C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - whether PROCEDURAL FAIRNESS - HARSH, UNJUST AND UNREASONABLE - REINSTATEMENT INDUSTRIAL RELATIONS ACT 1988 Ss 170DB, 170DC, 170DE, 170EA, 170EDA, 170EE Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 Janicek v ICI Dulux, unreported, IRCA No. 599/95, Wilcox CJ, 4 September 1995 Byrne v Australian Airlines Limited (1995) 131 ALR 422 Liddell v Lembke (1994) 127 ALR 342 Abbot-Etherington v Houghton Motors Pty Ltd, unreported, IRCA No. 528/95, Marshall J, 28 September 1995 Tranter v Council of the Shire of Wentworth, unreported, IRCA No. 573/95, Marshall J, 24 October 1995 Klingenburg & TWU v I.R.. Coates Pty Ltd, IRCA No. 398/95, Marshall J, 24 August 1995 CLEM PAUL MICHAEL CUMBO -v- SIN-AUS-BEL PTY LTD t/as THE ASCOT INN - WI 95/2076 BEFORE: RITTER JR PLACE: PERTH DATE: 21 DECEMBER 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/2076 BETWEEN: CLEM PAUL MICHAEL CUMBO - Applicant AND: SIN-AUS-BEL PTY LTD t/as THE ASCOT INN - Respondent MINUTE OF ORDERS BEFORE: RITTER JR PLACE: PERTH DATE: 21 DECEMBER 1995 THE COURT ORDERS THAT: 1. It is declared that the termination of the employment of the applicant by the respondent ("the termination") contravened Section 170DC of the Industrial Relations Act. 2. The respondent shall within 14 days reinstate the applicant by appointing him to the position in which he was employed immediately before the termination. 3. The employment of the applicant is deemed to have continued for all purposes from 5 September 1995 until the date of reinstatement in accordance with this order. 4. Within 14 days of the date of this order, the respondent pay to the applicant his loss of remuneration at the rate of $411.70 per week less PAYE taxation at the appropriate rate, from 19 September 1995 to the date of reinstatement. 5. If the amount to be paid pursuant to order 4 cannot be agreed, there be liberty to apply on not less than 48 hours notice to the other party. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/2076 BETWEEN: CLEM PAUL MICHAEL CUMBO - Applicant AND: SIN-AUS-BEL PTY LTD t/as THE ASCOT INN - Respondent BEFORE: RITTER JR PLACE: PERTH DATE: 21 DECEMBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 ("the Act"). The applicant seeks the reinstatement of his employment with the respondent and an order requiring the respondent to pay to the applicant the remuneration lost by reason of the termination. The applicant alleges that the termination of his employment was in contravention of Sections 170DC and/or 170DE of the Act. Mr Fry for the applicant contended that the termination of the applicant's employment lacked the procedural fairness required by Section 170DC. He also submitted that the lack of such procedural fairness meant that the termination of employment was harsh, unjust or unreasonable and therefore in breach of Section 170DE. The respondent submitted that the termination of the employment of the applicant was for a valid reason and that the requirements of Section 170DC had been satisfied. Further and in the alternative, the respondent submitted that if a finding was made that the applicant's employment had been terminated in breach of the Act, that reinstatement was impracticable and should not be ordered. THE FACTS The applicant gave evidence in support of his case and Mrs Cecilia Wee, the Managing Director of the respondent, gave evidence for the respondent. From 20 December 1992 the applicant was employed as a full time night porter with the respondent at the Ascot Inn. It was not in dispute that the respondent terminated the applicant's employment on 5 September 1995. The termination of employment was effected by a letter from the respondent to the applicant on that date (Exhibit 13). Omitting formal parts, the letter is as follows: "I refer you to our letter dated the 1st September 1995 in particular to the last paragraph of our letter. 'I hereby advise you that should all of the aforementioned points not be rectified by you immediately and your attitude to your employment improve to my satisfaction, I will have no alternative but to terminate your employment.' (1) Your refusal to be suitably dressed. THIS IS NOT ACCEPTABLE. (2) To date you have still failed to write a Night Report whereby causing management to have a 'News Black Out' of events of the Hotel during all your shift duties between the hours of 10-45 pm to 6-30 am ­THIS IS MOST UNACCEPTABLE. (3) Refusal to keep Reception area clean and polished as prescribed during the hours of 6-30 to 7-30 am. THIS IS NOT ACCEPTABLE. Since your return from Annual leave on the 14th August 1995 you have made it a point to defy management by persistantly (sic) resisting to perform the duties required of a Night Porter. You have been rude, unpleasant and inparticular (sic) to Mrs Wee M/Director. To date we have given you many chances to improve your work attitude towards your Night Porter Duties but to no avail, inspite (sic) of verbal counselling by Mrs Wee and as a last resort through letters of warning. You have still persisted in your disregard of management instructions and instead have threatened Industrial action for unfair dismissal and defamation if you are dismissed for non performance of your duties. To avoid any further unpleasantness and defiant conduct from you, we therefore have no alternative but to terminate your employment with us with immediate effect. Your pay and holiday entitlements and notice pay in lieu of notice will be available for you to-morrow at 4-30 pm at Reception from Pay Master Mr John Hall. We trust that perhaps a change of environment from the Ascot Inn may bring you better fulfilment in your future endeavour and we Wish (sic) you well." The terms of this letter make it necessary to refer to the events leading up to the termination of employment. The applicant's employment was governed by the Hotel and Tavern Workers' Award, 1978 (WA). As stated above, the applicant worked as a night porter for the respondent at the Ascot Inn. Prior to August 1995 he worked from 10.45 pm to 6.30 am from Monday to Saturday. From about January 1993, the applicant raised on several occasions whether he was being properly paid in accordance with the Award. He raised such issues as the applicable Award rate, Award increases and penalty rates. Generally these issues were resolved. However, one issue that was not resolved was the question of a meal break. As stated above, the applicant's hours of work were 10.45 pm to 6.30 am. The applicant said that there was no formal meal break in these hours of work. Clause 13(1) of the Award states that every employee shall be entitled to a meal break of not less than one half hour nor more than one hour after not more than six hours of work. The sub-clause goes on to state that where it is not possible for the employer to grant a meal break, the employee shall be paid at the rate applicable to the employee at the time such meal break is due, plus 50% of the prescribed ordinary hourly rate applying to the employee, until the time that the employee is released for a meal. The applicant became aware of the provisions of the Award dealing with meal breaks in about April or May 1993 after looking at information provided to him about the Award by his union. The applicant raised with the respondent the payment that ought to have been made to him pursuant to the Award, for being required to work a shift in excess of six hours without a meal break. This issue was unresolved to May 1995. Mrs Wee in her evidence did not acknowledge that there was any claim for payment in lieu of a meal break until May 1995, but little turns on this. It is common ground that in May 1995 a representative of the union of the applicant attended at the premises of the respondent to look at the applicant's time sheets. Later, an official claim was made by the union on behalf of the applicant for amounts allegedly owed to the applicant in lieu of a formal meal break. The total amount claimed was in excess of $10,000. This claim has not been accepted by the respondent and is still in dispute. In June 1995 the applicant took a week's sick leave. The applicant said that during this period he received in the mail a document. The document was written on Ascot Inn letterhead and addressed to all night porters (Exhibit 3). However, it was undated and unsigned. The document was a "reminder" to night porters of the required dress standards. This was stated to be:- 1. White shirt and black tie. 2. Black jacket or jumper. 