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[2002] AIRC 792
plaintiff. The Commission determined that Herring's termination was harsh, unjust and unreasonable. It considered reinstatement inappropriate and determined compensation in lieu of reinstatement of twelve...
The Commission found that a workplace argument and verbal abuse occurred, but the manager had decided to dismiss Herring before hearing his account and had not independently checked the allegations. Herring therefore did not receive a proper opportunity to respond before the decision was made. The Commission held the termination harsh, unjust and unreasonable and determined compensation of twelve weeks' gross pay, less one week's pay.
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2,292 words · generated 02/10/2026
J.L. Herring applied to the Australian Industrial Relations Commission for relief after Imposete Pty Limited terminated his employment. The application was made under s.170CE of the Workplace Relations Act 1996. The issue identified for arbitration was whether the termination was harsh, unjust or unreasonable ([1]-[4]).
1 cited instrument linked from this judgment.
The workplace incident occurred on 10 July 2001. Herring and Kathleen McGuigan both said that McGuigan began the exchange by commenting that Herring looked like “shit” ([26]-[27]). They differed about Herring's response. Herring described a retort about McGuigan's appearance, while McGuigan said he swore at and insulted her. Stephen Mercer, the only other person present for the lunchroom exchange, gave a version in which Herring responded by referring to her as obese ([35]).
McGuigan also alleged that Herring continued to abuse her during the day, using insulting terms on several occasions ([29]). The Commissioner found it difficult to choose between Herring's and McGuigan's accounts of this alleged further conduct and made no finding on it ([39]-[40]). The decision should therefore not be read as finding that the alleged all-day abuse occurred.
The Commissioner did find that Herring verbally abused McGuigan during the initial incident ([38]). The Commissioner described the words exchanged as normal workshop language in that workplace and observed that McGuigan had instigated the exchange ([39]). Those observations form part of the Commissioner's factual assessment; they do not remove the express finding that Herring abused McGuigan.
Area Supervisor Peter Maloney decided to terminate Herring's employment. In evidence, Maloney accepted that he had made up his mind to dismiss Herring before their meeting, had not independently checked the allegations, and relied on what McGuigan and the store manager had told him, together with Herring's past history ([41]-[42]). Herring had a prior employment history involving a 1996 sexual harassment allegation and termination by a previous employer, Peter's Meats, which was given in evidence by John Quinn ([32]). The decision does not describe that earlier matter as a finding about the 2001 incident.
The Commissioner also considered what happened after the termination decision. Herring was asked to write a letter, dated 19 July and received by the respondent on 23 July. The Commissioner noted that Herring had already been terminated before that letter was received ([43]). The procedural sequence mattered because a response provided after the decision could not give him a meaningful chance to influence the decision beforehand.
The application had first gone through conciliation. A certificate was issued on 17 January 2002, and Herring elected to proceed to arbitration on 21 January 2002 ([2]-[4]). The arbitration was heard in Sydney on 24 May 2002. Commissioner Redmond issued the decision on 12 July 2002.
The Commission applied the statutory factors in s.170CG(3) of the Workplace Relations Act 1996. The provision, as set out in the decision, required consideration of whether there was a valid reason related to conduct or capacity, whether the employee had been notified of the reason, whether the employee had an opportunity to respond, whether performance warnings were relevant, and any other relevant matters ([21]).
The key finding concerned the timing and substance of Herring's opportunity to respond. Maloney had decided on dismissal before meeting Herring, and the allegations were not independently investigated ([41]-[42]). The Commissioner concluded that this meant Herring had not been given the right to respond in a meaningful way. The fact that a later letter was requested did not cure the problem, because the respondent had already ended Herring's employment before receiving it ([43]).
The Commissioner relied on the Full Bench's statement in Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport. The passage quoted in the decision says procedural fairness requires that an employee be notified of the valid reason before a termination decision so that the employee can respond. It adds that giving an opportunity to respond only after the decision would make the statutory provisions on notice and response have little practical effect ([44]). Commissioner Redmond applied that reasoning to the facts and found that the respondent had not complied with it ([45]).
