HOSKINS AND TRADER NICK'S and LAURIE AND BILL SHEAD t/as TRADER NICK'S [2000] NSWIRComm 144

APPLICANTS Mr J Barnett of Counsel LEGAL REPRESENTATIVES: RESPONDENT Mr P Rochfort, Agent

JUDGMENT:

• 44 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

SEAN PATRICK HOSKINS AND TRADER NICK'S Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

NATALIE RENEE LAURIE AND BILL SHEAD t/as TRADER NICK'S Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 These are two applications, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), for relief from alleged unfair dismissal. The applicants, Sean Patrick Hoskins and Natalie Renee Laurie, were both employed by Trader Nick's, a guest house/resort on Lord Howe Island. The husband and wife applicants commenced employment with the same employer on the same day. However, the nature of their employment, periods of service and circumstances and timing of their terminations of employment are distinguishable. 2 In view of these factors, the applications proceeded by way of consecutive arbitration on 27 and 28 April, 2000. I will, however, record together the respective background matters which relate to the employment of each applicant:

Sean Hoskins Natalie Laurie Age 30 years 27 years Employment Commenced 9 September 1998 9 September 1998 Duties Groundsman Food & Beverage Assistant Date of Dismissal 30 October 1998 19 April 1999 Remuneration $450.45 net per week $450.00 net per week Reason for Dismissal Poor performance Seasonal downturn in business

Nature of Proceedings 3 Lord Howe Island is the location of the employer's business. It is the domicile of both applicants and the respondent. This created difficulties, as to convenience for the parties and witnesses, but more significantly, as to the costs that would be burdened on the parties if the applications were dealt with, either by way of conciliation, and/or arbitration in Sydney. 4 Attempts were made to examine the practicality of the Commission sitting on Lord Howe Island. However, the conciliation conferences were able to be conducted - albeit, far from satisfactorily - by telephone conference. In Mr Hoskins' case, a telephone conference was held on 25 February 1999 which involved both parties (unrepresented); Mr Hoskins being located on the Island and Mr Shead at another location. Offers of settlement were put and withdrawn shortly thereafter. A further telephone conference was held on 25 June, in which the applicant was on the island and the respondent was represented by Mr Rochfort (Agent), in my chambers. The applicant advised that he and his wife were to be legally represented by Mr Barnett , of Counsel. 5 These practical factors created lengthy delays in processing and concluding the matters. A further delay arose due to Ms Laurie's pregnancy and subsequent birth of her child. I note however, that neither applicant sought reinstatement, or was unemployed for a significant period; thus the delays in processing the applications were able to be accommodated with a view to the relief sought - namely; compensation 6 Arrangements were made for both Sydney based legal representatives to confer as to the prospects for settlement and I listed both applications for report back on 26 July 1999. 7 On this occasion, I formed a view, pursuant to s87 of the Act, that the applications should proceed to hearing and issued the following statement and directions: (1) That the applicants file and serve any affidavits on which the applicants rely by 4pm on 3 September 1999; (2) That the respondent file and serve any affidavit material upon which the respondent relies by 4pm on 17 September; (3) That the applicants file and serve any material in reply by 4pm on 24 September; (4) Parties are directed to confer, through their legal representatives, on the basis of the material which is to be filed in accordance with the timetable just issued; (5) I will set the matter for a directions hearing as to the location of the hearing proper, should it be necessary, at 10am on Wednesday 29 September. I note that Mr Rochfort, appearing on behalf of the respondent and mentioning the matter on behalf of Mr Barnett representing the applicants, has indicated a willingness to advise Mr Barnett of these directions and the Commission appreciates that. The parties are also reminded of the requirements of the Commission's directions to be complied with, and that failure to do so may well effect the Commission's exercise of discretion in the matter as to further proceedings. Because this matter has been continuing for some considerable time, it is appropriate that the legal representatives confer, according to my directions, so as to narrow the issues between them and hopefully narrow the case in its extent, and if possible, for the matters to be ultimately resolved.

8 Direction (5) was subsequently amended by consent to 15 October, at which time Mr Ginters of Counsel, now appeared for the applicants, and Ms S McKinnon, represented the respondent. The Commission took the view, considering the length of time since Mr Hoskins' dismissal, that the hearing should be conducted in December in Sydney. This was despite the pending confinement of Ms Laurie, and a request for delay by the respondent, because of the busy summer period on Lord Howe. 9 Nevertheless, the Commission left open the possibility of adjourning the hearing should all parties consent. A consent adjournment was subsequently granted to April 2000, with a consequential amendment to my earlier directions.

General Principles 10 Before attending to the respective circumstances of each applicant, I propose to discuss the general principles which are applicable to the Commission's determination of whether such dismissals were "harsh, unreasonable or unjust" according to the language used in the statute and the relevant authorities. 11 To do so I need only repeat the discussion in Police Association of New South Wales, on behalf of Adam Tregonning, and New South Wales Police Service (unreported) Matter IRC2799 of 1999, 8 March 2000, where at p32 I said: The history of the development of what is generically defined as the unfair dismissal jurisdiction in New South Wales, has been recently chronicled in Beahan v Bush Boake Allen Australia Ltd (unreported Wright P, Walton VP, Hungerford J Matter IRC621 of 1999, 23 August 1999).

The Full Bench of the Commission in Court Session there considered the "interface" between new s 109A Unfair Contracts and ch 2, Pt 6 Unfair Dismissals.

In doing so, the Full Bench traced the legislative path through the Industrial Arbitration Act 1940 , the Industrial Relations Act 1991 and the Industrial Relations Act 1996 and referred to numerous seminal authorities which determined general principles to be applied in unfair dismissal cases.

As will be evident from my later findings, there is one particular aspect of the general principles that I wish to discuss in some detail. This concerns the meaning of the expression "harsh, unreasonable and unjust".

It is apparent from both the ordinary meaning of each adjective, and their use in an industrial context, that each has its own discrete and distinct meaning - albeit with common threads.

The Macquarie Dictionary defines the terms thus: HARSH: ungentle and unpleasant in action or effect; UNREASONABLE: not endowed with reason; not guided by reason or good sense; not based on, or in accordance with, reason or sound judgement; UNJUST: not just; not acting justly or fairly, as persons; not in accordance with justice or fairness, as actions.

and the Concise Oxford Dictionary records as follows: HARSH: ..repugnant to feelings or judgment; cruel, unfeeling; UNREASONABLE: Not reasonable; going beyond the limits of what is reasonable or equitable;

In an industrial context, in Rose v Telstra Corp Ltd (AIRC, Print Q9292 (Vol 45 AILR 3-966, 4 December 1998) Ross VP described the terms: In my view, for the purpose of s.170CG, a termination of employment may be: HARSH, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; UNJUST, because the employee was not guilty of the misconduct on which the employer acted; and/or UNREASONABLE, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.

