INDUSTRIAL RELATIONS COURT OF AUSTRALIA SYDNEY DISTRICT REGISTRY No. NI 663 OF 1994 BETWEEN CHRISTOPHER HAINES Applicant AND QANTAS AIRWAYS LTD Respondent Coram: Patch JR Place: Sydney Date: 5 December 1994 MINUTES OF ORDER 1. That the termination of the applicant's employment by the respondent contravened s. 170DC, and s. 170DE (1), of the Industrial Relations Act 1988; 2. That the applicant be reinstated by the respondent by being reappointed to the position occupied by him immediately before the termination of his employment, and that that reinstatement take effect forthwith; 3. That the Respondent, on or before 28 December 1994, pay to the Applicant the sum of $17,719.53, for remuneration lost by the applicant because of the termination of his employment; 4. That the period from 29 July 1994 to 6 December, inclusive, be treated, for all purposes, as continuous employment of the applicant by the respondent in the position occupied by the Applicant immediately before the termination of his employment. Note: Settlement and entry of orders is dealt with in accordance with Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA SYDNEY DISTRICT REGISTRY No. NI 663 OF 1994 BETWEEN CHRISTOPHER HAINES Applicant AND QANTAS AIRWAYS LTD Respondent Coram: Patch JR Place: Sydney Date: 5 December 1994 REASONS FOR JUDGMENT This is an application under section 170EA of the Industrial Relations Act 1988 ("The Act"). The applicant seeks the following orders: 1. (a) An order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Act; (b) An order requiring the Respondent to reinstate the employee in employment; and (c) An order that the Respondent pay compensation to the employee. 2. Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the Respondent had not been terminated. On 5 December 1994, I made various orders. I now publish my reasons. Background facts The applicant, Christopher Haines, commenced his employment with Qantas Airways Ltd on 19 October 1987. He was employed as a Customer Service Agent. His employment was terminated by the respondent on 29 July 1994. As the applicant's employment was terminated for reasons not directly connected with the day to day tasks associated with his job, I will not canvas that aspect of the evidence in detail. Suffice it to say that, consistent with the title of his position, it was mostly to do with the processing of passengers to and from aircraft. There are, and were at the time of the termination of the applicant's employment, over 400 other Customer Service Agents employed by Qantas at the Sydney International Terminal, where the applicant worked. The events which led to the termination of the applicant's employment were not the first time that the applicant's employment with the respondent had been put in jeopardy because of something he had done. In May 1993, the applicant had checked a passenger in for her flight to Christchurch. The flight was a Qantas flight, but the ticket had been booked by Air New Zealand, and the passenger's details were held by Air New Zealand, in their computer system. Later that same day, the applicant approached an Air New Zealand supervisor and asked that supervisor to use her access code to the Air New Zealand computer so that the applicant could get the passenger's details. The applicant took a note of the passenger's return date, and her home telephone number in Sydney. On the passenger's return from Christchurch, the applicant rang her at her home. After leaving two messages (which were not returned), the applicant finally spoke to the passenger. He invited her out to dinner. She did not accept, but said she would think about it. She took his telephone number. The next day, not having received a return call, the applicant phoned the passenger at her home again. He again spoke to her, and she refused the invitation. The applicant phoned her again, after that refusal, having detected something in her tone of voice, and apologised to her for ringing her at her home. The passenger complained about the applicant ringing her at her home. On 25 May 1993 the applicant was spoken to by Mr Mike Culpan, the Manager of the Customer Service Division of Qantas at the Sydney international terminal. On 27 May 1993 the applicant, together with a union delegate Mr Paul Larssen, attended Mr Culpan's office. Mr Culpan informed the applicant that, as a result of his actions in regard to the Air New Zealand passenger, he was to be disciplined. He was informed that the following action was to occur: 1. The applicant was to be demoted to Band A9 from Band B for 12 months; 2. A letter was to be placed on his file for a period of 12 months; 3. He was to be given a first and final warning on this issue. On 3 June 1993 the union wrote to Mr Culpan and indicated that they were prepared to accept a letter on file for 12 months, as well as a final warning, but they requested, on behalf of the applicant, that Qantas not proceed with the down-grading. On 21 June 1993, Qantas responded to the union letter of 3 June, and advised that "the position stands as far as the disciplinary action is concerned." On 29 June 1993, in accordance with the dispute settlement procedures in the award covering the applicant, the union wrote to the Sydney Airport Director of Qantas, again taking issue with the downgrading of the applicant. On 4 August 1993 the Sydney Airport Director responded to the union letter of 29 June 1993 and advised that the demotion would be for 6 months rather than the originally imposed penalty of 12 months. On 20 September 1993, Mr Culpan wrote to the applicant, advising him formally of the