The decision does not say that the employee's conduct was irrelevant. The Commissioner found Herring had verbally abused McGuigan during the lunchroom incident ([38]). Nor does the decision make a separate, express determination that there was no valid reason. Its reasoning is that, considering all the matters, the dismissal was harsh, unjust and unreasonable, with the absence of a proper pre-decision opportunity to respond playing a central role ([45]-[46]).
The Commissioner also referred to the statutory idea of a “fair go all round” under s.170CA(2) ([23]). The decision's reasoning reflects consideration of fairness to both parties, including the conduct alleged and the employer's handling of the process. In describing harshness, injustice and unreasonableness, the Commissioner relied on Byrne v Australian Airlines Limited and Maluk v Sutton Tools Pty Limited ([22], [24]). Those passages distinguish, in general terms, harshness connected with consequences or disproportionality, injustice where the employee was not guilty of the misconduct relied on, and unreasonableness where the decision rests on inferences that could not reasonably be drawn from the material.
After finding the termination harsh, unjust and unreasonable, the Commission considered remedy under s.170CH. Reinstatement was described as the primary remedy, but the applicant was not seeking it and the Commissioner considered it inappropriate in the circumstances ([48]). Applying the compensation approach described in Sprigg and affirmed in Ellawalla, the Commissioner deducted one week's pay for the anticipated period of employment, did not apply a contingency discount, and addressed taxation separately ([49]-[54]). The resulting amount was twelve weeks' gross pay, less one week's pay ([54]).
This decision applies the statutory scheme as it stood under the Workplace Relations Act 1996. It sets out s.170CG(3) as requiring the Commission to consider a list of matters when deciding whether a termination was harsh, unjust or unreasonable ([21]). It also sets out s.170CH as governing remedies after that finding, including matters relevant to whether a remedy was appropriate and to the amount of compensation ([25], [47]).
The decision does not purport to create a new general statutory test. It applies the specified statutory factors to evidence about the dismissal process and the underlying conduct. Its explanation of the three terms draws on Byrne and Maluk ([22], [24]). Its procedural fairness reasoning applies the Full Bench passage in Crozier to the sequence in this case: a decision to dismiss had been made before the employee was heard ([44]-[45]).
The decision's practical before-and-after distinction is tied to that sequence. Before the dismissal decision, Herring had not been given a meaningful chance to answer the allegations. The later request for a letter came after dismissal. The Commission therefore treated the opportunity to respond as having to be real and timely enough to precede the decision, not merely an invitation to comment after the employer had decided ([43]-[45]).
The supplied judgment does not set out subsequent amendments to the Act, later statutory tests, or later appellate treatment of this decision. It would therefore be unsafe to use this decision alone as a statement of current Australian employment law. For the same reason, no broader account of the law “after” this case can be established from the material provided. The grounded point is narrower: in 2002, Commissioner Redmond applied the then-cited statutory provisions and authorities to find that the process followed in this dismissal did not afford a proper chance to respond.
At [21], the decision reproduces s.170CG(3). In plain English, the Commission had to consider the stated matters, including whether there was a valid conduct-related reason, whether the employee was told that reason, and whether there was a chance to answer it. The listed factors did not remove the need to assess the circumstances as a whole.
At [38], the Commissioner says there was “no doubt” that an incident occurred and finds that Herring abused McGuigan. This is a finding about the lunchroom incident, not a finding that the further alleged abuse later in the day occurred.
At [39]-[40], the Commissioner distinguishes the established exchange from the disputed allegation of repeated later abuse. The evidence did not allow the Commissioner to choose between the accounts about further conduct, so no finding was made on that allegation. The Commissioner nevertheless found McGuigan gave her evidence honestly ([40]). An honest witness can still be unable to establish a disputed fact on the evidence available; the decision does not treat the credibility comment as proof that all the alleged incidents occurred.
