Industrial Relations Commission of New South Wales Hermes and Australasian Correctional Managment Pty Ltd [2005] NSWIRComm 1108 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Mr Ashley Rene Hermes PARTIES: RESPONDENT Australasian Correctional Management Pty Limited FILE NUMBER(S): 1202 of 2003 CORAM: Tabbaa C CATCHWORDS: Reinstatement of an injured employee - Remuneration for injured worker for period between seeking reinstatement and actual reinstatement - Continuity of Service - immediate reinstatement on application by injured employee - Reinstatement or re-employment Industrial Relations Act 1996 Industrial Relations Act 1991 LEGISLATION CITED: Industrial Arbitration Act 1940 Long Service Leave Act 1995 Stock v. Frank Jones (Tipton) Ltd. (1978) 1 WLR 231 Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 CASES CITED: Dana Tasovac v. NSW Police Service (1999) NSWIRComm 436 (01 October, 1999) Australian International Pilots' Association v. Qantas Airways Limited [1987] 22 IR 436 Deltec International Courier Pty. Ltd. v. TWU, NSW branch [dated 17 September, 1993 in IRC 2533 of 1992 HEARING DATES: 05/29/2003; 06/03/2003; 09/05/2003; 10/01/2003; 10/31/2003; 02/13/2003; 02/27/2004; 07/23/2004; 08/04/2004 DATE OF JUDGMENT: 07/11/2005 APPLICANT Mr Michael Vance Industrial Advocate Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch LEGAL REPRESENTATIVES: RESPONDENT Ms Susan Kleid Industrial Advocate OI Group DECISION: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Commissioner Tabbaa 11 July 2005 Matter No IRC 1202 of 2003 Ashley Rene Hermes and Australasian Correctional Management Pty Limited Application by the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales branch, for reinstatement of an injured employee pursuant to section 93 of the Industrial Relations Act, 1996. DECISION [2005] NSWIRComm 1108 1 The Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales branch (the Union), filed a claim under Section 93 of the Industrial Relations Act, 1996 on 06 March, 2003 stating that despite its member, Ashley Rene Hermes, producing a medical certificate to the effect that he was fit for employment from 21 February, 2003, Australian Correctional Management Pty. Ltd. (ACM)) had declined to re-instate him as a Correctional Officer. The file was allocated on the following day and was listed for conference/directions hearing in Wagga Wagga on 29 May, 2003 at which time the following appearances were entered: Mr. M. Vance ALH & MWU, with Mr. A. Hermes Ms L. Gain Agent, on behalf of the Respondent, with Mr. S. O'Brien (Contract Compliance Officer) 2 Following lengthy conciliation proceedings in private conference, the proceedings were adjourned for seven (7) days to allow the Respondent an opportunity to re-consider its decision and to advise of its intentions. 3 Correspondence was received from ACM's agents, dated 03 June, 2003, attached to which was correspondence of the same date to Mr. Hermes confirming that a position as Correctional Officer had become available and was being offered to him on the same terms and conditions as had pertained immediately prior to his injury. 4 The matter was listed for Report Back and Conference on 05 September, 2003. Mr. Hermes had been allowed to return to work from 16 June, 2003. However, the question of wages in respect to the period between when he applied to return to work and the date of his resumption, and continuity of service in respect to the period between when he was dismissed as an injured worker and his reinstatement were yet to be addressed. Those claims could not be resolved on that occasion and directions were issued for the filing and serving of statements. 5 The matter was listed for further conference on 01 October, 2003. Once again, conciliation attempts failed to resolve the claim. The filing schedule was revised. A settlement offer, made on behalf of Mr. Hermes, was to remain open in the interim. Other directions were issued in relation to subpoenas. 6 A Notice of Motion was filed on behalf of ACM on 15 October, 2003 seeking dismissal of the matter on the basis that s. 93 of the Act seeks reinstatement of an injured worker and Mr. Hermes had been reinstated. If the Notice of Motion were to be successful, then there would be no requirement for further compliance with the directions. 7 The matter was listed for conference on 31 October, 2003 at which time new directions were issued related to the filing of submissions on the notice of motion. Those directions were subsequently revised at the request, and with the consent, of the parties. Further, on 27 February, 2004, the union advised that upon receipt of the ACM's reply, the union would consider its position and advise the Commission whether it required the opportunity to cross-examine ACM regarding its submissions. 8 Further discussions were held in relation to the matter during a private conference chaired by the Commission on 18 June, 2004 and a conference held on 04 August, 2004. Both parties conceded that the claim could not be resolved by conciliation and asked that the Commission make a determination based on the written submissions made on the Notice of Motion filed by ACM. THE EVIDENCE 9 Mr. Ashley Hermes was employed as a Correctional Officer at the Junee Correctional Centre operated by ACM. 10 Mr. Hermes experienced a long-term illness of a psychological nature that resulted in him being absent from work for a period of approximately 40 weeks in just under 12 months. The date of the injury was stated to be 15 September, 2001. 