In Parker v Capitol Painters & Decorators Pty Ltd (68 IR 100 at 104, 12 September 1996) Connor C similarly defined the terms as follows: HARSH: too severe, having regard to all the circumstances.

UNREASONABLE: immoderate, excessive or extravagant.

Having established that each element of the expression has its own independent meaning, it is axiomatic when the expression is applied to a particular case, and set of circumstances, that not all of the three terms might be evident. In alius verbis , a particular dismissal might be found to be 'harsh', but not 'unreasonable' or 'unjust'. Other variations might be found.

This notion has been considered in a number of authorities to which I now refer. In Byrne & Anor v Australian Airlines (High Court, 11 October 1995 185 CLR 410) the expression 'harsh, unjust or unreasonable' was considered in the context of an award provision. In their joint judgment, McHugh and Gummow JJ said at p465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

The principle was further discussed in Outboard World v Muir ( Cahill VP, Peterson J and Tabbaa C , 51 IR 167 at 182) where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power. In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made".

A contemporary authority reaffirming this principle is to be found in Bankstown City Council and Paris ( Wright P, Peterson J and Bishop C, IRC262 of 1999, 23 August, 1999). The Full Bench said at p20:

The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specifity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

See also Herson and One.Tel Ltd (unreported) Sams DP, Matter IRC51681 of 1998, 18 February 2000 and National Union of Workers, New South Wales Branch on behalf of Mumby and Zammitt and Davids Distributions Pty Ltd (unreported) Sams DP, Matters IRC2056 and IRC2060 of 1999, 9 February 2000.

12 I note, of course, that the reason for each applicant's dismissal, is very different. Shortly put, Mr Hoskins' was for poor performance; while Ms Laurie was said to be due to a seasonal downturn.

13 The Commission will examine the facts and circumstances of each matter and apply the principles distilled from the relevant authorities.

The Evidence 14 Written and oral evidence was adduced from the applicant and Mr William Shead, the respondent and co-owner of Trader Nick's. 15 In his affidavit (Ex'A') the applicant said he had left a full time casual position with the Lord Howe Island Board (the local Council) as a result of a request from Bill Shead to come and work for him. 16 He said that on the day of his dismissal, he received a message to call Mr Shead. He did so at 5.30pm and Mr Shead complained that he had not turned up for work. The applicant said he had worked from 6.30 to 11.00am, and had taken four hours time in lieu after asking Rodney Swain ("my supervisor"). Mr Swain said it would be fine and he would tell Bill and Janne Shead. Mr Shead had responded by saying he was the boss - not Rodney Swain - "you are dismissed". The applicant protested his dismissal as it was without any notice or reason. 17 He called Mr Shead back at 6.30pm to discuss the situation. He said Mr Shead became abusive and insulting. The applicant said he was given no reason in writing, or orally, for his dismissal and had been given no warning of unsatisfactory performance. 18 The applicant said the vast majority of employment opportunities on the Island were in tourist accommodation establishments and no vacancies existed when he was dismissed. The small island community also makes it difficult to find work for someone who has been sacked. He eventually found casual work on 25 November 1998, but it was not until 23 June 1999 that his weekly earnings were the same as he had enjoyed before dismissal. 19 The applicant presented detailed medical evidence (Ex'B') of a serious viral infection during his employment. It was diagnosed as "a severe case of glandular fever" requiring hospitalisation. He spent about three weeks off work in hospital and at home recovering. After this, he was advised to work half days until his energy levels recovered. There was no challenge by the respondent to his medical condition or assessment. 20 In respect to his illness, the applicant said his absence was never questioned by Mr Shead, that both Bill and Janne Shead knew he was in hospital and he was never asked for a medical certificate. 21 In oral evidence, the applicant gave details of the job offer from Mr Shead. Mr Shead had visited him at home, in August 1998, offering a position. He did not agree at first, but did subsequently and started a month later. He denied being given a job description and said he was briefly shown around the resort grounds. Various tasks were pointed out to him. 22 The applicant recounted the detail of his two phone conversations with Mr Shead on 30 October. He disputed Mr Shead's version of the conversations. 23 He added that during his two months of employment he had only seen Mr Shead twice; believing he spent most of his time in Sydney. The applicant said that on the day of dismissal he had been repairing a yacht for a guest introduced to him through Mr Shead. He had asked if he could do the repairs and Mr Shead had said "just take off the time in lieu". 24 The applicant attests that his hours of work were 6.30am to 3.00pm - not 8.00am to 4.00pm, as contended for by Mr Shead. He said the only day he worked 8.00 to 4.00 was his first day when he was shown around the workplace. He said Mr Shead had agreed to these hours in order to have the grounds clean before 8.00am. 25 In responding to Mr Shead's evidence concerning the requirement of the job to drive a vehicle, the applicant said that Mr Shead was aware, from the outset, that he was suspended from driving, but it would not be a problem. The only driving required would be waste removal and the truck could be driven by Mr Swain. 26 He denied ever being warned, or spoken to, by Mr Shead about: a) the hours of work; b) his medical absences; c) being a disruptive influence; d) his loss of driving licence; e) a requirement for Mr Shead to be satisfied with his performance 27 The applicant also denied being criticised by a Mr Kotton Patterson a contractor doing work at the Blue Peters Restaurant around 24 October 1998. Upon returning to work from his illness, he was required to assist in the setting up of Blue Peters under the supervision of Kotton Patterson. 28 About this time the applicant raised with Mr Shead, an issue of overtime owed to him. Mr Shead had said to take time off in lieu. Mr Shead asked for a statement of his hours, but he had not provided it. He said that $100 was paid, but this appeared as sick leave on his pay advice. 29 The applicant responded to criticism of his lack of knowledge of the desalination and hydroponics equipment. Mr Shead said he would show him - but he didn't and he asked Mrs Shead for some literature about it. Mr Swain mainly worked with the equipment. 30 The applicant said that he was told at the commencement of employment that if either of the Sheads were unavailable, he should answer to Rodney Swain. 31 In cross examination, the applicant said that his hours of work were agreed in a meeting involving Mr and Mrs Shead and their daughter, Emma. He had asked for, and it was agreed, he would work the same hours as his previous employment with the Island Board. The applicant denied he started work at 6.30am for his own convenience, so he could go out on his boat in the afternoon. 32 He said Mr Shead did not give him any written job description, but did discuss the requirement of the job which was "a fairly faithful recitation" of the job description attached to Mr Shead's statement (but subsequently replaced by Ex'1'). 33 The applicant was questioned as to the conversation with Rodney Swain on the day of dismissal. He said that he told him that he only had that afternoon to repair a yacht being sailed by a guest of Trader Nick's, Chris Mathews and that Mr Swain had said it "should be okay" and he would tell the Sheads. In re-examination, the applicant said that Chris Mathews had approached him after Mr Shead told him that one of his staff (the applicant) was a steel fabricator and could help him. 34 In respect to Mr Swain's role, the applicant said he was not told Mr Swain was a supervisor, but was like a supervisor and if there were any problems when the Sheads were not around, he should go to Mr Swain. 35 In the conversation with Mr Shead, the applicant acknowledged that Mr Shead had given him reasons for dismissal - taking time off and not being around. He said that in the second conversation, he believed Mr Shead had made up his mind and would not reverse his decision. He had protested that it was unfair, particularly as he had left a job to come to work for him. 36 The applicant gave evidence that, soon after his dismissal, he had secured employment back with the Island Board. 37 Mr William Shead is the co-owner, with his wife, of Trader Nick's. He provided two witness statements (Ex'2' and Ex'3') and gave oral evidence. 38 I shall not recount those matters which are not in dispute. However, not surprisingly, there were a number of significant conflicts of evidence between Mr Shead and the applicant. Mr Shead said:

ii) he continued to monitor the applicant's performance and had warned him on a number of occasions as to his unsatisfactory performance;

iii) the applicant did not demonstrate the skills he had represented prior to his employment;

iv) the applicant unilaterally changed his hours so he could go fishing on his boat;

v) the applicant claimed to be " sick " between 3 October and 22 October 1998, but provided no medical certificate;

vi) the applicant was required to drive a company vehicle, but had lost his driver's licence;

vii) the applicant worked under the supervision of Mr Kotton Patterson during the set up of Blue Peters Restaurant. Mr Patterson had complained " at length " about the applicant's poor work practices and negative effect he had on the job. Mr Shead had subsequently warned the applicant;

viii) On 30 October, Mr Shead found out that the applicant had taken the day off without permission. He spoke to him later that day and gave the following reasons for dismissal: - lack of attention to the skills necessary to perform his job according to the job description;

• unilateral decisions as to when and how long he attended for work;

• long period of absence without medical certification;

39 Mr Shead's second statement responded to each of the paragraphs in the applicant's affidavit. Contrary to the applicant's evidence, Mr Shead said:

i) the applicant had approached Mr Shead for employment; not the other way around;

ii) Mr Swain was not a supervisor and the applicant was never told he was;

iii) he had not introduced Mr Mathews to the applicant, and he had not told him to take time in lieu to work on Mr Mathews' yacht;

v) reasons for termination were stated " quite clearly ";

vi) he had warned the applicant of his unsatisfactory performance;

vii) the applicant had worked at another tourist establishment and had left there " under a cloud ";

viii) employment opportunities, for people who live on the Island, are " quite good ". 40 In oral evidence, Mr Shead qualified par 10 of his first written statement which dealt with the reasons for termination. He said the reasons were "in my mind", but he may not have expressed them (T.p39). 41 Mr Shead attested that he had provided the applicant with a written job description, although it differs from that attached to his statement. This was explained as a computer print out copy of the document. In any event, Mr Shead said he had verbally communicated the duties in the job description to the applicant. He said the applicant did not complain about any of the duties. 42 Mr Shead said that he did not recall the applicant wanting to work his previous hours, but he (Mr Shead) had said that 8.00am to 4.00pm was the time needed. He said there was no discussion of Rodney Swain being a supervisor and that the applicant was only responsible to him and his wife. 43 Mr Shead gave evidence that he was off the Island for long periods and that his wife had told him that the applicant was hard to find and didn't complete jobs given to him. 44 Mr Shead reaffirmed his written evidence that Mr Kotton Patterson had complained about the applicant's work and he had conveyed these concerns to the applicant. As to the overtime issue, he said it related to the work with Mr Patterson and Mr Shead requested the details. He had never told him to take time in lieu. 45 In the phone conversation on 30 October, Mr Shead said he told the applicant of his concerns with taking time off and he was never around when he was needed. He agreed he told him he was better off working in a government job, because there he would receive supervision. He said that he did not reconsider his decision when asked by the applicant in the second phone conversation an hour later. Mr Shead said he had considered and thought about the applicant's dismissal. Mr Swain had told him that he had never given the applicant permission to leave, and that he was not his supervisor. 46 In a question from the Bench, Mr Shead said he was aware the applicant was working from 6.30am, but did not raise it with him. In re-examination Mr Shead clarified his answer by saying it wasn't until about 28 or 29 October he was aware of these hours. 47 In cross examination, Mr Shead confirmed that he knew Chris Mathews well. Mr Mathews had told him he needed repairs on his yacht and he had told him that he had someone working for him who was a boilermaker, or welder, and he would put him in touch with him. 48 He said that there was no agreement with the applicant that he would work from 6.30am to 3.00pm. He didn't know he was working these hours until about 29 October. Prior to this, other people had questioned where he was, but because he was so busy, he never inquired. 49 Mr Shead was closely questioned on the job description said to have been handed to the applicant on his first day of employment. Mr Shead maintained that the job description was given to him although there may have been "slight amendments". He didn't keep an exact copy of what he gave to the applicant, nor have him sign or acknowledge receiving it. 50 Mr Shead was questioned as to his written statements (Ex'2' and Ex'3'). He said he could not recall who, or if, someone witnessed his statements (T.p60). 51 Mr Shead gave evidence that he showed the applicant how to operate the desalinator. 52 As to expressing concern with the applicant's work, he said he raised with him several times concern with his work; it was just light conversation, not a warning. He regarded a conversation with him on 24 October as a warning, but would not describe earlier conversations as warnings. 53 Mr Shead reaffirmed his conversations with Kotton Patterson and accepted that the work the applicant was doing for him at Blue Peters wasn't part of his job description and he had just returned from sick leave. His overtime claim arose from this time because he was working long hours. 54 Mr Shead was asked if Mr Patterson would drink a bottle of Jack Daniels a day. He said he didn't know what he drank, but was aware he drank during the day and would leave for work with a bottle of Jack Daniels on his lap. 55 As to his second statement Mr Shead agreed that the actual words of the conversation with the applicant were not used. Mr Shead confirmed that in the conversation of 30 October, the applicant had told him he had left early, taken the time in lieu for overtime worked at Blue Peters and that Mr Swain had said it would be okay. 56 In re-examination, Mr Shead said while he didn't use the words, these were the intent of the words he used, or the effect of them. 57 Mr Shead also confirmed in re-examination that he had spoken to Mr Swain before speaking to the applicant. 58 A letter from Mr Shead to the Commission following the earlier conciliation proceedings was admitted as Ex'5', but only insofar as it confirmed that a job description, identical to Ex'1', was sent to the Commission on 23 February 1999.