3. Clean black shoes and socks. 4. A well groomed appearance. To the applicant, this was a change in dress requirements. He stated that when first employed he was simply told that he had to be neat and dressed in a way sufficiently presentable to work at reception during the evening. The applicant had generally worn a blue, black or mauve shirt when at work. The blue and mauve shirts were purchased for him by Mrs Wee. There was a dispute between Mrs Wee and the applicant as to whether these shirts were bought for him to wear at work. Mrs Wee maintained they were to be worn away from work. However, it is apparent that the applicant wore these shirts at work for a considerable period of time without being told not to. When the applicant returned to work a copy of the dress standards reminder that he had received in the mail was placed on the door at the back of reception. The applicant continued to wear the same shirts that he had worn prior to receipt of the dress standards reminder. He claimed that on one occasion after the document was received he had discussed his black shirt with Mrs Wee who had said that the shirt was fine and that black was one of her favourite colours. However, this was denied by Mrs Wee. The applicant also said in his evidence that in October or November 1994 there was some discussion with Mrs Wee about two white shirts being bought for him to wear at work. This was prior to the time when the blue and mauve shirts were bought for him by Mrs Wee. Again Mrs Wee denied that there was any discussion about the purchase of white shirts for the applicant. On 25 June 1995 the applicant went on 36 days of accrued annual leave. He did this because his employer required him to do that. He was given 17 days written notice of the requirement to take the annual leave (Exhibit 4). Mrs Wee in her evidence said that she required Mr Cumbo to take his annual leave because he had been acting in what she described as a peculiar way. In elaborating on this she referred to instances which indicated that Mr Cumbo was exhibiting unstable behaviour at work. However, these matters were not specifically put to Mr Cumbo in cross examination. Although in her evidence Mrs Wee gave some instances of some prior dissatisfaction with Mr Cumbo's work, at no time prior to taking the annual leave had he received a written warning about his conduct at work. Mr Cumbo was to return to work from annual leave on 14 August 1995. On 10 August 1995 the respondent had delivered to the home of the applicant a letter to him (Exhibit 5). The applicant said this letter was received on 11 August 1995 but little turns on this. Omitting formal parts, the letter reads as follows: "Hope you had a nice holiday. You are hereby advised that on your return to duty on the 14th August 1995 at 10.45 pm you will perform the normal duties of the Night Porter as before your annual holidays with the exception of one hours break (as per your request through your Union) and the duties for the replacement of the 1 hour break. We have therefore allotted you the break period as at 3.00am-4.00am and at the moment Paul Lebas will replace you on your break. We wish to inform you that your break period should be in the Staff Room which is situated adjacent to the Derby Room and has toilet facilities next to it, or you may leave the premises during your break. We also wish to inform you that personal visitors are not permitted on the premises during duty hours and break period and that there should be no smoking within the establishment at all times. There should be no personal phone calls whilst you are on duty unless it is a case of an emergency and if so, should be reported to the Management either on extensions 151 or 202. In order to fill up the replacement hour utilised for your break period you are instructed to take charge of cleaning and maintaining (in conjunction with Paul Lebas advise [sic]) as follows: 1. To keep polished all Brass ware of the public areas ie: Reception, function rooms and Entance (sic) doors (Brasso). 2. To polish with Mr Sheen or Furniture Polish to all doors, tables, benches windows, door panels and window sills. 3. To keep clean all glass windows and doors of Reception, Atrium and windows along the passage way to the River Room. 4. To empty all ashtrays, bins and sweep all entrances including pathway around Reception car porch and side entrances. Therefore your end of duty time will be 7..30 am daily." The first substantive paragraph contains an inaccuracy in that the request from the applicant through his union was not for one hour's meal break, but to be paid at the rate specified in the Award, if the employer was going to exercise its option not to allow a formal meal break for the applicant. Mr Paul Lebas, who is referred to in the letter, was a contract cleaner who performed the primary cleaning duties at the hotel during night hours. There was evidence from the applicant and Mrs Wee about their understanding of the meaning of the paragraph prior to the enumerated cleaning duties. However, it is really a matter for the Court to determine the meaning of this paragraph. In my opinion, this paragraph instructs the applicant that he is to fill up the hour in replacement of the hour utilised for the meal break by performing some or all of the cleaning duties set out. As to which matters the applicant was to do on any particular day, he should consult with Mr Lebas. However, I do accept that there is some ambiguity in this paragraph which ought to have been clarified for the applicant. I also consider that not all of the enumerated paragraphs are free from ambiguity. For example, it is not clear whether paragraph 2 refers to all or only some areas of the hotel. The same criticism can be levelled at paragraph 4 insofar as it refers to ash trays and bins. In his evidence the applicant estimated that the duties listed in the four points would take at least three hours' work by a professional cleaning contractor, or 1˝ hours each for himself and Mr Lebas. The applicant attended for work on 14 August 1995 at his usual commencement time at 10.45 pm. The applicant said that he commenced his duties, as usual, with an external patrol of the premises. This lasted until about 11.00 pm. At about 11.30 pm he saw Mrs Wee. He said that Mrs Wee briefly mentioned the letter. Later, there was a lengthy conversation between the applicant and Mrs Wee. The applicant stated that the subject matter was the computation of amounts to be paid to the applicant instead of being previously paid for meal breaks. The applicant said that Mrs Wee asked him whether he could claim money like that in his conscience. The applicant said that this made him feel terrible. The applicant said there was no conversation concerning his cleaning duties as set out in the letter. The only discussion was a reinforcement by Mrs Wee that he should take a meal break and do cleaning duties between 6.30 am and 7.30 am. The applicant said there was some discussion about the validity of the contents of the letter given that it had been delivered to him at home. The applicant said he also mentioned that if he was to do cleaning duties he would need a shower. The applicant was told by Mrs Wee that he could use a shower upstairs. The