mr Cooper admitted that the curve-o-marker, whilst not being part of the standard tool kit of a boilermaker, did help save some time however the same results could be achieved by proper measuring and marking. [9] Mr Cooper says that he advised Mr Patze that he had “arranged to inspect a job at Great Adventures and had to leave shortly”. Mr Patze did not recall being told this. Shortly after the discussion between Mr Cooper and Mr Patze concluded, Mr Patze decided to leave the Respondent’s premises and purchase a curve-o-marker to assist him on the work that he had been directed by Mr Cooper to perform. [10]Mr Patze says that he clocked out at approximately 7.30 a.m. and as he was leaving informed James Peters, another employee, that he was going to buy a curve-o-marker. He did not inform Mr Cooper that he was leaving the site. Mr Cooper had earlier left the site to go to Great Adventures. Mr Cooper was however contactable on his mobile telephone but this was not used by Mr Patze. Mr Patze drove his own vehicle to Norstate Gas Cairns to purchase the curve-o-marker. They did not have such a tool in stock however Mr Patze paid a $50.00 deposit for the tool on that day. That payment was made at 7.40 a.m. on 14 January 2004 according to the receipt received by Mr Patze. Mr Patze then returned to work. [11]On returning to work Mr Patze went to the water cooler in the fitters’ workshop. The time clock in the fitters’ workshop is next to the water cooler. On the bench in front of the time clock was a time card that did not have a name on it. According to Mr Patze he took the time card that was on the bench because he thought it was unfair that he would lose twenty minutes pay because he was purchasing a tool that the Respondent should have purchased. The boilermakers at the Cairns Slipways provide their own hand tools and receive an allowance of $17.15 per week for the purchase of such tools. The curve-o-marker is a hand tool. Mr Patze paid $275 for the curve-o-marker. [12]Mr Patze then returned to the boilermakers’ workshop and clocked his original card back in and threw the spare time card in his cupboard. At smoko time, around 10.00 a.m., Mr Patze said that he was still angry that he would lose twenty minutes pay for doing something that would assist the Respondent and he then put the new time card in the rack and threw out the old card. [13]When Mr Cooper returned from Great Adventures he observed Mr Patze working on the port side of the vessel. Mr Peters informed Mr Cooper that Mr Patze had left Cairns Slipways to go and purchase a tool but that he could not get it and had to order it. Mr Cooper was further advised that Mr Patze had told both Mr Peters and Greg Cowen that he was leaving the premises to purchase a tool. Mr Cooper said that he then looked at Mr Patze’s time card to see that he had clocked on and off. To the best of his recollection Mr Patze had clocked out at 7.35 a.m. and returned at approximately 8.15 a.m. Whilst Mr Patze should have informed Mr Cooper that he was leaving the site he did inform at least two other persons who in turn informed Mr Cooper, the foreman, on his return to the site. [14]At about 10.00 a.m./10.30 a.m. Mr Cooper spoke with Ley James, the Respondent’s Manager, about the discussion he had with Mr Patze early in the day. Mr Cooper told Mr James that Mr Patze had “abused” him in front of other workers. He did not, at this time, advise Mr James of the nature of the “abuse”. Given the account of what occurred I would not describe Mr Patze’s actions as “abuse” of Mr Cooper. Mr Patze certainly argued with Mr Cooper. He could see no good reason for having to leave the job he was doing on the starboard side and start work on the port side. Mr Patze saw the removal of him from the work he was doing as some indication that he was not performing the work appropriately. [15]At this meeting Mr Cooper did not inform Mr James that Mr Patze had left the premises, without advising his supervisor, in order to purchase a tool. [16]Mr James had earlier made arrangements to talk to the workforce in the smoko room after lunch i.e. approximately 1.00 p.m. Mr James said that he would speak with Mr Patze after that meeting. Mr Cooper then informed Mr Patze that he was to see Mr James after the lunch meeting concerning the “abuse” earlier that day to Mr Cooper. [17]At the 1.00 p.m. meeting with the workforce Mr James referred to a number of matters. Mr Patze was present at the meeting. Mr Cooper’s recollection of the topics discussed at the meeting was “work coming up, mess left around the yard, people knocking off early and having days off leaving Cairns Slipways with an insufficient workforce … late arrivals and time clocking issues”. Mr James’ account of the issues discussed included “people