For the Applicant 59 Mr Barnett submitted as follows:

1. the applicant received no written warnings; even the verbal conversations were not in the nature of warnings, including those involving Mr Patterson's alleged complaints. No witness corroborated any of the alleged "warning" conversations;

2. Mr Shead's evidence, as to his belated knowledge of the applicant's hours of work, is unbelievable;

3. in the absence of corroborating evidence from Mr Swain and Mr Patterson, and no reasonable explanation as to why they didn't provide such evidence, Mr Shead's evidence of his conversations with both of them, should attract no weight whatsoever;

4. Mr Shead made no attempt to check with Mr Swain as to the applicant seeking his permission to take time in lieu;

5. the applicant was a witness of credit whereas there were " problems " with Mr Shead's evidence. He particularly referred to the job description document and said it had a " real whiff " about it;

6. Mr Shead agreed he knew Chris Mathews and had put him in contact with the applicant;

7. The applicant was unfairly dismissed and should be awarded compensatory relief. s89(6) is not a barrier to awarding compensation in excess of the applicant's seven weeks of employment.

1. The applicant's dismissal was based on overall poor performance and attitude, but did not constitute misconduct;

2. the question of whether a termination is unreasonable is one of fact (see Gregory v Phillip Morris (1988) 24 IR 397 at 398);

3. the applicant's case was to " clutch at straws " eg:

i) the replaced job description document - which was an honest mistake;

ii) the words in par 10 Ex'2' were not exactly what Mr Shead had said.

Both examples demonstrate Mr Shead's absolute honesty and straightforwardness;

4. Mr Rochfort conceded that the conversations with the applicant did not constitute warnings;

5. what Mr Patterson said to Mr Shead was not relevant; what is relevant is what Mr Shead said to the applicant;

6. the applicant did not take time off in lieu, but merely went off and did a job for which he was paid;

7. the absence of evidence from Mr Swain " cuts both ways ". The applicant could have called him to corroborate his version of events, but didn't;

8. there is no reason why the respondent would say he gave the applicant a job description, if he didn't. In any event, the applicant confirmed that, by and large, the job description faithfully set out his tasks;

9. the applicant unilaterally changed his hours of work;

10. the applicant absented himself from work without permission in breach of his employment contract;

11. the application should be dismissed. If the Commission finds against the respondent, then any compensation should be at the lower end of the scale.

In reply , Mr Barnett said that the principle in Jones & Dunkel (1959) 101 CLR 298, places an onus on the party most likely to call a witness, to do so. This was the employer.

The Evidence 60 I would observe that not much relevantly turns on whether the applicant was provided with a written job description at, or around, the time of his commencement of employment. The undisputed evidence was that Mr Shead walked the applicant around the resort on his first day, pointing out the jobs required to be done. 61 What is more crucial, however, is whether there was an agreement between Mr Shead and the applicant as to the hours to be worked. The significance of this matter rests on the basis that the primary reason for the applicant's dismissal was that he unilaterally changed his hours to suit himself, and without approval. On this issue, the evidence was plainly contradictory. Axiomatically, if the primary reason for dismissal is found to be without a sound basis, namely that there was an agreement for the hours worked, a dismissal so based would likely be without foundation. The applicant maintains that he had wished to remain on the same hours as he had worked when employed by the Island Board and the only day he started at 8.00am was his first day. At all other times, he commenced work at 6.30am. Mr Shead, on the other hand, said there was no agreement - the hours were from 8.00am to 4.00pm, and the first he learnt of the applicant's earlier start was around 29 October - some six weeks after the applicant commenced. 62 I find some difficulty with the respondent's evidence on this matter. It seems most curious that Mr Shead would have been unaware of the hours being worked - albeit that he was not often on the Island during this period. Even more unlikely, was the fact that, if there was a problem, apparently neither Mrs Shead, or Mr Swain, raised the matter with Mr Shead until two days before the applicant's dismissal.

63 On balance, these curiosities lead me to conclude that, even if there was no actual agreement, there was an understanding, not challenged at any relevant time, that the applicant would commence work at 6.30 am. I accept the applicant's testimony on this matter. 64 I am troubled by a number of other evidentiary matters raised by the respondent. Permeating Mr Shead's evidence was an underlying hostility towards the applicant. This is no better demonstrated than his identification of a number of issues which prima facie, reflected poorly upon the applicant. However, upon exploration and explanation, such matters did little to impugn the applicant. 65 I refer in this regard to a number of such matters:

i) the applicant's extended sick leave without medical certification;

ii) his inability to drive as a result of loss of his licence;

iii) the applicant leaving another previous employer " under a cloud ";

iv) working on a guest's yacht in the employer's time;

v) disruptive effect on other employees. 66 I comment on each matter seriatim:

a) The medical evidence was that the applicant was so seriously ill with glandular fever that he was hospitalised for two days, required three weeks to recover and could only work half days until a full recovery. This unfortunate illness, both in severity and timing, was hardly the fault of the applicant. Mr Shead's gratuitous remark was that at " no time did the applicant provide any medical substantiation of his being sick ". Apart from the inference that he was not sick for the period, the applicant was not paid for his absence. It was inferred that he should have provided medical certification. This was coldly insensitive. Mr Shead knew he was in hospital, the applicant's wife had phoned to say he was very sick. Even if she hadn't, given the small population on the Island, Mr Shead would have quickly learnt of his hospitalisation and the severity of his illness.

b) Mr Shead gave oral evidence that he knew the applicant had lost his licence - but employed him anyway. Despite the reliance placed by the respondent on the job description, there is no reference in it to driving a vehicle as being a requirement.

c) Mr Shead gave evidence that the applicant had left a previous employer " under a cloud ". He gave no details, let alone provided any evidence of the circumstances. The applicant had a perfectly reasonable explanation.

d) The applicant worked on Chris Mathews' yacht after Mr Shead himself introduced him as a person with the skills to repair it. Mr Shead, unsurprisingly, was obligingly happy to satisfy the needs of a resort guest. The only time the applicant could work on the yacht was on the day he was questioned and dismissed by Mr Shead. It was a "bit rich" to use the applicant's willingness to help a resort guest as good customer service, and then malign him for it.

e) There was no evidence advanced by the respondent to demonstrate that he was a disruptive influence. I reject such claim.

Jones and Dunkel 67 Mr Shead relied on conversations with Mr Swain and Mr Patterson which were apparently crucial to his decision to dismiss the applicant. Neither of them provided a statement or were called to give evidence. The applicant gave evidence that Mr Swain had approved him leaving early and that Mr Shead would be advised. Mr Shead insisted that Mr Swain was not a supervisor and either, did not have the power to approve him leaving, or he didn't do so. Mr Swain could have easily provided evidence to support Mr Shead's evidence. He worked for Mr Shead and continues to do so. His failure to provide corroborative evidence must lead to Jones and Dunkel inferences. Accordingly, I would prefer the evidence of the applicant on this matter. 68 Mr Shead gave evidence that Mr Kotton Patterson had complained to him about the applicant's performance. Residing in Sydney, Mr Patterson, even more readily than Mr Swain, could have been made available to corroborate Mr Shead's evidence. He did not do so. I again find that Jones and Dunkel inferences are available and prefer to accept that no such conversation occurred. Even if it had, was it not reasonable that the applicant, having just returned from a serious debilitating illness, would have been less than 100% proficient. I note also that the work Mr Patterson required the applicant to do, was not part of the alleged job description given to him. 69 In summary, I find much of what was said by Mr Shead to be a most unsavoury and subjective presentation of the evidence. In my opinion, his evidence was misleading and deliberately intended to impugn the applicant's character. It was contrived to serve as a justification for the decision to dismiss him.