applicant said he was not told where he could obtain cleaning materials from. He knew where there was a can of furniture polish but he did not know where Brasso was kept. The applicant said that night Mr Lebas did not attend to relieve him between 3.00 am and 4.00 am so that he could take a meal break. Therefore the applicant remained at the reception desk. The applicant said that Mr Lebas was cleaning. The applicant said he could not leave the reception desk because there would have been no-one else there to attend it. The applicant then ceased his duties at 6.30 am and left for home. The applicant said that he last saw Mrs Wee that night at about 11.30 pm when he escorted her upstairs. Mrs Wee resides at a unit at the Ascot Inn. The applicant did not do any cleaning duties that night. The evidence of Mrs Wee about 14 August 1995 was somewhat different. She said that she had written the letter dated 10 August 1995 so that there would be no misunderstanding about the applicant's duties. She said that the letter was sent to the applicant by courier so as to make sure that he would be aware of the contents of the letter prior to his recommencement on 14 August 1995. Mrs Wee agreed that she spoke to the applicant on the evening of 14 August 1995. She said that the applicant was fine at first but, "then he got stupid". Mrs Wee said that the applicant raised the issue of whether it was illegal to prevent people smoking in the hotel. Mrs Wee said that she replied that the applicant would have to abide by the "No Smoking" signs. She said that the applicant reacted by putting a cigarette in his mouth and saying "What are you going to do about it?". Mrs Wee said that she thought this was cheeky and defiant. The applicant denied this incident in cross examination. Mrs Wee said that there was also some discussion about the cleaning duties that the applicant was to perform. She said that the applicant was also defiant in this part of the discussion. She said that the applicant had said that he could not be forced to take a meal break because he was entitled to three days' notice before there could be a change in his hours of employment. Mrs Wee said that because of this, she instructed Mr Lebas not to make himself available to relieve the applicant between 3.00 am and 4.00 am for a further three days. Mrs Wee also said that the applicant objected to doing the cleaning work required of him and refused to do it. Mrs Wee said that she informed the applicant that the union had been contacted and had advised the respondent that the duties of a night porter could include cleaning. Mrs Wee said that the conversation was concluded by her walking away when she considered that the applicant was being "silly". In cross examination the applicant accepted that he did tell Mrs Wee on 14 August 1995 that she could not change his hours of work unless he had been given three days' notice. He said that he received this information from the State Industrial Relations Commission. The applicant disputed that there was a discussion about the cleaning duties set out in the letter of 10 August 1995. When she was cross examined, Mrs Wee also said that there was mention of the need for night porters to complete a night porter's report sheet. She said that the applicant waved it away. She said, however, that no details were discussed about the night report. Mrs Wee said that the conversation lasted until about 2.30 am, in cross examination. It is not easy to determine what actually occurred on 14 August 1995. I was not overly impressed by either the applicant or Mrs Wee as witnesses. This impression was based both on the substance of the evidence given by them and the manner in which they gave their evidence. Both witnesses had inconsistencies in their evidence. For example, the version of events on 14 August 1995 given by Mrs Wee differed between examination in chief and cross examination. Mrs Wee also said that the completion of all of the cleaning tasks in the letter of 10 August 1995 would take only half an hour. She later changed this to a total of 40 minutes when asked how long it would take to complete each listed item; ie 10 minutes per item. This appears to conflict with her evidence in chief that the applicant was not expected to complete each task, every day. I find it difficult to accept that the cleaning tasks listed would take only 30 or 40 minutes to complete. I think Mrs Wee was deliberately minimising the time involved to try and overemphasise the unreasonableness of the applicant's conduct in not completing such duties. An example of the applicant giving inconsistent evidence was in regard to the evidence he gave about smoking at the premises. When cross examined on the first day of the trial about whether he smoked at the premises after receiving the letter dated 10 August 1995, the applicant first checked whether he had to answer this question and on being told he did, answered yes. On the following day, however, the applicant changed this evidence. He said that he had smoked after "No Smoking" signs had been placed up but he had not smoked since receiving the letter dated 10 August 1995. The applicant then apologised if his previous evidence had created a wrong impression. I consider that this was a deliberate change of evidence and that this affected the credibility of the applicant as a witness. In the end I suspect that what actually happened on 14 August 1995 was somewhere between the versions relayed by the applicant and Mrs Wee. I think that the applicant and Mrs Wee in their evidence both tended to overemphasise the "unreasonable" conduct of the other. On balance, I do not find it proved that the incident concerning the applicant placing the cigarette in his mouth did occur nor do I find it proved that there was any discussion about the night report that evening. I find that there was a general conversation with the applicant about cleaning duties but that this did not contain precise instructions on what the applicant was to do. The applicant attended for work on Tuesday 15 August 1995 at 10.45 pm. It is agreed that there was an argument between the applicant and Mrs Wee that evening in one of the public bars. However again the versions of the events were different. The applicant said that when doing his external patrol at the commencement of his duties he found that a toilet in one of the closed bars had not been locked. He did not have the keys to lock the toilet. He therefore approached the duty manager who was in the front bar to ask him to lock the toilet. Mrs Wee was with the duty manager. The applicant said that Mrs Wee asked what had happened to the night report of the previous evening. The applicant said he asked which night report. Mrs Wee said "Are you too thick skinned to understand - the supervising night report". The applicant thought that Mrs Wee meant the report that the night manager would complete and he informed her of that. The applicant said that Mrs Wee also baited him and said that the business was not a charity and that the applicant had to earn his keep. The applicant said that he said in a raised voice that he was owed $5,500 by her. The discussion denigrated to the point where Mrs Wee suggested she might smash a tea cup into the face of the applicant. He said she also called him a "scum". In cross examination the applicant admitted that he may have made a comment to Mrs Wee to the effect that if she wanted a supervisor's night report it would cost $500. The applicant also acknowledged that on reflection his behaviour in the bar was not appropriate. He said that he was remorseful but had got carried away with the situation. Mrs Wee in her evidence said that she was in the bar with the night manager and a few other people. She said that the applicant came into the bar. She said to him "Don't forget to give me the night report". She said that the applicant then went "mad", waved his arms around and said that that was a supervisor's job and he should be paid $500 for doing such a job. Mrs Wee said that she told the applicant to "calm down and come here". She explained that she wanted a report of what happened during the night. She said that she pointed out that the night report was a job that she wanted the applicant to do and which he should do. She said that if the applicant refused to do what she asked then he would become a charity case. The applicant then said that five and a half thousand dollars was owed to him. Mrs Wee then said that if the applicant didn't shut up she would break a cup in his face. She said that the applicant said "Go on" and pointed to his face. She said that the applicant continued to rave on. In cross examination it was put to Mrs Wee that in the respondent's summary of facts it said that, "On 15 August 1995, the respondent spoke to the applicant in the public bar and reminded him to write a nightly report in the log book". It was put to Mrs Wee that this was different from her evidence in that she referred to a night report, which could be constituted by a single sheet of paper setting out the happenings at the hotel in the evening. Mrs Wee stated that the summary of facts contained a mistake and she definitely referred to the night report in a conversation with the applicant. Again I find it difficult to determine what actually occurred on the evening of 15 August 1995. Again I suspect that the truth lies somewhere in between the versions given by the applicant and Mrs Wee. However, I am not satisfied that there was any clear indication given by Mrs Wee to the applicant during the course of 15 August 1995 as to what he was required to do with respect to a night report. Mrs Wee said in her evidence that the requirement for a night porter to write a night report was introduced when the applicant was on his annual leave. During this period, Mr Lebas completed a written night report and put it in a file on the reception desk. When cross examined, Mr Cumbo said that he had not seen any such file until 3 September 1995; that it was not in reception prior to that. The letter to Mr Cumbo on 10 August 1995 makes no mention of a new system of writing up night reports. It would have been appropriate, if such a system was going to be introduced that it would have been mentioned in this letter, which informed the applicant of changes in his duties. Failing that, the applicant should have been given a clear instruction about the night report on his return to work. Both before and after taking his annual leave, the applicant did complete a number of reports. He explained in his evidence that this included a daily log book recording events at the hotel, a maintenance log book noting required maintenance work, a visitors' book recording all people who attended at the hotel during the shift, a hotel key book containing names of all people to whom keys had been given during the shift, a newspaper list of the number of newspapers delivered, a list of the amount of bread delivered, a monthly reservation chart and daily room report, wake up call list and dairy delivery list. As the applicant was writing all these reports it is understandable that he would have had some difficulty when questioned by Mrs Wee about the failure to complete a night report on 15 August 1995. However, it should also be said that the applicant displayed no real initiative in finding out what Mrs Wee was talking about, either then or subsequently. There was no significant contact between the applicant and Mrs Wee for the remainder of the week commencing 14 August 1995. At no time during that week did the applicant work from 6.30 to 7.30 am nor did he do any cleaning work, separate from his normal night porter duties. Mr Lebas did not relieve him so he could take a meal break from 3.00 am to 4.00 am, until the Thursday/Friday shift. The applicant said in his evidence that Mr Lebas generally left the premises at about 5.00 am after completing his cleaning duties. He therefore said that he could not clean in conjunction with Mr Lebas from 6.30 to 7.30 am. He also acknowledged that at no time did he discuss with Mr Lebas the cleaning duties that he should undergo. Again, this displayed a distinct lack of initiative. The applicant said that he did work to 7.30 am on Monday 21 August 1995. Mr Lebas had relieved him at 3.00 am for one hour. He did not perform cleaning duties between the hour of 6.30 and 7.30 am but remained in or near the reception area. During the period 14 August to 21 August the applicant did not wear a white shirt to work and did not write a separate night report. On the evening of Sunday 20 August 1995 the applicant received a letter from Mrs Wee (Exhibit 6). The letter was sealed in an envelope and given to the applicant by a receptionist when he commenced his duties. The applicant opened and read the letter. At this time Mrs Wee was away from the Ascot Inn having gone to Albany. Omitting formal parts, the letter reads as follows:- "Since your return to work after your annual leave, you have gone out of your way to be oppressive, obstructive, rude and unco-operative in the execution of your required duties as a Night Porter. They are as follows: 1. Refusal to be suitably dressed as required ie: White shirt, black trousers, black tie and black shoes. 2. Smoking in a Non Smoking area. 3. Refusal to write nightly report. 4. Refusal to keep reception area clean and tidy. 5. Deserting the work place one hour short of your duty shift. 6. Failure to lock and secure Bali Bar toilets during night inspection. 7. Failure to report lights on at Bali Bar during night inspections. 8. Phoning Duty Manager the next day during prime time (change over of tills) and engaged in lengthy conversation concerning Bali Bar toilets and instructing her to go down to Bali Bar and secure locks, when you should have done so as part of your lock up check at 10.45 pm on Tuesday night, instead of which you made your way to the Public Bar to insult and accuse Mrs Wee the Managing Director of owing you $5,500.00 within hearing range of patrons and staff in the Public Bar. In view of the above will you show cause why you should not be dismissed? We hereby request that you submit a written reply to the above within 24 hours of receiving this letter." As requested in the final paragraph of the letter, Mr Cumbo did write a written reply within 24 hours (Exhibit 7). Although Mrs Wee was still away the applicant made sure that the reply was given to the bookkeeper at the Ascot Inn. Omitting formal parts, the reply of the applicant dated 21 August 1995, is as follows:- "In answer to your questions I offer the following; 1. RE REFUSAL TO BE SUITABLY DRESSED ....., What has happened (sic) the two white shirts I was supposed to receive at companie's (sic) expense, including regular laundrying (sic) in line with the provision of uniforms for fulltime staff at Reception. 2. RE SMOKING IN........., Please nominate the legally defined NON-SMOKING areas at ASCOT INN and written testimonials of the alleged misconduct. 3. RE REFUSAL TO WRITE ........, What is this nightly report please? At present, the only nightly reports I am aware of are; Reception Log/diary, visitors book, hotel key book, maintenance book, newspaper list. Also monthly reservation chart, daily room report, wake up call list. Dairy and bread deliveries are also checked against delivery docket. 4. REFUSAL TO KEEP RECEPTION ........, To date I have not received one complaint from any member of the Reception staff regarding the cleaniness (sic) of Reception working area at the end of any of my shift (sic). 