Addis v Gramophone Ltd

Addis v Gramophone Ltd (1909) AC 488. Antonakopoulos v State Bank of NSW(1999) 91 IR 985 Baltic Shipping Co v Dillon(1993) 173 CLR 344 Bankstown City Council v Paris (1999) 93 IR 209 Byrne & Anor v Australian Airlines (1995) 61 IR 32 CASES CITED: D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Gray v Guthrays Pacific Pty Ltd unreported IRC 8439 OF 1999 Outboard World v Muir (1993) 51 IR 167 Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 Sams v Contact Point International Pty Ltd (2001) NSW IR Comm 18 Western Suburbs District Ambulance Committee v Tipping(1957) AR NSW 273.

Applicant Ms L Tucker Solicitor Kingsford Legal Centre LEGAL REPRESENTATIVES:

Respondent Mr S Griffiths Solicitor Pike Pike & Fenwick

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Vincent Charles Simms and Aboriginal Corporation for Homeless and Rehabilitation Community Services

Application by Vincent Charles Simms re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application by Vincent Charles Simms against the Aboriginal Corporation for Homeless and Rehabilitation Community Services ("the Corporation") for a remedy pursuant to section 84 of the Industrial Relations Act 1996. Mr Simms was dismissed from his position of Driver with the Corporation on the 16 March 2006. He sought monetary compensation in lieu of reinstatement or re-employment. 2 The matter was listed for conciliation and directions before Commissioner Macdonald on 29 April 2006 at which time conciliation took place. As no settlement could be reached, directions as to the filing and exchange of witness statements were issued pursuant to Practice Direction 17 and the file returned to the Registry for future listing.

3 The matter was allocated to the Commission as currently constituted and listed for hearing on the 8 and 9 August 2006. The evidence concluded on 8 August 2006 and directions were issued as to the filing and exchange of written submissions by the parties. Written submissions on behalf of the applicant were filed on the 22 August 2006, written submissions on behalf of the respondent were filed on the 31 August 2006 and submissions in reply on behalf of the applicant were filed on the 11 September 2006. 4 At the hearing Ms Tucker, Solicitor, appeared on behalf of the applicant who gave oral evidence in addition to his written evidence (Exhibits 1 and 2).

5 Mr Griffiths, Solicitor, appeared on behalf of the respondent and called the following witnesses from the Corporation: Trevor Walker - Hostel Manager (Exhibit 3) Jack Walker - Co-ordinator (Exhibit 5) Background 6 The Corporation is a not-for-profit association incorporated under the Aboriginal Councils and Associations Act 1976 (Commonwealth). It derives its income from donations or grants and is dependent for its operations on funding through the appropriate government agency.

7 The Corporation provides housing for homeless persons in temporary hostel accommodation and through longer term housing placement. It also provides welfare services and rehabilitation services for parolees including Court appearances, prison visits, escorts for parolees and community support generally.

8 The Corporation manages Ngura Hostel at Ashfield providing emergency accommodation for women and children who have lost their homes and manages Cecil Park Farm which is being developed for youth training programs.

9 Mr Simms is 64 years of age. He had worked for the Corporation for almost 10 years and had been employed pursuant to the Social and Community Services Employees (State) Award. He was paid $684 per week and received travelling allowance plus $170 per trip when driving parolees. 10 During his employment he undertook a number of different duties including a period of time acting as a supervisor of the women's hostel. For the last 12 to 18 months he was primarily a driver doing pickups of donations of furniture and household goods and deliveries of such to needy families in the Corporation's truck. He also drove parolees to various country locations in the Corporation's car. 11 On Monday, 13 February 2006, as a result of a meeting with Mr Jack Walker and Mr Trevor Walker, Mr Simms was terminated with the notice to expire on 23 March 2006 however he was finished up on the 20th of March 2006. He was paid the appropriate long service leave on termination with even though the Corporation's funding does not include provision for long service leave for employees.

