Industrial Relations Commission of New South Wales CITATION : Colosimo and Banana Traders of Australia Pty Ltd t/as P W Chew & Co [2003] NSWIRComm 72 APPLICANT: PARTIES : Peter James Colosimo RESPONDENT: Banana Traders of Australia Pty Ltd t/as P W Chew & Co FILE NUMBER: 5640 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - transmission of business - whether applicant left employment of his own accord - constructive dismissal - lack of work - allegations of sexual and racial harassment - applicant told to take accrued leave - applicant told no work available - principles of constructive dismissal. CATCHWORDS : Held, applicant redundant - constructive dismissal established - circumstances unfair - unfairness in redundancy - unreasonable to expect significant wage cut - no reasonable alternatives - no consultation - no redundancy benefits - improper conduct of respondent - sexual advances not proven - no transmission of business - dismissal harsh and unjust - reinstatement impractical - compensatory remedy - age, service, skills and unblemished record taken into account - orders made. LEGISLATION CITED : Industrial Relations Act 1996 Allison v Bega Valley Council (1995) 63 IR 68 Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000 Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999 Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Leeds and Northrup Australia Pty Ltd v Hull (1992) 46 IR 11 Little v Commissioner of Police (No.2) [2002] NSWIRComm 52 CASES CITED : Police Service of New South Wales v Batton (2000) 98 IR 154. St Vincents Hospital Sydney Pty Ltd v Harris (unreported) Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998 Thomas v Christie Direct [2002] NSWIRComm 161 Ward v Mobile Innovations Limited [2002] NSWIRComm 287 AWARDS: Wholesale Fruit & Vegetable Employees (State) Award HEARING DATES: 05/05/2003; 05/06/2003 DATE OF JUDGMENT: 07/11/2003 APPLICANT: Mr A Searle of Counsel SOLICITOR: Hunt and Hunt Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr A Jamieson of Counsel SOLICITOR: DeLuca-Leonard JUDGMENT: - 34 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 11 July 2003 Matter No IRC02/5640 PETER JAMES COLOSIMO AND BANANA TRADERS OF AUSTRALIA PTY LTD t/as P W CHEW & CO Application by Peter James Colosimo re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 72 1 Mr Peter James Colosimo ('the applicant') was employed by P W Chew & Co from 12 October 1989 to 31 August 1998 when he commenced full time employment with Banana Traders of Australia Pty Ltd ('the respondent' in these proceedings). There was a termination of the applicant's employment on or about 17 September 2002. I describe it this way because, central to this case was a question of whether the respondent dismissed the applicant or whether he abandoned his employment or otherwise ended his employment at his own initiative. 2 It is axiomatic that if there was no dismissal of the applicant, there can be no unfair dismissal, such as to enliven the Commission's jurisdiction pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'). I shall return to this jurisdictional question later. 3 There was also an issue regarding whether the applicant's employment was terminated when the business was sold in 1998. It was said that this issue is a relevant consideration for the purposes of any relief that might be ordered should the applicant's case ultimately succeed as to jurisdiction and whether the Commission finds the dismissal to be unfair. I agree that length of service inter alia, is a relevant factor for the Commission to take into account, when making an order under s89 of the Act. 4 Proceedings were commenced in this matter by way of an application pursuant to s84 of the Act, filed by the applicant on 3 October 2002. The matter was initially listed for conciliation and directions on 7 November 2002. Mr C Fesel (solicitor) appeared for the applicant and Mr A Jamieson of counsel appeared for the respondent. 5 Following preliminary submissions the Commission chaired private conferences with the parties. A finding of unsuccessful conciliation was made and directions were issued for the arbitration of the claim. THE EVIDENCE Nature of employment contract 6 The applicant deposed that when Mr Norman Wong of P W Chew and Co sold the business to Mr Greg Bradshaw and Mr Steven Burgess on 31 August 1998, he understood that his contract of employment had not been broken and that his employment with Mr Wong would be taken as service with the respondent. He said he had commenced employment in 1989 as a permanent casual and nine months before the sale he was made full time (this was confirmed in the calculation of payout figures by Mr Wong's accountant - Ex"E"). 7 The applicant believed he was employed under the terms of the Wholesale Fruit & Vegetable Employees (State) Award 318 IG 552. His duties involved the sale of bananas at wholesale prices to fruit shops, retailers, cafes, providores and co-ops. The applicant said his other duties included: collecting money from customers; washing out the cool rooms; ensuring the correct temperature is maintained in the cool rooms; stocktaking; sweeping the floors; delivering fruit to the customer's vehicles; and meeting and greeting any visitor to Banana Traders' stand. 8 The applicant claimed his duties did not change when Mr Bradshaw purchased the business in 1998. 9 The applicant deposed that his hours of work were: Monday 1.30 am to 1.00 pm Tuesday 3.00 am to 12.00 pm Wednesday 3.00 am to 12.00 pm Thursday 2.30 am to 12.00 pm Friday 2.30 am to 1.30 pm with the occasional Saturday and overtime work for which he was not paid. He said he was paid extra when he opened up the business early. 