5. DESERTING THE WORK PLACE Please define the word "DESERTING" in the context used in your statement. I am quite happy to be engaged in Night Porter duties at Reception office during the hour 6.30 am to 7.30 am, but this has been denied to me. 6. FAILURE TO LOCK ........, Bali Bar toilet locks can only be locked and opened by Manager's master key only. 7. FAILURE TO REPORT LIGHTS ........., Bali Bar inspected only once during 10.45 pm and 11 pm on any night on duty. Bali lights were not "ON" during my allotted inspection time from Monday night 14th August to Thursday night 17th August. 8. PHONING DUTY MANAGER ........., I approached the front bar (from the lounge bar) to inform Ray Moulton (duty manager) to lock Bali Bar gents toilet. Only duty managers have master key to lock these toilets. I almost finished talking to Ray, re padlock, when MRS WEE engaged me in conversation. On word led to another, and she called me thick skin (sic), and then that I am hanging around for charity and that I should try St Vincent de Paul. I told her to pay the $5,500 she owes me for at least one claim before she talks of charity. We were heated in our discussion by now, and one word led to another when MRS WEE picked up an empty tea cup and threatened to smash it in my face. I think I called her names after that and she in turn called me a scum. Present in the front bar at that time, were Ray & Trevor, aside from MRS WEE and I. I started towards reception and called after Ray to remember to lock the Bali Bar gents toilet. MRS WEE told Ray to ignore me. The next day (Wednesday 16 August) I wondered if Ray had (sic) actually did lock the Bali Bar gents. At approx. 4.55 pm I phoned the duty manager at that time Leslie, and asked her if she could check the Bali Bar gents to see if Ray Moulton had locked them the previous night. With the fracas going on, it was not difficult for Ray to perhaps forget. Some interesting points here. I did not instruct Leslie, nor go to public bar to insult MRS WEE and prime (change of tills) is more near 6.00 pm. The above duties only comprise some 5% of my total working shift time. Which leads me to believe that MRS WEE has absolutely no complaints about duties performed in my proper role of night porter. For the above reasons MRS WEE, you have no cause for dismissal, and should you decide to proceed I will have grounds for unfair dismissal and deffamation (sic)." I consider that parts of this letter are excessively defensive to the point of being evasive. This is particularly so in regard to items 1, 2, 4 and 5. I think that the answer to items 3, 6, 7 and 8 are reasonable explanations to the points put. With respect to item 1, the applicant admitted in cross examination that there had been no promise to him of regular laundering. Therefore paragraph 1 included a representation which the applicant knew to be untrue. I also do not accept that Mrs Wee did promise to buy the applicant two white shirts, although there may have been some discussion about this. With respect to item 2, Mrs Wee said in her evidence and the applicant acknowledged in his evidence that there were clearly signposted non-smoking areas within and around the reception area on walls and doors. The applicant also acknowledged that in the Ascot Inn daily log, which he would read, on 16 August 1995 there was written, "All reception staff - no smoking in offices". This had been written in by one of the receptionists. The applicant also admitted in one part of his evidence that he had smoked in a non smoking area after receiving the letter of 10 August 1995. This evidence is referred to above. The applicant said in evidence that he believed that Mrs Wee came back to the Ascot Inn on Tuesday, 22 August 1995. She did not approach the applicant concerning his written reply. The applicant continued to take a meal break between 3.00 am and 4.00 am and continued to work until 7.30 am. Again, however, he did not complete cleaning duties in this time. The applicant continued to not wear a white shirt despite the contents of the letter dated 20 August 1995. During part of his cross examination the applicant admitted that there was nothing unreasonable about the request to wear a white shirt. He conceded that in the circumstances of his employment, the employer had a prerogative to set a reasonable dress standard. He also indicated that he thought the standard of dress required of him was not uncommon across the hospitality industry for a night porter. He did not regard the white shirt request as being special or unusual for a night porter. However, he maintained that as for a time he heard no response from Mrs Wee about his letter that his impression was that she was satisfied with his answers. On 25 August 1995 at about 7.10 am the applicant had a further disagreement with Mrs Wee. This concerned an entry that the applicant had made in the daily maintenance book of the hotel. The note concerned courtesy lights outside some hotel units being on after 7.00 am instead of turning off at 6.45 am. The applicant made a note of this in the maintenance log book on the morning of 24 August 1995. On the morning of 25 August 1995 Mrs Wee discussed this on the telephone with one of the receptionists. This was about 7.05 am. Mrs Wee thought that the entry referred to the morning of 25 August 1995 and therefore thought that the entry could not properly have been made as yet, as the entry referred to the lights still being on at 7.15 am and that time had not yet been reached. During the discussion between Mrs Wee and the receptionist, the applicant came to the reception desk. Mrs Wee then spoke to the applicant about the matter. An argument developed. According to Mrs Wee, the applicant said "Fuck off, I'm going on stress leave". According to the applicant he said that the disagreement with Mrs Wee went on for some minutes when he snapped and said, "I'm fucking off, I've had enough, I'm on stress leave". I do not think much turns on which version of this conversation is correct. It is quite possible that in the heat of the conversation, Mrs Wee misheard what the applicant had said to her. The respondent submitted that the way this conversation was conducted by the applicant was another example of his rudeness and unco-operative attitude to Mrs Wee. My view is that this was a relatively minor incident. After the telephone conversation with Mrs Wee, the applicant did go on stress leave. He obtained a doctor's certificate for one week's sick leave. The doctor's certificate was tendered in evidence (Exhibit 10) without objection. The applicant had no relevant contact with the respondent whilst he was on sick leave. The applicant returned to work on Sunday 3 September 1995. On that date he received a letter from the respondent dated 1 September 1995 (Exhibit 12). Although the applicant received the letter at the commencement of his shift he did not open the envelope that it was in at that time. He took the letter home and read it when he arrived at home. On 3 September 1995 the applicant admitted that he was again not wearing a white shirt. Again he did not complete a night report and did not do any cleaning duties in addition to those that he would ordinarily do as a night porter. He again took a meal break between 3.00 and 4.00 am and remained at the reception area working until 7.30 am. With respect to the night reports he was told at the commencement of his shift by one of the receptionists that proforma night reports had been created and copied for him to complete. A copy of the proforma document was tendered as Exhibit 11. However, as stated above, the applicant did not complete a night report for his shift commencing on 3 September 1995. The applicant could offer no reasonable explanation for not doing this. On 3 September 1995 Mrs Wee was in Singapore. The letter from Mrs Wee dated 1 September 1995 was a reply to the applicant's letter dated 21 August 1995. The letter read as follows, omitting formal parts:- "I refer to your letter dated 21/8/95 and respond as follows. (1) REFUSAL TO BE SUITABLY DRESSED, I DO NOT accept your explanation. (A) You were instructed as per my letter of 20/8/95 as to the dress requirement of your position. NO OTHER STANDARD of dress will be acceptable. (2) RE SMOKING Designated non smoking areas are CLEARLY SIGN POSTED within and around the reception area on walls and doors. This must be adhered to. (3) REFUSAL TO WRITE NIGHT REPORT Your explanation as to this point of contention IS NOT ACCEPTABLE. Nightly reports sheets must be completed in written form listing all nightly happening's (sic) within the hotel premises and boundaries. This report is to be submitted to Mrs. Wee at the end of each shift. (4) REFUSAL TO KEEP RECEPTION AREA CLEANED As part of your duties, I expect that you comply with the following. 