[1] On 21 February 2001 Ricegrowers Co-operative Limited (Ricegrowers) filed an appeal against the decision [PR900791] of Wilks C issued 31 January 2001 in the matter of an application by Brendan Troy Schliebs seeking relief for termination of his employment by Ricegrowers on 23 June 2000.

[2] The relevant parts of the decision are in paragraphs 6 and 28-49:

"[6] The Applicant was summarily dismissed on 23 June 2000. A statement of agreed facts was tendered by Mr Mehan (Exhibit M1). The statement as amended, is in the following terms:

1. Brendan Schliebs was employed by Ricegrowers Co-operative Limited (RCL) at RCL Coleambally Mill from 28th February 1997 until 23rd June 2000 when he was summarily dismissed.

2. The reason for termination was urinating against the wall of the Coleambally Mill.

3. Brendan Schliebs did urinate on the outside wall of the Mill.

4. Brendan Schliebs admitted to urinating against the mill wall when asked by management of RCL even though he was not positively identified by the witness to the incident.

5. The company has a "Bodily Fluids" policy which prohibits urinating on company property.

6. Brendan Schliebs co-operated with RCL in the investigation of the incident.

[28] I have given careful consideration to all of the evidence and submissions put to me in this matter.

[29] It is important to note that the Respondent is engaged in the processing of food for human consumption. That fact makes it imperative, and indeed the laws of the State of New South Wales require, that hygiene standards be maintained at a high level. It is with this in mind that the circumstances of this case must be considered. I have, in assessing the circumstances, given that matter prominence when weighing the evidence.

[30] In relation to s.170CG(3)(a) that is: whether the termination was for a valid reason related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service, it is relevant to consider the respondent's policy relating to bodily fluids, against the circumstances of this case.

[31] Breach of company policy can be a valid reason for termination where the policy is reasonable. However, if in the circumstances of a particular case the policy itself is unreasonable, then termination of employment on the basis of that unreasonable policy could not be termination for a valid reason.

[32] The reason for the termination must be considered in the context of the penalty of termination. Such a penalty must be proportionate to the reason.

[33] I have considered the circumstances of this case in its context against the background of the precedents relied upon by the advocates and other decisions of the Commission and the Industrial Relations Court, including Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, and Kerr & Anor. v Jaroma Pty Ltd t/as Treasury Motor Lodge (1996) 70 IR 469.

[34] Having done so, I find that the termination of the Applicant's employment was for a reason which was not a valid reason. I have so found because:

· The Applicant had attempted to use the toilet which was engaged at the time. Being desperate to relieve himself, he hurried to the nearest place outside the area where food was being prepared in order to do so.

· There was in my view, no impact upon the standard of hygiene of the production process as a result of the Applicant's conduct.

· The penalty of termination is disproportionate to the degree to which the policy was breached, taking into account the circumstances at the time.

· On Mr Townsend's own evidence, despite the policy, dismissal is not automatic but in certain circumstances such as those referred to by Mr Mehan at the Echuca plant, a warning may issue. Considering the circumstances of this case against those applying at the Echuca site, this case is in my view less serious than that at the Echuca site, yet in that case the employee was warned.

· While the Applicant conceded, that he had been given a copy of the policy ten months earlier, he only did so after having been shown it at the interview and thus reminded of its existence. There was no evidence put by the Respondent that the policy had been regularly brought to the attention of employees by posting it on notice boards etc.

[35] Having heard the Applicant's evidence and having had the opportunity to observe the giving of that evidence and cross-examination, I am of the view that the existence of the policy did not occur to him until confronted with it by management at interview.

[36] The Applicant was desperate to relieve himself, he removed himself to a place he thought appropriate, away from the process area where he could do so.

[37] He should have been counselled and perhaps warned. He should not have been summarily dismissed.

[38] Having considered s.170CG(3)(a) I turn now to consider those other matters which I am required to consider under s.170CG(3).

[39] In relation to s.170CG(3)(b) I find that the Applicant was notified of the reason for termination.