The reasons for dismissal 70 I turn now to the reasons for dismissal and, whether they had a basis in fact and, if so, whether such reasons justified dismissal. 71 Mr Shead said that in the conversation on 30 October, in which he dismissed the applicant, he gave the following reasons for dismissal: I spoke to Hoskins later that day and told him that I was no longer prepared to accept his work performance, and, in particular his lack of attention to the skills necessary to perform his job in accordance with his job description; his unilateral decision as to when he attended work and the hours of such attendance (not in accordance with the terms of his employment); the long period of his absence from work

without medical certification; the disruptive affect he had on his fellow employees; his inability to perform work because of his loss of driving licence. I reminded him that he had been warned relating to these matters, and had also reminded him that he was required, as a condition of employment that he satisfy me that he could do the job. As he had not done this, I gave him notice of dismissal.

72 Mr Shead later conceded that while he mightn't have used these words, it was what he intended. Such admission must necessarily go to issues of procedural fairness, to which I will shortly refer. 73 Assuming Mr Shead gave reasons for dismissal, it would seem consistent with his intent and the applicant's version of the conversation that his primary reasons for dismissing him were that:

i) he took time off without seeking Mr Shead's permission;

ii) he was never around when he was needed. 74 I have earlier dealt with the evidence which would warrant a finding that neither of these reasons were based on Mr Shead having investigated the specific incident that day, or his more general concern as to the hours the applicant worked. It seems reasonable to me to find, that in Mr Shead's haste to dismiss the applicant he had not:

a) investigated the circumstances of the day's events;

b) given the applicant an opportunity to fully explain himself;

c) accepted the reasonable explanations provided by the applicant.

In addition, he relied on extraneous unfounded reasons, such as the failure to provide medical certificates, being a disruptive influence and his loss of driver's licence. 75 Accordingly, I find that Mr Shead acted unfairly in dismissing the applicant. It was a dismissal, I am able to find that was harsh and unreasonable.

Procedural Fairness 76 Although I am satisfied that the reasons for dismissal were not properly open to the respondent in justifying dismissal, I am minded, in addition, to observe that the respondent failed to accord procedural fairness to the applicant. I would identify such failures as follows:

1. There were no warnings, written or verbal, given to the applicant. Despite Mr Shead's written evidence that warnings were given, in oral evidence he agreed it was light conversation, more in the form of "have you done this, or that?". Such conversation was more in the nature of general instructions - falling a long way short of warnings. Even the conversation said to have been had after Mr Patterson's complaints could not be regarded as a warning.

2. Mr Shead agreed that he had decided to dismiss the applicant before speaking to him; before considering his response; before checking the response with Mr Swain.

3. Mr Shead refused to reconsider his decision in the subsequent phone call an hour later. 77 The dismissal was therefore, substantively and procedurally unfair.

The Remedy 78 In view of the elements of both procedural and substantive unfairness, I am convinced that the applicant's dismissal was "harsh" and "unreasonable" within the meaning of Pt 6 ch 2 of the Act. 79 Mr Barnett invites the Commission to order compensation beyond the employment period of seven weeks. As canvassed in the proceedings, I have some doubt that I have jurisdiction to do so. I am not satisfied that I was appropriately addressed by either party on this question. Even assuming I had jurisdiction to do so, I would be disinclined to award compensation in excess of the amount earned in the seven weeks of employment. 80 In addition to my earlier reasons, I make this finding by taking into account the following other factors:

b) the alternative employment he secured shortly after dismissal;

d) his request for reinstatement. 81 The respondent submitted that the applicant earned $3,135 plus superannuation during seven weeks of employment. Taking into account the unfairness of the dismissal and the other relevant factors referred to, I consider that an amount of $3,135 is appropriate compensation in this case. I so order.

ORDERS 82 Pursuant to s89(5) of the Act, the Commission orders: 1. That the respondent, Trader Nick's, shall pay to the applicant, Sean Patrick Hoskins, the sum of $3,135.00. 2. Such compensation shall be paid within twenty-one (21) days of today.

The Evidence 83 There are two letters to the applicant which are particularly pertinent and which I quote in full:

Dear Natalie We refer to our recent conversation, and confirm you will commence full time employment with Trader Nick's from 9th September 1998. You will be employed as a Food and Beverage Assistant on a roster of approximately 40 hours per week. The roster will include some time during the weekends. Your remuneration will be a payment of $450.00 p.w. after tax, and net to you. Subject to business conditions, we intend to operate the Cafe and/or Williams Restaurant all year round. Sincerely

Natalie Laurie Lord Howe Island NSW 2898

Dear Natalie, We refer to Janne's conversation with you today in which she informed you that we intend to close Blue Peters on Monday 19th April 1999 for the winter recess here. As Janne told you, Eastern Air is reducing its flights to the Island in May, and further in June. A number of major lodges including Blue Lagoon, Somerset, Capella South and Broken Banyan are closing in May and June. There will not be many visitors on the Island. This combined with the deterioration in the weather, which turns people away quite often, means that there will be insufficient business to justify the very high running costs of Blue Peters. We will close the cafe for business on the 19th, and then spend two days cleaning it, and closing it down. For these reasons, we will be unable to employ you after the 21st April 1999, and regretfully hereby give you notice accordingly. We anticipate opening again for the start of the season some time in September 1999, and will be pleased to discuss with you the possibility of you recommencing employment with us then. Sincerely