1. To keep polished all Brass ware of the public areas i.e.: Reception, function rooms and Entrance doors (Brasso). 2. To keep polished with Mr. Sheen or Furniture Polish to all doors, tables, benches windows, door panels and window sills. 3. To keep clean all glass windows and doors of Reception, Atrium and windows along the passage way to the River Room. 4. To empty and clean all ashtrays, paper bins and sweep all entrances to Reception including pathway around Reception, car porch and side entrances. (5) DESERTING THE WORK PLACE Your hours of work are 10.45 pm to 7.30 am Sundays to Fridays (Inclusive) with a break time between 3 am to 4 am. Starting later or leaving your prescribed duties before the aforementioned finishing time WILL NOT BE ACCEPTED. (6) FAILURE TO LOCK Master keys are to be obtained from the Duty Manager when necessary and anything that needs to be locked must be completed and keys returned to the Duty Manager immediately with a written report as to what has been done. (7) FAILURE TO REPORT LIGHTS Correspondence has been received from Duty Manager on 16/8/95 that she received a telephone call from you, instructing her to carry out YOUR duties some 18 hours after the event. THIS PRACTICE IS NOT ACCEPTABLE (8) Re your accusations as to my behaviour at the public bar on the night of 15/8/95. I have in my possession written documentation from witnesses present that dispute your accusations and the facts as to what actually occurred. I hereby advise you that should all of the aforementioned points not be rectified by you immediately and your attitude to your employment improve (sic) to my satisfaction, I will have no alternative but to terminate your employment." Item (4) was in the same terms as the letter to the applicant dated 10 August 1995 and therefore has the same ambiguities as the earlier letter. The letter concluded with the paragraph that was quoted at the commencement of the letter of termination dated 5 September 1995. This paragraph is clearly a final warning. It states that if the points mentioned in the letter are not rectified immediately, termination will occur. The letter therefore suggests that the applicant would have the opportunity to rectify such matters. The applicant did not give any reasonable explanation why he did not open this letter when he received it at the beginning of his shift. The applicant also did not have a reasonable explanation for why he did not complete the night report sheet on this shift. The applicant said that no-one explained the form to him. However, given all the communications that had gone on before hand concerning a night report sheet it is difficult to accept that the applicant did not know what he was to write in this report. The applicant had no real explanation for why he did not complete this form. He did say that it was probably part of his physical and general condition. This was not elaborated on. Given that, I do not consider that it was a reasonable explanation for the conduct of the applicant. The applicant was, however, continuing to complete all of the other reports at the hotel including the maintenance log book and the hotel daily log. On 4 September 1995 the applicant still did not wear a white shirt to work. He again did not complete a night report and did not do any cleaning duties additional to those he would have previously done as a night porter. This conduct was most surprising given the very clear terms of the letter dated 3 September 1995. Again the applicant had no reasonable explanation for why he did not follow the express requirements of the letter dated 1 September 1995. When he arrived for work on 5 September 1995 he was given the letter of termination which has been set out earlier in these reasons. As stated earlier, Mrs Wee was in Singapore when the applicant received the letter dated 1 September 1995. She was still in Singapore when the applicant was given the letter of termination dated 5 September 1995. This letter was drafted by Mrs Wee in Singapore, typed and sent by facsimile to the Ascot Inn in Western Australia. The letter was then placed on Ascot Inn letterhead and given to the applicant. In cross examination, Mrs Wee said that she made the decision to terminate the applicant's employment when she received a facsimile from a receptionist in Western Australia. The imprint at the top of the facsimile indicated that it was sent at 3.58 pm on 4 September 1995. The relevant part of the facsimile read, "Regarding Clem, he hasn't done a nightly report, no cleaning was done, he was wearing the blue shirt that you gave him. He received the letter at 7.30 am Monday as he was leaving work." Mrs Wee also said that she had received advice of the facts contained in the facsimile earlier in the day from the receptionist. This advice included the fact that although the letter had been given to the applicant at the commencement of his shift, he had not read it by the time he left his shift at 7.30 am on Monday 4 September 1995. As stated above, the facsimile was sent at 3.58 pm. The evidence was to the effect that it was almost contemporaneously received by Mrs Wee. That is, it was received by Mrs Wee before the applicant commenced a further shift after reading the letter dated 1 September 1995. Mrs Wee did not discuss with the applicant the allegations made against him in the facsimile dated 4 September 1995, before she made the decision to terminate his employment. Further, no-one discussed these allegations with the applicant on behalf of Mrs Wee before she made the decision to terminate the applicant. Mrs Wee indicated that she made the decision to terminate the applicant's employment in part because the applicant had not opened the letter from her dated 1 September 1995 before he left for home on Monday morning (4 September 1995) It is apparent that Mrs Wee made the decision to terminate the applicant's employment before he had the opportunity to redress the matters raised in the letter dated 1 September 1995. However, after receiving the letter dated 1 September 1995 the applicant did not redress these matters on 4 September 1995. BREACH OF THE ACT? In his opening, Mr Fry stated the applicant's claim would in part be based on an alleged breach of Section 170DF(1)(e) of the Act. However, this was expressly abandoned in his closing submissions. Mr Fry also referred to the fact that the problems the respondent alleged having with the applicant only commenced after the formal complaint by the union for non payment of the meal allowance. He raised the issue as to whether the two were linked. I do not consider that there is sufficient evidence to support a finding that the respondent attempted to find fault with the applicant's work because of the claim made on his behalf by the union. I am satisfied that the respondent has discharged its onus under Section 170EDA with respect to this part of the claim. The main submission of Mr Fry was that there had been a contravention of the Act by the manner in which the termination had taken place. That is, there was a lack of procedural fairness in the way the termination took place. To consider the submission I need to consider whether