[40] In relation to s.170CG(3)(c) I find that the Applicant was afforded an opportunity to respond to the reason. However, in relation to this matter there remains the question of whether there was adequate opportunity. It seems to me, given the obvious limitations of the Applicant's capacity to deal with the circumstances with which he was confronted, that the attendance of Mr McNeilly as both an advocate for the Applicant and at the same time as a member of the management team responsible for terminating the Applicant's employment, was not likely to afford the Applicant adequate opportunity to defend himself. There is at the very least the appearance of a conflict of interest on Mr McNeilly's part.

[41] Further, the Applicant does not cope well with stress. The interview process employed by the Respondent was, in the circumstances, more likely to cause the Applicant duress and less likely to elicit a proper explanation of his actions.

[42] In relation to s.170CG(3)(d) there are no issues to consider in this matter.

[43] In relation to s.170CG(3)(e) there are two matters which I have not already dealt with which should be commented upon. Firstly, the process set out in the Agreement for dealing with disciplinary matters. In my view, in the circumstances of this case, the conduct of the Applicant was not serious and wilful misconduct. His conduct warranted a warning at most. Secondly, the Respondent's business is conducted in a relatively small community where the prospects of employment are very limited for a person of the Applicant's experience and abilities.

[44] The penalty of termination in relation to the conduct complained of is in my view a penalty which, if allowed to stand, would condemn the Applicant to unemployment or under-employment for a very long time if not indefinitely.

[45] The penalty of termination is harsh, it is unjust and it is unreasonable; and I so find.

[46] I have set out above the terms of s.170CH of the Act.

[47] I have considered all of the circumstances of the case, including those matters set out in s.170CH(2). Despite the submission of Mr Britt to the contrary, I have decided that it is appropriate to order the reinstatement of the Applicant to the position in which he was employed immediately before termination, pursuant to s.170CH(3)(a); to further order that the Applicant's employment be continuous for all purposes notwithstanding the termination pursuant to s.170CH(4)(a) and further, to order that the Respondent pay to the Applicant an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination pursuant to s.170CH(4)(b).

[48] The amount of remuneration is to be calculated as follows:

(a) by calculating the Applicant's average weekly gross remuneration during the three months immediately prior to the termination;

(b) by multiplying that amount by the number of weeks lost because of the termination;

(c) by deducting from that amount, the amount of $5,000 being the best estimate on the evidence before me of the amount earned by the Applicant since the termination; and

(d) by deducting PAYE tax payable on the balance.

[49] During the course of proceedings Mr Mehan foreshadowed that if successful he would be making an application for an order for costs. In the event that the Applicant elects to pursue that course, I will relist this matter. Mr Mehan is to advise the Commission and notify the Respondent by 8 February 2001 as to the Applicant's intentions in this respect."

"A. Further to a decision issued on 31 January 2001 [RP900786] the Commission orders the following:

1. Pursuant to s.170CH(3)(a) of the Workplace Relations Act 1996 (the Act) the applicant is to be reinstated to the position in which he was employed immediately before termination.

2. Pursuant to s.170CH(4)(a) of the Act the applicant's employment is to be continuous for all purposes, notwithstanding the termination; and

3. Pursuant to s.170CH(4)(b) of the Act the respondent is to pay to the applicant an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.

The amount of remuneration is to be calculated as follows:

(a) by calculating the applicant's average weekly gross remuneration during the three months immediately prior to the termination;

(b) by multiplying that amount by the number of weeks lost because of the termination;

(c) by deducting from that amount, the amount of $5,000, being the amount earned by the applicant since the termination; and

(d) by deducting PAYE tax payable on the balance.

B. This order will come into force from 31 January 2001."

[4] The appeal was lodged on 21 February 2001. On 28 February 2001, an order was issued by consent staying the operation of paragraph A3 of the order of Wilks C of 31 January 2001. It emerged during the stay proceedings on 28 February that Mr Schliebs had resumed working for Ricegrowers at the co-operative's Colleambally mill on 5 February 2001.