12 Because Mr Simms received long service leave payments on termination he was ineligible for Centrelink payments until 7 June 2006. He obtained alternate employment on 13 June 2006 at the Gurawal Respite Centre working 30 hours per week and earning $400. In addition he earns $60 per week carrying out regular gardening duties for two private clients in the area. The Evidence 13 It was Mr Simms' evidence that he did not start having problems with the employer about any issues to do with his work performance until the last 12 to 18 months when he was carrying out the driving duties. He would drive the truck usually with one other person, such as Richard Ella, Brian King or Tim Ella. There were usually two people on the truck. He would stay in the back and do the loading and stacking of items while the other person would go into the private house to collect the furniture. He then drove the truck and would deliver the items to the farm at Cecil Park. 14 He acknowledged that he did sometimes bring in items where some pieces might be broken. He also acknowledged that there were items picked up that should not have been collected. He maintained this was always the fault of the other person. He had said on a number of occasion that they shouldn't be picking up those items or told the householder they couldn't take certain items, however he would be ignored. He agreed he never raised that problem with the employer. He also acknowledged that he had been spoken to on a number of occasions about picking up items that could not be used or were in poor condition. He maintained that he was the only person who was spoken to about this, none of the other employees concerned were spoken to about the problem. 15 Trevor Walker gave evidence that this issue had been an ongoing problem with Mr Simms. The problem was that they needed to discriminate between those items which could be reused and those that could not. If they picked up the latter then they filled their storage area with useless furniture and ultimately had to pay tipping fees for it. It was a real problem and could be quite costly so that rather than having a positive effect it actually cost the Corporation money. Additionally furniture picked up had to be carted and stored carefully to avoid damage.

16 Mr Walker maintained that during the 12 months prior to his dismissal Mr Simms was given four verbal warnings relating to not following specific directions concerning picking up materials that could not be reused or that were damaged. Mr Simmons was the senior employee on the truck and they expected him to take responsibility for doing the right thing.

17 Mr Simms denied ever being told that he was the senior employee and said that either person on the truck would make the decision about what was picked up. However he agreed that Mr Walker told them not to "pick up stuff that's soiled or damaged." However it wasn't only his decision, it would be the other fellow's decision too, but he was the only one who would be chastised about it. He also agreed that Brian King was a volunteer and that Richard Ella only worked there for about six months. 18 Mr Trevor Walker's evidence was that the issue of the tipping fees incurred directly through Mr Simms picking up unsuitable materials was raised at a staff meeting in February 2005 and he annexed to his witness statement tax invoices relating to tipping fees. However in cross examination he indicated that they had had a big cleanout of the storage sheds at Cecil Farm in February 2005. That was the first cleanout he could recall in his previous five years with the Corporation. 19 Mr Simms could not recall that at the meeting where tipping fees were raised, there were any comments about his actions incurring the tipping fees. There were loads taken to the tip over different periods however they would be pieces from the storage sheds at the farm that had never been used and included items that had been there from before he started working for the Corporation. There were a lot of mattresses that had gone rotten in the storage sheds. 20 Mr Trevor Walker also gave evidence about incidents during 2005 that resulted in damage to the respondent's truck, particularly in relation to the tarpaulin. Some incidents concerning damage Mr Simms conceded however others he denied were his fault.

21 On Friday 10 February 2006 at around midday Mr Simms mistakenly put un-leaded petrol instead of diesel into the truck. This was not intentional and he only realised it once he had driven off. He rang his boss, Jack Walker, straight away to report his mistake and was told to go home. Trevor Walker came to pick up Mr Simms and Tim Ella and told him to go home as Jack Walker did not want to see him. Mr Simms maintained he subsequently offered to reimburse the cost of the petrol but Jack Walker refused this offer. 22 Mr Simms asked the mechanic to call him when the truck was fixed so he could come and collect it. He returned to the garage at 6 p.m. and it was ready at 8 p.m. He then drove it to Cecil Park where he unloaded it and arrived back at Sydney at 8:30 p.m. 23 Mr Simms agreed that he had filled the truck with diesel on numerous occasions and that on 10 February he didn't just put petrol in one tank he put petrol in both tanks. 24 Mr Trevor Walker said that he told Mr Simms to go home and that they'd deal with the issue on Monday because he knew that Jack Walker was very angry about what had happened. He agreed he didn't specifically mention having a meeting, but his belief was that it was clear to both himself and others present (including Mr Simms) just what was being discussed.

