plaintiff. The Commission found that the Applicant was unfairly dismissed. Reinstatement was impracticable. Orders were made that the Respondent pay the Applicant compensation in the sum of $10,280.00,...
Key principles
The dismissal was unfair because the Respondent failed to demonstrate that the Applicant had been warned about poor performance or disciplined in accordance with a fair process,...
The Respondent could not rely upon a probationary period to justify dismissal because, on the accepted facts, the probationary period expired prior to dismissal ([29]).
Where the employer's documentary and testimonial evidence is unreliable and the employee's evidence is credible, the Commission will prefer the employee's account on the balance...
Reinstatement was not ordered because the Applicant had obtained other employment and reinstatement was impracticable; compensation was therefore assessed according to...
Issues before the court
Was the Applicant unfairly dismissed by the Respondent?
Could the Respondent rely upon a probationary period to justify dismissal?
Are the documentary warnings (Exhibits D3 and D4) dependable to establish prior warnings?
Plain English Summary
The Commission found that Classic FB Holdings unfairly dismissed John Leeson on 24 April 2002. The employer's asserted warnings and probationary justification were rejected because documentary warnings were unreliable and the probation had expired. The Commission preferred Leeson's credible technical evidence about machine faults and his remedial efforts. Reinstatement was impracticable and compensation of $10,280 was awarded to place him in the position he would have been in but for the dismissal.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,593 words · generated 26/07/2026
What happened
John Leeson was engaged to work as a print machinist on a Heidelberg SM52P printing press by Classic FB Holdings Pty Ltd. He began as a casual and was offered full-time employment; there was a dispute about whether a probationary period applied at the time of dismissal ([2]-[4], [29]). In mid-February 2002 Leeson observed colour fluctuations and misting problems on test sheets while operating the press. He reported the matters to his supervisor and the vendor, Heidelberg, sent a technician. The technician found glazed rollers; initial chemical treatment and remedial works were undertaken, but the problem recurred because an incorrect chemical had been used. Leeson ultimately cleaned filters, reset the machine to specification and mixed the correct chemicals as per the plate manufacturer's instructions, after which the machine produced satisfactory quality ([5]-[9], [30]-[31]).
What remedy should be ordered where reinstatement is impracticable?
Cited legislation
1 cited instrument linked from this judgment.
Despite having identified and remedied the problem, Leeson discovered the employer had advertised for another printing machinist and he was not given certain overtime opportunities. On 24 April 2002 he was summoned and dismissed, being told his production quality was not up to standard. Leeson asserted he had not been warned about his performance and that the quality control responsibilities were not solely his ([11]-[13]). He filed an unfair dismissal application in the Western Australian Industrial Relations Commission pursuant to s.23A of the Industrial Relations Act 1979 ([1]).
At hearing the Respondent relied on two letters (Exhibits D3 and D4) said to be warnings prepared by the production supervisor, and on print samples (Exhibit A) said to show poor performance. The Respondent's manager, Ms Dry, gave evidence but lacked first-hand knowledge; she did not call the production supervisor, Mr Buckley, or the company principal, Mr Yovich. Commissioner Gregor found the Respondent's documentary evidence suspect and preferred Leeson's evidence. The Commission concluded the warnings were fabricated or unreliable and that the dismissal was premeditated by the Respondent; it therefore found the dismissal unfair and awarded compensation because reinstatement was not practicable ([15], [23]-[33], [34]-[38]).
Why the court decided this way
The Commission's decision rests on credibility findings and evaluation of documentary evidence. Key elements:
Credibility of the Applicant: Leeson's evidence was described as "cogent and logical", without inconsistency, and the Commission accepted he had the technical knowledge to identify and resolve the printing problems ([24], [30]-[31]). The vendor's invoice (Exhibit F8) corroborated Leeson's account that the rollers needed reglazing and that a technician assisted with resetting the machine to specification ([30]).
