The applicant was permitted to have his job-site delegates in attendance with him. The applicant understood that Mr Taylor was an on-site job delegate of the Union, but he was unaware that Mr Greer was a Union delegate.

The termination of employment related to the alleged 'negligence' on the part of the applicant. The applicant believed that he had driven carefully. Further, the applicant had no knowledge of the Policies [Exhibit 6 KE 1 and KE 2] or that a relatively minor accident in the truck he was driving would lead to the immediate termination of his employment unless payment was made by him for the damage caused. Against that background, the applicant had not been warned about the ramifications of an accident prior to the decision made to terminate his employment.

All that realistically could have been relied upon was the terms of the Enterprise Agreement between the parties which made reference to the type of behaviour which might constitute misconduct - this included "potentially serious vehicle accidents". Ms Evans, for the respondent, did not believe that the incident which occurred with the applicant's truck was of a serious nature.

The respondent is adamant that the Policy has been introduced to reduce increasing costs associated with damage to vehicles.

The dedicated Human Resources officer for the respondent was based in Melbourne. Even had there been a dedicated human resources officer in Brisbane, the evidence shows that no-one in a senior position within the company understood what process had been undertaken by the ultimate decision-maker (save for looking at the front page of the Incident Report Form) to terminate the applicant's employment. As well, there had been no training instigated by the respondent around what constitutes 'negligent' driving on the part of a driver.

The employer was aware of the nature of the applicant's illness (cancer) and that he had undergone considerable medical treatment, at some monetary cost, whilst off work. The applicant had returned to his position with the respondent company and worked his way back to performing full time duties. He had an incident free working history with the respondent and had never been reprimanded or counselled for poor work performance.

The accident which had occurred was not of a serious nature. The nature of the damage to the vehicle was not serious and from the evidence before me, there was no risk of injury to anyone.

The respondent did not take into account the work history of the applicant nor any mitigating circumstances which applied. The Policy in question, as it has been implemented in this case, appears to be a non-negotiable Policy with the question of 'negligence' being unilaterally determined by the respondent without any consideration of the employee's views.

[120] In all, I have found that the termination of the applicant's employment was harsh, unjust and unreasonable.

[121] The respondent states that the Tribunal, if it found in favour of the applicant's claim, should make a nominal payment because of the applicant's "misconduct" in the performance of his duties.

[122] There is nothing in the evidence which shows or suggests that the applicant's behaviour could constitute misconduct. That he did not respond positively to the demands of the Respondent, in the circumstances of this case did not constitute misconduct.

[123] An accidental error occurred whilst the applicant was performing his duties. A high level of skill and concentration is required by drivers of this type of vehicle. However, given the nature of the work performed. it seems not unusual that accidents which are not the result of negligence (in the true sense of the word) will occur. The possibility of that occurring was, on the available evidence, never considered by the respondent.

[124] The applicant has not sought reinstatement. I find in the circumstances of this case that compensation is the appropriate remedy for the reasons that follow. The applicant seeks to be paid an amount equal to the remuneration he would have received between the date his employment was terminated and the date upon which new employment was commenced.

[125] The relevant statutory provisions governing the award of a remedy of compensation are set out below:

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(3) If FWA is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal."

[126] There is nothing before the Tribunal to suggest that an order for compensation would have any effect on the viability of the employer's enterprise.

[127] The applicant's period of employment is not long, however, in the particular circumstances of this case, there is sufficient evidence which weighs in favour of the remedy sought.

[128] There is nothing before the Tribunal to suggest that the applicant would not have continued in the employment of the respondent for a further twelve months but for the termination of his employment.

[129] The applicant has mitigated the loss of employment by undertaking casual employment and then by gaining permanent employment. The applicant has earned the amount of $4,055.24 gross from one employer since the termination of his employment. The applicant received a further amount of $500.00 from another employer during the months of January and February 2010. The total amount earned is $4,555.24. The applicant's full time employment commenced in April 2010.

[130] No notice or payment in lieu of notice was given or made to the applicant in relation to the termination of his employment.

[131] There has been no misconduct found on the applicant's part and therefore there are no grounds to reduce any considered remedy on such account.

[132] The amount of compensation ordered does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal.

[133] The amount of compensation Ordered does not exceed the lesser of the total remuneration of the applicant for the period of his employment during the 26 weeks immediately before the dismissal, and half the amount of the high income threshold immediately before the dismissal.

[134] There are no other matters which the Tribunal should take into account.

[135] For all of the above reasons, I have decided that an amount equal to 20 weeks remuneration be paid to the applicant by the respondent. This amount equals $21,000.

[136] Accordingly, a separate Order [501148] providing for this remedy in these terms will be issued.

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