company's decision as to the discipline to be imposed upon him for his actions in regard to the Air New Zealand passenger. It was that letter which was the letter to go on his file. As that letter said ".....this letter serves as a first and final warning on your file, which will only be removed after 12 months of satisfactory performance by you in your job." It should be noted here that the "letter on file" is simply the formal way by which the duration of the first and final warning is recorded. After the duration of the period set out in the letter (in this case 12 months), it is removed from the file, and the warning ceases to operate as a relevant consideration in respect of future misconduct by the employee. The employees of Qantas at the Sydney International Terminal work a lot of overtime. The applicant, for example, in the financial year to 30 June 1994, worked an average of 19 hours overtime per week in addition to his ordinary hours of 38 per week. This increased his gross earnings for that period to $83,587.35, from the award base rate for a 38 hour week of $31,105.00. In order to be able to efficiently allocate overtime to employees, Qantas requires them to "bid" for it in advance. This is done by requiring employees to write their names, telephone numbers and normal shifts in the "overtime bid book". The overtime bid book is a binder with sheets in it, laid out in such a way as to facilitate the entry of that information. When management wishes to allocate overtime they go to the overtime bid book. They then allocate the available overtime in order of preference, starting with the names first entered in the book. These persons are then telephoned, using the numbers provided by the employee, and informed as to what overtime they will be required to work. The overtime bid book is located near the office of the Customer Service supervisors. Any one of the over 400 Customer Service Agents at the Sydney International Terminal can enter that office at will, pick up the overtime bid book, and remove it to a position, in the same general area, but out of the immediate control of the supervisor. As Cheryl Berndt, one of the Customer Service supervisors, said, it is impossible for the supervisors to see what people are doing with the overtime bid book. The overtime bid book was Exhibit 'G' in these proceedings. The sheets for the weeks commencing 23 November and 30 November were in the bid book, as were various typed information sheets, which were in protective plastic folders which were at the front of the book. There is nothing in those information sheets, or on the outside of the book, to the effect that the information in the overtime bid book was confidential, or not available to staff for personal or private use. The evidence was that, in those respects, the book was the same as it was in June and July this year. The events which led up to the termination of the applicant's employment commenced in June this year. The applicant wanted to ask a fellow Customer Service Officer, Ms Fiona Sneddon, out to lunch or dinner. Instead of speaking to her directly, at work, he obtained her telephone number from where she had written it in the telephone bid book. On 18 June 1994, around 7.30 pm, the applicant phoned Ms Sneddon. He asked her out. On 23 July 1994, the applicant phoned Larissa Couldwell. She was asleep, and her sister took a message, which said that "Chris" had rung. At no time did the applicant speak to Ms Couldwell on the phone. The applicant had obtained Ms Couldwell's telephone number from the white pages in the telephone directory. The evidence, and findings on disputed issues of fact The content of the telephone conversation with Fiona Sneddon. In most respects, the evidence of the applicant and of Ms Sneddon on this point was similar. The principal differences, of relevance to these proceedings, concerned whether the applicant had said to Ms Sneddon that he got the number from "work" (as he asserted) or from the "book at work" (as Ms Sneddon asserted), and whether the applicant had said, in finishing the conversation, something to the effect of, "keep it between us, where I got your number from." The applicant denied saying this, and Ms Sneddon gave evidence that he had. The fact of the matter is that the applicant did get Fiona Sneddon's number from the "book at work" - ie the overtime bid book. There are two other sources from which the applicant could have got that number if he had been determined to obtain it. The first of these is the "TASQ computer system", which may be accessed by all Customer Service Agents, and which holds information including the names, addresses, and home telephone numbers of the Customer Service Agents employed by Qantas. There is also an "employee contact list", which is a list of Customer Service Agents, their phone numbers, and home addresses. It is kept in the resource allocation office in annex 6, at the Sydney International Terminal. There was, therefore, no reason for Ms Sneddon to assume, without the applicant having said it, that he had got her home telephone number from the overtime bid book. I was impressed by Ms Sneddon as a witness who was trying as best she could to accurately and truthfully recall the content of that telephone conversation. I accept her evidence as to the contents of that conversation where it conflicts with that of the applicant. The significance of that is canvassed later in this judgment. Personal use, by employees, of the telephone numbers in the "overtime bid book". The overtime bid book can be accessed at will by any one of over 400 employees. There