11 It was not disputed that Mr. Hermes was dismissed from employment pursuant to Section 92 (1) of Part 7 of the Act on 21 August, 2002; 12 On 21 February, 2003, the Union wrote to ACM seeking reinstatement of Mr. Hermes. 13 On 04 March, 2003, ACM, through its Agents, wrote to the Union declining the request to reinstate Mr. Hermes. 14 Mr. Hermes lodged an application in the Industrial Relations Commission of NSW on 06 March, 2003 seeking reinstatement as an injured worker pursuant to s. 93 of the Industrial Relations Act 1996 (the Act). 15 On 03 June, 2003, Mr. Hermes was offered, and accepted, re-employment as a Correctional Officer on 16 June, 2003. He continues to work as a Correctional Officer at the JCC. 16 On 15 October, 2003, ACM filed a Notice of Motion seeking that the application, pursuant to s. 93 of the Act, be dismissed as an invalid application as Mr. Hermes had already been reinstated to his former position. Directions were issued on 31 October, 2003 in relation to a filing schedule related to the Notice of Motion. 17 In its Submissions in support of the Notice of Motion, filed on 06 November, 2003, ACM repeatedly referred to the reinstatement of Mr. Hermes. For instance, "The Respondent reinstated the Applicant to the position he applied for ....", "...the Applicant cannot apply to the Commission for a reinstatement order as the Applicant has already been reinstated", "... the applicant is aware that he was reinstated sometime ago and therefore this application cannot be continued and in the view of the Respondent is invalid..." 18 On 27 January, 2004, ACM's Agent wrote to the Commission drawing attention to the annexure to ACM's submissions relating to Mr. Hermes' leave record. The annexure "reflects the fact of Mr. Hermes reinstatement to the Junee Correctional Centre". 19 On 02 July, 2004, ACM's Agent wrote to the Commission attaching a copy of an email to the Union of the same day. In relation to the Hermes' matter, the email stated "We have provided you with our previous reply on this matter detailing that Mr. Hermes was reinstated to Junee Correctional Centre and that all of his entitlements as per his original termination have been returned to him through the personnel office. We will await your return as to whether you wish to discontinue this matter given that further information." [Emphasis added] 20 On 30 July, 2004, ACM's Agent wrote to the Union in response to the substantive issues it had raised: 1. Mr. Hermes employment was reinstated on June 14, 2003. 2. Following a monthly review of leave accruals for the Centre it was found that when Mr Hermes was reinstated on the payroll system he had been granted all of the previous leave accruals that had been paid out on the date of his termination (August 12, 2002). This had not been noted previously. When processing the termination payout on August 14, 2002 all accrued annual leave and pro-rata long service leave entitlements were paid out and naturally, Mr Hermes was not entitled to these being returned. 3. Sick leave accruals for permanent part time employees are set up in the payroll system to accumulate on the hours worked per fortnight so that any additional hours worked above the contract hours will attract an accrual. Full-time staff have their sick leave granted in the payroll system upon their commencement. 4. On November 18, 2003 whilst providing information to The OI Group in relation to Mr Hermes reinstatement it was found that when adjustments were made in relation to the annual leave and pro-rata long service leave accruals as detailed at 2 above, that the previous sick leave accruals had in error, also been removed. This was an honest mistake made by staff and following the discovery of this the Personnel Officer amended this by fixing the sick leave accruals to also reflect the hours Mr Hermes had previously accumulated. 5. Mr Hermes approached the Personnel Officer, Karen Clemson, regarding the differences shown in his pay slips entitlements and he was briefly advised of the circumstances as detailed above. They both discussed the reasons for this change and the error made. 6. Whilst there were errors made both in favour of and against Mr Hermes these errors have now been fixed and reflect the fact, as indicated to you by Mr Ilijevic, that Mr Hermes would be granted continuity of service . [Emphasis added] 7. There has been no attempt to alter records in an "underhanded" manner. Corrections were made by the employer to Mr Hermes records as soon as these errors were discovered. 8. Mr. Hermes has not been denied continuity of service but he has not accrued entitlements in respect of the period that he did not work.... 21 At a further conference held on 04 August, 2004, the parties requested that the Commission proceed to determine ACM's Notice of Motion on the basis of the material before it. THE CASE FOR ACM 22 The submissions made by on behalf of ACM are summarised below. 