25 On Monday 13th February Mr Simms came to work as usual and picked up a load of furniture to take to Cecil Park. At around 12 noon he was told by Trevor Walker that there would be a meeting at 2 p.m. with himself and Jack Walker. He was not told what the meeting was to be about nor was he told he was entitled to have a support person with him. However he agreed that there was no doubt in his mind about what the meeting was to be about. 26 A number of issues were raised with Mr Simms during the meeting, such as doing a lot of whingeing, and not being happy, costing them too much money in the maintenance of the truck, and also an allegation that he been selling fridges for $50. It was also suggested that they would pay him his long service leave if he promised not to take legal action. He refused this. He was then told that his final day was to be the 23rd of March 2006. 27 Mr Simms denied ever making comments that he was unhappy at work, he was happy with the job. He had also never been made aware before the meeting of any allegation about selling fridges and was not told who made the allegation. 28 Further he denied costing them too much money through incidents with the truck. One incident he acknowledged was his fault. Another wasn't and had been reported to the police and he had no recollection of how the third had occurred. He also deposed that another worker who used the truck had had a crash when towing the trailer in the country in January 2005 which cost about $10,000 yet no action was taken against that person. It was unfair that he was the only one singled out. 29 Jack Walker was of the view that Mr Simms was very familiar with the truck that he had wrongly filled with unleaded fuel. He had been driving the truck and fuelling it for three years. In his view, to fill not just one tank but two with the wrong fuel was gross carelessness. He denied that Mr Simms made any offer to pay for the fuel.

30 After this incident he had sat down with the Manager, Trevor Walker, to discuss the matter. Mr Jack Walker said that he would have sacked Mr Simms straight away however Trevor was "a bit lenient" with the dismissal and in giving him long service leave. They made the decision at the meeting on the Monday and discussed it with Mr Simms.

31 Mr Jack Walker indicated that after the problem with the truck and previous incidents with the truck they were concerned that if Mr Simms stayed on the road with the truck they might have serious problems.

32 Mr Trevor Walker indicated that a letter was subsequently prepared with the reasons for dismissal but some reason it wasn't given to Mr Simms. Although in his last week with the Corporation Mr Simms was required to do extensive driving in the country in the Corporation's car, he was finished up on the 20th and told he was not required to work out the week.

33 There was also evidence from the parties about the notice payment made to Mr Simms as part of his termination pay and issues raised as to whether or not the appropriate notice had been given and paid as per the Award. Submissions

34 Ms Tucker for the applicant summarised the evidence and submitted that an order for compensation should be made on the following grounds: · The applicant was dismissed without warning. Incidents where there had been complaints made to the applicant had been referred to but that did not discharge the respondent's duty to act with procedural fairness. · The dismissal resulted from the refuelling mistake but the complaints referred to issues concerning unusable donations and tipping fees. Those complaints did not constitute a warning to dismiss and there was no evidence that such a warning was ever made. The applicant responded to complaints about the donations and no evidence was adduced to link actual tipping expenses to his actions. · The applicant's careless approach to the respondent's property was referred to but this did not justify the dismissal. There was no warning that he could be dismissed for accidental damage to the respondent's property and no evidence that any such damage was not accidental. · There was no evidence that he had caused more than minor damage to the truck despite the fact that he undertook thousands of kilometres of driving for the respondent. The fuel incident was a relatively minor expense for which the applicant offered to pay or alternatively the employer had the option to seek a payment from him. · The circumstances of the dismissal were particularly harsh in that the applicant was given no opportunity to explain or defend himself at a meeting of which he was notified that day with no notice of what would occur nor given the opportunity of bringing along a support person. · There was no evidence that there were any other problems with the applicant's work performance in nearly 10 years of work. · It is clear that other work roles were available to which the applicant could have been transferred by the respondent. · The applicant's evidence that he felt he was blamed for the damage or expenses that he did not incur is supported by the respondent's attempts to link a number of expenses to the actions of the applicant which became doubtful when scrutinised (the tipping fees and insurance excess). · There was doubt that the applicant received a letter setting out the reasons for his dismissal despite the respondent's suggestions. · The applicant's age and length of service were aggravating circumstances in the dismissal. 35 It was further submitted that the respondent's actions in dismissing the applicant were aggravated by the events in the final week of his employment. After nearly 10 years of work the applicant was told, after driving 2500 ks around the State, "to leave the key under the mat". There was no evidence adduced that the applicant had in fact been told he would be finishing up a week early. There was no substantiation of the suggestion that an extra week's holiday pay was made to make up for the final week of notice to which he was entitled. 36 The employer had suggested that in complying with its statutory obligations in relation to the applicant's entitlement it had in some way "acted in his favour". It was submitted that the poor treatment of the applicant showed clearly that there had been little regard for his welfare.