are not clocking in and clocking off properly”, an explanation of the “process for clocking on and clocking off”, he expressed concern “about people being absent from the premises without notification” he advised the workers that he had “previously issued a memorandum regarding these issues” and he “stressed the importance of these matters with respect to workplace health & safety”. At the time of this address Mr James was unaware that Mr Patze had left the premises earlier that day nor was he aware of the issue with respect to his time card. [18]After that meeting Mr James met with Mr Patze. Mr Patze said that Mr James told him that he should not have made such an outburst earlier that day in front of the other workers. Mr Patze said that he tried to explain his frustration at the mess the job was in. Mr James told Mr Patze to try and get on better with Mr Cooper, something which Mr James had said to Mr Patze on a previous occasion. Mr James said that he told Mr Patze that his “behaviour in abusing the Foreman is not acceptable, if you have any problems with the Foreman’s performance you should see me”. According to Mr James he told Mr Patze that he was “warned – I will not accept any incidents of this type in the future. I will leave this as a verbal warning, and I will not issue a written warning at this time”. Mr Patze then told Mr James that it was his job to better co-ordinate the jobs. [19]Following this conversation Mr Patze returned to work and worked until 4.30 p.m. that afternoon which included one hour’s overtime. Had Mr Patze’s time card reflected the true time worked on that day he would only have been entitled, at best, to a ½ hour’s overtime. -- 2 of 6 -- 396 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2 July, 2004 S:\QIRCDEV-BASE\QGIG\2004\VOL 176\NO.10 02.07.04.DOC QGIG 2/7/04 [20]On Thursday, 15 January 2004 Mr Cooper arrived at work at approximately 6.45 a.m. and he immediately checked all the time cards for the employees in the boilermakers’ team. He then noticed that Mr Patze’s card was not the card that he had seen on the Wednesday. He concluded that Mr Patze must have had another time card and switched the two cards. It was Mr Cooper’s evidence that he recalled Mr James having spoken to the “workers clearly spelling out the requirements to properly and accurately punch time cards so that the card reflected actual starting and finishing times and any departure times during work hours”. Having said that Mr Cooper then stated that he could not “recall whether it was stated in memos from Ley James, or in meetings he had conducted with the workforce at the smoko room” yet he could recall that “it was made very clear that it was a sackable offence to tamper with clocked cards”. [21]In this regard Mr Cooper produced correspondence from Mark Fry, a director of the Respondent which he said he posted on the boilermaker’s workshop notice board. The contents of that correspondence are relevant and are as follows:- “15 September, 2003 To: Mr Ley James Manager, Cairns Slipways NQEA Silver Fox Personnel Cc: QMI Security Beau Cooper Mark Richards Clyde Evans Dear Ley SUBJECT: USE OF QMI BOILERMAKERS WORKSHOP Please note that NQEA boilermakers, under the guidance of Michael Fraser (Night Shift Supervisor) are to be provided reasonable access to the QMI Boilermakers Workshop during the completion of MY Silver Fox. Such access is provided on the basis that QMI equipment or stock shall not be removed from the shop without prior consent from either Beau Cooper or Marc Richards. Further, it is timely to remind all personnel that tampering with time cards in any way whatsoever is a substantial safety risk and may result in immediate dismissal. We thank you for your co-operation. Yours faithfully, MARK FRY Director CAIRNS SLIPWAYS” [22]Apparently at this time the MY Silver Fox was located at the Respondent’s Slipway and NQEA personnel were using the Respondent’s boilermakers’ workshop. Mr Patze agreed that he had sighted the abovementioned correspondence but said that as it was directed to NQEA Silver Fox personnel he had formed the view that it was of no relevance to him and did not read the contents of the correspondence. That is quite understandable given the content of the memorandum as all but the last paragraph had relevance to NQEA personnel only. [23]Having discovered the changed time card Mr Cooper reported the incident to Mr James early on 15 January 2004. At this time Mr James was aware of the seriousness of the situation yet he did not involve the AMWU delegate at this time. Instead Mr Cooper was sent to advise Mr Patze to attend at Mr James’ office. [24]The accounts of what occurred at this meeting are very similar. When Mr Patze entered the room Mr James was holding his time card from 14 January 2004. According to Mr Patze’s evidence Mr Cooper said “[t]his is not the time card you had yesterday morning?”