[5] In K. Dahlstrom and ors and Wagstaff Cranbourne Pty Ltd [Print T1001] another Full Bench described the functions we are called on to perform:

"The appeal against the decision of the Commissioner regarding the applications under s.170CE of the Act is brought under s.45. Subsection 170JF(2) provides that such an appeal `may be made only on the grounds that the Commission was in error in deciding to make the order'.

Under s.45(2), a Full Bench must grant leave to appeal "if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted." This provides a further obligatory basis for the granting of leave and does not replace the conventional considerations: (see Construction, Forestry, Mining and Energy Union v. Giudice (1998) 159 ALR 1 at 20). In relation to an appeal against the exercise of a discretionary power, the principles to be applied in the determination of the appeal are broadly those which were enunciated by the High Court in House v. The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 (see also Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518)."

[6] We take as our point of departure the comments of McHugh J in re Commonwealth of Australia; ex p. Marks [(2000) HCA 67 (14 December 2000)]:

"[23] The Full Bench's role in the applicant's s 45'. [Coal and Allied [2000] HCA 47; (2000) 74 ALJR 1348 at 1354 [17]]"

[7] The grounds of appeal in this matter are the appellant's claims of error on the part of the Commissioner. They may be grouped under three heads and we examine them in that fashion. Grounds 1, 2 and 3 go to whether or not there was a valid reason for the termination. Grounds 5 to 9 are concerned with certain evidentiary matters and related matters which we group under Evidentiary and other Matters. Grounds 10 and 11 concern remedy.

[8] Before considering the grounds we set out s.170CG(3) which delineates the matters the Commissioner must have regard to. Section 170CG(3) states:

"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.

(b) Whether the employee was notified of that reason.

(c) Whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee.

(d) If the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination.

(e) Any other matters that the Commission considers relevant."

[9] We turn now to consider the grounds of appeal.

"1. The Commissioner erred in not finding that the Appellant's termination of the Respondent was for a valid reason.

2. The Commissioner erred in finding that the reason for termination must be considered in the context of the penalty of termination.

3. The Commissioner erred in determining whether the Appellant had a valid reason for the Respondent's termination by considering:

(a) whether the penalty of termination was disproportionate to the degree to which the Appellant's policy was breached;

(b) the circumstances surrounding the case at Echuca; and

(c) The failure of the appellant to provide evidence that of regularly bringing its policy to the attention of the Respondent by posting that policy on notice boards."

[10] There is no doubt that s.170CG(3)(a) obliges the Commission to make a finding as to whether of not there was a valid reason for the termination of employment.

[11] The reason must be "sound, defensible or well founded" as the oft-repeated dictum of Northrop J in Selvachandran v. Peteron Plastics Pty Ltd [(1995) 62 IR p. 371 at 373] has it. In this case the Commissioner's approach to whether the reason for termination was "sound, defensible or well founded" would appear unexceptional. It is hardly a defensible reason for punishment if that punishment is inappropriate to the circumstances. Another reason not well founded would be if it were inconsistent with what had occurred elsewhere in similar circumstances.

[12] The basis for the first ground of attack is that because the facts were clear the finding that there was no valid reason could not be sustained. We disagree. The circumstances in which those facts occurred is relevant to the issue whether or not there was a valid reason for termination. In this regard the reason for termination must be considered in the context of the penalty of termination and such a penalty must among other things be proportionate to the reason relied upon.

[13] Further, on the first ground, we do not believe the Commissioner's reference to serious and wilful misconduct was an assertion that it was necessary for the appellant to prove serious and wilful misconduct in the common law sense. We agree with the submission that Annetta v. Ansett Australia Ltd [Print S6824] makes the point that determining whether the conduct of the respondent justified termination does not involve consideration as to whether at common law the conduct of the respondent would justify summary dismissal. We consider the Commissioner's reference to:

". . . the conduct of the Applicant was not serious and wilful misconduct. His conduct warranted a warning at most."

was a restatement of the view that what occurred did not warrant dismissal. It was not a statement that it was necessary to establish serious and wilful misconduct before there could be a valid reason for termination.