84 The applicant gave oral and written evidence (Ex'1'). 85 I note that the applicant's affidavit contained matters discussed during the conciliation conferences. I ruled such references inadmissible. 86 A statement in reply dated 17 April 2000 was sought to be admitted in evidence. I refused its admission, as it was not filed in accordance with my amended directions. 87 The applicant gave evidence that on 7 April 1999, she was approached by Mrs Shead during work time and told that Blue Peters Cafe would be closing on 19 April. As a result there would be no work available for her. The applicant said that this was unfair. Mrs Shead replied that she had been to Eastern Airlines and had been informed that they were cutting back flights during winter. The applicant replied "it is common for Eastern to cut back flights to Lord Howe Island during the winter season". Despite this comment, she said that Eastern Airlines did not reduce flights until mid June. She also inquired as to fate of other staff members and Mrs Shead said that they might also have to go. The notice of dismissal was confirmed in a letter dated 7 April 1999 - although she said it was not received until 20 April. 88 The applicant said that, while her letter of appointment dated 6 August 1998 stated that she would be employed "subject to business conditions", the Cafe and Williams Restaurant remained open seven days a week. The applicant said that insufficient reasons were given to her as to why she was chosen to be dismissed. She had never received a warning of unsatisfactory performance. The applicant said that her dismissal came within one week of informing Mrs Shead of her pregnancy. 89 After dismissal, the applicant was employed as a waitress from 21 April to 3 June 1999 and then she worked as a nanny and later in a shop for four days a week. She said there were limited employment opportunities on the Island, particularly as she was pregnant at the time. 90 During examination in chief, a schedule of Eastern Airlines flights from 1 to 31 May 1999 was tendered. Also tendered was the letter dated 7 April 1999, and envelope, received by the applicant on 20 April 1999. The significance of the envelope was that the postmark date was smudged beyond recognition. 91 The applicant said that she had sometimes worked night work, performing housekeeping duties and had done so at her previous employment at Pine Trees Lodge. 92 The applicant confirmed that Blue Peters cafe, like other establishments, did close down for part of the year. She said, however, that the work at Blue Peters was transferred to Williams Restaurant. She said that in speaking to other employees, none of them had been told their employment was to end and two retained employees had commenced employment after her. 93 The applicant gave evidence that after she arranged alternative employment at Capella South she noticed that the roster had her working two days beyond what Mrs Shead said was her last day. 94 The applicant denied being handed the 7 April termination letter; she said she received it in the mail on 20 April. 95 The applicant denied the conversation said to have occurred between herself and Mrs Shead concerning the date of her dismissal being 21 April, and not 19 April. 96 In cross examination, the applicant agreed that the only inference to be drawn from the letter of offer of 6 August 1998 was that her continuing employment was subject to business conditions. 97 It emerged in cross examination that, following the resignation of one of the two housekeepers, one employee, Deanne, had been transferred from Blue Peters to a housekeeping position at Trader Nick's. The applicant agreed there were no other housekeeping positions then available. She accepted that she had not been asked to do housekeeping; so a refusal to do so could not have been a reason for her dismissal. 98 The applicant acknowledged that the reason for dismissal was insufficient business and indicators were reduced flights and other business closedowns during winter. After lengthy questioning, the applicant conceded that the flight schedule (Ex'2') disclosed a reduction in flights for the month of May. 99 The letter of 7 April indicated that there was an offer of recommencing employment in September 1999. The applicant agreed that she did not take up the offer. She further agreed that her pregnancy had nothing to do with the decision to terminate her employment (T.p29). 100 The applicant gave evidence as to her employment subsequent to dismissal. On 21 April she commenced employment for six weeks at Capella South (another resort) until it closed for maintenance. 101 The applicant was asked what she thought was unfair when told of her termination of employment. She answered that the timing was unfair, being told to her during the busy lunch period. She said this was the only reason she believed it unfair. 102 In re-examination, the applicant gave evidence that the pay slip disclosed that she was paid up to 19 April as she was paid for three days. She said that not all of the lodges closed down during the off season, eg Beachcomber, Pine Trees and that the cafe side of the business moved up to Trader Nicks.

Respondent's Evidence 103 Evidence was adduced from Mrs Janne Shead, the co-owner of Trader Nick's resort. Mrs Shead provided two affidavits (Ex'A' and Ex'B') and gave oral evidence. 104 Mrs Shead gave evidence that Trader Nick's accommodated about twenty-two people in peak periods and experienced a marked drop off from April to September each year. She said that while it was intended to keep both the resort and cafe open throughout the year, it was evident that this was not possible. The cafe also drew on patronage from other lodges on the Island. A downturn was confirmed by a reduction in flights to the Island from May continuing through to September. 105 Mrs Shead said that she had approached the applicant to fill a vacancy when the applicant was working in a store on the Island. The applicant was offered full time employment, but "subject to business conditions".

106 In April 1999 all staff, including three chefs and five food and beverage attendants, were advised by letter (7 April), and verbally, that Blue Peters would close with a possible reopening in September. Two chefs were transferred to Williams Restaurant to replace two who had resigned; the other left the Island. Three food and beverage attendants, with seniority over the applicant, were employed at Trader Nick's - one as housekeeper, one as a food and beverage attendant and one employed with administrative duties; a fourth (Mrs Shead's daughter, Emma) left the Island. 107 Mrs Shead said the applicant could not be found alternative employment, but was offered to recommence in September when business picked up. She said that this offer was made, knowing that the applicant would have only a short period of employment due to her pregnancy. Mrs Shead rejected a claim that the termination had anything to do with the applicant's pregnancy. 108 Despite this, Mrs Shead gave evidence that the applicant left employment prior to her date of termination, as she had found alternative employment at another lodge, Capella South, and commenced there the very next day. 109 The offer of re-employment would be contingent on the viability of the cafe and the applicant's work performance. 110 In her reply affidavit, Mrs Shead said the notice of termination letter was handed to the applicant on 8 April. She agreed with the applicant's version of the conversation on 7 April and said that about 14 April, the applicant told her she would be leaving on 19 April. Mrs Shead would have preferred her to stay until 21 April as advised in the letter of termination. 111 Mrs Shead said that Blue Peters had closed on 19 April and remains closed (as at 30 September). Williams Restaurant operates five days a week.

112 The applicant was well aware of the reasons for termination, every effort was made to find alternative duties and no impediment was put in her way to seeking other employment which she did immediately. 113 Mrs Shead gave evidence that there are ample opportunities for employment on the Island, particularly for residents. Mrs Shead said the advantage of living on the island was that the employer doesn't have to provide accommodation. She said that at no time has the applicant sought to be re-employed by Trader Nick's. 114 In evidence in chief Mrs Shead said that not all the employees were told on 7 April that Blue Peters would be closing. This was so as some had already indicated they would be leaving in June. Mr Locky Urquhart, for example, was given notice to finish up on the 21st (Ex'C'). She said Mr Urquhart was handed this notice. Mrs Shead was closely questioned as to the 7 April letter. She said she wrote the letter on the 7th immediately after speaking to the applicant and handed it to her the next day, 8 April. Mrs Shead confirmed much of her affidavit evidence and detailed the circumstances of each of the other Blue Peters employees who were either transferred or left. Despite stating in her affidavit that all staff were initially advised verbally, and by letter, Mrs Shead clarified her evidence by saying that only the applicant and Locky Urquhart were given letters. She said the others weren't advised because they were staying on. Mrs Shead agreed the only date mentioned to the applicant on 7 April was 19 April. She also agreed a number of lodges remained open in April and May. 115 Mrs Shead confirmed the evidence in Ex'2' that flights to the Island had been cut back in May 1999.