At [42], the Commissioner states that Maloney decided to dismiss Herring before hearing his side and had not independently investigated the matter. In plain English, the employer's decision-maker had reached the outcome before giving Herring a chance to address the allegations.
At [45], the Commissioner concludes that the respondent did not give Herring a proper explanation or reasonable opportunity to respond. The Commissioner adds that Maloney had made up his mind before the meeting. This links the evidence about the meeting to the statutory consideration under s.170CG(3)(c).
At [46], the Commissioner finds the termination harsh, unjust and unreasonable. This is the decision's formal conclusion on the application, reached “in all the circumstances” after considering the matters set out earlier.
At [54], the Commissioner fixes compensation at twelve weeks' gross pay less one week's pay. At [55], the decision says an order to that effect would issue separately as Print PR920071. The decision itself therefore determines the amount, while recording that the operative order would be issued separately.
The decision is most directly relevant to fact patterns in which an employer's decision-maker has already decided to dismiss an employee before meeting them about alleged misconduct. The central factual feature was not merely that the employee disputed the allegations. It was that the decision-maker accepted that he had settled on dismissal before hearing the employee's response, and had not independently checked the allegations ([41]-[42]).
It also bears on situations where an employer invites a written response only after dismissal. Here, the letter was requested after the decision and reached the respondent after Herring's employment had been terminated ([43]). The Commissioner treated that sequence as part of the failure to provide a proper opportunity to respond.
The case involved conflicting accounts and limited independent evidence. Mercer witnessed only the lunchroom exchange and left before hearing anything further; he was not present during all of Herring's breaks ([35]-[36]). The Commissioner made a finding about the initial exchange but no finding about alleged repeated abuse during the day ([38]-[40]). Fact patterns involving both an established incident and unproven allegations of continuing conduct should preserve that distinction when describing this decision.
The decision does not establish that every procedural defect necessarily makes a termination harsh, unjust or unreasonable, nor does it specify how different evidence or a different decision-making process would affect the result. The conclusion was expressly made in the circumstances of this case ([46]). It should not be extended beyond the statutory framework and factual findings actually stated.
The supplied material contains no later judgments discussing, applying, distinguishing, following or overturning Herring v Imposete Pty Limited. It therefore does not support a conclusion about how later courts or tribunals have treated this decision.
The judgment itself refers to earlier authorities. It applies the Full Bench passage in Crozier concerning the timing of notice and an opportunity to respond ([44]-[45]). It also adopts the compensation principles discussed in Sprigg and affirmed in Ellawalla ([49]-[54]). Byrne and Maluk are cited in explaining the meanings of “harsh, unjust or unreasonable” ([22], [24]). These are authorities relied on by Commissioner Redmond, not later treatments of Herring.
A reliable account of subsequent treatment would require later case materials not included in the supplied text. The decision alone cannot establish whether its reasoning has been approved, limited, distinguished or superseded.
Several matters remain unresolved in the decision. First, the Commissioner did not separately state whether the lunchroom abuse itself amounted to a valid reason for dismissal under s.170CG(3)(a). The decision records the conduct finding, discusses procedural fairness, and reaches an overall conclusion under the statutory test, but it does not provide a distinct conclusion on the valid-reason factor ([21], [38], [45]-[46]).
Second, the Commissioner made no finding on whether Herring verbally abused McGuigan later that day. The evidence was insufficient for the Commissioner to choose between their accounts ([39]-[40]). The decision consequently cannot be cited as resolving the factual truth of those allegations.
Third, the decision does not explain in detail how the 1996 history influenced the dismissal or the assessment of the present allegations. Maloney said he relied on Herring's past history, and evidence described a previous sexual harassment allegation and termination by another employer ([32], [41]). The Commissioner does not state how much weight, if any, that history should have carried in deciding the 2001 matter.
Fourth, the decision gives the final compensation calculation but only limited detail about the underlying remuneration, employment length, mitigation evidence or effect on the employer's viability. It recites the statutory factors and states the calculation, but the supplied text does not provide figures or extended findings for each factor ([47]-[54]).