there has been a breach of Section 170DC or 170DE of the Act. Section 170DC(a) of the Act provides that an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made. In this case, the employment was terminated for reasons related to conduct or performance. These reasons were set out in the letter dated 5 September 1995. Three specific reasons were set out, being the refusal to be suitably dressed, the failure to write a night report and the failure to keep the reception area clean and polished as prescribed. There is also mention made in the letter of resisting the performance of duties required and being rude and unpleasant to Mrs Wee. Each of these matters were raised with the applicant prior to 1 September 1995. However, the decision to terminate the employment of the applicant was made by Mrs Wee when she received the facsimile from the receptionist at about 3.58 pm on 4 September 1995. Prior to this time the applicant was not given the opportunity to defend himself against the allegations made in the facsimile. The question is whether this constitutes a breach of Section 170DC(a). In Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233, Wilcox CJ at page 243 referred to Section 170DC(a) in the following terms:- "Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as 'natural justice' or, more recently, 'procedural fairness'. The relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well established in public administrative law. It was accepted into international labour law when Article 7 was inserted in the Termination of Employment Convention. Section 170DC is directly modelled on Article 7. The principle is, I believe, well understood in the community. It represents part of what Australians call 'a fair go'. In the context of Section 170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself 'against the allegations made'; that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk." In Janicek v ICI Dulux, unreported, IRCA No. 599/95, Wilcox CJ, 4 September 1995, the Chief Justice said: "I emphasise that Section 170DC does not require any particular formality. That has been said time and time again. What is important is that the substance of the relevant allegation be put to the employee under circumstances where he or she has the opportunity of putting a defence. It is not material to determine whether the employee would have made a defence. The employer's obligation is to put the allegation, so as to give the employee the opportunity of doing so. In the present case, I think the critical allegation was not put. This is enough to support a finding of unlawful termination." Likewise in this case I consider that the allegations made against the applicant, as conveyed by the receptionist to Mrs Wee, were not put to him so that he had the opportunity of answering them. In this respect, he was not given the "fair go" which Section 170DC(a) demands. As indicated by Wilcox CJ in the Janicek case, it is not to the point that at least with respect to the allegation of failure to wear a white shirt and complete a night report, the applicant would not have been able to reasonably defend the allegations made. The reason for the insertion of Section 170DC(a) into the Act is so as to preserve an important aspect of procedural fairness for an employee. The respondent submitted that Section 170DC(b) could apply to this case. This is a proviso to the requirements of Section 170DC(a). The subsection provides that Section 170DC(a) does not apply when the employer could not reasonably be expected to give the employee the opportunity to defend themselves against the allegations made. In my opinion, this subsection does not apply to this case. In my view, the subsection is aimed at a situation where this is some substantial practical reason which makes it unreasonable to comply with Section 170DC(a), such as a situation of urgency: Nicolson v Heaven and Earth Gallery Pty Ltd, page 244. There is no practical reason in this case why the respondent could not have given the applicant the opportunity required by Section 170DC(a). Although Mrs Wee was in Singapore at the time she made the decision to terminate employment, there is no reason, for example, why she could not have spoken to the applicant by telephone. Whilst the breach of Section 170DC is sufficient to determine the question of unlawful termination, I think it also appropriate that I consider whether Section 170DE has been breached. Section 170DE(1) provides that an employer must not terminate an employee's employment unless there is a valid reason connected with their capacity or conduct. In this case, I find that the reasons set out in the letter dated 5 September 1995 at least include valid reasons for termination. This would at least be so with respect to the failure to comply with the set dress standard by not wearing a white shirt. From the receipt of the undated memorandum concerning dress standards in June 1995 to the letter of termination dated 5 September 1995, the applicant received three written notifications and warnings concerning the dress standard. Even after reading the final warning on the morning of 4 September 1995, the applicant still did not wear a white shirt on the shift that evening. He was also not wearing a white shirt when he was to commence his shift on 5 September 1995, when he was terminated from his employment. I also consider that the failure to carry out the employer's instructions to complete a night report and perform the prescribed cleaning duties were valid reasons for the termination of employment. Section 170DE(2) qualifies Section 170DE(1) by saying that a reason is not valid if having regard to the employee's capacity and conduct, the termination is harsh, unjust or unreasonable. Section 170EDA(1)(b) provides that if an employer proves that employment was terminated for a valid reason, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant proves that the reasons proved by the employer were not valid because the termination was harsh, unjust or unreasonable. Quite apart from Section 170DC, I consider that there was some procedural unfairness about the applicant's termination. This was because the decision to terminate was made at a time prior to the applicant having an opportunity to address the matters raised in the final warning letter dated 1 September 1995. However, lack of procedural fairness is only one matter to be taken into account in determining whether a termination of employment is harsh, unjust or unreasonable: Byrne v Australian Airlines Limited (1995) 131 ALR 422, per Brennan CJ, Dawson & Toohey JJ at page 434 and McHugh and Gummow JJ at page 462. In the circumstances of this case, I do not think that the termination of employment was harsh, unjust or unreasonable for procedural reasons, other than the matters raised by Section 170DC. This is mainly because the applicant did not redress the matters set out in the letter dated 1 September 1995 when he had his opportunity to do so on 4 September 1995 or 5 September 1995 insofar as the wearing of a white shirt is concerned. It would have been different if he had addressed these matters on 4 September 1995 and the employer had made a decision to terminate him before that. In all the circumstances of this case, I do not think it could be said that the termination of employment was harsh, unjust or unreasonable on the basis of the failure to comply with the set dress standard. This is because of the number of specific instructions and warnings given and the length of time of the failure to comply with the standard. I was initially attracted to the argument that the failure to wear a white shirt, if the applicant otherwise complied with the dress standard and was neatly dressed, was a sufficiently minor matter such that it would be unreasonable to terminate his employment on this basis. However, after giving the matter careful