23 The object of s. 93 of the Act is the return to work of an injured employee. ACM contended that the Applicant could not apply to the Commission for a reinstatement order pursuant to that section of the Act as he had already been reinstated. 24 ACM relied on Lord Wensleydale's "golden rule" of statutory interpretation which was cited by Lord Simon in Stock v. Frank Jones (Tipton) Ltd. (1978) 1 WLR 231: ..... you are to apply statutory words and phrases according to their natural and ordinary meaning without addition or subtraction, unless that meaning produces injustice, absurdity, anomaly or contradiction... (nowadays we should add to the "natural and ordinary meaning" of the words "in their context and according to appropriate linguistic register"). 25 ACM further relied on the High Court of Australia case of Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 in relation to statutory interpretation. The judgement of Gibbs C.J. stated: It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see the intention expressed by the words used: River Wear Commissioners v. Adamson (1877) 2 App Cas 743, at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with this assumption that words mean what they say: cf. Cody v. J.H. Nelson Pty. Ltd. (1947) 74 CLR 629, at page 648. Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking "nothing remains but to give effect to the unqualified words": Metropolitan Gas Co v. Federated Gas Employees' Industrial Union (1925) 35 CLR 449, at page 445 ... as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors (1913) AC 107, at 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. 26 It was concluded on behalf of ACM that s. 93 of the Act cannot be applied to Mr. Hermes as the section clearly seeks that the Commission make an Order of reinstatement and Mr. Hermes had already been reinstated. The fact that Mr. Hermes had already been reinstated made the claim invalid as the pre-condition for an order pursuant to s. 93 no longer existed. Therefore, continuation of the application would not only be classed as frivolous and vexatious, but as an inappropriate waste of the Commission's and ACM's time. 27 ACM traced the reasoning of McKenna C in Dana Tasovac v. NSW Police Service (1999) NSWIRComm 436 (01 October, 1999) in which the application for an Order for reinstatement was granted pursuant to s. 93 of the Act. As no application had been made in relation to s. 97 of the Act, no Orders were made in relation to that section. 28 It was concluded that the Commission could only deal with the section that was the subject of the application, namely s. 93. The Commission was precluded from making any Orders in relation to ss 94 (4) Payment to Employee and 97 Continuity of Service, as there have been no Orders made by the Commission for re-instatement of the Applicant pursuant to s. 93. In other words, those latter sections cannot be invoked if no Orders for reinstatement have been made by the Commission. 29 ACM sought costs in relation to the continued pursuit of the application by the Applicant despite approaches by ACM to discontinue. THE CASE FOR THE UNION 30 The submissions made by on behalf of the Applicant are summarised below. 31 The Union tendered a copy of correspondence forwarded to ACM's Agent on 29 January, 2004 raising a number of concerns. Those concerns related to the alleged on again - off again position adopted by the Company regarding Mr. Hermes' continuity of service. 32 The Union had received a response dated 30 July, 2004 advising that Mr. Hermes had been paid out his annual leave and long service leave entitlements at the time of his dismissal. ACM discovered, on 18 November, 2003, that Mr. Hermes' sick leave accruals had been removed in error and the Personnel Officer had amended the sick leave accruals to reflect the hours he had previously accumulated. That meant that Mr. Hermes was granted continuity of service in relation to the only entitlement available to him. However, he had not accrued sick leave entitlements in respect of the period that he had not worked. 33 It was contended on behalf of the Applicant that he had not been reinstated in accordance with s. 93 (Chap 2 Pt 7) of the Act. Rather, he had been employed under a separate contract of employment. He had not been paid wages in respect of the period between 21 February, 2003 (when the Respondent was requested to reinstate the Applicant) and 16 June, 2003 when he actually recommenced employment. 34 The Applicant relied on the judgment of the Full Bench of the Industrial Commission of NSW in Court Session (Australian International Pilots' Association v. Qantas Airways Limited [1987] 22 IR 436 @ 441) which was cited with approval by another Full Bench of the Commission in Deltec International Courier Pty. Ltd. v. TWU, NSW branch [dated 17 September, 1993 in IRC 2533 of 1992]: The question referred to is to be taken as using the term "reinstatement" in the sense of restoration to the position formerly occupied or to one of similar status, a distinction having being drawn between that situation and re-employment. 