37 Despite his advanced age the applicant actively sought and gained employment three months after his dismissal however he earns approximately $100 per week less than he earned with the respondent. He also received no Centrelink benefits for the time in which he was unemployed and was thus required to utilise his long service leave. He will not have the opportunity to further accrue any long service leave in his new position in the period leading up to his retirement. 38 In relation to the claim for monetary compensation reliance was placed on D and R Commercial Pty Ltd v Flood (2002) 113 IR 344 at p66 and the discretion of the Commission to award an appropriate quantum of compensation as the Commission deemed appropriate for the circumstances under consideration.

39 It was pointed out that on the day the hearing of this matter the respondent raised for the first time that its particular status would compromise its ability to provide any sum of compensation. Given that there had been a conciliation hearing held some months beforehand with the ability for further correspondence, it was submitted that the respondent could not be seen to be acting in good faith by raising this unsubstantiated issue at such a late stage, particularly as it had been legally represented during the course of these proceedings.

40 It was further submitted that given the aggravating circumstances of this matter, a considerable sum of compensation was warranted within the discretion of the Commission.

41 Mr Griffiths, for the respondent, rejected the applicant's contentions, as contained in his application, that his dismissal was in any way for misconduct or summary dismissal or that there was any entitlement to compensation in lieu of an express right to written reasonable notice. There was no requirement to give the applicant written notice, the notice given was reasonable and exceeded the notice provisions contained in the award. The dismissal was not summary or for misconduct.

42 The applicant had also suggested in his application that the real reason for his dismissal was to enable the employer to avoid payment of long service leave. That was a patently false as long service leave, over and above the award entitlements, was paid on termination.

43 It was submitted that both the affidavit material of the applicant and the transcript contained ample evidence of his admissions as to persistent failures on his part to follow his employer's reasonable directions. Examples of such admissions in relation to the collection of furniture and household items and vehicle damage were then given.

44 It was submitted that the requirement for just cause, reasons and procedural fairness did not arise in every case of termination of the employment contract. Whilst the circumstances of a termination (i.e. summary dismissal) might create a requirement of procedural fairness the present case was not one of summary dismissal. It also did not follow in every case that the absence of just pause, reasons or procedural fairness rendered a termination harsh, unjust or unreasonable.

45 The dismissal of the applicant was reasonable because it was justifiable against a background of poor performance over a lengthy period and irrespective of whether or not there were reasons for the dismissal the circumstances of the dismissal were reasonable and carried out in accordance with the award provisions. It was emphasised that an employer has the right to terminate an employee's employment without giving any reason whatsoever providing that adequate notice was given.

46 It was submitted that the function and adequacy of an employer's warning may vary according to the circumstances of the case. However it was clear from the evidence that the applicant was repeatedly spoken to about his poor performance in terms of failure to carry out instructions and a failure to take care of the respondent's property. That was acknowledged by the applicant and a number of examples were given.

