Gordon v Express Gas Operations Pty Ltd [2007] FMCA 1059

An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

(a) temporary absence from work because of illness or injury within the meaning of the regulations. (my emphasis)

It is common cause that the Applicant started to work for the Respondent as a plant operator in about December of 2003. He had been employed previously as a casual for about four months while finishing his last year of school.

The company's business at its Dandenong plant, where the Applicant worked in a workforce comprising, it would appear, seven employees, was concerned with filling and maintaining gas bottles of various sizes which it tested, repainted and maintained. The Applicant's duties included testing gas bottles, filling gas bottles, driving forklifts, painting gas bottles and loading heavy bottles on the dock.

At para.3 of his first affidavit filed on 7 May 2007 the Applicant asserted that he was performing his work to the satisfaction of the company, although he admitted he was sometimes reprimanded for lack of punctuality, which he attributed to the difficulty in adjusting from afternoon to morning shifts and back.

The Respondent's affidavit material took vivid issue with that assertion, and in the affidavit of Stephen Hoey filed on 31 May 2007 Mr Hoey deposed to a long list of late arrivals at work by the Applicant, absenteeism for whole days, and various other matters, which are not now, in my opinion, of any relevance, given the way in which the trial was conducted.

In his affidavit in reply filed on 5 June 2007 the Applicant did not in fact dispute the list of absences and late arrivals but rather asserted that he was never told he must commence at work sharply at the official starting time or he would lose his job; that he was sometimes told that he should aim to start at that time; and that a number of other employees were late, as he was.

The Applicant deposed in his first affidavit that on Tuesday, 29 August 2006 at about 9.50 am he was taking a nut off a forklift with a ratchet and felt something in his stomach like a strain. He deposed that he kept working until smoko, but thereafter, because he was feeling "crook" in the stomach, he went and told Mr Hoey this and Mr Hoey gave him permission to go home.

The Applicant deposed that on 30 August 2006 he saw his doctor during the afternoon, Dr Takla, who told him to fill out an injury report and bring it back to him for processing, because the injury had taken place at work.

The Applicant deposed that he called Mr Rayner, the afternoon supervisor, at about 5 or 6 pm on that same day and told him he had a work-related injury, and described it, and that he was not sure if he would be back for the rest of the week. The Applicant deposed that Mr Rayner had said he would pass on what he had said to Mr Hoey.

The Applicant further deposed that on 31 August 2006 he telephoned again and spoke to one Stuart Fox, the Occupational Health and Safety delegate, and said he would not be back for the rest of the week. According to the Applicant, Mr Fox also promised to pass on the message to Mr Hoey.

The Applicant deposed that on Friday, 1 September 2006 he attended Dr Takla, who said that he should go back to work on the Monday.

The Applicant deposed that he attended work at 6.30 am on Monday, 4 September 2006, together with another employee, and that he put his medical certificates on Mr Hoey's desk because Mr Hoey was not there.

The Applicant deposed that he spoke with Stuart Fox and Frederico Martinez about his stomach and that Mr Fox said that the Applicant would need to fill out an injury form just before smoko, which was usually at about 8.20 am. Notwithstanding this, according to the Applicant's affidavit, at about 7.45 am he and Mr Fox went to fill out the injury book, which was in Mr Hoey's office. According to the Applicant, he started filling it out, but went back to Mr Fox to ask for his assistance, following which it was completed.

The Applicant deposed that Mr Fox signed the injury book at about 8.30 am as they were going out for smoko and that about half an hour later, just after 9 o'clock, Mr Hoey called him into the office and said, "From this moment on, you are terminated."

The Applicant deposed that Mr Hoey did not go into any reasons, but, when the Applicant asked why he was dismissed, Mr Hoey indicated that the Applicant knew the reasons and that there were one hundred and one reasons.

The Applicant deposed that he was unfit for mainstream employment but keen to get income after his dismissal, and that prior to his employment he was earning about $700.00 gross per week and that his losses to date were $24,500.00, being $700.00 per week for 35 weeks.