Unreliability of the Respondent's evidence: The Respondent's manager had no first-hand knowledge of interactions between Leeson and the supervisor; material documentary evidence (warning letters Exhibits D3 and D4) displayed inconsistencies indicating manipulation, for instance, the date '11th April 2002' appearing on a document headed '2nd April 2002' and different inks suggesting they might have been created contemporaneously for the hearing ([15], [25], [26], [32]). The Commission therefore rejected those documents.
Adverse inference from refusal to give evidence: The principal, Mr Yovich, declined an opportunity to give evidence about Exhibit D4, which mentioned his attendance at a warning. The Commission drew an adverse inference from that refusal, diminishing the value of the document ([22]-[27]).
Failure to show procedural fairness: The Respondent could not establish that Leeson had been warned about performance or that any appropriate process had preceded dismissal. The Commission concluded the dismissal was "premeditated" and "summary" as the Respondent had already advertised for a replacement while Leeson remained employed ([33]).
Taken together, these findings met the Commission's task of deciding the matter on the balance of probabilities and ensured that the employer's right to dismiss was not being improperly invoked ([28]).
Before and after state of the law
Before this decision, the general approach in unfair dismissal matters was well-established: the tribunal must assess whether an employer has abused the right to dismiss, applying the balance of probabilities and ensuring that procedural fairness principles have been observed. The Commission expressly cited Undercliffe Nursing Home for the standard of proof and the need to give both sides a fair go ([28]).
In remedying unfair dismissal, the Commission followed established authorities for assessing compensation, notably Boganovich and Gilmore, which direct that compensation should aim to place the applicant in the position they would have been in but for the dismissal ([36]). This decision applies those principles: when reinstatement is impracticable, a monetary award is calculated for past and future loss and for injury.
After this decision the principles applied are consistent with established unfair dismissal jurisprudence: tribunals must scrutinise documentary evidence, draw adverse inferences where parties decline to give relevant evidence, and award compensation rather than reinstatement where reinstatement is not feasible. The case underscores the Commission's willingness to probe the authenticity of employer documents and to prefer credible, corroborated employee evidence.
Key passages with plain-English translation
"The evidence presented by the Respondent should be viewed with extreme caution and where it differs from that produced by the Applicant, the Applicant's evidence should be favoured" ([26]-[27]).
Plain English: The Commission found the employer's case unreliable and decided to believe Leeson's evidence where there was a conflict.
"Those documents are grossly unreliable to the extent that they should not be accepted at all" ([25]).
Plain English: The written 'warning' letters the employer produced were so inconsistent they were treated as worthless.
"Because [Mr Yovich] declined to give evidence when the opportunity was clearly offered to him it follows that an adverse conclusion ought to be drawn" ([27]).
Plain English: When the company leader refused to testify about a document implicating him, the tribunal took that refusal as suggesting the document was suspect.
"This dismissal was clearly unfair on the test to be applied and orders will issue accordingly" ([34]).
Plain English: After assessing the evidence, the tribunal concluded the dismissal was not justified and made orders for compensation.
"The total compensation therefore to be awarded by the Commission in this case is $10,280.00" ([38]).
Plain English: Reinstatement being impractical, Leeson received money intended to make him whole for lost earnings and injury.
What fact patterns trigger this precedent
This decision is particularly applicable where:
An employee with some technical responsibility identifies equipment/process failures, takes remedial action, and the employer subsequently relies on alleged poor performance as a basis for dismissal ([5]-[9], [30]-[31]).
The employer's case largely depends on contemporaneous-looking warnings or documents where there is reason to doubt authenticity (e.g. date/ink inconsistencies or creation at/near hearing) ([25]-[26], [32]).
Key employer witnesses with first-hand knowledge are not called, or relevant principals decline to be sworn and explain documentary evidence, permitting an adverse inference ([15], [22]-[27]).
Reinstatement is impractical because the applicant has obtained other employment or circumstances make reinstatement unworkable, so compensation must be assessed ([35]-[38]).
Where those circumstances exist, this decision demonstrates that a tribunal may prefer the employee's credible, corroborated evidence and reject employer documents or samples that appear to prejudice or misrepresent the employee's performance.