47 The applicant acknowledged that the complaints were serious and that they had been going on for about 12 months thus he was well aware of the respondent's dissatisfaction with his performance. From the respondent's perspective it was a case of "improve your performance or leave" therefore nothing further was required of the respondent in the circumstances of this case in terms of warnings or procedural fairness.

48 It was submitted that a respondent was required to accord an applicant procedural fairness where the respondent was contemplating some action that might contravene the applicant's rights. In this case the respondent was not contemplating any such action but had after twelve months unhappiness with the applicant decided to exercise its rights under the general law to terminate the employment contract while at the same time having regard to the applicant's rights to notice under the contract and the Award.

49 The respondent in its treatment of the applicant acted reasonably as the applicant's carelessness was causing real and demonstrable financial loss to the respondent. A respondent that was not in a position to condone carelessness on the applicant's part being an organisation funded from public monies and providing charitable services.

50 The respondent in its various warnings to the applicant did not act in an overly officious manner and showed restraint, for example giving a general warning to all at a Corporation meeting and sending the applicant home on the day of the fuel tanks incident and taking no action until the Monday when the parties had had time to cool down.

51 On the issue of compensation it was submitted that the purposes of compensation under the Act was not to enrich the applicant or to punish the respondent. Rather, as the name of the remedy indicated, that purpose was to "compensate for losses occasioned by harsh, unreasonable or unjust dismissal". Even if it were to be found that some aspect of the termination was harsh, unjust or unreasonable, the extent of compensation was limited by the amount of notice payable under the Award.

52 Reliance for clear authority for this proposition was placed on Addis v Gramophone Ltd (1909) AC 488 and Baltic Shipping Co v Dillon (1993) 176 CLR 344.

53 To hold otherwise would be to deny the employer its common law right to terminate an employment contract upon reasonable notice. As the notice period provided in this matter exceeded the Award entitlement no compensation was available. 54 Ms Tucker in reply indicated that it was not necessary to respond to the submissions made concerning issues raised by the applicant in his initiating application as they were not pressed at the hearing.

55 The respondent's submissions concerning admissions and acknowledgements made by the applicant were refuted to the extent that the applicant was aware that complaints were made, they were in the nature of ongoing targeting of him in spite of his efforts to address the concerns raised in relation to the picking up of donated furniture.

56 The applicant's acknowledgement was that the employer took this issue seriously given the criticism he received. He explained however that others were involved in such pickups, there were concerted attempts to improve the standard of furniture received but it was only the applicant who was targeted. No evidence was adduced by the respondent to counter this point.

57 Further it was the respondent's own evidence that there would be two or three employees involved in every pickup except the occasions when Trevor Walker picked up furniture on his own. There was no suggestion that the applicant would do this and nothing provided to counter the applicant's account. It was submitted that his evidence as to being unfairly targeted should be accepted in relation to this issue.

58 Further that there was no evidence adduced by the respondent to demonstrate any connection with the applicant's collection of goods and the respondent's expenses.

59 It was disputed that there was a long history of complaints in relation to the truck, the furniture or the donations. There were minor incidents in the final twelve months of employment out of nearly 10 years of work which the applicant admitted to. It was also disputed that there was a background of poor performance, there was no evidence to show this was the case. It was not contested that there were a number of complaints made to the applicant but the basis of those complaints was not substantiated.

60 It was submitted that the respondent's assertion that the circumstances of the dismissal were reasonable and that "the employer has a right to terminate an employer's employment without giving any reason whatsoever" flies in the face of both s 88(a) of the Act and authority on the matter which confirms the requirement for procedural fairness in the dismissal of an employee. Reliance was placed on Antonakopoulos v State Bank of NSW (1999) 91 IR 385.

61 It was disputed that a number of unsubstantiated complaints could be characterised as sufficient warning that the applicant could be dismissed whatever the "respondent's perspective" might have been. Further a warning that "if you can't handle it you can leave" could hardly be proposed as a procedurally fair attempt by the employer in its conduct towards the applicant.