10 The applicant was paid in cash each week. He received no weekly pay slips. His last group certificate for the year ended 30 June 2002 disclosed an annual income of $58,828. 11 In oral evidence, the applicant said that before Mr Bradshaw acquired the business, they had both worked as salesmen together for P W Chew & Co and that they had got on very well. In 1998 Mr Bradshaw had asked him to be involved in the purchase of the business. However, for personal reasons he had declined the offer. 12 The applicant agreed that when the business was sold he received a cheque for $1,525 from Mr Wong. However, it was not made clear to him what it was for. Further to that he was never told that the cheque was the full amount of outstanding entitlements. He believed the $1,525 represented part holiday pay and "other things". No documentation was provided which indicated what the amount represented. Mr Wong had not told him he was to be terminated. Mr Wong simply said "I have sold the business to Greg". The applicant received no termination letter or separation certification from Mr Wong and he received no termination notice and no new contract of employment. 13 The applicant deposed that at about the time of the sale of the business, he had had an argument with Mr Wong about his entitlement to long service leave. However, Mr Bradshaw assured the applicant that "we will fix it down the track". The applicant had not sought to clarify the matter at the time, but believed that Mr Bradshaw had taken over the obligations for statutory entitlements. 14 The applicant's wife, Yolanda Colosimo, gave supporting evidence about the nature of her husband's employment. However it was only evidence of what her husband had told her and should be considered as hearsay. I am not assisted by this aspect of her evidence. 15 Mr Gregory Bradshaw gave evidence that as a director of the respondent, Banana Traders Pty Ltd, he purchased the business of P W Chew & Co Pty Ltd from Mr Norman Wong on or about 27 August 1998. Mr Bradshaw had been an employee of Mr Wong. Attached to his affidavit was the Agreement for Sale (Annexure A) which relevantly provided at cl 21 the following provision: 21(a) The Vendors shall terminate the employment of each of their employees with effect from the date of completion and on completion (in accordance with the requirements of relevant legislation, award or agreement) pay to each of such employees, the respective amounts due to them as at that date for wages, holiday pay and, subject to sub-clause (d), long service leave. (b) The Purchasers shall be at liberty so far as the Vendors are concerned to re-employ all or any employees of the Vendors at the date of completion. Mr Bradshaw agreed that none of the employees had seen the Agreement for Sale. 16 Mr Bradshaw said that at the time of the sale he had spoken to Mr Wong in relation to the future of the employees. He had also told the applicant he would be commencing a new employment contract as a salesman with Banana Traders. The applicant denied having this conversation. Mr Bradshaw's understanding was that Mr Wong would "clean up his end of the business" and he would start afresh. Mr Bradshaw had himself received all of his entitlements from Mr Wong. 17 Mr Wong had told him that the applicant had been paid an amount of $1,525.24 on 4 September 1998, representing all monies owed to him. Mr Bradshaw said the applicant had complained about the amount. 18 Having checked the sales dockets at the time, Mr Bradshaw said the applicant had not worked as a salesman prior to the sale of the business. However, Mr Bradshaw agreed that this did not necessarily mean the applicant was not involved in selling. "Everyone did what needed to be done", he said. The applicant disputed Mr Bradshaw's claim that his employment changed after the purchase of the business. The new employment declaration did not indicate any change in his duties. 19 Mr Bradshaw deposed that the applicant was not paid an award wage. He was paid $1,020 gross per week. He believed employees who had to get up at 2.00 or 3.00 am would not do so for award wages. He said the applicant did not work the hours described by him in para 9. He was paid for work performed on Saturday. The applicant was kept fully informed of his earnings. Mr Bradshaw acknowledged that no weekly pay slips were provided and no rosters existed. These deficiencies have since been rectified. 20 The applicant agreed he was paid for work on a Saturday. However, he was not paid correctly and has since commenced action for recovery of unpaid wages. He denied being fully informed of his precise earnings. He received no break down of his payments. 21 Mr Bradshaw deposed that the applicant was highly regarded in the sales area and was an asset to the company. There were no issues of poor work performance. 22 Mr Nicholas David Walker worked alongside the applicant as a salesman for the respondent for two and a half years. The applicant had worked on the same basis as he did. Their duties were to sell bananas to providores, co-operatives, retailers and fruit shops. 