Jospeh Edward Daley v Stephen Van Mil trading as Riverview Veterinary Clinic [1995] IRCA 725

DECISION NO: 725/95 CATCHWORDS Industrial Law - Termination of Employment - Conduct - Procedural Fairness Industrial Relations Act 1988 ss 170EE(3) 170EE(5) 170EA 170CA 170EA(1) 170DB(2) 170DE(1) 170DE(2) 170DC. No. NI 3152 of 1995 JOSEPH EDWARD DALEY -v- STEPHEN VAN MIL trading as RIVERVIEW VETERINARY CLINIC CORAM: LINKENBAGH JR PLACE: SYDNEY DATE: 8 DECEMBER 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NI 3152 of 1995 BETWEEN: JOSEPH EDWARD DALEY Applicant AND: STEPHEN VAN MIL trading as RIVERVIEW VETERINARY CLINIC Respondent CORAM: LINKENBAGH JR PLACE: SYDNEY DATE: 8 DECEMBER 1995 REASONS FOR JUDGMENT (Delivered ex tempore - and revised from the transcript) The court has listed before it this morning matter number NI3152 of 1995 between Daley and Van Mil for judgment. I propose to deliver the judgment orally. If either party requires the transcript to be transcribed it will be edited and transcribed and made available on a request by either party to the registry. If there is no request it will not be transcribed. This is an application under the provisions of Section 170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent between January 1992 and 27 July 1995. He is a 33 year old man who is qualified as a Veterinary Surgeon and was employed in that capacity at the respondent's Riverview Veterinary Clinic in Sydney. In addition to his tasks as a Veterinary Surgeon he was required to do some day to day management tasks. I take that description of his duties from the advertisement which he answered in December of 1991 when he applied for the position. The precise balance between the two facets of his duties has not been established in the evidence before me. I note that the applicant left employment in Queensland to take up this position and at that time he provided to the respondent very favourable references as to his abilities and his personality generally. The employment was not based on any written contract and there are no Award provisions applying to this employment. The terms of the employment initially were that there would be a salary of $30,000 per annum and a percentage of profits. The base salary was increased to $35,000 in August of 1994 and in the 1994/95 Financial Year the applicant's income was $53,868 gross. From the outset the parties mentioned to one another the possibility of partnership. There were discussions about that subject at least in mid-1992 and September of 1992 and in the first half of 1995 although there were never any firm proposals put on either side and the parties were certainly a long way from agreement in relation to any share of equity or other partnership arrangement. The respondent conducts three Veterinary Clinics in the Sydney suburbs. At the Riverview Veterinary Clinic the applicant was, according to the evidence of Mr Holden, the respondent's management consultant, a senior vet. There was a practice manager, Miss Carey, and some veterinary nurses and Ms Tsivinsky, who was engaged in an animal grooming business which she operated, apparently in conjunction with the respondent, from the clinic. There was at least one other vet at the clinic and Mr Mather, who usually worked at one of the other clinics, worked at the Riverview Veterinary Clinic on two days of each week. There is no evidence before me as to any definition of the roles of the members of the staff in relation to management matters. It seems, at least from the evidence of Mr Holden, that there were some difficulties at the clinic and that was the reason that he was engaged in February of 1995, but that generally the clinic was a busy suburban veterinary practice which ran fairly well. The applicant's employment was terminated in a meeting on 27 July 1995. The respondent concedes that he initiated the termination and therefore the provisions of section 170CA and EA(1) of the Act coupled with Article 3 of the Convention on Termination of Employment which is Schedule 10 to the Act have been satisfied to give this Court jurisdiction to entertain the application. The parties gave varying accounts of the conversation which occurred on 27 July and of events over the next few days. I find that neither party at that time made any real effort to clarify the status of the applicant. The respondent demanded the return of the applicant's keys about a week after the termination conversation and in all of the circumstances I am not satisfied that there was any agreement at that time as to the precise nature of the termination or the status of the applicant vis-a-vis the respondent. I am not satisfied that there was any clear understanding or agreement between the parties as to any period of notice at that time and I accept that the termination came as a surprise to the applicant. Given my finding that I am not satisfied that any notice was given there is therefore a breach of Section 170DB of the Act and damages flow from that, calculated according to the provisions of section 170EE(5). The appropriate period of notice in this case on the table set out in Section 170DB(2) is "at least three weeks". The applicant's counsel argued that