Finally, the judgment does not provide later authorities or legislative developments. Its reasoning is grounded in the statutory wording and cited cases reproduced in the 2002 decision. A qualified Australian lawyer would need to check current sources and the full relevant record before relying on it in a present matter.
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s.170CE application for relief re termination of employment
[1] This matter is an application for relief pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) by Mr Jamie Lawrence Herring (the applicant). The application relates to the alleged harsh, unjust or unreasonable termination of the applicant's employment by Imposete Pty Limited (the respondent).
[2] The application was dealt with in conciliation conference by Senior Deputy President Cartwright pursuant to s.170CF(1) of the Act on 14 January 2002. On 17 January 2002 Senior Deputy President Cartwright issued a certificate pursuant to s.170CF(2) of the Act.
[3] On 21 January 2002 a notice of election to proceed to arbitration (Form R25) was received by the Registry in accordance with s.170CFA(1) of the Act. The ground identified was that the termination was harsh, unjust or unreasonable.
[4] The provisions of s.170CG(1)(a) and s.170CG(1)(b) having been satisfied the matter was listed for arbitration on 24 May 2002 in Sydney.
[5] The applicant was represented by Mr J. Davis of The Australasian Meat Industry Employees' Union. The respondent was represented by Mr J. Phillips of counsel, instructed by Moray & Agnew Solicitors.
[6] The respondent did not have a valid, sound or defensible reason to dismiss the applicant, instead acting on an uncorroborated complaint from a co-worker.
[7] The respondent failed to adequately investigate the matter and afford the applicant procedural fairness prior to its decision to dismiss.
[8] The respondent failed to speak to relevant witnesses or discount their views.
[9] The respondent formed an opinion of the matter prior to speaking to the applicant and therefore failed to afford him the opportunity to defend himself.
[10] When the respondent put its position to the applicant it was to dismiss him and only then was the applicant given an opportunity to explain himself. This opportunity was flawed as it did not include access to a witness or union official.
[11] The applicant had a good employment record and did nothing which would justify his dismissal.
[12] The applicant seeks compensation as he believes it is impractical to work for the respondent as he does not feel he would be treated fairly by them.
[13] The applicant relied on the following authorities:
· Selvachandran v. Peteron Plastics [1995] IRCA 333; (1996) 62 IR 371;
· Sangwin v. Imogen Pty Ltd (No. SA95/116 IR unreported decision of von Doussa J, 8 March 1996).
[14] The applicant gave sworn evidence in this matter.
[15] The respondent admitted that it terminated the services of the applicant on 18 July 2001 after the Company had received complaints of an incident between the applicant and Ms McGuigan. The incident followed an argument that took place between the two parties in the lunchroom that morning.
[16] The respondent states that the argument gave a valid reason for the termination of the applicant's employment in this matter.
[17] The respondent further submitted that not only did this argument occur in the lunchroom but the applicant continued to verbally abuse Ms McGuigan throughout the day. The store manager told the applicant and Ms McGuigan to stay away from each other which Ms McGuigan said she attempted to do but the applicant continued to verbally abuse her all day.
[18] The company's area manager, who was on leave during this time, upon returning to work received a report of the incident and determined that the applicant's employment should be terminated. The incident occurred on 10 July 2001.
[19] The respondent relied on the following authorities:
· Wang and others v. Crestell Industries Pty Limited (1997) 73 IR 454 at 467;
· Byrne v. Australian Airlines Limited (1995) 69 ALJR 797.
[20] The following witnesses gave sworn evidence on behalf of the respondent:
[21] Pursuant to s.170CG(3) of the Workplace Relations Act 1996 (the Act) the Commission must have regard to the following factors when determining whether a termination was harsh, unjust or unreasonable.
"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) any other matters that the Commission considers relevant."