How later courts have treated it
This decision is a Commission-level decision applying established principles; it follows compensation assessment authorities (Boganovich; Gilmore) and applies standard credibility and document-assessment techniques. It is an example, at the WAIRC level, of rigorous scrutiny of employer evidence and readiness to draw adverse inferences when a principal declines to give evidence. Later tribunals and courts considering similar fact patterns would treat the case as persuasive authority at tribunal level for the following points:
The need to test documentary evidence for authenticity and consistency before relying on it to justify dismissal ([25]-[26]).
Drawing adverse inferences where relevant witnesses decline to give evidence despite being available ([22]-[27]).
Applying Boganovich and Gilmore principles in assessing compensation where reinstatement is impracticable ([36]).
Because this is not a superior court precedent, its persuasive force depends on closeness of facts and reasoning, but it aligns with general unfair dismissal jurisprudence and evidentiary norms used across industrial tribunals.
Still-open questions
Extent of employer procedural obligations during probation: The Commission rejected the Respondent's assertion of an operative probationary period on the facts here ([29]). A precise delineation of what documentation is necessary to create an operative probation, and the steps an employer should take to rely on probation as a defence to dismissal, remains factual and may require further authoritative guidance in closer cases.
Adverse inference scope: The Commission drew an adverse inference from the principal's refusal to give evidence ([27]). While the decision applied ordinary tribunal discretion, further clarification could be valuable on how strongly such refusals should weigh, especially where principals claim legal advice or other protections.
Quantification of injury: The Commission awarded $1,000.00 for injury to feelings/consequences of dismissal without extended analysis ([36]-[38]). The method and quantum for injury awards in unfair dismissal matters at tribunal level remain areas where different tribunals may vary, and later cases may further develop principles for such assessments.
Employer obligations in examining equipment vs employee responsibility for quality controls: The case balances an operator's responsibility to check work with the employer's duty to provide proper chemicals, training and equipment. Future determinations may need finer lines on when technical faults absolve an operator of responsibility for print quality, especially where vendors and supervisors are involved.
Practical takeaways for practitioners: ensure documentary records are contemporaneous and can be verified; call key witnesses with firsthand knowledge; be prepared to explain and corroborate dismissals with consistent documentary and testimonial proof; and where dismissals occur during or shortly after technical/process problems, expect careful scrutiny of technical evidence and vendor records.
Judgment (7 paragraphs)
[1]
John Leeson v Classic FB Holdings [2003] WAIRComm 7581 (29 January 2003)
John Leeson (the Applicant) applied to the Commission for orders pursuant to s.23A of the Industrial Relations Act, 1979 (the Act) on 24th April 2002. He claimed he had been unfairly dismissed from employment with Classic FB Holdings Pty Ltd (the Respondent) from the position of print machinist operating a Heidelberg SM52P printing machine on 24th April 2002. In essence he says that the unfairness arises because he had been promised training on the machine and never received it. Incorrect chemicals affected the print quality and caused inconsistent colour production which he advised to the Respondent. He claims he used his own initiative to provide remedies in conjunction with representatives of the machine vendor and the chemical supplier. His suggestion to install a reverse osmosis filtration system was ignored. At least a week before his dismissal he advised the Respondent that the chemical problem was fixed, however in any event the ultimate quality control was not within his remit. There had been no discussions about the so called deficiencies or warnings to him about his work.
At the commencement of proceedings the parties agreed that the correct title of the Respondent is Classic FB Holdings Pty Ltd and the Commission allowed that amendment to be made. The Applicant says he was employed originally on a casual basis and was provided with a copy of the Respondent's policy and human resources manual (Exhibit F4) which refers to a probationary period of three months. It came to pass that the Applicant was offered fulltime employment on 18th February 2002 soon after which he encountered problems with the chemicals used in the printing machine operated by him. He claims he was dismissed without warning.