the Act does not restrict the Court to the minimum in calculating the damages due and that as the respondent's evidence was that he gave the applicant four weeks notice the respondent must be taken to have considered four weeks as the appropriate period and therefore she argued that four weeks should be substituted for the minimum period specified in section 170DB(2). I cannot accept that argument. Section 170EE(5) enjoins the court to calculate damages in an amount which is the equivalent of what would have resulted in the employer's not contravening Section 170DB(2). To not contravene Section 170DB(2) the respondent must give at least three week's notice and therefore, in my opinion, the only interpretation that can be given is that the amount of damages equates the period which follows the words, "at least" in Section 170DB(2). In considering why the Legislature chose to include the words "at least" in the table in Section 170DB(2), it is my view that those words were included to protect an employer who gives more than the minimum from being in breach of Section 170DB as that would lead to a most unacceptable result in the case of an employer who did in fact give more than the required notice. I therefore propose to make an order under Section 170EE(5) for damages equal to three weeks pay. The applicant alleges breaches of Section 170DE(1) asserting that there was no valid reason for the termination of his employment and also argues that if I find that there is a valid reason then there is a breach of Section 170DE(2) in that the termination was harsh unjust or unreasonable. The applicant further alleges that the respondent is in breach of Section 170DC relating to procedural fairness. Turning first to the question of the validity or otherwise of the reasons for termination, the respondent's case is that he became increasingly dissatisfied with the applicant's role in the practice over an extended period of time and that that lead to the decision he made on 27 July 1995 to terminate the employment. My general conclusion from the respondent's evidence is that he conceded that the applicant was a good vet but that he was inadequate at his management tasks, in his relationship with other staff, and in his commitment to the respondent's business. The evidence of Mr Van Mil, which was supported by his other witnesses, was that Mr Van Mil had had little personal knowledge or opportunity to observe those matters on which be based his conclusions that the applicant was unsuitable as an employee. Mr Van Mil relied on reports by other staff. I find that he made no effort to confirm any of those reports or to make any objective assessment as to whether the reports were valid or whether they were balanced assessments of the particular situations that were reported to him. The manner in which Mr Van Mil says that he dealt with adverse reports about the applicant by other staff, was that he spoke to Mr Daley about them but he did nothing else. There is a lack of detail in many of the reports and a definite absence of any attempt to put the reported conduct in its full context and perspective in the workplace. There was a willingness by three female members of the staff to see Mr Daley's attitude as the cause of all of their dissatisfactions in the workplace and that attitude on their part must be contrasted with the evidence of Mr Holden, who was perhaps the most independent and objective of all of the witnesses I will come back to that later. The applicant denies all of the conversations of which Mr Van Mil gave evidence which were critical of his attitude and work performance. There is no evidence that Mr Van Mil warned the applicant of any possible termination of his employment other than evidence by him that he put the applicant on notice in March and April 1995 for a month. I cannot place any weight on that evidence at all. It is remote in time from the date of termination. It was not communicated to Mr Holden, even though Mr Holden was engaged in February and given a charter to sort out the problems of the practice. Mr Holden was in constant communication with Mr Van Mil over the period and Mr Holden was very clear in his evidence that he did not know anything about the applicant's being placed on notice in March. I therefore have some reservations as to Mr Van Mil's evidence with regard to this period of notice. It is also relevant that in May the applicant was given increased managerial tasks, and the imposition of those tasks on him is inconsistent in my view with the level of dissatisfaction which Mr Van Mil now asserts existed at the time. A further matter in relation to the validity of the reason for termination is the question of whether or not the applicant's conduct was of such significance that it warranted dismissal as at 27 July. There is no evidence of any issue which directly and immediately precipitated Mr Van Mil's decision and he relied on the past history in making his decision of 27 July. In looking at that past history and the evidence of the parties it is necessary for me to consider issues relating to the credit of the various witnesses. The applicant is a young professional, described on numerous occasions during