116 Mrs Shead was asked about Ex'3' - the envelope with the smudged postmark. She said it was addressed in her husband's handwriting and "could have been" the envelope in which the 6 September 1998 letter of offer was sent to the applicant (T.p45). 117 Mrs Shead said that when Blue Peters closed, Williams Restaurant opened for lunch, whereas previously it only opened for dinner and breakfast. The lunch period was quiet and the breakfast staff continued during the lunch period. The applicant had, on a few occasions, worked at Williams. 118 Mrs Shead said that when she had been given notice the applicant's "performance declined noticeably". She was not flexible in the hours she wanted to work, or the duties she was required to perform. Mrs Shead acknowledged that she had not raised any performance issues with the applicant and had not asked her about housekeeping duties because she had already expressed unhappiness in working night shifts. Mrs Shead said she had moved other staff around and there simply wasn't any way to accommodate the applicant. She said it was coincidence that a week before giving her notice, the applicant had told her she was pregnant. She said she thought about the dismissal decision, but there was no "other answer". 119 Mrs Shead acknowledged that her 30 September statement was incorrect insofar as to when she handed the letter of notice to the applicant. She later gave evidence that she left the letter at the cafe and couldn't be sure the applicant received it. (This was corrected in re-examination by Mrs Shead saying she handed it to her on 8 April). 120 Mrs Shead revealed in cross examination that in February 1999, the applicant was offered a supervisor's job, but had refused it. The salary was to remain the same. 121 In re-examination Mrs Shead clarified what occurred with each employee. She said Mr Urquhart and the applicant were terminated, her daughter left and all others were re-employed. 122 She further clarified the offer of a supervisor's position for the applicant and said there are no supervisors - she just needed someone to oversee the work.

For the Applicant 123 Mr Barnett's submissions may be summarised as follows:

1. the applicant was a witness of credit; whereas Mrs Shead's evidence was contradictory;

2. the applicant's pregnancy and an entitlement to maternity leave may not have been coincidental to the dismissal and there is a " bad smell " surrounding the circumstances;

3. the smudged envelope also raises a " bad smell ";

4. the applicant was only ever told the date of dismissal was 19 April - unyet Mrs Shead insists it was the 21 April. Such evidence goes to the credibility of the employer;

5. the respondent did not investigate all the possibilities of alternative employment;

6. the offer of a supervisory position is inconsistent with complaints about the applicant's attitude and performance;

7. the whole of the circumstances were unsatisfactory.

1. the applicant had not discharged the onus of establishing the dismissal as unfair;

2. there was a proper and valid reason for the dismissal, acknowledged by the applicant herself; namely, a seasonal downturn in business;

3. upon learning of the reduction in airline flights, the respondent immediately notified the applicant;

4. the prospect of further work was specifically stated. It was a firm offer of re-employment which was never taken up by the applicant;

5. alternative employment options were considered, but no position was available. Other employees with longer service and different skills were accommodated;

6. the two week notice period allowed the applicant an opportunity to find other work - which she did;

7. the applicant's performance was good, but may have altered after the notice was given. This issue was not taken up because the respondent did not want to harm the applicant's job prospects;

8. the application should be dismissed with costs reserved in light of the Commission's decision.

In reply , Mr Barnett also foreshadowed an application for costs.

Reasons for Dismissal 124 There is some suggestion that the applicant was dismissed because she had disclosed her pregnancy to the employer. Had this been found to be the true reason, I would have no doubt found such dismissal to be unlawful. However, the applicant herself acknowledged, in evidence, that her pregnancy had nothing to do with her termination. Moreover, I would find it odd that Mrs Shead, a mother herself, would not have sympathy for the applicant and would be most unlikely to dismiss her on the basis of her pregnancy. 125 This leaves then the stated reason for termination - a seasonal downturn in the business. If there is some other unstated, obscure or hidden reason, it is not immediately evident to me or postulated by the applicant. I turn then to consider whether the stated reason can stand the test of scrutiny. 126 The most obvious test of the employer's claim that it intended to close Blue Peters for the winter recess is whether the restaurant in fact closed. The evidence discloses that it did. It would be highly improbable that an employer would go to such extreme lengths as shutting down its restaurant, involving great cost and expense, if the only motivation was to create a circumstance in which an employee could be seen to be legitimately dismissed. I note also that another employee, Deanne, was transferred from Blue Peters to a vacant housekeeping position at Trader Nick's. This employee had seniority over the applicant. 127 It seems also of some relevant significance that the applicant's letter of offer of employment, dated 6 August 1998 (annexed to the originating application) prescribes commencement date, hours of work, remuneration and then concludes with "Subject to business conditions, we intend to operate the Cafe and/or Williams Restaurant all year round". 128 In my view, the proviso "subject to business conditions" and reference to "all year round", is entirely consistent with the vagaries of climatic conditions which no doubt affect this business, like many other tourist/resort businesses which are seasonally based. 129 I would also observe that it takes no meteorological or geographical genius to appreciate that Lord Howe Island does not have consistent climatic conditions and that its main employing business, tourism, is seasonally affected. 130 In addition, the letter of offer satisfies me that the applicant was aware of, and understood, the nature of her employment and accepted it on the basis I have earlier described. Her evidence in cross examination corroborates this view (T.p18). 131 Two further evidentiary matters need to be referred to. Firstly, the applicant tendered an airline flight schedule (Ex'2') and following detailed questioning she admitted that the schedule disclosed a downward revision resulting in fewer flights to the Island during the month of May. 132 Secondly, Mrs Shead gave evidence that she employed fifteen persons in the peak period and four in the off season (T.p45). This evidence was not contradicted. 133 I am satisfied therefore, that the respondent's reason for dismissal was legitimate and soundly based. There is no evidence leading to any other reason for dismissal.

Circumstances leading to dismissal 134 There is no question that this matter involves a termination of employment. Additionally, I have no doubt that the termination was at the initiative of the employer. (See Allison v Bega Valley Council 63 IR 68). I have earlier found the reason for the dismissal to be a seasonal downturn in employment. A termination of employment in such circumstances would ordinarily absolve the employer from any claim of unfair dismissal or a claim of redundancy benefits. See Norwest Exports Pty Ltd & Ors v Coxon & Ors, 15 IR 116. Prima impressionis, that would seemingly end the matter. 135 However, like redundancy situations, it is my opinion that, a dismissal arising from a seasonal downturn in business, might attract considerations of whether the process leading to dismissal was fair. See Outboard World v Muir (1993) 51 IR 167 and Shop Distributive and Allied Employees' Association, New South Wales and W D & H O Wills Holdings Ltd, Sams, DP, Matter IRC3363 of 1999, 5 May 2000. 136 Similarly, factors which might be taken into account in an unfair redundancy situation are analogous to a dismissal for reasons of seasonal downturn. Such relevant factors might include: 1) Was the employee provided with reasonable notice of the date of termination of employment?