The material filed by the Respondent put in issue, as I have said, a number of the matters asserted by the Applicant. Relevantly, Mr Hoey agreed that on the afternoon of Tuesday, 29 August 2006 the Applicant asked if he could go home because he was sick in the stomach and Mr Hoey agreed. According to Mr Hoey, the Applicant did not say he had injured himself. That accords with the affidavit filed by the Applicant.

The Applicant had in fact taken off the previous day without a leave request and had been docked a day's pay. Mr Hoey deposed that he had had no contact with the Applicant between Tuesday, 29 August and 4 September 2006, the following Monday. He deposed that he did not see any medical certificate from the Applicant, on his desk or anywhere else.

Mr Hoey deposed that the Applicant and Frederico Martinez both arrived at work at 7.00 am on 4 September 2006. Mr Martinez has since left the Respondent's employment and is no longer available to give evidence.

Mr Hoey deposed that the injury book in fact had two entries by the Applicant, giving different sites for the injury. Both reports stated that the cause of injury was "undoing valve on forklift". The first report states that the injury was reported to Stuart Fox, but that name was crossed out. The second report states that the injury was reported to Andy Rayner on 30 August 2006 at 6.30 pm.

Mr Hoey agreed that at about 8.30 am on 4 September 2006 the Applicant asked him to sign the second injury report in the injury book and he did so. But, relevantly, Mr Hoey said that this was after the termination of employment, which he said had taken place at approximately 7.45 to 8.00 am.

According to Mr Hoey, he told the Applicant that his employment was terminated and that the reason was his absenteeism and unpunctuality over a long time and that his latest absence was "the last straw". He deposed that the Applicant said he had to be joking and became abusive. That was essentially the relevant end of the conversation.

Mr Hoey went on in his affidavit to take issue with a number of other assertions made by the Applicant, most particularly in relation to what it was that the Applicant was in fact doing on the day, and various other matters and details in the Applicant's affidavit. He further deposed that he had himself many times used the equipment that the Applicant had been using when the Applicant was allegedly injured and that neither he nor anyone else of whom he had heard had ever been injured.

Andrew Rayner swore a short affidavit filed on 31 May 2007, which, relevantly, corroborated the criticisms made of the Applicant in Mr Hoey's affidavit, but more particularly denied receiving a phone call from the Applicant on 30 August 2006. He deposed that he had not known about the claim of an injury on the Applicant's part until 4 September 2006. He confirmed Mr Hoey's remarks about the forklift cylinder and the lack of injuries that he had observed thereon.

Ronald Pumpa also swore an affidavit. He denied that the Applicant had told him on 29 August 2006 of any injury. He further confirmed that he had used the cylinder forklift and not injured himself and nor had he heard of anyone else doing so.

In his affidavit in reply filed on 5 June 2007, to which I have already referred, the Applicant, relevantly, asserted that his days of absence were for days for which he was ill; took issue with the generalised criticisms made of him by Mr Hoey; and, generally, traversed the Respondent's affidavit material. It should be noted that he agreed that he may have been mistaken in thinking that Mr Martinez was at work on 29 August 2006.

The Applicant deposed that the fittings on the cylinders are removed with a ratchet spanner, but disagreed that this was done at waist height; he said it was done at waist height or a little higher. The substance of his evidence in the second affidavit was essentially argumentative with the Respondent's materials.

In oral evidence-in-chief the Applicant confirmed that he had rung up on the Wednesday morning of 30 August 2006 but that Mr Hoey was not there and he had spoken to Mr Fox, whom he had told he would go to the doctor that day. He further confirmed that he rang Mr Rayner later and told him also he would not return to work.

Cross-examination of the Applicant proceeded slightly surprisingly. The first questions put to the Applicant were to the effect that he was the son of Gary Gordon, who had been in business with the Respondent until a year or two ago and who was still in active dispute with Mr Salt, the owner of the Respondent. He was accused in round terms by counsel for the Respondent that he was put up by his father to make this application, and the clear inference was that the application was one known to the Applicant to be wholly without merit and being brought wholly to foment the dispute between his father and Mr Salt.

It was also put to the Applicant that he had Monday, 28 August 2006 off without leave because he had been drunk at a nightclub; an assertion that he denied. When pressed as to why he had not contacted his employer on that day, the Applicant said he was crook on the Monday and could not get to the phone. He said it was a long time ago and he could not really remember what his illness was, but it could have been a cold.