62 It was submitted that there was no real and demonstrable financial loss to the respondent, there was no evidence adduced to demonstrate any loss apart from the refuelling incident for which the employer could have sought reimbursement.

63 The assertion that the February Corporation meeting was "a general warning to all" was not supported by the minutes, nor could it constitute fair warning that the applicant could be dismissed for a minor accidental incident concerning refuelling of the employer's truck.

64 It was the respondent's own evidence that the meeting was held on the Monday because it was Jack Walker who would need to "cool down". The applicant returned to work late on Friday picking up the truck and making the final deliveries that night.

65 Finally it was submitted that the respondent's submissions as to compensation were not supported by the Act, the relevant award or the case law and there was no purpose in replying to the assertions made. Consideration 66 I have carefully considered the evidence, both written and oral, as well as these submissions of the parties in this matter. 67 There is doubt that any employer has the common law right to dismiss an employee provided such dismissal is carried out in accordance with the provisions of any relevant award, industrial agreement or contract of employment between the parties. However s.84 of the Act provides that where an employer has dismissed an employee and the employee claims that such dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for that claim to be dealt with under the provisions of Part 6 of the Act. 68 The obligation of the Commission is to try and settle such a claim by conciliation but failing that to determine the claim by making an order under s.89, dismissing the application or making any other order it is authorised to make under this Act (s.(87(1)). 69 Thus the right of the employer to dismiss Mr Simms is not at issue. What is at issue and to be determined by this Commission is whether such dismissal was harsh, unjust and unreasonable and sufficiently so as to warrant the intervention of the Commission. 70 The onus is on the applicant to establish to the Commission's satisfaction that his dismissal was harsh, unjust and unreasonable per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. 71 The Commission also draws to Mr Griffiths' attention that Tipping's case is authority for the principle that the failure or refusal of an employer to give reasons for a dismissal can in fact render that dismissal unfair and attract intervention of the Commission on that basis. 72 S.88 of the Act sets out the matters to be considered in determining a claim as follows: 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused to reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employed, and

(b) if any such reason was given -- its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

(c) whether a warning of unsatisfactory performance was given before the dismissal and

(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstate or re-employed, and

(e) whether or not the applicant requested reinstatement or re-employment with the employer, and

(f) such other matters as the Commission considers relevant. 73 The expression "harsh, unjust or unreasonable", was considered by the High Court in Byrne & Anor v Australian Airlines (1995) 61 IR 32 at p.72. The principle was further discussed by a Full Bench of the Commission in Outboard World v Muir (1993) 51 IR 167 at p182. and also in Bankstown City Council v Paris (1999) 93 IR 209. Essentially, those cases hold that it is not necessary that a termination be found to be harsh and unjust and unreasonable before a tribunal can intervene on the part of an applicant. It can be one or any or all of those three.

74 The meaning of those individual terms has been considered in detail by Connor C in Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 at 104 and by Sams DP in Sams v Contact Point International Pty Ltd [2001] NSWIRComm 18. I adopt those considerations.

75 Bankstown City Council v Paris is the authority for the fact that I must make a positive finding as to whether the dismissal of Mr Simms was harsh and/or unjust and/or unreasonable (or any combination thereof ).

76 There can be no doubt that there were issues raised with Mr Simms over the last 12 to 18 months of his employment with the Corporation whilst driving the truck concerning the collecting of unsuitable donated items and damage to items. There is also no doubt that Mr Simms was aware that the Corporation was concerned about these issues. 77 However I am satisfied that there were no serious problems with his work performance over his lengthy period of employment prior to this time.

78 There is no evidence that Mr Simms was ever formally advised that he was the senior person whenever another employee was involved in collection duties all that he was given any authority to instruct a volunteer who might have been working with him on such duties. Certainly given his length of service with the employer and his seniority it might have been expected that any employee in such a situation would assume some sort of authority over a person (be it an employee or a volunteer) with lesser seniority. However having observed Mr Simms in giving his evidence he does not appear to me to be a person who would naturally assert his authority. In addition when donations were collected he seems to have preferred or opted to stay in the truck loading the goods rather than having any interaction with the householder.