. Mr Patze’s initial reaction was to say that it was his time card. Mr Cooper again asked the question and this time Mr Patze admitted that it was a different time card to the one he had clocked in on 14 January 2004. [25]Mr James said that he said to Mr Patze that he had left the premises without permission, that he had clocked off and then clocked back on again, that he had subsequently presented another card with a normal starting time stamped on it and that he had switched his actual time card with the replacement time card. Mr James said that Mr Patze said words to the effect that “I left work to go and buy a tool but I did not change the time cards”. According to Mr James, Mr Cooper then said “I saw your original time card in the time card rack and noticed that you had left work during the morning and returned again. When I collected your time card this morning I noticed that the time absence was not recorded, and it is a different card”. Mr Patze then said that he did change the cards saying that he considered it unfair that he had to purchase tools in his own time and that he should not lose pay because of that. [26]Mr Patze was then asked to leave the room and wait in the foreman’s office. [27]Mr James then arranged for Steve Venables, the AMEPKU delegate, to come to his office. Mr James then informed Mr Venables of the discussion he had earlier with Mr Patze. At approximately 9.30 a.m. Mr Patze was called back in to Mr James’ office. At this time Mr Venables was also in the room. Mr Patze was informed that he was being suspended pending a decision from senior management. Mr Patze then went to the workshop and locked his tool cupboard and left the Respondent’s premises and went home to await a call from Mr James. Mr James then had a discussion with Mark Fry, a director of NQEA. Mr Fry informed him of an incident at NQEA where the person was summarily dismissed. A decision was then made to summarily dismiss Mr Patze. [28]At around 11.20 a.m. Mr James telephoned Mr Patze and advised that his falsification of time records amounted to an act of gross misconduct and that he was being summarily dismissed. -- 3 of 6 -- 2 July, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 397 Was the dismissal unfair? [29]Mr Patze has acknowledged that what he did in removing his original time card and replacing it with another card was wrong. Time cards are an important part of a business such as the Respondent’s business. They are there to accurately record the time that workers are engaged in the performance of work for which they receive a wage. They are also important from an occupational health and safety aspect i.e. they record what workers are present at the work site at any given time. [30]I am satisfied that the Respondent had raised the issue of correct time keeping on a number of occasions with its workers. What does concern me however is whether Mr Patze was aware of the potential to be summarily dismissed for incorrect timekeeping. In this regard I was referred by the Respondent to a number of documents. These include: (i) the memorandum referred to by Mr Cooper in his evidence which is outlined in paragraph [21] of this decision. This is the only documentation which deals with the consequence of dismissal from employment. I do not find that that memorandum was sufficient notice to employees of the Respondent of the potential consequences of summary dismissal should they alter time cards. As I have already indicated that memorandum was addressed to NQEA personnel and the first two paragraphs have no relevance whatsoever to employees of the Respondent; (ii) the detailed induction that all new employees received. Mr Patze however was never a new employee having originally been employed by NQEA and did not receive such induction. The participation of Mr Patze in training undertaken by Patrick Turner, the Respondent’s Workplace Health & Safety Officer, was limited to clock on/clock off procedures, with a particular emphasis on workplace health and safety concerns. The evidence is that the potential consequence of summary dismissal for failure to comply with the procedures was not raised by Mr Turner with Mr Patze; (iii) a memorandum that Mr James received from NQEA which had attached to it a document headed “Clock In – Clock Out Procedure (enter and departing the site)” dated 18 February 2000. It was Mr James’ evidence that he prepared a summary of that document which was posted on all notice boards at Cairns Slipways. Unfortunately Mr James was unable to produce a copy of this memorandum. The 18 February 2000 document does not say anything about the potential for dismissal