the four days of this hearing as a good vet. He impressed me as a sincere and honest person. He had no other prospects of employment as at 27 July and he needed this employment, and his evidence of an absence of any difficulties in his relationships with other staff is supported by his colleague Mr Mather. The respondent's credit is affected by the manner in which he dealt with the applicant, He kept no written record whatsoever of any of the matters on which he seeks now to rely as valid reasons for terminating the applicant's employment in July of 1995, even though he says now that that history had been building up over a long period of time. He relies on his memory of oral reports to him by other members of staff and of his conversations with Mr Daley arising from those reports. He took no other action and made no inquiry as to the causes of the friction which was reported to him. I think it is not unreasonable to expect that if matters were building up as the respondent indicates, he would have kept some records. The consequences of losing an employee who was as good a vet as I have been told the applicant was, must have had some significance for the respondent and as is it essential that overall there should be a degree of harmony and good relations between the members of his staff, I find it very surprising that if matters were as serious as he has indicated he did not at some stage keep some records. Mr Mather was a witness, who in my assessment of him was an honest witness. He is a Veterinary Surgeon, he is at the Riverview Clinic two days a week, and he told me that he noticed nothing of any consequence in relation to staff relations concerning Mr Daley. He thought well of Mr Daley and one might think that a person of Mr Mather's standing would have detected some difficulties if there were difficulties of the magnitude relied upon by the respondent. Miss Carey is the practice manager who has a long acquaintance with and a long history of employment by the respondent. It was she largely who made the reports to Mr Van Mil about Mr Daley's conduct. She is a person who at least as of May 1995 was given to believe that she had some prospects of an equity involvement in the business and it may be that she had some competing financial interest which influenced her conduct in relation to Mr Daley. My assessment of Miss Carey was that she was very judgmental and critical of the applicant. Her conduct in reporting on his alleged lateness to work, absences from the clinic, rudeness to her and similar matters which I will refer to later, was in my view inappropriate to her role, and certainly inappropriate to the development of team co-operation and spirit, which Miss Carey said was an important part of the changes which were made to the practice after May of 1995. Miss Carey's reports to Mr Van Mil were, as I have said, judgmental, and critical and they were also selective. There is no evidence that she said anything favourable at all ever about Mr Daley and her criticisms of him were not placed in proper perspective. Nor did she give any real detail of the frequency or consequences of the conduct about which she complained. She did not speak to Mr Daley about any of the matters. It must be very disruptive in a workplace for a person in the position of Miss Carey to take it on herself to criticise the conduct of a professional member of the staff without making some due inquiry to ensure that her conclusions are objective and justifiable. Ms Tsivinsky is the member of the staff who attends to the animal grooming. She had day to day contact with the applicant as she required his services to sedate animals which were to be attended to by her in the course of the day. Ms Tsivinsky was, in her evidence, critical of the manner of the applicant and asserted that he was not cooperative with her in the work place. It is significant that no other witness, particularly Ms Carey, gives any evidence of observation of friction between the applicant and Ms Tsivinsky. Ms Tsivinsky's oral evidence was more intense and extensive than that in her written statement, and if her difficulties with the applicant were at the level that she described in her oral evidence, it would be very surprising that no other person in the work place noticed or gave her any assistance to resolve the difficulties. Ms Tsivinsky gave evidence of one incident in detail which concerned what she alleged to be numerous requests to the applicant throughout the course of a particular day to sedate a cat. I find it very difficult to believe that that chain of events occurred. It is equally difficult to see how Ms Tsivinsky tolerated the applicant's conduct on that occasion, if it was as she described, without bringing it to the notice of some other member of the staff. Ms Felderhof also gave evidence for the respondent. She also alleged that she had difficulties in the applicant's manner towards her. She did not raise any of the matters of concern to her with the applicant nor did any other member of the staff apparently notice that there were any problems. She reported her concerns to Mr Van Mil, who took no action other than to speak to Mr Daley, if he took any action at