The Applicant stuck by his version of the phone calls on Wednesday, 30 August 2006, repeating he had informed both Mr Fox and Mr Rayner of his illness. He expressed surprise that his calls had not been recorded, because he would have expected Mr Rayner to record his injury.

The Applicant was closely cross-examined about inconsistencies in his various versions of the circumstances that gave rise to his injury. There are a number of such discrepancies. By way of illustration, the Applicant had described his injury in his first affidavit as having occurred when "I was taking a nut off a forklift with a ratchet," when in fact, as it emerged, he was dealing with a form of valve on a gas bottle itself, the gas bottle being attached to a form of clamp known as a forklift cylinder, at the Respondent's premises.

There were other inconsistencies also. The two records of his injury recorded in the injury reports were different; the first one said he was injured in the workshop, and the second in the cylinder plant. Much was made in cross-examination of what were said to be differences between the accounts given, which suggested that he had performed the work at a level approximating his rib cage when in fact the injury itself was said to have occurred in his abdomen.

I will return to my findings about these matters later. It is important, however, to note for present purposes, that counsel for the Respondent put it squarely to the Applicant that he had never been injured at all and that he had made it all up.

Stephen Hoey gave evidence-in-chief that he has been with the Respondent since 2003. He conceded in evidence-in-chief that, while the Applicant's duties from the timesheet for the day 29 August 2006 suggested he would do filling alone, it might well be appropriate for an employee of their own initiative to move to seek to repair or move a valve if it was found faulty while it was being filled; it would be taken to the workshop.

In cross-examination Mr Hoey said that it was his decision to dismiss. He said he decided this on the Friday before the Monday. It was put to him that the company's enterprise agreement required counselling and written warning if there was to be dismissal for unsatisfactory performance. He said that he was not aware of the existence of the enterprise agreement, nor, according to him, had he heard of unfair dismissal laws in Australia and he was not aware of any requirements of fairness in dealings with employees in these circumstances.

Mr Hoey said he had had discussions with the owner of the business, Mr Salt, on the Friday, whom he had asked if it was okay to terminate the Applicant's employment because of absenteeism, with which Mr Salt had agreed. He said he would not have dismissed if he had not discussed the matter with Mr Salt.

Mr Hoey confirmed that one reason for the dismissal was the absence of the employee from work that week, which he described, in answer to a question from the counsel for the Applicant, as "the straw that broke the camel's back". He said that he had approved the Applicant to go home on the Tuesday because the Applicant claimed to be unwell and he conceded that the Applicant might have said he was ill in his stomach.

Mr Hoey said he did not discuss the illness with Mr Salt on the Friday and was not aware that it might be prohibited to dismiss an employee during a temporary absence for illness. He confirmed that the Applicant had been late many times and said he had given oral warnings but no written warnings. He said he had never seen a certificate from the Applicant but that there were two injury reports filled out.

On the day of the dismissal, according to Mr Hoey, the Applicant was an hour late and he saw him sometime around about 7.30 am or a bit later. He was adamant that he was not dismissed after smoko.

He asserted that he had given reasons for the dismissal and had not referred to "one hundred and one reasons". He said that he told the Applicant it was his absenteeism and lack of punctuality that caused the termination.

Mr Hoey also - in my view, tellingly - said that the Applicant was not likely to have been there much longer, because although workers like the Applicant are scarce, the company would not have put up with him for much longer.

He persisted in his evidence under cross-examination that the Applicant, after termination, came back to him a short time later with the injury book and asked him to sign it, which he did. He said that Stuart Fox might have had the book in the interim.

Andrew Rayner was called to give evidence. Mr Rayner was cross-examined about the Applicant's lateness and said that the company had put up with it for a long time. He said that he had not known that the Applicant was away from work until after he was dismissed, because he was on the afternoon shift and the Applicant was employed on the day shift.

Mr Rayner said that he knew about the enterprise agreement and had discussed a few things in it with Mr Hoey which he described as "our entitlements". He said that was about the extent of his discussions. He did not know that counselling was required before dismissal.