[22] In determining whether a particular termination is harsh, unjust or unreasonable pursuant to s.170CG(3) consideration can be given to whether the penalty of termination is excessive or inappropriate. See Byrne v. Australian Airlines Ltd (1995) 185 CLR 410 at 465 per McHugh and Gummo JJ.
"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 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."
[23] It is also of relevance to consider the provisions of section 170CA(2) which provide that the procedures and remedies concerning the conciliation and arbitration of claims such as these, as well as the manner of deciding on such remedies,
"are intended to ensure that, in the consideration of an application in respect of termination of employment, a `fair go all round' is accorded to both the employer and the employee concerned."
[24] In relation to the meaning of the term "harsh, unjust or unreasonable" I refer to a decision of Vice President Ross in the matter of Maluk v. Sutton Tools Pty Limited (Print R0426) wherein he considered this issue and concluded that:
". . . 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."
[25] If a termination is found to be harsh, unjust or unreasonable s.170CH deals with remedies. It is partially extracted below:
"(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable.
(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and
(b) the length of the employee's service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant;
...(7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and
(b) the length of the employee's service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant."
[26] The applicant gave evidence in relation to the circumstances of what occurred on the morning of 10 July 2001. The applicant claimed that on that morning Ms McGuigan walked into the lunchroom, where the applicant and another colleague were having breakfast before commencing work, looked at the applicant and said, "God, you look like shit today, Jamie". The applicant indicated that he did not feel well that morning and responded to Ms McGuigan with the words, "Yeah, you look like a fat bit of shit too, but I don't tell you that". The applicant then claimed Ms McGuigan walked out of the lunchroom to speak to the manager, Mr Cummings, who told the pair to stay away from each other. The applicant claimed that besides exchanging those words between himself and Ms McGuigan, he had no further contact with her during the course of the day.
[27] Ms McGuigan gave evidence on behalf of the respondent in relation to the incident which occurred in the lunchroom on that morning. Ms McGuigan claims she walked into the lunchroom and said to the applicant, "Jamie, you look like shit". Ms McGuigan further claims that Jamie said to her, "Piss off, you bitch, how I look is nothing to do with you. I am sick of you. Piss off". Ms McGuigan was shocked by the outburst by the applicant.
[28] In Ms McGuigan's sworn statement she spoke to Frank Cummings, the Store Manager, and asked him to have a word with the applicant about the incident that had just occurred. Ms McGuigan also said that Frank told the applicant and Ms McGuigan to stay away from one another. Further at point 15 of Ms McGuigan's sworn statement she says:
"What can I do, there's nothing I can do. You don't like him and he doesn't like you, just get on with it." [Exhibit P2]
[29] Ms McGuigan further went on to claim that during the day she left the shopfront to go to the back of the shop and get stock on approximately 20 to 25 occasions. On occasions the applicant said words to her to the following effect:
"19. It upset me greatly hearing Jamie say things to me throughout the day. He said to me on a number of occasions:
[30] Ms McGuigan indicated that this upset her greatly during the course of the day.
[31] Mr Stephen Bertram is employed by P&M Quality Smallgoods Pty Limited as the Human Resources Manager. Mr Bertram gave sworn evidence in relation to the telephone conversations he had with Mr Maloney, the Area Supervisor, on 18 July 2001 who told Mr Bertram he had to dismiss the applicant and the reasons why. Mr Bertram gave further evidence as to the event that occurred thereafter and in relation to the Company's employee handbook. His evidence was that all employees are given the policy of the Company's Employee Information Handbook. I am satisfied that the applicant had received a copy of the handbook and had signed for it.
[32] Mr Quinn has been employed by Peter's Meats for 20 years as a Retail Supervisor and gave evidence to the effect of an incident that occurred on 26 April 1996 and on 4 July 1996 where at that time he was a supervisor covering the Brookvale shop. The evidence was to the effect that a female employee alleged that the applicant had sexually harassed her. The Company had investigated the allegation and the applicant was subsequently charged with sexual harassment and dealt with in accordance with the law and his employment was terminated by Peter's Meats.