all. Mr Holden was the final witness for the respondent. Mr Holden was a very honest witness. He was an expert in the field of Management Consulting. The difficulty with Mr Holden's evidence and the reason that he was of limited overall assistance to the Court was that the conclusions that he formed and the advice that he gave to Mr Van Mil were based on what he was told by Mr Van Mil, and that information was based on what Mr Van Mil had been told by other members of the staff. Mr Holden's conclusions therefore inherited any flaws that there were in the factual basis for the information which was fed to him. Mr Holden did not see it as his role to question the truth of what he was told. He admitted that his personal observations of the applicant did not indicate support for many aspects of the reports which he was given by Mr Van Mil. Mr Holden's evidence, therefore, lacks objectivity and perspective in my view. Further, in relation to that, he admitted that he was asked to write his statement, which was the basis for his evidence in these proceedings, about only the critical aspects of Mr Daley's behaviour. Evidence of that nature is of little assistance to the Court when the Court is charged with the daunting task of assessing a person's conduct in the work place and the significance of that conduct in the overall scheme of things. I have doubt as to the ability of the respondent to present a balanced history of the matter to the Court. That doubt is illustrated by the evidence to do with the roster. It was alleged by Mr Van Mil that Mr Daley "rostered himself off" and by Mr Holden that the applicant used his powers in structuring the rosters to give himself "privileged timeslots". Mr Van Mil asserted that the applicant had a practice of manipulating rosters for his own ends. However, the detail on which he based that conclusion reduced to four days. On three of those days the applicant attended a conference towards the cost of which Mr Van Mil had contributed, and on the fourth day the applicant rostered his own regular day off in the particular week because he was moving house. It would be a most unsympathetic employer who did not accommodate the need of any employee who is entitled to be rostered on a day off a week in any event, if a reason such as moving house was advanced as the reason for requiring a particular day off. The reliance by the respondent on the rostering situation on those four days as a basis for his very strong words describing the conclusion that he drew about the applicant's conduct is of grave concern to me and affects my assessment of all other aspects of the respondent's evidence. Equally I have doubts about the veracity of Ms Carey. An instance of that is that she gave evidence about an occasion when she entered the X-ray room at the clinic from the treatment room when Mr Mather was present in the treatment room. She said that as she opened the door the applicant uttered the word "fuck". The applicant agrees that there was an occasion when he was in the X-ray room and Ms Carey appeared and he remembered that he had not attended to some matter which he was supposed to have done and that he uttered the word "Christ". Whether they were both referring to the same occasion is not clear to me but I have reservations about Ms Carey's version of the events, firstly because Mr Mather denied in his oral evidence that he was there. Mr Mather's denial of being there is consistent with the conversation which he reports in paragraph 4 of his statement, where Miss Carey is reported by Mr Mather to have said to him: The other day I accidentally entered the X-ray dark room where Joe was working, to get money from the safe. I think it is reasonable that if Miss Carey's oral evidence that Mr Mather was actually there at the time is accurate, then that conversation would not have been in those words. The conversation one would have expected would have referred to the fact that Mr Mather was there, and it would not have been necessary for Miss Carey to inform him of the incident as she would have been aware that he had witnessed it for himself. Further in relation to Miss Carey, she roundly criticises the applicant for his lack of team spirit and involvement in team effort, but she herself in my view has failed to demonstrate to me that she had an appropriate level of team spirit which the applicant might have reciprocated. There are several instances of that. Firstly, Mr Holden gave evidence that he sent notes to her after the re-arrangement of duties in May of 1995 which were designed to assist in training and support of people, including the applicant, in their new roles. There is no evidence that those notes ever came to the attention of the applicant. More directly, there was evidence given of reports to Mr Van Mil by Miss Carey about the applicant's failure to do the banking on a particular day, and confusion over an order for drugs in June of 1995, which indicate that she was very ready to find fault with the applicant and very unready to offer him any support or assistance. One would have thought that in genuine team spirit, if she was aware that the applicant was not at work on a particular day and therefore