Mr Rayner confirmed that he was at work on the afternoon of 30 August 2006 and denied expressly and clearly that the Applicant had spoken to him at all on that day.

Mr Pumpa was called for cross-examination, but, in my view, his evidence was of no moment.

I should, before finishing on the evidence, record that Mr Fox was supposed to attend to give evidence; but apparently, according to counsel for the Applicant, had, at a late stage, evinced a lack of desire to attend Court.

There was some discussion with counsel for the Applicant as to whether he was seeking an adjournment to enable Mr Fox to be subpoenaed, but, in the ultimate, counsel elected to proceed without his evidence.

Dr Takla had agreed to come to Court on the day, but eventually failed to attend, and counsel for the Applicant did not seek to adjourn the matter to enable him to attend for cross-examination.

Dr Takla had, however, sworn an affidavit, which attaches a "true and accurate statement" of his evidence. That report dated 21 May 2007 relevantly asserts that on Wednesday, 30 August 2006 the Applicant:

presented with a history of one day muscular pain after working with a ratchet at work. On examination he had tenderness across the lower part of the chest. He was given time off work for three days and Nurofen tablets.

According to Dr Takla's report, the Applicant returned for review on Friday, 1 September 2006 and reported "moderate improvement with chest pain but a development of a loss of appetite." The Applicant was found to have "tenderness over the epigastric area rather than two days before" (which I take to mean that there was no epigastric tenderness previously - it was previously at the lower part of the chest), which Dr Takla said "could be from the Nurofen or a continuation of the Muscular strain his work injury" (sic). The Applicant was reviewed on the following Monday, where he reported an improvement, and was told to take Pariet tablets for a further two weeks.

Dr Takla offered the opinion that the Applicant sustained a muscular strain during his work with the ratchet which kept him from work from Wednesday, 30 August 2006 till Monday, 4 September 2006.

Counsel for the Respondent submitted that in the absence of the doctor's attendance for cross-examination, I should totally disregard his affidavit.

Counsel for the Respondent did accept that the Applicant had been to see Dr Takla on 30 August 2006 but indicated that he would have wished to cross-examine in some detail about what it was that the Applicant told him and made it clear that he would have had much cross-examination to put, examining whether or not the Applicant had indeed been injured, in the light of the alleged inconsistencies of accounts revealed in the Applicant's initial affidavit and the doctor's account of his illnesses.

As I said to counsel during the running of the proceeding, I have not had previously to confront the situation where a witness from whom an affidavit is filed, pursuant to the practices and/or rules of the Court, fails to attend for cross-examination.

Counsel for the Respondent did not suggest that the circumstances of this case give rise to a Jones v Dunkel point (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298), and I would be of that view myself. All evidence suggests that Dr Takla's failure to attend arises out of professional commitments combined with a lack of proper understanding of his obligations to the curial process.

The researches I have made have not produced any authority directly on point. The tenor of para.13-270 of Cross on Evidence suggest that in general terms it is a requirement of course that all evidence be given orally in open Court. That is not the position here where the parties have by consent embarked upon a regime whereby evidence is put on affidavit.

I note that at para.13-270 the learned editors of Cross, when dealing with the issue of absent witnesses, assert:

Doubtless, questions of admissibility would be for the court, but there is no effective method of compelling the absent witness to answer a question or produce a document.

Proceeding by way of first principles, it seems to me that the affidavit, having been filed pursuant to an order of the Court made by consent between the parties, is prima facie admissible.

However, the Court retains a discretion as to admissibility and also as to the weight that should be accorded to such material in these circumstances.

In my view, I should be prepared to do no more than accept, as was in fact conceded by counsel for the Respondent, that the Applicant went to see Dr Takla on 30 August 2006 and that Dr Takla issued him a medical certificate covering the period until the Monday.

The reason I am prepared to accept that latter assertion is that it was conceded by counsel for the Respondent during argument that the Applicant subsequently forwarded to the Respondent a certificate from Dr Takla for the period from Tuesday, 29 August 2006 until Monday 4 September 2006. This latter finding really owes more to the concession made by counsel than to Dr Takla's report.

I am not otherwise prepared to make any findings whatever as to Dr Takla's report, because, as is patent, counsel for the Respondent was prevented from cross-examining.