The Applicant gave evidence that although he had extensive experience in the printing industry he had not made active use of his trade skills for some time immediately before employment with the Respondent. He produced examples of his academic record (Exhibit F2). He was employed with the Respondent following an interview with the Production Manager, then Mr Bresland in January 2002. He received a letter of engagement on 22nd January 2002 (Exhibit F3) which he acknowledged by signature. At the same time he received a policy manual which he read.
Parties
Applicant/Plaintiff:
John Leeson
Respondent/Defendant:
Classic FB Holdings [2003] WAIRComm 7581
Legislation Cited (1)
Tax Assessment Act 1936
AI Analysis
Outcomeplaintiff
Disposition:
The Commission found that the Applicant was unfairly dismissed. Reinstatement was impracticable. Orders were made that the Respondent pay the Applicant compensation in the sum of $10,280.00, subject to any taxation assessed by the Commissioner of Taxation and actually paid (see [34]-[38]).
The Applicant says that in due course he was offered permanent employment but he was never told in the subsequent engagement that he was on probation. The Applicant denies that at that time he received a letter which reduced the probation period as a result of the three weeks casual service (Exhibit D1). He says around that time he received a letter differently worded but he did not retain a copy.
The Applicant said that in the middle of February 2002 he was experiencing problems with colour fluctuations and misting over the plates on the machine. The Applicant approached his then supervisor, Mr Glen Buckley, who had replaced Mr Bresland who had by that time left. Prior to his departure Mr Bresland had declined to give the Applicant assistance or technical guidance because he was at odds with the Respondent and had decided to leave.
After the Applicant had approached Mr Buckley the vendor of the printing machine was asked to send a technician to inspect it for defects. The technician made the inspection in conjunction with the Applicant and they discovered problems relating to glazing of the rollers. According to the Applicant glazing occurs through constant exposure to various chemicals and sometimes has to be stripped to keep the printing at maximum quality.
The technician having decided the rollers were badly glazed removed and treated them with chemicals to leech out long term glaze. This chemical was not available in the Respondent's stores and had to be bought in. While initially successful after a short period the problem resurfaced and the Applicant discovered that a solution used was not specifically designed for the type of plate chemistry on the machine. During his evidence he gave a technical explanation of the chemistry of the process which need not be recited for the purpose of these Reasons. Suffice to say that the Applicant discovered the wrong chemical had been used.
Ultimately the Applicant says that he resolved the problem by cleaning out filters, resetting that part of the machine to specification, mixing the correct chemicals as per the plate manufacturer's instructions and recommissioning the machine. Thereafter there were no further problems.
The Applicant claims that at all times he checked the job at the press and then it was passed to the next department.
There was considerable evidence given about the standard of printing on test sheets. Examples appear in Exhibits F5, F6 and Exhibit A. This last Exhibit was introduced by the Commission. It had been filed as part of the Respondent's Answer.
The Applicant identified that the sheets contained a different amount of colour. I will say more about the sheets later in these Reasons. The Commission was told by the Applicant that some weeks after solving the printing problem he noticed an advertisement in the newspaper for a printing machinist. He asked the Operations Manager, Mr Buckley, why the advertisement was placed because the Applicant was of the opinion that the position advertised was that occupied by him. He was told that was incorrect, what the Respondent wanted was to get some more colour experience in the production area. The Applicant noticed that he was not offered overtime on a Saturday and an apprentice was brought in to do the work. This was a few days before his dismissal.
On the day of his dismissal the Applicant completed the day's program including overtime. He was told he was to see the Operations Manager who dismissed him. He asked for an explanation and was told that the production quality was not up to standard. The Applicant asserts that at no time had the quality of his workmanship been raised as an issue with him, nor had he been warned that his position was in jeopardy because of performance. The Applicant raised his objections to the termination with Mr Buckley and was told that it did not matter what he thought because Mr Yovich, the Respondent's Principal, wanted the Applicant removed.
The Applicant gave evidence about earnings subsequent to leaving employment of the Respondent and about his efforts to obtain work (see Exhibit F7 - Statement of earnings). The Applicant told the Commission he now receives a rate where the payment is $50.00 per week less on the base rate than he would have earned if he had stayed with the Respondent.