[33] Mr Maloney, Area Supervisor for the respondent, gave evidence that he supervises the areas of Muswellbrook, Central Coast, Newcastle and Sydney. Mr Maloney visits the stores on a day-to-day basis. In July 2001 he visited the Erina store and spoke to Brian, the Store Manager, who informed him there had been words between the applicant and Ms McGuigan. Mr Maloney asked Ms McGuigan to speak with him in relation to the incident between herself and the applicant. Ms McGuigan repeated to him the words and statements which she gave to me under oath. On that basis Mr Maloney determined that the applicant's employment was to be terminated. Mr Maloney requested the applicant attend a meeting and at that meeting he terminated the applicant's employment with the Company.
[34] Mr Frank Cummings, Butcher employed with the respondent since 1992, is second in charge of the Erina store and was acting manager on the day of the incident in the lunchroom. Ms McGuigan approached him and told him of the words spoken between herself and the applicant. Mr Cummings gave evidence that he told Ms McGuigan and the applicant to stay away from one another. Mr Cummings gave evidence that Ms McGuigan came to him on two other occasions during the day complaining that the applicant had continued to verbally abuse her. It is not clear from Mr Cumming's statement or his evidence whether he then approached the applicant again during the day to ask him whether the verbal abuse had continued.
[35] Mr Mercer, Butcher employed with the respondent since January 2001, is the only other witness who was present in the lunchroom when the altercation between the applicant and Ms McGuigan occurred. Mr Mercer's statement and evidence was to the effect that Ms McGuigan came into the lunchroom and said to the applicant, "You look like shit". The applicant then responded_, "Thanks a lot. I don't tell you that you're obese"_. Mr Mercer then left the lunchroom and therefore did not hear anything else. The acting manager, Mr Cummings, spoke to both the applicant and Ms McGuigan with words to the effect, "Grow up. You're not kids". Mr Mercer gave evidence that both the applicant and Ms McGuigan were present when the conversation took place near the lunchroom.
[36] Mr Mercer further goes on in his witness statement to say that he thought that the applicant and Ms McGuigan did not like one another and that he continued to work with the applicant throughout the day and that at no time during the day did he hear the applicant say anything derogatory to Ms McGuigan. Mr Mercer also indicated that he took several other breaks during the day and was not present with the applicant during those breaks.
[37] Mr Brian Fenning, Store Manager, gave evidence that he was on leave when the incident occurred. The Sunday before he was due to return to work Mr Cummings, the acting manager, visited him at home and told him about the incident between the applicant and Ms McGuigan. On Tuesday morning, when Ms McGuigan arrived at work, Mr Fenning spoke to her about the incident. Mr Fenning had intended to speak to the applicant about the incident but the applicant had called in sick. He then informed his area manager, Mr Maloney, about what had occurred. Mr Fenning was aware Mr Maloney was going to conduct a meeting with the applicant at Woy Woy, about the incident. Mr Fenning was not involved in the meeting.
[38] There is no doubt in this matter that on 10 July 2001 an incident occurred at the store between the applicant and Kathleen McGuigan. Both parties say the incident occurred after Ms McGuigan told the applicant that "you look like shit today". There is some question as to the words spoken to Ms McGuigan by the applicant but there is no doubt that the applicant verbally abused her. The applicant, Ms McGuigan and Mr Mercer have varying statements but I am satisfied the applicant did abuse her.
[39] Ms McGuigan goes on to claim that the applicant during the course of the day abused her on many other occasions. There is no independent witness to that and I find it difficult to choose between the evidence of the applicant and Ms McGuigan in respect to who is telling the truth as to whether any further abuse had occurred on the day. However, it is sufficient to say that this is a butcher shop, a workplace not in a public area, and the words exchanged, as stated by Ms McGuigan in her statement, in my opinion constitute nothing more than normal workshop language. I would consider the language used by both parties normal workshop terminology. Even though the words used by the applicant may have upset Ms McGuigan it was Ms McGuigan who was the instigator.