In one sense, there is an element of unfairness to the Respondent in allowing even these limited findings as to Dr Takla to be made. It was part of the Respondent's case that cross-examination of Dr Takla would have gone to show in an effective and probative way that the Applicant had in fact never been injured at all.

Nonetheless, in circumstances where it is patent that the Applicant went to see the doctor and that the doctor subsequently issued a sickness certificate, I am prepared to find that the Applicant presented himself to Dr Takla and gave Dr Takla, both then and on a subsequent visit on the following Friday, information in such a fashion as to cause Dr Takla to be prepared to issue him with a certificate for the relevant period.

At this point it is appropriate to make findings as to facts and about the credit of the witnesses.

I found the Applicant an unimpressive witness in many ways. His description, for example, of his absence of 28 August 2006 was manifestly unimpressive. For a person who is purporting to have a clear memory of events only a day later, his professed inability to remember the previous day was markedly unimpressive.

By way of contrast, Mr Hoey impressed me as being a palpably honest witness. He gave answers which plainly on their face were unhelpful to his case, most particularly in relation not only to the state of his knowledge about industrial law and the company's certified agreement but the answer he gave responsively and helpfully to counsel when he was asked as to whether an employee marked down to do filling might attend to other tasks.

Counsel for the Applicant put it that the evidence of Mr Hoey about industrial law and instruments was so outlandish as to itself ground an apprehension that Mr Hoey was not being truthful, but I reject that assertion entirely. While Mr Hoey's industrial law ignorance is surprising, it had all the hallmarks of sincerity and I quite fail to accept that it gives rise to any adverse credit inference against Mr Hoey.

Likewise, I found Mr Rayner a compelling witness. His evidence was given in a clear and straightforward way and he totally denied receiving any phone call from the Applicant on the Wednesday, 30 August 2006.

Mr Pumpa's evidence is really of no moment in these proceedings.

While, as I say, I have generally found the Respondent's witnesses credible, that does not mean that I reject the evidence of the Applicant in its entirety. I accept that the Applicant was a poor employee who was late on numerous occasions and absent on numerous occasions when he should not have been.

I accept the evidence of Mr Hoey that the Respondent, despite its relatively lenient approach to employees who were late, had reached a point by August 2006 where the Applicant's employment was tenuous at best.

I would infer, given the questions put to the Applicant, that the ongoing tension between Mr Salt and the Applicant's father was scarcely a matter that helped the Applicant in his employment, but for present purposes I am quite satisfied from Mr Hoey's evidence, which is supported by facts not themselves materially in dispute, that the Applicant's poor attendance had led to a point where his employment was, so to speak, on the line.

I accept that the Applicant was in some way hurt or became ill on Tuesday, 29 August 2006.

Counsel for the Respondent made it clear, in response to a question from the bench, in final submissions that it was not just the Respondent's case that the Applicant had been dismissed for reasons unconnected with any illness. The Respondent - wholly unnecessarily, in my view - took it upon itself to prove that the Applicant was never injured at all.

Counsel for the Respondent readily conceded that in the circumstances this was in substance an allegation of fraud, and one to which Briginshaw principles applied (Briginshaw v Briginshaw (1938) CLR 336).

I am not prepared to find that the entire story of illness was made up by the Applicant. The application of ordinary commonsense suggests how unlikely this was. The assertion that it was made up owes, I have no doubt, more to the ill-feeling between Mr Salt and the Applicant's father than to any kind of rational thinking.

Whatever inconsistencies there may have been in the Applicant's various accounts of his injury or illness, it is, to my mind, more probable than otherwise that the Applicant did sustain some form of injury on 29 August 2006. He, on any view, reported feeling unwell to Mr Hoey, even though he did not say exactly how; and it was that report, which Mr Hoey very properly responded to by allowing the Applicant to go home, that represented the last intelligence given to the Respondent prior to his absence from work.

There is no doubt that the Applicant went to Dr Takla on 30 August 2006 and again on Friday, 1 September 2006. Indeed he went back on the following Monday also.

While such conduct is consistent, on one view, with a wholly malicious invention produced for the malicious purpose of injuring the Respondent, at least in part to assist the Applicant's father, I am not prepared to find that this is so. It takes the matter further than commonsense would deem probable.