is nothing on or in the book to indicate that the information in it is restricted or confidential. I accept that it is a widespread practice amongst the Customer Service Agents to use the book as a convenient source of other employees' home telephone numbers. However, it does not follow from that finding that the book is regularly used for the purpose for which the applicant used it - to obtain the home telephone number of a woman whom he wanted to ask out. The applicant himself said that this was the first time he had used it for that purpose, and there was no evidence that that assertion was not true. I accept what he says in respect of his own actions, but am simply unable to find, one way or the other, whether or not the private, or social, uses for which the book was used regularly extended to phoning other employees to ask them out. Nonetheless, given that the book was simply lying around, able to be accessed at will by hundreds of employees, and given that there were no apparent restrictions placed on the use of the information in it, it is not at all surprising that the applicant used it in the way he did. The respondent's case was that the information in the overtime bid book was "confidential company information". (my emphasis) It was certainly "company information", but the circumstances set out in the above paragraph make the assertion that the information was also "confidential" absurd. Furthermore, at no time had the Customer Service Agents been told, during training or otherwise, that the information in the overtime bid book was not to be used for personal purposes. If that had occurred, then the actions of the applicant in obtaining Ms Sneddon's home number from the book would have been much more serious. Were the actions of the applicant in obtaining Ms Sneddon's home telephone from the overtime bid book "of a similar character" to the incident involving the Air New Zealand passenger? The letter dated 29 July 1994, by which the applicant's employment was terminated (annexure 12 to the applicant's affidavit sworn 17 November 1994), said this: "You have previously been counselled far actions of a similar character involving a passenger, which resulted in a final warning being placed on your file. Having regard for this history, your recent action amounts to serious and wilful misconduct. Accordingly, your services with Qantas Airways Limited are terminated immediately." The evidence of Mr Culpan, whose decision it was to terminate the employment of the applicant, made it clear that the fact that, in his view, the applicant's actions in telephoning Ms Sneddon were of a similar nature to the previous incident, was a significant factor in his decision. However, the Court has to make it own assessment of the facts, and their significance, in order to determine whether or not there was a valid reason for the respondent to terminate the employment of the applicant. There were some important differences between the two incidents: 1. The first incident involved a passenger, not a fellow employee. From the company's perspective, this was, as Mr Culpan conceded, more serious, because of the commercial ramifications involved in a situation where information provided by passengers was wrongly used by staff for personal purposes. 2. All staff well knew that they could not use private passenger information for their personal purposes - that was certainly not the case in respect of the overtime bid book. 3. It is clear that the information provided by passengers was "confidential" company information - again, that was not the case in respect of the overtime bid book. 4. The applicant obtained access to the Air New Zealand information by accessing the computer using an access code which he had obtained from an Air New Zealand supervisor. The conversation between the applicant and George Notman Mr Notman is the employees relations coordinator for the respondent in NSW and the ACT. He gave evidence that, in early August 1994, he had a conversation with the applicant, in which the applicant said words to the following effect: "I've done nothing wrong." "I will be re-instated and I'll fight as long as it takes." "I believe that Mike Culpan has been out to get me." "When I'm re-instated, the first thing I'll do is get a written apology from all concerned." "I'll make life difficult for them when I get back." "Mike Culpan won't know what's hit him." The applicant denied saying such words. Without finding it necessary to make any adverse findings as to the credit of the applicant, I accept, on balance, Mr Notman's version of what the applicant said. Mr Notman gave evidence that that part of the conversation with the applicant was "vivid" in his mind, and he impressed me as a witness. It is understandable that the applicant was very angry at the time. After all, his employment had just been terminated by Mr Culpan. There were no threats of physical violence, and, in the context of what had happened to him, I do not believe that what the applicant said to Mr Notman should be understood in any way other than the intemperate expression of his feelings. In particular, I do not accept that the applicant now thinks in that way. Did the Respondent give the Applicant the opportunity to defend himself against the allegations which resulted in the termination of his employment? Section 170DC of the Act is as follows: "An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: a) the employee has been given the opportunity to defend himself or herself against the allegations made; or b) the employer could not reasonably be expected to give the employee