23 Mr Walker said there was some flexibility in the hours of work. He said he had sometimes worked on a Saturday and he was paid extra for doing so. 24 Mr Walker said he left the respondent's employ because of a downturn in the industry and had found another job. 25 Mr Norman Wong gave evidence that from 12 October 1989 to 1 December 1997 the applicant had been employed as a casual general assistant; firstly for one day a week and then two days. The applicant said he worked three days. The applicant became a full time general assistant from 1 December 1997 until Mr Wong sold the business to Mr Bradshaw and Mr Burgess in late August 1998. For the next three years Mr Wong worked on a part time basis for the respondent. Mr Wong insisted that the applicant did not have a sales background and never handled money while employed by him. 26 Mr Wong said that when the business was sold, the applicant received a business cheque dated 4 September 1998 in respect to his outstanding entitlements. This consisted of long service leave of $1,200 plus tax of $403; annual leave of $772.80; loading of $135.24 plus tax of $178.80 - a total of $1,525.24. These calculations were provided by Mr Wong's accountant and included calculations for all his other employees including Mr Bradshaw and himself (See Exhibits "D" and "E" - Documents produced to the Chief Industrial Magistrate). 27 Mr Wong said when the business was sold, he informed the applicant that his employment contract would end on 31 August and he would be paid an amount owing to him. He had made no suggestion that any employee would be continued on with Mr Bradshaw. However, Mr Wong agreed that he and Mr Bradshaw had discussed which employees might be kept on and the applicant's name was mentioned. 28 While Mr Wong couldn't remember the exact words he used, he did say something like you will "finish up with us when we sell the business." He did not give the applicant any letter or separation certificate. He could not remember if he gave the applicant a breakdown of his outstanding entitlements. The applicant claimed that the only thing Mr Wong said was that "Greg Bradshaw will be taking over the business." 29 Mr Steven Burgess gave evidence that in 1998 the applicant was interested in buying into the business and he had an impression the applicant resented his own involvement in the deal. 30 Mr Burgess said the applicant did not work the set hours stated in his affidavit. The applicant had worked three Saturdays a month for which he was paid extra. Circumstances leading to the termination of the employment 31 On 5 July 2002, the applicant said he and another employee, Tim Walker, were advised by Mr Bradshaw that the company had not been performing well. As a result they would both be working two days a week "until things improve." The applicant said he was extremely disappointed that his hours would be reduced as he had not been consulted or given any chance to make alternative suggestions. As he feared losing his job, he said he had no option but to co-operate. 32 However, on 6 July the applicant received a phone call from Mr Bradshaw in which he (Mr Bradshaw) said he had changed his mind on the two days a week proposal. The applicant was now required to take his accrued annual leave. He said Mr Bradshaw assured him his job was secure and he needn't worry. The applicant reluctantly agreed to this proposal and collected his holiday pay in cash on 13 July. He was told to return on 21 July. 33 The applicant said he was never told that the respondent couldn't afford to pay the full lump sum of ten weeks accrued annual leave. Mr Bradshaw had directed him to take two weeks at a time and he had not questioned it. 34 On 21 July Mr Bradshaw left a message on the applicant's mobile phone directing him to take another two weeks paid holiday. He returned Mr Bradshaw's call and was told his job was secure and to collect his pay on 27 July. On this occasion he was paid by cheque. 35 The applicant said whenever he collected his pay both Mr Bradshaw and Mr Burgess seemed disinterested. The applicant said he believed that when he had to wait for his pay for up to two hours that this was designed to intimidate him into resigning from his employment. 36 In early August, Mr Bradshaw said he told the applicant of a new contract with Woolworths for red tipped bananas and that the Company was waiting to hear if it had won the contract. The applicant claimed Mr Bradshaw never told him he was needed to service the Woolworths contract. The contract was won in November and the applicant had not been invited back to work. 37 On 3 August Mr Bradshaw phoned the applicant and told him to take another fortnight's paid leave. The applicant collected his pay again on 10 August and was told to come back in two weeks. 38 The applicant said he visited the Markets on 24 August and was told by another trader that the respondent had employed someone else to perform some of the work he had previously performed. 39 About this time the applicant was told he had four more weeks of accrued leave and to return on 31 August. He was again assured his job was secure, even though Mr Bradshaw had confirmed a new employee had been employed. 40 On 7 September 2002 the applicant collected another two weeks pay by cheque. However, by this time he said he was very concerned about his continued employment. He asked to return to work on 16 September. Instead, Mr Bradshaw told him to return next week to "discuss things." He denied being told anything about the Woolworths contract. Mr Bradshaw had said to him, "Uncle Pete, don't make me make a decision now because you won't like the answer." 