Nonetheless, I also find that the Applicant - whom I find was a slack and inattentive employee, as shown by his view that it was open to him simply to take days off pretty much at will - did not notify his employer prior to the following Monday.

As I say, I found the evidence of Mr Rayner compelling. I am not in a position to find whether or not the Applicant has wilfully invented his phone call to Mr Rayner, but I do find that it did not take place.

I have not heard from Mr Fox and I am not in a position to evaluate whether or not any phone call was made to him. I note that Mr Fox did not record any such call; and I note that the Applicant is of the view that - had such a call been made - he would have expected Mr Fox to tell Mr Hoey about it. I find that Mr Hoey was not told, and, on balance, I think that this phone call was also a matter of wishful thinking on the Applicant's part.

The statement from Dr Takla does not say whether Dr Takla gave the Applicant a medical certificate on the Friday, 1 September 2006, which he could have given to Mr Hoey on the Monday, 4 September, 2006. I think that it is more probable than not that he did. The Applicant would have known by the Friday that he needed a certificate and it is more reasonable than otherwise to suppose that he would have asked for it and been given it, in light of the tenor of Dr Takla's report.

Nonetheless, I accept the evidence of Mr Hoey that he did not see any medical certificate from the Applicant prior to the termination of employment. I also prefer the evidence of Mr Hoey that he was not shown the incident report book until after termination took place.

This brings us to consideration of the effects of the law upon this set of facts. I have already set out sub-s.659(2)(a). I find that the Applicant was absent from Tuesday, 29 August 2006 until Monday, 1 September 2006 because of an injury either sustained at work on Tuesday, 29 August 2006 or first apparent on that date. It is not, in my view, relevant whether this was a muscle strain or some form of gastroenteritis.

What then has to be considered is whether that was a temporary illness or injury within the meaning of reg.12.8 of the Workplace Relations Regulations 2006 (Cth). Regulation 12.8(1) provides:

for paragraph 659(2)(a) of the act, an employee's absence from work because of illness is a temporary absence if:

(a) the employee provides a medical certificate for the illness or injury within:

(i) 24 hours after the commencement of the absence; or

(ii) such longer period as is reasonable in the circumstances.

It is common cause that the Applicant did not provide a medical certificate within 24 hours of his absence.

I have found that it is more probable than not that the Applicant provided a medical certificate on Monday, 1 September 2006, a period just one day less than a week after his injury occurred.

The Applicant has deposed that he was able to go and see Dr Takla on Wednesday and Friday. I have little doubt that his failure to provide a certificate reflected his generally inattentive and feckless approach to these matters.

Was it, however, in all the circumstances an unreasonable delay? In the ultimate these are matters of fine balance and each case turns on its own facts. In my opinion, the period concerned was not, in all the circumstances, unreasonable, because, although the Applicant plainly could and should have forwarded his certificate earlier, the fact is that he did not get a certificate until Wednesday at about 5.00 pm or 6.00 pm at the earliest. The material does not say, as I have noted, exactly when the certificate was provided.

Further factors which in the ultimate cause me to accept, not without misgivings, that the period was not unreasonable in all the circumstances, are that:

•

the compliance with industrial instruments and the law generally by the Respondent is, on its own admission, imperfect, to say the least;

•

the Respondent's generally tolerant past approach to the Applicant's inattention and fecklessness;

•

the complete failure by the Respondent itself to do anything to contact the Applicant to see what was going on, especially in circumstances where the absence was giving rise by Friday at the latest to active contemplation of dismissal.

In my opinion, the Applicant has, albeit by a narrow margin perhaps, established a prima facie proposition that he was absent due to a temporary absence from work caused by illness or injury at the time of his termination of employment.

The Respondent, by way of contrast, has not discharged the obligation on it to show that the reason for the dismissal was not such as to contravene s.659 of the Act.

It is quite clear from the evidence of Mr Hoey that the reasons for dismissal included the Applicant's absence. He described it as "the straw that broke the camel's back".

Mr Hoey knew that the Applicant's absence related to some form of illness. That was the last thing he was told when the Applicant left work and there had been nothing to countermand that.