should an employee alter a time card; (iv) a further memorandum dated 11 March 2004 distributed to all employees. This document was attached to Mr Patze’s Affidavit (Exhibit 1) in this proceeding. The warning is that the practices outlined in the memorandum “will not be tolerated”. The practices referred to are clocking on at 0700 and clocking off at 1530. The memorandum does state that the clock on/off: “not only determines the hours that the company pays you for but it is a critical part of the Company Occupational Health and Safety programme. It is not only imperative that you use the time clocks on morning start and afternoon knock off it is also equally important that the clocks are used when you are leaving this property for other than work related matters e.g. lunch breaks, doctors appointments etc. This policy will be adhered to without exception.”. Mr James says that he conducted a full briefing in the smoko room wherein he reiterated the matters contained in the memorandum. In particular he said that he recalled advising employees that when they left the premises they must advise their immediate supervisor of the times that they would be absent and the reason for leaving the premises. Further he said that he told employees that they must clock on and clock off at all times when they arrive or leave the premises. (v) Clause 6.4.2(f) of the QMI Employees – Certified Agreement which relevantly provides as follows: “6.4 Absenteeism Reduction Program (ARP) ... 6.4.2 The parties to this agreement therefore agree to the following: (f) All absenteeism is to be recorded in the following manner: (i) Approved absenteeism via the timekeeping system. (ii) All unauthorised absences the employee is required to complete a declaration. (iii) False declaration made by an employee may lead to termination of employment.” [31]It is accepted that copies of the proposed certified agreement containing clause 6.4.2(f) were placed in the smoko room prior to a vote being taken on the agreement. Mr James also states that copies of the certified agreement were placed on notice boards. The same provision was included in the previous QMI Employees – Certified Agreement. [32]Whilst Mr Patze contended that he had never received any formal warning Mr James relied upon the oral warning given to Mr Patze at the meeting on 14 January, 2004. He was warned, according to Mr James, for “abusing the Foreman”. Mr James however was not informed by Mr Cooper of what was the “abuse”. The only account that Mr James received was that Mr Patze questioned the allocation of work to him on that day and that he had been informed by Mr Cooper that Mr Patze liked to pick and choose between jobs. In evidence Mr Patze denied that he liked to pick and choose between jobs. I have difficulty with the so-called “formal warning” given on 14 January 2004. It seems to me that what occurred on this occasion could not be construed as a “formal warning” as prescribed in clause 6.2 of the QMI Employees – Certified Agreement. [33]Following the discussion between Mr Patze and Mr Cooper early on 15 January 2004, Mr Cooper’s reaction to Mr Patze leaving the premises seems to have been a reasonable one i.e. he thought that Mr Patze had left to “cool off” after the earlier argument and that Mr Cooper did not think the action warranted reporting the absence to Mr James. It is clear that Mr Patze was still angry with the earlier events of the day, even at 10.00 a.m., when he swapped his time card. Whilst his temperament at the time cannot be seen to condone his actions in changing his time card, it does go somewhat to mitigate his actions. I believe that Mr Patze’s conduct on the morning of 14 January 2004 in swapping the time card was a reaction to the events of earlier in the day, albeit an overreaction. It was not a pre-mediated course of conduct but rather the conduct of a person who was angry with what he perceived was an injustice to him. According to the evidence of Mr Cooper, Mr Patze was upset for most of the day on 14 January, 2004. -- 4 of 6 -- 398 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 2 July, 2004 [34]In my view the absence of Mr Patze to purchase the curve-o-marker was also a reaction to the perceived injustice. He left the premises for a somewhat work related matter although it is accepted that the purchase of hand tools is a matter for the individual employee. In the circumstances I do not see the absence from work, whether it be for 20 minutes on Mr Patze’s evidence, or 40 minutes on Mr Cooper’s evidence, as warranting anything other than a reprimand. [35]The changing of the time card is a somewhat different matter. All employees should know that such conduct is wrong. Mr Patze admits that it was wrong. The issue for me