could not do the banking, that she would simply have done the banking herself, and that she would also have initiated some meaningful discussions between herself, Mr Van Mil and the applicant as to procedures to be followed in the future in the event that the applicant was absent and unable to do the banking for whatever reason. Similarly, with the drug order. Miss Carey's failure to communicate with the applicant generally and her preference to in effect "dob in" the applicant to Mr Van Mil at the drop of a hat, is conduct hardly destined to promote team spirit and her own conduct in reporting to Mr Van Mil damaged the team spirit to the point where there was a meeting on 13 June which I accept was initiated by the applicant in an attempt to resolve those issues. Generally, I prefer the evidence of the applicant. I am unconvinced that the instances now said to be the significant causes of the termination had that level of significance at the time that they occurred. The applicant was granted a $5000 salary increase in August of 1994 at a time when Mr Van Mil says he was dissatisfied with the applicant's management skills and shortly before Mr Van Mil formed an intention to "get rid of" him, which intention is noted in his diary of 2 September 1994. In addition, the applicant was given greater management responsibilities in May of 1995 when the confidence of Mr Van Mil is said to have further declined and a matter of only weeks after, on Mr Van Mil's evidence, the trial period of one month had elapsed. Mr Van Mil's evidence was that the extra duties imposed on the applicant in May were a test. I find it difficult to accept that Mr Van Mil would put any aspect of his business activities at any serious risk of poor management. If in fact the applicant was being put to the test by Mr Van Mil, he was not told of that and it was a very unfair test. Mr Holden's evidence was that no training or support was given to the applicant before 27 July although it was intended that such training and support should be given. The readiness of Miss Carey to report to Mr Van Mil on what she perceived as shortcomings in the applicant's performance without any attempt to discuss those shortcomings with him, with the consequence of undermining any concept of team spirit, was done to the knowledge of Mr Van Mil. Therefore the concept of putting the applicant to the test was, as I said, an unfair test which it was going to be impossible for the applicant to pass. I place little weight on the conduct which is alleged to have occurred in 1994 as it was not made significant at the time. There was lengthy evidence given about the period when the applicant had a broken finger. I find that the significance of that incident to the respondent was not in relation to the continuation of employment, but in relation to forcing the applicant to do some work in return for the wages he was receiving while he was injured. I find that that incident was not relevant to the issue of the long-term employment of the applicant at the time when it occurred, although I do accept that it may have caused Dr Van Mil to question the level of commitment of the applicant to his employment and that may have had a consequence in relation to the issue of the prospect of partnership for the future. The prospect of the future partnership is in my view an issue totally separate from the continuation of the employer/employee relationship, as that is all that this relationship was at all times. The prospect of partnership was a carrot dangling on a string which neither party had addressed in any detail before the time of termination. Similarly, the criticism of Mr Daley in coming late to work should be seen in perspective. Mr Mather says that all the staff came late. Ms Carey says that it was only the applicant who had a habit of arriving late, and the applicant denies coming late at all. The overall hours of attendance are not in evidence. There was no attendance book. There are no records of comings and goings of the members of the staff. There is a total lack of perspective in the picture that has been painted to me in relation to the applicant's times of arrival and departure and other attendances at the clinic. I am unable to draw any conclusion, and there is no evidence in any event of any real detrimental effect on the business of the clinic. There was an assertion in the respondent's case that the applicant had a habit of leaving early in the evenings. I find that that is contrary to the evidence and I find that there is more convincing evidence that the applicant stayed later in the evenings that his usual finishing time than there is of him coming later in the mornings. I am not satisfied with the evidence concerning what are said to be unexplained absences by the applicant from the clinic during the day. The alleged unexplained absences are based on observations of Ms Carey and Mr Mather, neither of whom was in a position to be cognisant of the reasons for any observed absences and neither of whom took the trouble to inquire of the applicant as to why he was absent before they reported his absences to the employer. The assertion of unexplained absences ignores the fact that there