Accordingly, I find that the Applicant's dismissal was in contravention of s.659(2)(a) of the Act.

I turn to consider the question of remedy. The Act provides that employment must not be terminated, on the grounds set out in s.659. That gives rise prima facie to the availability of orders under s.665 of the Act.

I will make an order imposing a penalty upon the employer; but I will return to that matter in due course.

Reinstatement is not now sought and need therefore not be considered.

The real issue is the question of compensation that the Applicant seeks. The Applicant asserted in his affidavit material that what he has lost to date is $24,500.00, being $700.00 per week for 35 weeks. Counsel for the Applicant sought that the Applicant be awarded this sum, together with interest thereon, as was the case in the decision of Jessup J in Sperandio v Lynch (No. 2) [2006] FCA 1838 ("Sperandio").

That submission, however, ignores the effect of sub-ss.665(3) and (4), which relevantly limit the amount that the Court may award in these circumstances to the total amount of remuneration that the employee received for the period of six months before his termination of employment. The Applicant's pay at $700.00 per week would give rise to a total of $18,200.00.

Counsel for the Applicant has not referred me to any authorities on the approach the Court ought to take in relation to assessing compensation under s.665, apart from Sperandio, where Jessup J in effect awarded to the Applicant the sums lost during her unemployment, but that was a case in which damages were assessed by reference to contract at common law. This case turns on compensation awarded pursuant to statute.

The practices of the Australian Industrial Relations Commission in assessing compensation pursuant to statute are well known (see Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21) ("Sprigg"). The legislation has been amended since Sprigg but it provides helpful guidance nonetheless. I have borne the principles in Sprigg in mind when approaching the issue of compensation.

Nevertheless, in my opinion, it is not possible in this case, nor in any way appropriate, to ignore the fact that the Applicant's employment was already, as I find, within a short time of being terminated in August 2006 irrespective of the events that in fact gave rise to his termination.

The undisputed material shows that the Applicant had been absent on numerous occasions, including significant lateness on three occasions in June and in July, with whole-day absences on 17 July and on four other days in August before 28 August 2006. Given this pattern of events, I think it is very probable that the Applicant's employment would have come to an end in any event within not more than two months.

Acknowledging, as one must, that these are not areas of precision, in my view the proper award to be made, in all of the relevant circumstances to the Applicant is that he should be paid a further eight weeks pay, in the sum of $5,600.00, under this heading.

I do not think it appropriate to grant interest on that sum, as this is, in light of the way I have approached the matter, a liquidated amount of compensation, even though of course I accept that the Applicant's loss has been ongoing.

As regards penalty, I accept the submissions of counsel for the Applicant that this is a worse case than Sperandio. It is a case in which the complete ignorance on the part of Mr Hoey of all relevant industrial principles as to fairness and compliance, with the law generally and industrial instruments directly applicable to the Respondent, does make it appropriate, in my view, for a more severe penalty to be imposed.

While the Applicant undoubtedly contributed significantly to his own termination of employment by his earlier misconduct, the actual circumstances of the dismissal are truly astonishingly unsatisfactory.

The Applicant was known to have gone off work saying he was ill, and nothing more had been heard from him. No endeavours were made by the Respondent to find out what was happening to the Applicant, notwithstanding that termination was under active consideration. Furthermore, the person who made the effective decision to dismiss - whom I find was Mr Hoey, not Mr Salt, who merely acquiesced - had no knowledge, as he should have done, of the certified agreement, no understanding of even the most basic principles of industrial fairness, and certainly never complied with them.

Furthermore, the Respondent's conduct in seeking to attack the Applicant in his motivation in this proceeding, including the outlandish suggestion that the entire process was a fraud designed to cause difficulty for the Respondent because of the Respondent's difficulties with his father, and the unproven assertion that the Applicant had further acted fraudulently by inventing a non-existent illness, counts very heavily against the Respondent.

Were it not for the Applicant's own conduct, I would have awarded the maximum amount allowable under this heading, but, in all the circumstances, I will impose a penalty of $8,000.00 on the Respondent and order that it be paid to the Applicant.

There will be orders to give effect to these conclusions.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Burchardt FM