is, however, whether Mr Patze was made aware of the potential consequence of dismissal for such conduct. In my view he was not sufficiently made aware that summary dismissal could result from the changing of a time card. [36]The provision in clause 6.4.2 of the QMI Employees – Certified Agreement deals with the recording of absenteeism. The clause refers to the fact that an employee is “required to complete a declaration” if there is an unauthorised absence. Further the clause provides that a “false declaration made by an employee may lead to termination of employment”. Mr Patze did not complete a declaration therefore he did not make a false declaration as that term is used in clause 6.4.2 of the certified agreement. I therefore do not accept that clause 6.4.2(f)(iii) of the certified agreement could be seen to put Mr Patze on notice that his employment would be terminated if he was to change a time card. The conduct in altering the time card certainly warranted some disciplinary action but in my view summary dismissal was unfair in the circumstances. [37]I am also concerned at the manner in which the discussion with Mr Patze on 15 January 2004 occurred. There is a procedure outlined in clause 6.2 of the QMI Employees – Certified Agreement which deals with Disciplinary Procedure/Termination. The preamble to the clause states that “[i]t is important, if not fundamental to proper Employer/Employee relationships, that there be proper procedure in place to deal with ‘poor work performance’ and the like”. The clause goes on to provide that “[t]he representative of the employee (shop steward), will be notified at each step and will be invited to counselling sessions if desired by the employee concerned”. Mr Patze was never advised prior to the meeting on 15 January 2004 of the issue with his conduct and nor was he advised that the meeting could result in disciplinary action being taken against him. This was in circumstances where Mr James had determined, prior to the meeting, that the conduct being complained of was serious. [38]Mr Patze should have been given an opportunity to have his shop steward present at the meeting. The shop steward should have been informed, prior to the meeting with Mr Patze, that a meeting was to be held with Mr Patze which may result in him being disciplined. Having the shop steward come to a meeting afterwards does not, in my view, meet the requirements of clause 6.2 of the QMI Employees – Certified Agreement. The whole intent of the clause has, in my view, been thwarted in this instance. [39]Other factors militating against summary dismissal are the length of service (9 years and 7 months) and the good employment history of Mr Patze. Mr Patze was five months off an entitlement to pro rata long service leave. The evidence suggests that this was not given sufficient consideration when determining the disciplinary action to be taken against Mr Patze. Section 43(3) and (4) of the Act may provide Mr Patze with some relief in respect of his long service leave. [40]In all the circumstances I consider the dismissal of Mr Patze to be harsh, unjust and unreasonable and therefore unfair. Remedy [41]Having been satisfied that Mr Patze was unfairly dismissed, the primary remedy under s. 78 of the Act is reinstatement to his former position on conditions at least as favourable as the conditions on which he was employed immediately before his dismissal. Mr Patze seeks reinstatement. He has been unemployed for all but one week since his dismissal. The Respondent contends that the trust relationship between it and Mr Patze has been destroyed. In so submitting the Respondent relies upon the following: (i) the inappropriate behaviour of Mr Patze towards Mr Cooper on 14 January 2004; (ii) Mr Patze’s departure from the Respondent’s premises without seeking the permission of his supervisor; (iii) the swapping of the time cards; and (iv) Mr Patze failure to own up to his conduct on the first opportunity at the meeting on 15 January, 2004. [42]In the circumstances I accept that Mr James might have difficulty trusting Mr Patze in the future. I also find that Mr James’ attitude would not be unreasonable in the circumstances. Whether the level of trust to which Mr James referred is necessary in the circumstances of a boilermaker and his employer is a different issue. I doubt if Mr Patze would again breach any rules in relation to clocking on and clocking off. Mr Patze had a history of working unsupervised on the work allocated to him and I don’t expect that Mr Patze would have difficulty doing so in the future. [43]There are however two other matters to be considered: (i) the personality issues between Mr Patze and Mr Cooper. Mr Cooper would continue to be the supervisor of Mr Patze and I would think that the events