35 It was submitted that ACM's refusal to grant the Applicant continuity of service was enough to establish that no reinstatement had occurred. The Union provided the Commission with a comparison of the loss in terms of long service leave entitlements alone should Mr. Hermes be dismissed prior to the expiration of a 10-year period following his employment commencing on 16 May, 2003 (or the 5 years in special circumstances contemplated by s. 4 (2)(iii) of the Long Service Leave Act 1995). That loss would be the result of the Applicant being employed afresh as opposed to being truly reinstated. 36 A further disadvantage would result in the event of Mr. Hermes being made redundant. In the event of a redundancy situation occurring in the very near future, Mr. Hermes would be entitled to no redundancy payments. As a 45-year old, he would miss out on the entitlements he would have otherwise received for nearly 6 years' service under the terms of the Junee Correctional Centre - 1999 Enterprise Agreement. 37 The Applicant had lost a significant amount of accrued sick leave as a result of his dismissal on 12 August, 2002. In addition, as a consequence of the provisions of the Enterprise Award, he would accrue a reduced amount of sick leave during the year following his employment commencing 16 June, 2003 than would have been the case were the Respondent to have reinstated him. 38 The Applicant was in a considerably worse position regarding notice of termination or payment in lieu thereof when compared with the entitlements afforded a reinstated employee. It would take 5 years before the Applicant regained his previous entitlements in that regard. 39 Mr. Hermes recommenced employment on 16 June, 2003 on 12-hour shifts. Should his personal circumstances change so as to make it impractical for him to continue to work those shifts, he would be unable to rely on the decision of the Commission as currently constituted to assist in any request for a return to 8-hour shifts. 40 It was concluded that a proper assessment of the Applicant's conditions of employment since his return to work would reveal that the failure to grant continuity of service has resulted in a significantly inferior contract of employment leading to the conclusion that the Applicant has been employed under a new and measurably different contract of employment. 41 Protection of injured workers provisions were introduced into the Industrial Arbitration Act 1940 in 1987. Those provisions were carried over as sections 235-244 of the Industrial Relations Act 1991. The relevant provision of that Act provided: 241 (1) If an employee is reinstated to a position under this Part, the dismissal and subsequent reinstatement of the employee are not, for any purpose to be regarded as interpreting or otherwise affecting the continuity of service of the employee with the employer. 42 The Union relied on the Second Reading Speech of Parliament by the then Attorney General and Minister for Industrial Relations, the Hon. J.W. Shaw, on 23 November, 1995, regarding the Injured Workers Provisions of the Industrial Relations Bill. The intention of Parliament was made abundantly clear that dismissed injured workers should not be disadvantaged financially. It was pointed out that the Applicant had suffered a significant financial disadvantage as a result of the failure of ACM to reinstate him. 43 It was submitted that the 1996 Act was intended to carry forward the provisions of the 1991 Act that were designed to provide certain employment-security rights for persons who have suffered a work-related injury. It was contended that if ACM's argument was accepted, then the provisions of the 1996 Act would act as a windfall to the unscrupulous employer who can refuse to reinstate an employee until the Order of the Commission was imminent thereby frustrating the right of such injured worker to seek to recover wages for the period during which reinstatement had been denied. 44 It was argued that Parliament could not have contemplated provisions that would remove the ability of injured workers to recover wages in instances of belated reinstatement as opposed to immediate reinstatement. 45 Whilst it was true that the union had not made a formal separate application in relation to continuity of service, it was generally understood that an application for reinstatement necessarily encompassed such an Order. In addition, ACM had been put on notice, in formal proceedings before the Commission on 01 October, 2003, that such Orders would be sought. It was submitted that the Commission was empowered to make such consequential Orders and, further, Orders for continuity of service and payment of lost wages to the Applicant are not conditional on the Commission making Orders for reinstatement. 46 It was contended that, had Parliament intended to encourage injured workers to settle their applications consistent with the type of encouragement operative in Ch. 7 Pt 2 of the Act, then the relevant injured worker provisions would have been framed in similar terms. It was submitted that they were not framed in the same way as Parliament did not intend recovered injured workers to suffer financial disadvantage. To uphold the Notice of Motion would effectively give the Commission's imprimatur to the actions of unscrupulous employers. 