The Commission received evidence on behalf of the Respondent from Sasha Nicole Dry who is the Respondent's Manager. Her evidence can be fairly encapsulated by saying that the Respondent asserts that the Applicant was told on 18th February 2002 that he would be required to serve a probationary period until 26th April 2002 in order that the Respondent could assess his capabilities. During the period he received operational instructions from the printing machine's vendor, Heidleberg. He was made fully aware he had telephone support available from Heidleberg. Notwithstanding he produced printing of poor standard that was unacceptable and blamed the poor quality on the machine's chemistry. It is asserted by the Respondent that Heidleberg confirmed that the machine was in perfect order and had been reset to specifications. After the Applicant departed there were no further problems with the chemistry and the machine has generated work of high standard. The Applicant was warned verbally on several occasions that he must be accountable for the quality of printing produced and that strict checking procedures had to be complied with, however he did not do so and continued to produce work of poor standard. The reprinting of jobs was very costly and put the business under financial pressure. The Applicant was warned after a client returned a job. Due to continuing poor performance, there was no alternative but to terminate his employment.
It is fair to say in relation to the evidence given by Ms Dry that she had no direct knowledge of the Applicant's work, not being his supervisor. Mr Buckley was not called to give evidence. What Ms Dry was able to tell the Commission was that she typed a letter of engagement from Mr Buckley to the Applicant on 18th April 2002 which referred to his probation period ending on 26th April 2002. She says she had Mr Buckley sign it, she sealed it and gave it to the Applicant. She identified Exhibit D1 as that letter.
She only knew of the problems about the Applicant through Mr Buckley. She was not present at any of the conversations and does not know what was said. She produced to the Commission documents that she claimed were records of the warnings (Exhibits D3 and D4) given to the Applicant. These documents became controversial for reasons I will explore later in these Reasons for Decision. Both of the letters were said to be created by Mr Buckley. It was also suggested that the document of 11th April 2002 (Exhibit D4) mentions that a warning was given in conjunction with Mr Brad Yovich, who was present during the hearing. The Respondent was given the opportunity to call Mr Yovich to verify the document but he declined to give evidence on oath.
Ms Dry said that she had frequently commented to Mr Buckley, who was responsible for productivity of the production room, that the Applicant was not producing work to a reliable standard or at a reasonable rate, which was causing loss of stock. Ultimately according to Ms Dry the Respondent lost customers. The Applicant also worked excessive and unnecessary overtime. He received two warnings, he was paid in lieu of notice and the Respondent believed that it had done nothing wrong in the dismissal.
There was considerable discussion between the Commission and Ms Dry about the veracity of the exhibits which had been produced before the Commission. Of particular interest was the extent of the difference in print quality of exhibits which were said to represent the work of the Applicant.
During proceedings Ms Dry asked that the matter be adjourned in order that the Respondent might locate Mr Buckley and organise legal representation in view of an allegation by Mr Fayle of fabrication of evidence. Mr Fayle opposed the application submitting that the matter had been on foot for at least eight months and the Respondent had ample opportunity to gain advice and appoint legal representation. The Applicant was concerned that the matter, if adjourned, would be subject to considerable delay which would be prejudicial to the Applicant. Sufficient leeway had been given to the Respondent. On the balance of convenience the matter should be heard.
The Commission declined to adjourn the matter. The justice of the matter being that it ought be disposed of. The Respondent was not an innocent abroad; it is an established business in the commercial world and understands that all of its work is conducted in a legal framework. Part of that framework is the industrial laws of the State. Rights are created under those laws for a person to make an application under s.29 of the Act to seek a remedy for an alleged unfair dismissal.
The Commission observed that it would not refuse to list matters because one party or other first opts not to have legal representation then changes its mind. It is assumed that such a party make sensible commercial decisions about what they need to do concerning representation to deal with the case. The Respondent had more than adequate opportunity to put everything that needed to be put in its defence. The Commission gave more assistance to Ms Dry than is usual, some might say more than should have been given. The upshot was the Respondent had an adequate opportunity to ventilate its side of the case. That Mr Fayle rejects the evidence as being potentially fabricated is something he might say whether the Respondent was represented or not. That he says it does not mean it is true. That he says it does not mean that the Commission would accept that what he says is true but he is entitled to say it and, presumably, would say so regardless of the level of representation.