since 14 January 2004 would only exacerbate the problems in the relationship; and (ii) the general desire of Mr Patze following dismissal to seek employment other than as a boilermaker. Whilst I can understand that when confronted with having to find alternative employment as Mr Patze did on 15 January 2004, one would consider whether a change in employment would be appropriate, he did not actively pursue boilermaker positions other than in the weeks immediately following dismissal. [44]In all of the circumstances I am prepared to conclude that reinstatement would be impractical. For the same reasons I find that reemployment is also impractical. [45]In those circumstances the issue of compensation arises. The Respondent points to Exhibit 8, which is a list of positions advertised for boilermakers in the relevant period, to suggest that Mr Patze did not sufficiently attempt to mitigate his loss. As I have indicated previously I can well understand Mr Patze’s position when he found himself dismissed on 15 January 2004. As he indicated during evidence his age did not lend itself to a much longer career as a boilermaker and he took the opportunity which confronted him of seeing if he could commence a new career. [46]In this regard he obtained employment with the Department of Main Roads as a Traffic Control Officer. In this position he was required to work long hours and Mr Patze found that after 5 days work he could not continue with the long hours and the long drive home after work. During this time Mr Patze earned $911.77 gross. [47]It is not that Mr Patze did not seek employment as a boilermaker – he did. He just didn’t apply for all the positions outlined in Exhibit 8. In respect of the positions outlined in Exhibit 8 there is the Supplementary Affidavit of Mr Patze sworn on 7 May 2004. His employment as a boilermaker has -- 5 of 6 -- 2 July, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 399 been almost exclusively on ship repair, with both the Respondent and the Navy. He has no qualifications or experience in pipe fitting, no experience in structural steel fabrication, no supervisory qualifications and no experience in structural and heavy machinery. A number of the positions in Exhibit 8 were casual positions, some were outside of Cairns, some involved fly in/fly out and some were NQEA or Respondent positions. In the circumstances I am persuaded that Mr Patze has been attempting to mitigate his loss. [48]Section 79(2) of the Act provides that the Commission must not award an amount of compensation that is more than the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal. As at 7 May 2004 the Applicant had received only $911.77 in income since dismissal. At that time he had been unemployed for a period of approximately 15 weeks (not including the week of employment with the Department of Main Roads). He was not paid any monies in lieu of notice. Given the evidence before me I assess that Mr Patze would have been unemployed for at least a further 8 weeks i.e. a minimum total of 23 weeks. [49]In determining the level of compensation, the factors the Commission will usually consider are well established with the practice being to award a global sum relying on the principles in Chenery v. Klenzig (1988) 55 SAIR 545. One relevant factor to be considered is an estimate by the Commission on how long an employee would have remained in employment with the employer. [50]Whilst the personality issue between Mr Patze and Mr Cooper was an issue, it had been an issue for 6 months prior to the dismissal. I do not consider that it would have been a factor in shortening Mr Patze’s career with the Respondent. There was thus no indication in the evidence before me to suggest that Mr Patze’s employment with the Respondent would have been terminated within 6 months of 15 January 2004 but for the decision taken on that date. [51]In all the circumstances, I order the Respondent to pay to Mr Patze an amount equivalent to twenty (20) weeks’ pay at the rate Mr Patze was being paid at the time of dismissal. I am unable to determine from the evidence the actual rate of pay that Mr Patze received prior to dismissal. If there is any disagreement about the amount I will relist the matter for further hearing. The Respondent is to deduct the appropriate income tax from that amount. The net amount is to be paid to Mr Patze within twenty-one (21) days of the release of this decision. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2004 5 May 10 May Applicant’s Written Submissions 14 May Respondent’s Written Submissions Appearances: Mr E. Moorhead of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland for the Applicant. Mr M. Peters of MacDonnells Solicitors for the Respondent. Released: 22 June 2004 -- 6 of 6 --