47 It was pointed out that s 93 (1) of the Act refers to the immediate reinstatement of an employee by an employer. It was contended that a break of nearly 4 months (21 February 2003 - 16 June 2004) could hardly be considered to be an immediate reinstatement. Mr. Hermes conceded that a short delay would be experienced while rostering and other related arrangements were being made and sought, during the proceedings on 01 October, 2003, in addition to continuity of service, orders for reinstatement and payment of wages from 03 March, 2003 which represented 10 days after the original request for reinstatement was made to ACM. 48 It was concluded that the refusal by ACM to reinstate Mr. Hermes immediately allowed him to bring a claim under this section. 49 The Union sought its costs in relation to defending the Notice of Motion. It was submitted that the Notice of Motion had been instituted without reasonable cause given that there was no reinstatement of the Applicant and, further, it was the actions of ACM, in resisting the claim, which were frivolous and vexatious. CONSIDERATION 50 Part 7 - Protection of Injured Employees, of Chapter 2 of the Industrial Relations Act 1996 set outs the relevant provisions to be considered in determining the above claim. 51 Mr. Hermes experienced a long-term illness of a psychological nature that resulted in him being absent from work for a period of approximately 40 weeks in just under 12 months. 52 It was not disputed that Mr. Hermes was an "injured worker" as defined in ss. 91(1) of the Act. The date of injury was stated to be 15 September, 2001. 53 Neither was it disputed that he had been dismissed from employment on 21 August, 2002 pursuant to ss 92 (1) of the Act. 54 Additionally, it was not disputed that Mr. Hermes applied for reinstatement on 21 February, 2003 when he was declared medically fit for employment. The application was less than 2 years after dismissal was within the time required by s. 93 (3) of the Act. That application had been declined by ACM on 04 March, 2003. 55 Section 93, Application to Commission for reinstatement order if employer does not reinstate, states: 93 (1) [Reinstatement order] If an employer does not reinstate the employee immediately to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), the employee may apply to the Commission for a reinstatement order. [Emphasis added] 56 Mr. Hermes was offered, and accepted, a position in the position he formerly occupied on 03 June, 2003 and commenced employment on 16 June, 2003 as a Correctional Officer. 57 Mr. Hermes was not reinstated immediately he made application for reinstatement to occur. It is implicit in the legislation that an injured employee be reinstated immediately. If not, assistance may be sought from the Commission, presumably to provide that remedy. 58 I find that Mr. Hermes was therefore competent to apply on 06 March, 2003, through his Union, for a reinstatement order pursuant to ss 93 (1) of the Act. 59 In relation to his statutory entitlements, Mr. Hermes had been paid out his long service leave and annual leave entitlements at the time of his termination. ACM argued that the union could not seek Orders in relation to ss 94 (4), Payment to Employee, and s 97, Continuity of Service, of the Act for two reasons. Firstly, no order of reinstatement could be made in the present proceedings as Mr. Hermes had already been reinstated. Therefore, the pre-condition for an order pursuant to s. 93 no longer existed. Secondly, the Commission can only deal with the subject of the application. As no order for reinstatement has been made by the Commission, then those sections cannot be invoked. 60 The following is the confusing sequence of events since Mr. Hermes recommenced employment: 16 June, 2003 Mr. Hermes re-commenced employment. Early July, 2003 John Ilijevic, General Manager of ACM, advised the Union delegate that Mr. Hermes would be granted continuity of service. His payslips had reflected that advice in that both sick leave and (incorrectly) annual leave accruals had been carried over from his previous service. 05 September, 2003 The Commission was advised that ACM did not consent to continuity of service. Mid-September 2003 Mr. Hermes' payslips were altered to remove any reference to accruals from previous service. 01 October, 2003 ACM's representatives again confirmed to the Commission that continuity of service had not been agreed to. 10 October, 2003 Sick leave taken by Mr. Hermes was paid as sick leave in advance. 09 November, 2003 Mr. Hermes' payslip for the relevant period showed no carry over of accrued sick leave from his previous employment. 10 November, 2003 The Union filed and served its submissions in respect to ACM's Notice of Motion pointing out, in part, that absence of previously accrued sick leave supported the contention that Mr. Hermes had not been reinstated. 18 November, 2003 The Union became aware that Mr. Hermes' sick leave accruals had been removed in error and then re-inserted at the direction of the Human Resources Manager. However, the sick leave accruals merely reflected the hours he had previously accumulated. In other words, he had not accrued any entitlements during the period that he had not worked. 23 November, 2003 Sick leave accruals re-appeared on Mr. Hermes payslip. 