79 Whilst I appreciate the difficulties confronting the Corporation, not to mention the fact that Mr Simms did not convey to anyone in authority that he was having problems with either the other person working with him or householders in relation to unsuitable items for collection, a great deal of responsibility was placed on Mr Simms to make decisions about what was or wasn't acceptable in the absence of strict and firm guidelines, preferably set out in writing. A copy of such guidelines could then be given to the householder in similar fashion to the flyer that local Councils generally distribute to householders prior to general cleanup collections in an area. 80 I am not prepared to accept that a "general warning" given at a staff meeting to all, is a sufficient warning for an individual employee who has a particular problem or issue to be addressed. Such employee should be specifically spoken to in an appropriate environment such that it is clear that a warning is being issued. I addressed that issue specifically in Gray v Guthreys Pacific Pty Ltd unreported IRC 843 of 1999.

81 I am also not prepared to accept that the tipping fees arising from disposal of items in the sheds at Cecil Farm in February 2005 can be solely attributed to Mr Simms' failure to carry out his collection duties in the required manner. Clearly on the evidence of Mr Trevor Walker that was the first clean out at the Farm for some considerable period of time predating indeed Mr Simms carrying out the driving and collection duties with the truck. 82 There is no doubt that the refuelling incident on Friday 10th February 2006 was very serious and probably the proverbial straw that broke the camel's back. It does seem a glaring mistake to make. However it is apparent that given the other duties Mr Simms carried out in relation to driving the Corporation's car to escort parolees in the country there would have obviously been occasions when he would have been refuelling that car with unleaded petrol. He was thus not in a position in the workplace where the only refuelling he ever carried out involved diesel fuel. I appreciate that this does not necessarily excuse such a glaring mistake. I also note Mr Simms age which may have been a factor.

83 Whilst I can appreciate the Corporation's frustration with Mr Simms and the issues it had with his performance over the previous 12 to 18 months, given his age, his length of service and how close he was to retirement age I consider overall that dismissal was too harsh in the circumstances. I consider more of an effort could have been made to sit down with Mr Simms, discuss problems with him and if necessary look at alternatives.

84 I am also not satisfied on the evidence that the decision to dismiss Mr Simms was not made by the Walkers prior to the meeting with him. There does not appear to have been any real attempt to explore why the refuelling incident occurred and if he had any particular problem or difficulty on that day. Indeed neither party explored that at the hearing. Further the Corporation did not seek reimbursement of the costs involved in the incident and I note Mr Simms returned to the workplace to complete his duties for the day.

85 Mr Simms also did not have the opportunity of having a support person of his choice with him. It is an essential and a necessary procedural practice that when an employer is having what is to be a disciplinary meeting with an employee, (even more so where dismissal is a possible or likely outcome,) that an employee have the opportunity of having a support person present who may indeed need to assist an employee during the interview process.

86 In relation to incidents concerning damage to the truck I'm not satisfied that indeed it has been established that all such incidents were the fault of Mr Simms or that he was formally warned that any further such incidents could result in his dismissal. Similarly any issues with his collection of donated items were never put in terms that continuation of such could lead to his dismissal.

87 I also note that in his final week of employment, notwithstanding the Corporation's concern about Mr Simms driving the truck as expressed during the evidence, it required Mr Simms to carry out duties using the Corporation's car for a lengthy country trip. 88 Byrne & Anor v Australian Airlines is also the oft quoted authority for the principle that a termination can be procedurally as well as substantially unfair. There are numerous decisions of this Commission that have found that whilst the termination was not substantively unfair it was so procedurally flawed and unfair as to warrant the Commission's intervention on that basis alone as per example Antonakopoulos v State Bank.