were legitimate reasons for absences by the vets from the practice during the period of the day in between consultation hours. They were work related reasons, and the assertion that the applicant was guilty of taking unexplained absences ignores what in my view ought to be an accepted standard, that professional people are entitled to a measure of free movement and are entitled to have their integrity relied upon by their employers until such time as it is proved that they cannot be relied upon. Ms Tsivinsky asserted that the applicant was sometimes absent from the clinic. The applicant agreed that he was sometimes absent from the clinic. The real issue is why he was absent from the clinic and the respondent has not established to my satisfaction that he was absent on a significant number of occasions for reasons other than work related reasons. The perception by Ms Casey and Ms Tsivinsky and Ms Felderhof of rudeness on the part of the applicant was also the subject of some lengthy evidence. Communications between members of the workforce are a two-way street. Mr Mather had the opportunity to observe the demeanour of all of the members of this workforce and he never noticed anything of significance in the applicant's relationship with the other members of the staff, nor can Mr Holden confirm that there were any problems. Given the attitude and conduct of Ms Carey it is possible that she generated some of the tension, and also in my observation it is difficult for me to reconcile the image of the applicant as a good vet in a very busy suburban practice with the criticisms of his personal demeanour at the level described by the female members of the staff. Another instance which was the subject of considerable cross‑examination was the issue of the Nurses' Roster and the alleged failure by the applicant to roster a nurse on a particular weekend. Even if that was an error on the part of the applicant, in the overall scheme of things I cannot find that it was an incident of such significance that it could have been a factor in the termination of his employment. The evidence about the rostering raises in my mind a question of the commitment of every member of the staff to the team spirit and the level of participation and cooperation which they were prepared to put into the workplace and into their relationship with the applicant. There was further lengthy evidence about a dog that suffered from panosteitis. That incident was put forward by the respondent as an example of the decrease in Mr Van Mil's confidence in Mr Daley's performance and professional ability as a vet. I find that the significance of that incident has been exaggerated after the event. I accept that Mr Daley gave appropriate attention to the dog. I accept that he discussed its condition and the difficulty of diagnosing its condition with the other vets including Mr Van Mil, who denies that it was discussed with him. The dog's condition was difficult to diagnose and required referral to a specialist. I find that Mr Van Mil's concern about that incident was generated by the objection by the owner of the dog to the cost of the tests which were ordered by the applicant. A factor which bears on the real significance of the issue is that Mr Van Mil did not tell Mr Holden about that incident, and I find that that incident had its significance only in retrospect. The failure of the evidence to indicate cogent reasons for the termination or any catalyst for the termination on 27 July raises doubts as to the real reason behind Mr Van Mil's decision to terminate this employment. As I have said, there were partnership and equity proposals being formulated and the applicant gave evidence that it is possible that the issue of those proposals was a reason for the termination of his employment. There is a question mark over the involvement of Ms Carey in relation to financial matters. She was a longstanding and necessary employee and she was very critical of the applicant to Mr Van Mil. It may have been that Mr Van Mil's perception was that she and the applicant could not work together. Nevertheless, Mr Van Mil did not make any effort at all to determine the real meaning of Ms Carey's complaints to him. He relied on her reports and judgment without being objective and he did so to the detriment of the applicant. In all of the circumstances, therefore, I find that there was no valid reason for the termination of this employment on 27 July 1995 and there is therefore a breach of section 170DE(1) of the Act. The applicant also seeks a finding that there was a failure to afford him the procedural fairness which is required by section 170DC. I find that that is so. Paragraph 8 of Schedule 11 of the Termination of Employment Convention enjoins employers to give appropriate instructions and written warnings of prospective termination as a result of defects in work performance. In this case, as I have said, there was no immediate crisis as at 27 July. The most recent factual complaint, if it was a complaint at all, by Ms Carey, even if I were to accept the respondent's evidence, was some weeks before. The respondent had ample opportunity to reduce his allegations about the applicant's conduct