[14] As to the second ground we repeat our opinion on the relevance of the context in which the termination occurred. As for the relevance of the penalty being disproportionate we adopt, with respect, the analysis of Moore J in Edwards v. Giudice and ors [1999] FCA 1836; [169 ALR 89 at 92]. With reference to s.170CG(3)(a) his Honour said:

"The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason."

[15] We take this to be a firm statement that the proportion of the penalty to the offence is relevant to validity for the termination. The reliance on the Echuca incident is relevant to the question of proportion and therefore appropriately considered when considering whether or not there was a valid reason for the termination. The Ricegrowers management at Colleambally mill thought that there was a significant difference between the two incidents - see exhibit B9, the statement of Mr Townsend, the mill manager at Colleambally in which the significant difference is stated to be that the employee concerned was not on company property at the time of the incident. Mr Schliebs was. However there was evidence before Wilks C which left it open to him to reach the conclusion that he did that the Colleambally case was less serious than the Echuca incident.

[16] It is then said that it was an error to consider the failure of the employer to provide evidence of regularly bringing its hygiene policy to notice. We are satisfied that its consideration is not an error in the circumstances of this case. It is, in the manner in which it was expressed by the Commissioner, relied on only as an explanation of his finding that the employee was not aware of the policy at the time of the incident. It is not an independent reason for the Commissioner's finding that there was no valid reason for termination.

[17] In our approach to these grounds we accept the submission by the appellant that s.170CG(3)(a) focuses on the reason for termination. However, we do not think that there is any limit, other than relevance, on what may be considered in reaching a conclusion that there is, or is not, a valid reason for termination. It is noteworthy that the legislation does not require the Commission to find that there is a valid reason for any form of disciplinary action rather whether "there was a valid reason for the termination". If it is not a reason for termination it is not valid for the purposes of s.170CG(3)(a). There are some matters which are not relevant. An example is the question of the effect of termination on the employee. Container Terminals Australia Limited v. Toby [Print S8434]. The Full Bench in that case held:

"In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable: see generally Department of Justice v Hepburn [1999] FCA 114; (1999) 93 FCR 508, at 512-513 and cases cited therein. The focus of the consideration is upon the employer and the basis for his decision to terminate rather than upon its consequences for the employee. "What has to be examined is the validity of the reason, and its connection with the employee's capacity or conduct or its basis in operational requirements of the employer": see Qantas Airways Ltd v Cornwall (1998) 83 IR 102, at 106. In making such an examination "it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct...": see Walton v Mermaid (1996) 142 ALR 681, at 685."

[18] But what may be considered in relation to PR902074]. In that decision the Full Bench said:

"[19] The Commissioner in making his findings under s.170CG(3)(a) took into account a number of considerations in examining whether there was a valid reason for the respondent's termination. These included;

• The conclusion that the respondent had consumed a considerable amount of alcohol whilst driving a company vehicle outside work hours (Print T1358, paragraph 15);

• the respondent's longstanding employment record (30 years) and his good character;

• the only previous charge (25 years ago) of driving under the influence of alcohol. He was not driving the employer's vehicle;

• two previous incidents within the company which did not result in termination and the cursory rejection of them by Mr Lloyd when raised by the respondent in his defence;

• the rehabilitation course the respondent has successfully completed since his termination;

• the reason for the respondent's drinking on 22 July 1999 was due to learning of his sister's terminal illness;

• the demeanour of the respondent in the witness box and his findings on credit.

[20] In our view each of the conclusions relied upon by the Commissioner was open to him to reach and each is a matter which he is entitled to weigh in exercising his discretion in his enquiry under s.170CG(3)(a). We can discern no error in his doing so such as would warrant the Full Bench interfering with his decision."