89 The concerns I have raised above do raise the issue of the process being to some degree, unreasonable and hence procedurally unfair and does become just one of the factors that I take into account in determining whether, in all the circumstances the dismissal of Mr Simms was too harsh and warrants the intervention of the Commission. 90 Mr Simms has been able to find alternate employment and it is to his credit that he has sought to find alternate employment and attempt to mitigate his loss. However because of Centrelink provisions he was placed in a situation where he had to use his long service leave payment to tide him over until he found alternate work. This of course would not have been the situation if he had been able to carry on working until his retirement age. He is also now earning less money in his new position than he received whilst working for the Corporation. 91 Having carefully considered all the evidence and submissions before me I find that the dismissal of Mr Simms by the Corporation in all the circumstances was too harsh a penalty to be imposed and on a procedural basis was unreasonable.

92 Mr Simms does not seek reinstatement or re-employment but compensation in lieu thereof. 93 The authorities cited by Mr Griffiths in relation to compensation do not assist the Commission. It is very clear that compensation in unfair dismissal applications is only to compensate for economic loss. Further the mere fact that an employer has given, or paid in lieu, the appropriate notice on termination as per any applicable award or agreement does not preclude the Commission from awarding monetary compensation if the termination is deemed to be harsh, unjust and unreasonable, and an order for compensation is considered appropriate in the circumstances of the particular matter. The payment or otherwise of notice would simply be one of many factors to be taken into account when considering the quantum of compensation appropriate.

94 There are no provisions in the Act as to exactly what is the appropriate amount to be awarded in compensation where a termination is found to be harsh or unjust or unreasonable (or any combination thereof) and neither reinstatement or re-employment is sought (as in this matter) or where such is held by the Commission not to be practicable (not relevant in this matter).

95 The Commission notes that Mr Simms, notwithstanding his age, has taken commendable steps, with some success, to seek to mitigate his loss. 96 In terms of s.89 (5) the limit for monetary compensation is set at "an amount of compensation not exceeding six months remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed". This section is concerned essentially with the loss of earnings. 97 S.89 (6) provides as follows: "When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment."

98 However, in D & R Commercial Pty Ltd v Flood ( relied on by Ms Tucker for the applicant), the Full Bench of the Commission commented at page 363 that: "The power in the Commission to make a money order subject to the limitation on the quantum of compensation and the matters required to be taken into account by s.89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into account the matters identified in s. 89(6) those matters are not necessarily to be reflected in any particular arithmetic or definitive way in the money order for compensation made". 99 As is my usual practice I list the factors that I have taken into account (not in any particular order of priority or importance) in determining the amount of compensation contained in the Orders to be issued in this matter as follows: · Mr Simms had almost 10 years' service with the Corporation. · Mr Simms was earning $684 per week (and had the opportunity of regularly receiving additional money through travel allowance etc.). · Mr Simms has secured alternate employment but earns $100 per week less in the new position which was not secured until 13 June. I have taken into account the additional money he earns per week doing gardening duties. · Due to Centrelink provisions he was unable to obtain unemployment benefits because of his long service leave payment which he had to rely on until he secured alternate employment. · Mr Simms was 64 years of age when he was terminated and was due to retire in August 2007. · Due to his age he will not have the opportunity of accruing long service leave with his new employer. · Mr Simms was not given the opportunity to complete the final week of his notice period and it is unclear whether he was in fact paid for this time. Notice in accordance with the Award would have expired on the 20 March but he was originally given time notice to finish on the 23 March. · Whilst Mr Simms was at fault in the refuelling incident and was aware of issues of concern with his performance over the last 12 to 18 months of his employment, nevertheless I have found that the dismissal of Mr Simms, in all the circumstances, was too harsh and that there were some procedural issues of concern. 100 Accordingly I issue the following Orders: ORDERS 1. Pursuant to s.89(5) and s. 89(6) the Aboriginal Corporation for Homeless and Rehabilitation Community Services shall pay to Vincent Charles Simms an amount of compensation of $2736 (being four weeks pay). This amount is a gross figure and taxation treatment is a matter for the parties. 2. The amount of compensation specified is to be paid within twenty eight days. 3. These Orders take effect on and from today's date, 18 October 2006.

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