[40] In respect of the evidence of Ms McGuigan as to the verbal abuse to her, by the applicant during the course of the day, I make no finding in respect of that. Although I do say Ms McGuigan gave her evidence honestly.
[41] It is clear from the evidence of Mr Maloney that he was the person who decided to dismiss the applicant. Paragraphs PN973 to PN998 of the Transcript states as follows:
"MR DAVIS: I put it to you that the discussion didn't take place at that time?
MR MALONEY: Well I put it to you it did, Jamie admitted, I think you were present at a meeting when Jamie spoke about it.
MR DAVIS: I'm not suggesting that he didn't admit to the charge, what I'm putting to you is that that conversation in your statement didn't take place?
MR MALONEY: Well that's not right, it did take place.
MR DAVIS: So did you get anybody else to check over the facts independently about Ms McGuigan's allegations?
MR DAVIS: And when you met with Jamie on the 18th you were in possession of his, you had his possessions to give him?
MR DAVIS: So you had made your mind up that you were sacking him at that time?
MR DAVIS: And that's before you've heard his side of the story?
MR DAVIS: Now the company has a policy on sexual harassment and I understand that you're in charge of ensuring that the workers get a copy of the handbook?
MR DAVIS: Are they given any training at the time they receive the handbook?
MR MALONEY: No, they're just asked to read it and sign it and hand it back in.
MR DAVIS: And you don't recall Mr Herring, you don't recall giving it to Mr Herring?
MR MALONEY: I don't, no not really, we've got, I've probably got 100 staff that I'm in charge of.
MR DAVIS: Do you inquire as to whether workers are able to read the handbook?
MR DAVIS: And can I say then, how do you satisfy yourself as a manager that they understand the handbook?
MR DAVIS: What process do you go through to satisfy yourself that they understand what's in the handbook and what it means?
MR MALONEY: I don't go through a process to ensure that they understand it.
MR DAVIS: What's your assessment of the way the second in charge dealt with the allegation on the day in question, that was the 10th?
MR DAVIS: I think you say inappropriate or something in your statement, was inappropriate the way Frank Cummings dealt with it and in your statement at point 22 you say:
"I spoke to Frank Cummings after the incident and told him that the course he had undertaken on the day of the incident was inappropriate."
Did you counsel or warn or issue a warning to Mr Cummings?
MR MALONEY: I said to Frank that the company has got a policy on things like that. He should have taken further action to sort it out. He should have either called myself or spoken to Colin Cameron.
MR DAVIS: So you don't deliver harassment training or training in relation to harassment to managers or workers?
MR DAVIS: Did you ever ask Ms McGuigan what she wanted in relation to the allegation. For example did she want an apology or something like that?
MR MALONEY: No, I didn't think there was any need to see what Cath wanted.
MR DAVIS: Why is that, were you convinced for example that the two couldn't work together?
MR MALONEY: Not really. I considered from what Cath had told me that Jamie deserved to be dismissed.
MR DAVIS: That was really the only information that you acted upon?
MR DAVIS: So you took that into account to decide whether the facts in this situation were correct or not?
MR MALONEY: Well, I've known Cath for the four years that I've been with the company and I had no reason to doubt what she told me was true.
MR MALONEY: No. Well, I spoke to Frank about it. Frank said she told him the same thing.
MR DAVIS: But no-one seems to be able to independently verify the comments other than comments about, fat shit?
[42] From his evidence, Mr Maloney had decided to dismiss the applicant prior to the meeting. The evidence is clear that he failed to give the applicant the right to respond and that Mr Maloney failed to have the matter independently investigated. Mr Maloney merely took a decision after receiving a report from his shop manager. Therefore Mr Maloney failed to give the applicant procedural fairness. Further, it is argued in the final submissions of the respondent, that Mr Maloney is a person who did not have an understanding of the Workplace Relations Act 1996 (the Act).