that opportunity." The applicant was informed of his termination by letter dated 29 July 1994. In full, that letter reads as follows: "Dear Mr Haines" The company has today investigated complaints from staff that you accessed company records to acquire private telephone numbers and utilised that information for personal reasons. The company is satisfied that the complaints are accurate and that you knowingly acted wrongfully. You have previously been counselled for actions of a similar character involving a passenger, which resulted in a final warning being placed on your file. Having regard for this history, your recent action amounts to serious and wilful misconduct. Accordingly, your services with Qantas Airways Ltd are terminated immediately. You will be paid four weeks wages as compensation instead of notice. In order to hand over company property (ie. carpark pass and uniforms etc) so that clearance of your final monies can occur, please meet with George Notman, Employee Relations SIT at 10.00am on Tuesday, 2 August, 1994. It is important to note that the applicant was dismissed because he had "knowingly acted wrongfully." Or, he was dismissed because his recent actions amounted to "serious and wilful misconduct." At no stage did the respondents managers, including Mr Culpan, put to the applicant that he had "knowingly" or "wilfully" misconducted himself, when he had "accessed company records to acquire private telephone numbers and utilise that information for personal reasons." It was put to the applicant that he had done that, but it was not put to him that, in so doing,, he had knowingly breached company policy, or had, in some other way, deliberately breached the conditions of his employment. As this was a significant element in the decision to terminate the employment of the applicant, and as that particular state of mind was never put to the applicant by the respondent, the termination of the applicant's employment was clearly a breach of 170DC of the Act, and was unlawful. Was the termination of the applicant's employment by the respondent for a valid reason? Section 170DE(1) of the Act is as follows: "An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service." The employment of the applicant was terminated by respondent for two related reasons. They were: 1) The applicant had used confidential company information for his own personal purposes; 2) The applicant had breached the privacy of Ms Sneddon. The first reason cannot be sustained, because it cannot be said that the information in the overtime bid book was, in any sense, "confidential". Furthermore, if that information provided by employees was regarded by the company as "confidential", then its ready availability to over 400 employees was a serious breach of company policy by management. If any "blame' is to be attributed, then the vast bulk of it would go to the company's managers responsible for allowing information, which, in their opinion, was confidential, to be so readily available. I accept that the applicant said to Ms Sneddon that he had got her telephone number from "the book at work" I also accept her evidence that the applicant asked her not to say where he had got her telephone number from. But it does not follow from that that the applicant was aware of a company policy (and aware that he was breaching a company policy) when he used the overtime bid book to obtain Ms Sneddon telephone number. In my opinion, it is likely that the applicant had some doubts about the correctness of his behaviour in getting Ms Sneddon's number from the overtime bid book, but that is a far cry from a deliberate breach of company policy. In any case, in view of the fact that the book was just left lying around, and other employees used it for personal purposes, the conduct of the applicant in respect of the book, was, at worst, misconduct of a minor nature, and not a valid reason to terminate his employment. The question of whether or not the applicant had invaded Ms Sneddon's privacy in telephoning her at her home is a more difficult one. Ms Sneddon's telephone number was an unlisted one. When she received the telephone call from the applicant it must have been a surprise to her. I accept that she felt that her privacy had been invaded, and that the telephone call from the applicant was unwelcome and uninvited. But the applicant did not know that Ms Sneddon's telephone number was an unlisted one. He did not know that Ms Sneddon would regard a telephone call from him as unwelcome. He did not persist in telephoning her at her home when she made it clear that she did not want that. He took her refusal to go out with him at face value. There is no suggestion, and nor could there be in this case, that the applicant in any way harassed or intimidated Ms Sneddon. (Or Ms Couldwell). If that had occurred, then I would take a different view altogether of the applicant's actions. However, on analysis, all that he did was telephone a fellow employee, a women, at her home and ask her out - instead of speaking to her face to face at work. I accept that the applicant, is to some extent, socially inept. Certainly, to telephone a fellow employee at her home, rather than speak to her face to face at work, displays a certain social ineptitude. The same thing could be said in respect of the telephone call to Ms Couldwell. I find that the applicant did not think that he was invading Ms Sneddon's privacy when he telephoned her. It was simply a rather gauche way of inviting her out. I stress here that Ms Sneddon's reaction was entirely understandable, and I make no criticism of her