2. Did the employer investigate, and examine, whether alternative employment options might be available? 137 There is no dispute that the applicant was told by Mrs Shead on 7 April that her employment would end on 19 April. Notice of less than two weeks in ordinary circumstances is far from satisfactory. However, I am cognisant of the fact that the applicant could not have been surprised by the decision, or reasons for it - nor was it inconsistent with the terms of her letter of appointment. Her own evidence was, when Mrs Shead raised the subject of reduced airline flights, she had replied "It is common for Eastern to cut back flights to Lord Howe Island during the winter season" (Ex'1'). 138 I also note that the applicant made alternative employment inquiries during the notice period and was fortunate in securing work at another lodge, Capella South. 139 The Commission is satisfied that the employer did investigate alternative employment options at Williams Restaurant and the Lodge itself. However, employees with longer service, correctly in my view, were offered jobs that were available. Other jobs for which the applicant was not the most suited, were found for employees with the relevant skills or experience. 140 The applicant was offered re-employment when business picked up. I have no reason to doubt the genuineness of the offer. 141 In all the circumstances, I am able to find in favour of the employer, functus officio.

Conflicting Evidence 142 Mr Barnett described some of the circumstances disclosed in this case, as having a "bad smell" about them. I would observe there is some strength to Mr Barnett's submission. However, the Commission cannot be moved to make findings on a submission that certain strange circumstances have a "bad smell" about them. While the Commission makes findings on the balance of probabilities, there must at least be some evidentiary base for doing so. A mere whiff or a pong is insufficient. 143 It is not only the respondent's evidence I am troubled by. I feel bound to express concern at aspects of both the applicant's and respondent's evidence. 144 There are some peculiar and inexplicable aspects of the respondent's evidence; the primary example of which was Mrs Shead's conflicting versions as to how, and when, the applicant received the letter of 7 April. Her evidence changed four times. 145 In her first statement, Mrs Shead said she handed the letter to the applicant at the time of the conversation of 7 April; in her second statement she said she handed it to her on the next day, 8 April; in cross examination she said she left it for her in the cafe and was unaware if she received it. Then, in re examination, she said she gave it to her on 8 April. The applicant insists she received it in the mail on 20 April. There was little contest as to the conversation of 7 April. There is no doubt the applicant was aware of her termination and the reason for it. 146 Then there is the curiously smudged envelope addressed to the applicant in Mr Shead's handwriting. It was suggested by Mr Rochfort, in questioning Mrs Shead, that this might have been the envelope the letter of offer of 6 April 1998 was in. To her credit, Mrs Shead said she couldn't be sure. In addition there was no other evidence of letters being sent to the applicant. However, as I noted during the proceedings, this envelope could not possibly have been sent in 1998 as its stamp bore the image of the 1999 International Year of the Elderly. It also seems strange that the applicant would keep an envelope for over twelve months. 147 I find on the balance of probabilities, that the applicant received the 7 April letter, by post, on or about 20 April 1999. 148 The following questions however remain unanswered: Who smudged the date stamp on the envelope to obliterate the date - and for what purpose? Why would Mrs Shead be less than truthful in her evidence?

149 From the available evidence, I am unable to answer the first question. However, the most plausible reason for Mrs Shead's conflicting evidence is that she simply panicked when it appeared the applicant might pursue an unfair dismissal claim and she sought to cover all the bases in an effort to ensure the process of dismissal appeared sound and fair. 150 If this be so, I am at a loss to understand why. The applicant was told of the likely date of termination and the reason for it was understandable and not a shock to the applicant. There was no necessity to construct a scenario to justify the termination. 151 Another example of unsatisfactory evidence were references made to complaints about work performance attitude and lack of flexibility. It seems to me that such complaints were designed to lend further credence to the respondent's case. Not one of these complaints was ever put to the applicant. Mr Rochfort wisely eschewed relying on this evidence. Had it been relied upon as a basis for the dismissal, wholly or in part, I might well have been inclined to make findings consistent with procedural unfairness. 152 Two other matters need to be raised:

Firstly, Mrs Shead consistently maintained that the applicant's date of termination was 21 April, although she acknowledged that 19 April was the only date mentioned in the conversation of 7 April. The applicant's pay slip discloses she was paid for only part of the last week corroborating her claim that 19 April was the agreed date. Little seemingly turns on this difference. However, Mrs Shead doggedly maintained her position in the face of clear evidence to the contrary. I cannot fathom why she would do so.

Secondly, in her statement Mrs Shead contended that all employees at Blue Peters were informed of the cafe's closure in writing and verbally. In oral evidence, she later said that only the applicant and Locky Urquhart were informed in writing, because they were the only ones dismissed. Again, this seems strange. Surely all employees were entitled to be informed, in writing, irrespective of whether their employment was to continue. The retained employees were to have a new work location and some would be performing new duties. I repeat, it seems odd that Mrs Shead was so meticulous with advising the applicant, yet so "matter of fact" with the others. 153 All these examples viewed conjunctively convince me that the employer attempted to contrive a false set of circumstances which would reflect favourably on its conduct and impress this Commission. I am singularly unimpressed. Such behaviour hardly sits comfortably with the actions of a responsible employer. I hope my comments will serve as a salutary reminder to this employer to be more careful and honest in its dealings with its employees. 154 I am also troubled by the following evidence advanced by the applicant:

1. The applicant acknowledged that tourist business on the Island was affected by seasonal factors. Her own evidence - the flight schedules - disclosed this to be the case. She was forced to admit it.

2. In oral evidence, the applicant acknowledged on more than one occasion, that her pregnancy had nothing to do with her termination. Unyet, in her application, she stated this to be the reason and Mr Barnett submitted as much on her behalf.

3. The applicant stated that the only reason she believed her termination was unfair was because Mrs Shead gave her notice during the busy lunch period. This was, to say the least, an odd admission. If this was all she believed to be unfair about her dismissal, it is entirely consistent with a view that she did not regard her dismissal, per se , or the reason for it, as unfair. I would comment that while the verbal notice, and belated written notice, might have been more elegantly and sensitively handled, I do not regard it as fatal to the respondent's case.

4. The applicant stated in her affidavit that employment opportunities were limited on the Island. Unyet she went from Trader Nicks to Capella South, without any difficulty, and with no break in her income. She has worked at various other jobs since.

5. The applicant acknowledged that she made no attempt to seek re-employment in the peak season, despite the 7 April letter inviting her to do so.

155 In balancing the interests of both parties, and taking all the aforementioned matters into account, I am unable to conclude that justice would be served by a finding in favour of the applicant's claim that her dismissal was "harsh, unreasonable or unjust". 156 Accordingly, the application is dismissed.

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