[19] In the present case, the findings which led the Commissioner to his conclusion on s.170CG(3)(a) were related to the conduct of the employee. He observed that the employee had attempted to find an alternative place to urinate, that there was no impact on hygiene, that there was an issue of the degree to which the policy was breached in the circumstances and of Mr Schliebs' lack of awareness of the policy at the time the conduct occurred. These are all relevant to the conduct of the applicant and go to whether or not the reason for termination was valid in the sense that it could be described as "sound, defensible or well founded". It is necessarily implicit in the Commissioner's decision that the reason did not meet this test for the reasons he advanced. We find no error in his relying on these factors to assess the validity of the reason. Providing the rationale for a finding under s.170CG(3)(a) that a termination was not for a valid reason is both logical and based on probative material we are of the view that the finding should not be disturbed. We are satisfied that there was sufficient evidence to enable Wilks C to reach the factual conclusions he relied on in finding there was not a valid reason for termination. The mention of alternative action in the form of a warning is perhaps unnecessary but does not constitute an error within s.170JF(2).

"4. The evidence in the proceedings does not support the Commissioner's finding that the Respondent was summarily terminated".

"5. The Commissioner erred in finding that the existence of the Appellant's policy did not occur to the Respondent until confronted with a copy of the policy by the Appellant at the interview since such a finding is not supported by the evidence in the proceedings."

[21] We do not accept the submission that the finding that at the time of the incident Mr Schliebs was not conscious of the existence of Ricegrowers hygiene policy was not supported by the evidence. Mr Schliebs gave evidence that he was not aware at the time [see PN211, 321, 347] and the Commissioner had the benefit of observing the witness giving his evidence. The conclusion he reached in paragraph [35] of his decision was reasonably open to him.

"6. The Commissioner erred in finding that the Respondent was not given an adequate opportunity to respond to the reason for termination and further such a finding is not supported by the evidence in the proceedings and in particular the second interview between the Appellant and the Respondent."

[22] The appellant argues that Wilks C erred in finding that the Respondent did not receive an adequate opportunity to respond to the reason. It is somewhat of a moot point, given that we have found no error in the Commissioner's finding that there was not a valid reason for termination. Mr Mehan for the respondent, took this approach at the hearing, simply relying on Chubb Security Australia Pty Ltd and John Thomas [Print S2679, paragraph [41]]:

"[41] Further, it is not, we think, possible to have regard to s.170CG(3)(b) until a finding has been made with regard to s.170CG(3)(a). Section 170CG(3)(b) refers to `that reason'; that is `a valid reason', being the term used in s.170CG(3)(a). If there is no valid reason, s.170CG(3)(b) has no application. Neither, we think, has s.170CG(3)(c)."

[23] He submitted that s.170CG(3)(c) had no application since there was no valid reason. We agree.

"7. The Commissioner erred in finding that the Respondent's actions did not amount to serious and wilful misconduct."

[24] The attack on the finding [in paragraph [43] of the decision] that the conduct of Mr Schliebs was not serious and wilful misconduct for the purposes of the Agreement was that the actions of Mr Schliebs were committed with knowledge that they were in breach of the hygiene policy and that that policy was a lawful and reasonable policy. We agree with the view that the policy was lawful and reasonable. We are unable, for reasons given earlier [paragraph [20] hereof] to agree that the act was in knowing breach of the policy. The phrase is serious and wilful misconduct and we have no reason to hold the Commissioner was in error, by in effect, not finding the misconduct "wilful".

"8. The Commissioner erred when considering s170CG(3)(e) of the Act by taking into account the size of the community in which the Appellant conducted its business and the limited prospects of the Respondent finding further employment."

[25] The appellant submits that it is inappropriate to consider under s.170CG(3)(e) the effect of termination on Mr Schliebs who lives in a relatively small community. It is inappropriate it is said, because such consideration will adversely impact on employers in regional and rural communities. It is said that the effect is that a termination which is not harsh, unjust or unreasonable in a larger community may become so because the employer operates in a smaller community. Further, it is said, there was no evidence to support the conclusion.

[26] It is well established that it is permissible to consider the effects of termination on the personal or economic situation of the dismissed employee. It is only necessary to refer in support of this to the observation of McHugh and Gummow J in Byrne v. Australian Airlines Ltd [131 ALR 422 at 461]:

"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 on inferences which could not reasonable have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

[27] It is not for us to introduce a restriction on what may be comprehended by s.170CG(3)(e) in light of this observation. As to the existence of the situation relied on the evidence is not great. There is an assertion in Mr Mehan's outline of submissions put before Wilks C:

"Reinstatement is appropriate . . . (because of) limited employment prospects otherwise (the RCL Mill is the main employer in Colleambally)."

