DeCandia v Hallmark Cards Australia Limited (No. 2) [2004] QIRC 102 (2004) 176 QGIG 215

18 June, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 215 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Len DeCandia AND Hallmark Cards Australia Limited (No. 2) (No. B1288 of 2003) VICE PRESIDENT LINNANE 4 June 2004 -- 1 of 2 -- 216 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 18 June, 2004 DECISION [1] This is an application by Len DeCandia (Applicant) pursuant to s. 74 of the Industrial Relations Act 1999 seeking reinstatement to his former position as account manager with Hallmark Cards Australia Limited (Respondent). On 16 April 2004 I released a decision in this matter: see DeCandia v. Hallmark Cards Australia Limited (2004) 175 QGIG 1376. In that decision I found the dismissal of the Applicant to be unfair. I rely upon the findings and reasons outlined in that decision. [2] I reserved my decision on remedy to enable the Respondent to adduce evidence on why reinstatement was impracticable. The Respondent accepted that offer and gave an undertaking to the Applicant and the Commission that it would pay the Applicant’s costs incurred as a result of the additional hearing. Those costs are to be paid in accordance with Scale G of the Magistrates Court Scale of Costs: see Exhibit 19. [3] The Respondent adduced further evidence from Phillip Johnston, the Respondent’s Queensland State Sales Manager (Exhibit 17). The Applicant also provided a further Affidavit (Exhibit 18). Both Mr Shepley, Counsel for the Applicant, and Mr Watson, Counsel for the Respondent, provided extensive submissions. [4] In light of the further evidence I am satisfied that reinstatement and re-employment of the Applicant is impracticable. As I indicated on transcript had I not had a concern about the impracticability of reinstating the Applicant I would not have given the Respondent an opportunity to adduce further evidence. I am convinced that the trust relationship between Mr Johnston and the Applicant could not be restored sufficiently to enable the Applicant to work relatively unsupervised as an account manager. [5] In the earlier decision I detailed my position on compensation should I be convinced of the impracticability of reinstatement and re-employment. The further evidence of the Applicant that he has not been employed since 24 July 2003 (i.e. the date of his dismissal) and that he has not derived any income from employment since that time strengthens the position I stated in paragraph [66] of the earlier decision. [6] In the circumstances I consider that the Applicant, having been out of employment for a period of ten months and having received no income, including no social security payments, during that time, is entitled to compensation for the six month maximum period. Whilst the maximum compensation is not reserved for unfair dismissals at the most outrageous end of the spectrum of dismissals, I do consider that I should, in this instance, deduct the four weeks’ pay in lieu of notice which the Applicant received on termination. [7] The Applicant’s salary at the time of dismissal was $892.58 per week. [8] I therefore order the Respondent to pay the Applicant an amount of $19,636.76 being 22 weeks @ $892.58 per week. The amount is to be paid within twenty-two days of release of this decision. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2004 20 May Appearances: Mr J. Shepley, instructed by Primrose Couper Cronin Rudkin Lawyers, for the Applicant. Mr K. Watson, instructed by the Australian Industry Group, Industrial Organisation of Employers (Queensland), for the Respondent. -- 2 of 2 --