at all. Any breach of proper behaviour by the applicant was, at worst, again of a minor nature, and did not warrant his dismissal. I therefore find that the second reason advanced by the company for the termination of the applicant's employment was not a valid reason. The complaint from Ms Couldwell. Mr Culpan conceded in evidence that Ms Couldwell's complaint was, in the end, not relied upon in the decision to terminate the applicant's employment. In particular, Mr Culpan conceded, that, prior to the decision to terminate the employment of the applicant, he had "reluctantly" decided to accept that the applicant was telling the truth when he had said that he had got Ms Couldwell's telephone number from the white pages. Yet the dismissal letter stated that "the company is satisfied that the complaints are accurate............" It is, thus, difficult to accept that Ms Couldwell's complaint played no role in the decision to terminate the employment of the applicant. It cannot be said that simply obtaining the telephone number of a fellow employee from the white pages, and ringing her at her home and asking her out, can,, in any way, be a valid reason for the termination of someone's employment. Was the termination of applicant's employment by the respondent "harsh, unjust or unreasonable". In Byrne & Frew v Australian Airlines Ltd, his Honour, Gray J, in considering the use of the term "harsh, unjust or unreasonable", in an industrial award, said at page 63: "So far, the procedural aspects of a clause such as cl 11(a) have been seen as confined to the need for the employer to make a proper investigation of the facts and to consult with the employee about those facts and their possible consequences...................In my view, that analysis has been inadequate. The use of the word "unjust" in the clause is intended to import the requirements of natural justice or procedural fairness into the process of terminating employment." His Honour went on to say, at page 64: "..........I am of the view that a clause such as cl 11 (a) requires that an employer contemplating terminating the employment of an employee is obliged to afford procedural fairness to that employee. Not to do so would be "unjust"." In my opinion, to quote Beaumont and Heerey JJ in Byrne v Australian Airlines, at page 39: ".........the conduct of the respondent, in attempting to bring the attention of (Mr Haines) exactly what it was that the respondent was complaining about so far as (it was) concerned, fell short of the standards that are reasonably to be expected of a reasonable employer. The respondent failed to indicate to (Mr Haines) in a way that could be clear to (him) the misconduct on (his) part. In my opinion, the failure of the respondent to put to the applicant that he had knowingly breached company policy, or knowingly or wilfully misconducted himself, was procedurally unfair. The termination of his employment was, therefore, "unjust and unreasonable". The company took into account the previous incident involving the Air New Zealand passenger. That incident occurred in May 1993. The company were notified by the union on behalf of the applicant, on 3 June 1993, that the applicant accepted that he would receive a first and final warning, and that a warning letter would go on his file for 12 months. However, entirely through the actions of the company, that letter did not go on his file until 20 September 1993. Mr Culpan conceded that, if during that period up to 20 September 1993 the applicant had misconducted himself in a similar way, the Air New Zealand passenger incident would have been taken into account in considering what discipline was to be imposed upon him. Therefore, the applicant was under "warning" in respect of the Air New Zealand passenger incident from the beginning of June. The placing of the warning letter on file was, in this case, part of the disciplinary procedures agreed to between the union and the respondent. The decision to put the applicant on "warning" was made in May, and was to be of only 12 months duration. I find that, because the practical effect of the actions of the company in not putting the letter on file until 20 September 1993 was that the warning period was of nearly 16 months duration, the taking of the warning into account was "unjust". For the above reasons, even if I was of the opinion that the reasons for the respondent's termination of the applicant's employment were otherwise 'valid', I would find that the termination of his employment was not for a 'valid reason', and was therefore an infringement of section 170DE(1) by virtue of the operation of s 170DE(2) Is the reinstatement of the applicant impracticable? Section 170EE(1) and (2) are as follows: I. "In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may make the following orders: A. an order requiring the employer to reinstate the employee by: 1. reappointing the employee to the position in which the employee was employed immediately before the termination; or 2. ............................................................................................. B. If the Court makes an order under paragraph (a): 1. any order that it thinks necessary to maintain the continuity of the employee's employment; and 2. an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination. II. If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate." The applicant seeks reinstatement to the position he occupied prior to the termination of his employment. Section 170EE (as now amended) requires the Court to first consider whether reinstatement is "impracticable". There is a