However, we can find no indication of the statement being contradicted. We also consider that the Commissioner is calling upon a general awareness of the situation. In the circumstances we do not think the reliance on the statement is an appellable error.

"9. The Commissioner's finding that the termination of the Respondent by the Appellant would condemn the Respondent to unemployment or under employment for a very long time if not indefinitely is not supported by the evidence in the proceedings."

[28] Mr Schliebs found only casual employment during the period between the termination and the hearing below. That was in evidence before the Commissioner. In the absence of contrary evidence on employment options, that provided a basis for the conclusion drawn by the Commissioner.

"10. The Commissioner erred in failing to award the payment of lost remuneration in accordance with s170CH(4)(b).

11. The Commissioner erred in ordering that the calculation of the remuneration lost for the purposes of s170CH(4)(b) be calculated according to the following basis:

(a) by calculating the Applicant's average weekly gross remuneration during the three months immediately prior to the termination.

(b) by multiplying that amount by the number of weeks lost because of termination;

[29] We turn now to the remedy ordered for lost remuneration, the calculation of which is challenged by these grounds. They attack the concept behind and the detail in the calculation of the amount ordered by the Commissioner pursuant to s.170CH(4)(b) of the Act. We deal with them as one. It is noted that no attack in principle is made on the decision to award an amount in respect of the remuneration lost.

[30] Section 170CH(4)(b) is to the following effect:

"If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:

(b) subject to subsection (5)-any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination."

[31] The appellant submitted that the errors were:

(i) failing to take into account the monies paid by the appellant to the respondent of three weeks salary on the termination;

(ii) in deducting only $5000 earned by the respondent since termination since on his own evidence Mr Schliebs had earned a total of $8520 net in that period;

(iii) the result of these two errors was that the Commissioner had ordered the appellant to compensate for an amount greater than the wages lost particularly because no allowance was made in the ordained calculation for the fact that work at Ricegrowers was seasonal.

[32] On the seasonal nature of the employment we note that there was no evidence of this before the Commissioner in any way which would have enabled him to make provision for it. In those circumstances failure to allow for the alleged seasonal effect does not constitute error.

[33] However the respondent, through Mr Mehan, conceded that (ii) was an error and we are satisfied that it was. The evidence before the Commissioner was to the effect that he earned from $2000 to $2500 from casual work on farms in addition to $6020 shown through bank statements [exhibit B6].

[34] As for (i), we are of the view that that failure, in the circumstances of the case, was an error. The material was before the Commissioner. Further, we note that the payment was similar in that it was voluntary to a payment taken into account by Ross VP in Fetz and ors v. Qantas Airways Ltd [Print P6706].

[35] We find no error in that part of the decision which found that the termination of Mr Schliebs' employment was harsh, unjust and unreasonable. We regard the failure to take account of all earnings and payments in calculating the remuneration lost as an error of the kind contemplated in House v. R [(1936) [1936] HCA 40; 55 CLR 499 at 504-5] - a failure to take into account a material consideration. It is an error within the contemplation of s.170JF of the Act. The remedy to correct the error is available on the evidence reviewed by us and does not require the admission of further evidence.

[36] For the reasons given we have decided as follows:

(c) vary the order of Wilks C to take account of our finding in paragraphs [32], [33] and [34].

[37] Pursuant to s.45(7)(a) of the Act, we confirm paragraphs 1 and 2 of the order of Wilks C and vary paragraph 3 to provide as follows:

Pursuant to s.170CH(4)(b) of the Act the respondent is to pay to the applicant an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.

The amount of remuneration is to be calculated as follows:

(a) by calculating the applicant's average weekly gross remuneration during the three months immediately prior to the termination;

(b) by multiplying that amount by a number three less than the number of weeks lost because of the termination;

(c) by deducting from that amount, the amount of $8,520, being the amount earned by the applicant since the termination; and

[38] We revoke the stay issued on 28 February 2001.

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