consideration I do not accept this argument. Given the length of time over which the applicant failed to follow this instruction, to make such a finding would be tantamount to finding that an employer such as the respondent could not set a dress standard for the type of shirt worn by a night porter. I think this would be unreasonable for an employer such as the respondent. I think it reasonable that such an employer can set a reasonable dress standard for people working in their reception area. With respect to the reasons for termination of the failure to write night reports and the failure to do cleaning duties, I am persuaded that a termination based solely on these reasons would have been harsh, unjust or unreasonable. This is because I accept that there was genuine confusion in the applicant with respect to the preparation of night reports up to the shift commencing on 3 September 1995. At the end of that shift he read a final warning with respect to the failure to write night reports. He then did not complete a night report the following shift. I think that it would be harsh to terminate the applicant in those circumstances, even though it is clear that the letter dated 1 September 1995 is a final warning. I think it would have been harsh because the applicant only went one further day without completing a night report after receiving this final warning. Further and more importantly the applicant did complete all of the other reports and logs that he was required to. Therefore, if Mrs Wee had made an inquiry of the receptionist during the day she could have been informed of the contents of the hotel daily log and the maintenance log that the applicant had completed. Therefore she would not have had the "news blackout" that is referred to in her letter of 5 September 1995. Although the applicant showed little initiative in finding out what was required in a night report prior to the shift commencing on 3 September 1995, I find that if a termination was based solely on the failure to complete night reports, the termination would have been harsh. Similarly, I accept that there was some genuine confusion in the applicant with respect to the cleaning duties he was to perform. I accept that it was not explained to him properly what was required. Again, whilst the applicant showed little or no initiative in this regard, the respondent should have taken greater steps to properly convey to the applicant what was required of him. For this reason, if the termination of employment was based solely on this ground I would consider the termination of employment harsh. REMEDY As set out above, I have made a finding that the Act has been contravened by the failure of the respondent to comply with Section 170DC(a) of the Act. It is clear from the provisions of Section 170EE of the Act that the primary remedy for unlawful termination is reinstatement. In her closing submissions, Ms Laferla for the respondent, submitted that should I find that there was an unlawful termination, I should not order reinstatement as reinstatement would be impracticable: Section 170EE(2). She submitted that this was so because there had been a breakdown of communication between Mrs Wee and the applicant, Mrs Wee no longer trusted the applicant and receptionists had indicated that they may resign if the applicant continued his employment with the respondent. With respect to the latter point, I do not place any weight on this aspect of the submission as no receptionist was called to say that they would resign if the applicant was reinstated. The applicant desired reinstatement and indicated in evidence that he would follow the directives issued by Mrs Wee which had led to his termination. He indicated that he thought he could still work with Mrs Wee and talk to her. In uncontradicted evidence, he said that he was still looking after Mrs Wee's dog and had telephone conversations with Mrs Wee since his termination in trying to locate a security firm that Mrs Wee was trying to contact. He said that these conversations were conducted in a civil manner. The meaning of "impracticable" was considered by Wilcox CJ and Keely J in their joint judgment in Liddell v Lembke (1994) 127 ALR 342. Their Honours said that, "although impracticable does not mean impossible, it means more than inconvenient or difficult" (page 360). Further, in Nicolson v Heaven and Earth Gallery Pty Ltd Wilcox CJ at page 244 said that 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, notwithstanding that the job remains available." I note that Marshall J has said that he does not entirely agree with this dicta: Abbott-Etherington v Houghton Motors Pty Ltd, unreported, IRCA No. 528/95, Marshall J, 28 September 1995, page 9. His Honour would further limit the matters which could be relied on by an employer to support a finding of impracticability. Whilst it is a marginal case, I consider that reinstatement is not impracticable. I make this finding bearing in mind that there is little need for personal contact between Mrs Wee and the applicant in his employment. I consider that if a positive attitude is shown by both the applicant and Mrs Wee to his return to work, the return to work should succeed. Mrs Wee was at pains in her evidence to give the impression that she was a reasonable employer. Further, the applicant stressed that he would co-operate with the directions of Mrs Wee if he was reinstated. If both the applicant and Mrs Wee carry such attitudes towards the reinstatement of the applicant I believe that it will work out. Accordingly, an order will be made that the applicant be reinstated by his reappointment to the position of night porter which he held immediately prior to his termination. Section 170EE(1)(b)(ii) provides that if the Court makes an order for reinstatement, it can make an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination. I think it appropriate to make such an order in this case. The applicant has received no remuneration other than social security benefits since his termination. It has been held that social security benefits do not constitute remuneration for the purposes of Section 170EE: Janicek v ICI Dulux, cited above and Tranter v Council of the Shire of Wentworth, unreported, IRCA No. 573/95, Marshall J, 24 October 1995. Upon termination the applicant received payment in lieu of notice. According to Section 170DB(2) of the Act this would have been two weeks' wages. Accordingly, the applicant has lost his remuneration because of the termination of employment from 19 September 1995. The parties agreed that the applicant's gross weekly wage prior to his termination was $411.70. I was not provided with a net figure. For the purposes of calculating loss of remuneration under Section 170EE(1)(b)(ii), a net figure should be used: Klingenburg & TWU v I.R. Coates Pty Ltd, unreported, IRCA No. 398/95, Marshall J, 24 August 1995, page 12. Therefore the parties will need to ascertain and agree to the appropriate net amount per week, after consultation with the Australian Taxation Office if necessary. The respondent will need to remit the taxation extracted to the Australian Taxation Office. I will make an order that the respondent pay to the applicant the amount of $411.70 per week less the appropriate amount of PAYE taxation, from 19 September 1995 to the date when reinstatement takes effect. If this period involves any incomplete week the applicant should be paid the appropriate pro rata amount. I will make an order that the amount to be paid to the applicant be so paid within 14 days. I certify that this and the preceding 33 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ritter. Associate Date: Representative for the applicant: Mr E Fry ALH & MW Union Representative for the respondent: Ms S Laferla Chamber of Commerce and Industry WA Hearing date: 22, 23 & 24 November 1995 Judgment date: 21 December 1995