61 A distinction needs to be drawn between reinstatement and re-employment. The Shorter Oxford English Dictionary defines "reinstatement" as meaning "1. To reinstall or re-establish (a person or thing in a place, station, condition, etc.) 2. To restore to its proper or original state; to instate afresh...". An order for re-employment results in a new contract of employment being entered into by the parties (See Australian International Pilots Association v. Qantas Airways Limited (1987) 22 IR 436. 62 The Union made an application to the Commission, pursuant to s. 93 of the Act, for a reinstatement order in the face of a rejection by ACM to reinstate Mr. Hermes in the sense that he had not received the benefit of remuneration for time lost (ss94 (4)) and continuity of service (s97) . 63 An application pursuant to s. 93 is in effect an application under Part 7 of Chapter 2 of the Act and the whole of that Part applies. 64 If the Union were to be successful in its application, then it would be remiss of the Commission to merely make an order for reinstatement as provided in s 94 (1) without spelling out the terms and conditions of that employee's reinstatement. Indeed, the confusion that would be created by such an Order would be akin to the current circumstances surrounding Mr. Hermes. 65 In issuing an order for reinstatement, the Commission must indicate the position to which the employee is being reinstated to, must make a finding as to the remuneration lost between the time the applicant sought reinstatement and the actual reinstatement and indicate whether or not continuity of service applies. The Commission has considerable discretion in making these orders. 66 On 02 July, 2004, ACM formally re-iterated that Mr. Hermes had been reinstated to Junee Correctional Centre and that all of his entitlements as per his original termination had been returned to him through the personnel office. 67 The correspondence read as follows: .... Mr. Hermes was reinstated to Junee Correctional Centre and that all of his entitlements as per his original termination have been returned to him through the personnel office. We will await your return as to whether you wish to discontinue this matter given that further information.... 68 I find, from the evidence before the Commission that has been detailed above, that it is without doubt that ACM intended that Mr. Hermes' service would be deemed to be continuous. That intention was expressly stated in the correspondence from ACM's Agent in which it was confirmed that the General Manager had advised the union that Mr. Hermes would be granted continuity of service. 69 Re-instatement, with continuity of service, was therefore the basis upon which Mr. Hermes accepted the offer of a return to work on 03 June, 2004. 70 The outstanding issue, therefore, is the remuneration sought between the date when reinstatement was sought, 21 February, 2003, and the date of his reinstatement on 03 June, 2003. 71 Mr. Hermes had conceded that it would probably take a few days to rearrange rostering to accommodate his return to work and offered to shift the application date from 21 February, 2003 to 03 March, 2003. It is noted, however, that although the offer to recommence work occurred on 03 June, 2003, Mr. Hermes had not commenced work until 16 June, 2003. 72 Subsection 94 (4) of the Act provides: [Remuneration] If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. 73 ACM was put on notice, on at least 06 March, 2003, that Mr. Hermes was pursuing his entitlements in that regard. ACM was aware of the inconsistencies in its approach as detailed above and continued to be intransigent about the application until 03 June, 2003. I find that the delay would not have occurred had ACM acted upon the application properly made by Mr. Hermes for reinstatement to his former position. COSTS 74 Both parties sought costs in relation to the proceedings. Leave is reserved to both parties to seek to have the matter returned to the list in relation to costs. ORDERS 75 The Notice of Motion filed on behalf of Australian Correctional Management Pty. Ltd. is dismissed. 76 Mr. Hermes is reinstated to his former position as Correctional Officer effective from 03 March, 2003; 77 The period of employment of Mr. Hermes with Australian Correctional Management Pty. Ltd. shall not be taken to have been broken by his dismissal on 21 August, 2002; 78 The period between his dismissal on 21 August, 2002 and his re-instatement on 03 March, 2003 shall not be taken into account in calculating for any purpose the period of service of Mr. Hermes with Australian Correctional Management Pty. Ltd.; 79 Australian Correctional Management Pty. Ltd. is ordered to pay to Mr. Hermes an amount not exceeding the remuneration he would, but for being dismissed, have received between his reinstatement on 03 March, 2003 and his actual recommencement at work on 16 June, 2003. 80 The parties are directed to confer on the terms of the Orders to reflect this decision and to file short minutes of such orders within 21 days. In the event that agreement cannot be reached, leave is reserved to both parties to seek to have the matter returned to the list for determination of outstanding issues concerning those orders. I. Tabbaa COMMISSIONER 12/08/2005 - - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.