[43] When one goes to the statement of Mr Bertram it is clear that Mr Maloney, on 18 July 2001, telephoned Mr Bertram and informed him that he had dismissed the applicant. I would consider Mr Bertram, the Company's Human Resources Manager, to have a sound knowledge of the Act. If one reads from paragraphs 8 to 12 of Mr Bertram's statement [Exhibit P5] one can see that there were a number of discussions between the parties but the opportunity at the point of termination was not afforded to the applicant to respond properly. The applicant was asked to write a letter, dated 19 July 2001 and received by the respondent on 23 July 2001, but was terminated before Mr Bertram received that letter. This I consider to be a breach of the Act. As to the evidence of the other witnesses, I accept their evidence which assisted me in coming to this conclusion.
[44] In Crozier v. Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport [Print S5897] a Full Bench stated:
"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."
[45] It is clear from what I have said above that the respondent has failed to comply with this statement of the Full Bench. Section 170CG(3)(c) requires me to have regard to whether the applicant was given the opportunity to respond to the reasons for his termination. I am not satisfied that the respondent gave the applicant a proper explanation nor a reasonable opportunity to respond to his dismissal. It is clear from the evidence that no matter what the applicant had said, the Area Manager, Mr Maloney, had made up his mind to dismiss the applicant prior to the meeting between himself and the applicant.
[46] In all of the circumstances of this case and after having had regard to all of the above matters I determine that the termination of the applicant's employment was harsh, unjust and unreasonable. Having reached such a conclusion I now need to decide what, if any, remedy should be awarded. Section 170CH(1) provides that the Commission may make an order which provides for a remedy if it has decided that a termination is harsh, unjust or unreasonable.
"(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and
(b) the length of the employee's service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been termination; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant;
[48] Whilst reinstatement is the primary remedy, the applicant is not seeking reinstatement and I am satisfied that, in the circumstances of this case, reinstatement is not appropriate. However, after having regard to the matters referred to in section 170CH(2) above as well as the factors set out in subsection (7), I consider that it is appropriate to make an order for payment of an amount in lieu of reinstatement. Mr Davies submitted 26 weeks' pay at the applicable rate minus any earnings since this time. The respondent submitted in all the circumstances of the case that the applicant did not deserve any monetary compensation.
[49] As to the requirements of section 170CH(7)(c), the principles applicable to determining such an amount were dealt with in Sprigg v. Paul's Licensed Festival Supermarket [Print R0235] and were affirmed in Ellawalla v. Australian Postal Corporation [Print S5109].
[50] The second step in the process requires the deduction of monies earned during the "anticipated period of employment" in this case one week from the date of termination.
[51] The third step is to discount the remaining amount for contingencies if appropriate. There was nothing before me which satisfied me that I should discount the amount for contingencies in the particular circumstances of this case and, hence, I do not do so.
[52] I have considered the impact of taxation but leave this to the parties to settle bearing in mind the need to adjust the figures to allow for the difference between gross and net amounts.
[53] The provisional amount resulting from these steps will be under the legislative cap and so no adjustment for that purpose is necessary.
[54] I have accepted the principles outlined in Sprigg v. Paul's Licensed Festival Supermarket and affirmed in Ellawalla v. Australian Postal Corporation and have determined that the proper compensation in lieu of reinstatement in this matter should be twelve weeks' gross pay at the appropriate rate less one week's pay for the time worked since the applicant's termination of employment.
[55] An Order to that effect will be issued in Print PR920071.
J. Davis of The Australasian Meat Industry Employees' Union for the applicant.
Printed by authority of the Commonwealth Government Printer
J L Herring
Imposete Pty Limited - PR920070 [2002] AIRC 792;
(1996) 62 IR 371
(1997) 73 IR 454
(1995) 69 ALJR 797
(1995) 185 CLR 410
The Commission determined that Herring's termination was harsh, unjust and unreasonable. It considered reinstatement inappropriate and determined compensation in lieu of reinstatement of twelve weeks' gross pay at the appropriate rate, less one week's pay. An order was to issue in Print PR920071.