The Commission drew the attention of Ms Dry to Exhibit D4 a document the Respondent sought to rely on created by Mr Buckley which refers to a warning being given in conjunction with Mr Yovich, who was present in the court. The writing was provable by someone who was present at the hearing and evidence from Mr Yovich might have gone some way to dispose of the allegation of fabrication if the Respondent wanted to do so.
While at the time the Commission did not draw any adverse conclusion from the fact that Mr Yovich did not want to give evidence, it did observe that the value that it placed on the document was diminished. Ultimately the Commission declined to grant the adjournment. Mr Fayle then cross examined Ms Dry. It is not necessary for the purposes of these Reasons for Decision to summarise that cross examination I will refer to it during my analysis.
The Commission is to make findings on the credibility of witnesses. The Applicant appeared, his evidence was cogent and logical, there was no inconsistency, there is no reason why the Commission should not accept his evidence as being credible and truthful.
The only evidence on behalf of the Respondent was called from the Manager, Sasha Dry. Ms Dry laboured under the difficulty of not having first hand knowledge of the dealings between Mr Buckley and the Applicant. The documentary evidence that she produced in lieu of her first hand knowledge was of extremely poor quality. Exhibits D3 and D4 are very important in the disposition of this case. They are said by Ms Dry to be the creations of Mr Buckley on two different dates, the 2nd and 11th April 2002. They purport to be warnings given to the Applicant. However the document dated 11th April 2002 although written in a different colour ink to that of 2nd April 2002 has the potential of being created on the same day. The date 11th April 2002 is clearly visible on the document headed 2nd April 2002. There is cause for the Commission to conclude that those documents are grossly unreliable to the extent that they should not be accepted at all.
Other documentary evidence from the Applicant is of a similar nature. In the Answer to the Application filed in the Commission on 17th May 2002, there is an example of a printed sheet produced by the Applicant (Exhibit A). There are two other copies of that same sheet in Exhibits F5 and F6 each of them are of a different standard to the extent that Exhibit F6 is substantially different. It is open for the Commission to conclude that these were sheets of a test run when the ink saturation was being adjusted to final quality. Exhibit A which was filed by the Respondent with its Answer is inferior compared to other sheets from the same production run. It is open to find that the sheet with the Answer was presented to prejudice a proper view of the Applicant's performance to the Commission.
For all of these reasons the Commission has decided that the evidence presented by the Respondent should be viewed with extreme caution and where it differs from that produced by the Applicant, the Applicant's evidence should be favoured. Finally in respect of the evidence the Commission draws an adverse conclusion by the failure of Mr Yovich to give evidence about the document Exhibit D4 which mentions that a warning was given in conjunction with him. He was offered the opportunity to give evidence on oath; he declined it, when it was within his power to give truthful evidence which may have gone to establishing the truth or not of Exhibit D4. Because he declined to give evidence when the opportunity was clearly offered to him it follows that an adverse conclusion ought to be drawn about that failure.
The Commission is required to decide matters before it on the basis of the balance of probabilities; it has to ensure that a fair go has been given to both sides (Undercliffe Nursing Home v Federated Miscellaneous Workers Union (1985)65 WAIG 385). In ensuring a fair go has occurred it is to keep in mind that the employer has a right to hire and fire and that right will be only be interfered with if it has been abused.
The Commission has accepted the Applicant's version of events, I think it more likely than not that the Applicant was engaged in January 2002 and on the best evidence available there was a probationary period that ran from three months from 2nd January 2002. If that is the case, and the Commission rejects that the contention of the Respondent that the Applicant received the letter of appointment dated 18th February 2002, then the probationary period finished prior to the Applicant's dismissal. It is therefore not open to the Respondent to rely upon the so called probationary period as a reason to bring the Applicant's position to an end.