distinction between compensation in lieu of reinstatement, which may be awarded under sub-section (2) of section 170EE, and an order requiring the employer to pay to the employee remuneration lost by the employee because of the termination, which may be awarded under sub-section (1) of section 170EE. Compensation under sub-section (2) may only be ordered if the Court finds that the reinstatement of the employee is impracticable. In the case of Ian Samuel McGregor Nicholson v Heaven and Earth Gallery Pty Ltd (No. NI 127 of 1994) (unreported, 20 September 1994) his Honour Wilcox CJ said, at page 25: "It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word "impracticable" requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business, it may be "impracticable" to order reinstatement, not withstanding that the job remains available." I approach the facts of this case bearing in mind what his Honour said in that case. In Graham Foxcroft v The Ink Group Pty Ltd (No. NI 447 of 1994) (unreported, 14 October 1994) his Honour Wilcox CJ said, at page 6: "Especially since the June 1994 amendments to Part VIA of the Act, which substituted a new s. 170EE, the legislative emphasis has been on reinstatement of unlawfully terminated employees." It follows that the primary remedy for an unlawful termination of employment is reinstatement, but that the Court should not order reinstatement if it is "impracticable". In my opinion, the reinstatement of the applicant is not impracticable. Mr Culpan gave evidence that he did not want the applicant re-instated because he "did not trust him" anymore, as a result of the incidents which led to his decision to terminate his employment. This is largely based on Mr Culpan's belief that the applicant knew he was breaching company policy, and knew that he was wrongfully accessing confidential company information, when he obtained Ms Sneddon's number from the overtime bid book. But, on analysis, there is no basis for finding that the applicant had that state of mind. The applicant has , no doubt, thoroughly learnt the confines of the uses to which the information in the overtime bid book can be put. I accept his undertaking not too use it for personal purposes in the future. In the near future, if the applicant confines himself to what he now knows are the proper uses of the overtime bid book, I am confident that the relationship between him and Mr Culpan will restore itself to one which, although perhaps not amicable, is sufficient to enable them to work normally together. The principal concern which I have about the reinstatement of the applicant is the question of the feelings of Ms Sneddon and Ms Couldwell. I accept their evidence that it would be difficult for them to work with the applicant. But there are over 400 Customer Service Agents employed by Qantas at the Sydney International Terminal. If matters are arranged sensibly by management, then the applicant and Ms Sneddon and Ms Couldwell would not have to be on the same work team. There would, no doubt, be chance contact between them. But Ms Sneddon and Ms Couldwell, and the applicant, will have to act sensibly - as I am confident they will. After all, what the applicant did in respect of them, although socially clumsy, was not at all rude, offensive, repetitive, and nor did it amount to harassment or intimidation. In ordering reinstatement, I also bear in mind what I consider to be some important policy considerations. These are: (1) Reinstatement is the primary remedy, and the opportunities for the applicant to obtain employment in his chosen field would be virtually nil. In these circumstances, a remedy which involved less than reinstatement would not be a satisfactory or just remedy; (2) It is almost inevitable that friction will be created by the termination of a person's employment, and the institution of proceedings under the Act. If the Court were to give undue emphasis to what are virtually inevitable frictions, that would seriously undermine the principle that reinstatement is the primary remedy. What orders in respect of monetary payment should be made? As I propose to order the reinstatement of the Applicant to his former position, the power to make an order for monetary payment is to be found in s. 170EE (1) (b) (ii) which gives the Court the power to make an order: "requiring the employer to pay to the employee the remuneration lost by the employee because of the termination." The applicant has been unemployed for 100 days as a result of the termination of his employment. The evidence established that, in the year to 30 June 1993, he earnt, including overtime, the sum of $83,587.35. It is reasonable to conclude that he would have, on average, continued to earn at the same rate. 100 days at that rate comes to $23,090.43, which is the amount he would have earned if his employment had not been terminated, and the starting point for the calculation of the remuneration lost by him. He was paid $2,392.68 in lieu of notice, and $620.22 as payment for a shift in lieu of notice, and I deduct those sums from any compensation due to him. He also received, as Social Security payments, the sum of $1,633.55, and I also deduct that sum. He also earnt, as a hire car driver, the sum of $724.45, and that is likewise deducted. The resulting figure is $17,719.53. I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch. Associate: Dated: APPEARANCES Solicitors for the applicant: Minter Ellison Counsel for the applicant: Goot, R M Solicitors for the respondent: Blake Dawson Waldron Counsel for the respondent: Coleman, P C Dates of hearing: 1, 2 December 1994