and performance to writing and to discuss those allegations with him in detail. I note that, at the time, he had his expert, Mr Holden, advising him and one would have thought it possible for him to seek Mr Holden's assistance in the manner in which this termination was to be effected. I will turn, then, to the remedy. I find that reinstatement is now impracticable because of the proceedings having reached the stage which they have reached. It would not be a reasonable proposition to put the applicant back into this place of employment and he does not seek reinstatement. He did not seek reinstatement in his application. Nevertheless, reinstatement is the primary remedy. The respondent made an offer of unconditional reinstatement to the position which the applicant held as at 27 July and with making up the lost wages since termination, on 25 August 1995. That offer is of significance. At that stage, the applicant had perceived no difficulties in the work place with other staff and his evidence is that he did not resign and that he was ready, willing and able to return to work after 27 July. By 25 August, the proceedings had been commenced and the parties had attended a conciliation conference. The offer was made in an open letter from the respondent's Solicitors to the applicant's solicitors. I accept that the relationship with Mr Van Mil would have been affected by the termination and by the commencement of proceedings. These parties are, however, educated professional people. Mr Van Mil was facing the prospect of proceedings and he had taken legal advice by 25 August and made an open offer through his Solicitors. That offer was in terms of the best remedy, the primary remedy, that this Court could order and the applicant rejected it. His reason for rejecting the offer was that he had a belief that it was not genuine. There is no evidence before me on which he based that conclusion or from which I could conclude that that conclusion was in any way reasonable. The applicant was not prepared to try to resume his employment even though at that time he had no other job prospects and was apparently without income. The applicant has a duty to mitigate his loss and in circumstances where he has an offer of the primary remedy available under the Act, within one month of the termination. I find that he acted unreasonably in rejecting that offer. I cannot find that reinstatement would have been at that time impracticable. The applicant did not have to work with Mr Van Mil on a day to day basis and there is nothing to indicate to me that the resumption of the employment would not have met with success if the applicant had been prepared to give it a go. That is not to say that in all cases an offer of reinstatement will have the significance that it has had in this case. Each case must be considered on its merits and the merits of this case are that there is no reason on the evidence before me to justify the applicant's refusal to accept the offer of reinstatement. In that context, his refusal to accept the offer of reinstatement affects the exercise of my discretion in awarding compensation. The exercise of my discretion is also affected by the applicant's evidence in relation to his attempts to seek other employment. He has been engaged in part time employment with various employers since 27 July 1995 and has earned a modest income of just over $5000 to date. He gave evidence, very sincere evidence I think, of his attempts to get other work. He has made extensive inquiries and he is certainly seeking work. However, he has a limited agenda in that his evidence clearly was that he was only seeking that kind of employment which carried with it the prospect of partnership. Certainly he had some prospects of partnership at Riverview Veterinary Clinic but there had been no proposals put in that regard and it would be very difficult in any event to compare what he might have expected in the long term at Riverview against what he might expect in the long term with some other future employer. An applicant in these proceedings should genuinely seek employment on comparable terms to those which he had enjoyed with his previous employer if he had been unfairly dismissed. For the applicant to restrict his job inquiries at this stage to only those jobs which carry with them a prospect of partnership is not fulfilment by him of his duty to mitigate his loss. That is another factor I take into account in the exercise of my discretion in relation to compensation. I propose to order that the applicant receive the equivalent of about four weeks pay by way of compensation. Four weeks pay is $4143.72 and that figure rounds off to $4150. I therefore propose to make orders which I have reduced to writing in the form of minutes of the orders and I hand down a copy for each party. I certify that this and the preceding nineteen (19) pages are a true copy of the reasons for judgment of Linkenbagh Judicial Registrar. Associate: Renee Cauchi Date: 28 May 1996 Appearances: Solicitor for the Applicant: Ms Judith Jayes Phillips Fox Solicitor for the Respondent: Mr Radha Nair Goldsmiths Counsel for the Respondent: Mr Frank Lever Date of Hearing: 6 7 & 8 December 1995.