I find the Applicant had been out of the industry for some time when he applied for a job with the Respondent. The Applicant through his evidence displayed sound technical knowledge of the operations and chemistry of the printing machine. It is more likely than not his diagnosis of its problems were correct. The Respondent says that the vendor Heidelberg gave the machine a complete bill of health and the Applicant's complaints about it were wrong. However that assertion is demolished by Exhibit F8 which is an invoice from Heidelberg which supports the Applicant's contentions that the rollers needed reglazing, that it was necessary to apply rollo paste to assure effective deglazing and that the technician assisted the operator in re-installing the rollers and resetting the machine to specification.
The Applicant's contentions about the difficulties with the machine are borne out by that invoice. The Commission should conclude that his assertions about the difficulties with quality are correct, he identified them and made every effort to resolve them. He was hindered in that process by the Respondent providing incorrect chemicals but ultimately the problems were resolved and the machine started to produce appropriate quality product.
The claims by the Respondent that the Applicant was warned about his performance have not been proved. The letters said to be produced by Mr Buckley were more likely than not manufactured for the purpose of this hearing and no weight should be given to them. Similarly no weight should be given to the samples of the print quality of the machine which were produced by the Respondent.
For reasons which are not clear from the evidence the Respondent decided that it would replace the Applicant. It did not tell him that it was going to do so instead it advertised for a replacement while his contract of service was existing. It fully intended to dismiss him once it had appointed a replacement. As soon as a replacement came available that is exactly what happened. The Respondent's conduct was entirely premeditated. The Applicant was in effect dismissed in a somewhat summary fashion even though he was ultimately given some money as a payment in lieu of notice.
This dismissal was clearly unfair on the test to be applied and orders will issue accordingly.
The evidence is the Applicant has obtained another job. It is not practicable for him to leave that employer and for that reason Mr Fayle submits that reinstatement is not an option.
The Commission accepts that submission and will therefore fix compensation. The rules for the assessment of compensation have been established in Boganovich v Bayside Western Australia Pty Ltd (1999)(79 WAIG 8) and Gilmore -v- Cecil Bros. (1996) 76 WAIG 4434. His Honour the President has set out the rules to be applied. Essentially an applicant who successfully prosecutes an unfair dismissal claim is to be placed in the position that he would have been if the unfair dismissal had not occurred. According to the evidence the Applicant was dismissed on 24th April 2002, he searched for work but was unable to find it and decided that he would work as a courier driver using his own vehicle. Exhibit F7 sets out the earnings and the costs associated with that work. Less his expenses he earned $1,321.57. While employed with the Respondent the Applicant had been working on the basis of $32,000.00 per year as a base payment.
In July 2002 he obtained a position which earns him a rate which is $50.00 per week less than the amount of money he earned with the Respondent and that loss is ongoing.
The Applicant was unemployed but looking for work between the date of dismissal and the time he was able to establish his courier business on 31st May 2002. He then worked the courier business until 5th July 2002. In that time if he had been employed by the Respondent he would have earned $8,000.00. Less $1,320.00 earnings from the courier business he incurred a loss over that period of $6,680 thereafter his ongoing loss is $50.00 per week. The Applicant shows no signs of being able to obtain work in the industry and the Commission assesses that loss for the purposes of compensation to continue for a year. The total loss therefore is $6,680.00 plus $2,600.00 which is $9,280.00. The Commission too is required to assess whether there has been injury, in this case it is the Applicant's contention that as a result of the dismissal he has been unable to obtain work in his calling and this may well be because of the affect of the unfair termination. In those circumstances he should be awarded $1,000.00 for injury. The total compensation therefore to be awarded by the Commission in this case is $10,280.00. Orders will issue that the Applicant was unfairly dismissed, that reinstatement is unavailing and that the Respondent pay the Applicant the sum of $10,280.00 subject to any taxation assessed by the Commissioner of Taxation under the Income Tax Assessment Act 1936 and actually paid.