41 On 14 September Mr Bradshaw phoned the applicant and told him there was no work available and no need to report for work. He understood this to mean that he was terminated. He expressed disappointment and asked for a reference. Mrs Colosimo recalled that her husband was very disturbed and upset by this phone call. 42 The applicant collected his reference on 17 September. The reference was expressed as follows: Peter has worked with our company since 31 August 1998, and it is with regret that he leaves us to further his goals. We have found Peter both punctual and polite, who never asks "how or why", but 'when do you need it? And then makes sure its done on time. One who knows what to say and when, to satisfy the most difficult of people on their worst of days. I am sure that Peter will be an asset to your company in many ways. 43 The applicant conceded he was unhappy with the reference and that he received no pro rata long service leave. He also believed he was not paid his correct entitlements to annual leave and superannuation. He had since lodged a claim with the Chief Industrial Magistrate. 44 The applicant said he never left his employment to seek employment elsewhere. He had not resigned and had not abandoned his employment. 45 In oral evidence, the applicant agreed that he had not been told that he was "sacked" or "fired" or his "employment was terminated and never come back." He had not begged for his job back and had not left his job because he wouldn't work for award wages. He had never said he was going to work somewhere else. He said Mr Arcella (from ABC Bananas) was lying when he said the applicant had asked for a job. Mr Arcella had no authority to offer him a job as his father owned the business. 46 The applicant acknowledged that there was a disease affecting the banana crop in 2001. He agreed that the respondent was experiencing a short term cash flow problem. Mr Bradshaw had told him there were "difficulties" and he had accepted there was. He accepted words such as "downturn in the industry" and "financial difficulties" could have been used. However, the applicant claimed that the respondent lost a number of suppliers due to poor customer service. He gave an example of the loss of the "Nature Knows Best" contract. He had mediated with displeased customers because Mr Bradshaw had failed to treat customers with respect and courtesy. 47 The applicant deposed that he would have worked for award wages if he had been asked to. He said the markets were part of his life and he loved working there. He had many friends and good relations with his customers. It was only Steve Burgess who had made working for the respondent difficult and unpleasant. 48 The applicant's wife gave evidence that Mr Bradshaw had told her on many occasions, that her husband's job was secure and that he was one of his best workers. In oral evidence, Mrs Colosimo accepted Mr Bradshaw spoke to her on only one occasion on either 3 or 17 August. Mrs Colosimo was very concerned about her husband's continued employment. She and her husband had first spoken about the respondent's difficulties around April/May 2002. Her husband told her he was concerned that Mr Bradshaw was not treating the customers correctly and that as a result business was a bit slow. 49 Mr Bradshaw deposed that in early 2000 the banana industry suffered from disease, the drought and a downturn in sales. This continued through 2001. He attached a report from the Australian Banana Wholesaler (Annexure C). The applicant was aware of this downturn and had not been kept in the dark. In cross examination, Mr Bradshaw agreed Annexure C reflected a downturn in the industry as a whole. He stated that this downturn had been reflected in his own business. 50 Mr Bradshaw said he told the applicant on 6 July that he was worried he might miss out on his holiday pay. He made arrangements for him to collect his pay on a fortnightly basis. The applicant denied this conversation took place and said there was no such arrangement. He believed that he would be returning to work after each two week period, only to be disappointed when told to take a further two week's leave. 51 Mr Bradshaw denied telling the applicant on 10 August "Uncle Pete, if I wanted to get rid of you I would have by now." Mr Bradshaw also denied another employee had been hired to carry out the applicant's duties. A casual had been engaged to wash out the cool rooms. This was not the work of a salesman. Mr Burgess confirmed that the casual employee was hired through an agency. The work was particularly dirty and not work performed by a salesman. 52 Mr Bradshaw deposed that on the 31 August he proposed to the applicant that he work for award wages. Mr Bradshaw said the applicant refused and said he would look for another job. He also asked for a reference. 53 On 6 September, Mr Bradshaw had asked the applicant if he would reconsider working for award wages until at least November when things were expected to pick up. Mr Bradshaw said he hoped things would improve by November if the Woolworths contract came through. The applicant had again refused to work for award wages. 54 Mr Bradshaw said he had told a supplier in a letter of 6 September that the applicant would be available for the new contract. The letter is reproduced below: Dear Frank and Dianne, All is looking good for Woolworths accepting Pacific Coast Eco Bananas into their stores. We will have our Woolworths Food Operations Audit on 12th September 2002. We have been working hard to ensure we pass with flying colours. Further to our continual conversations about quantities, we are look forward (sic) to increasing supplies through December and January because at the moment demand is continually outpacing supply. The second issue is your question regarding on how I will have time to organise some 50 pallets a week to 200 odd stores when we start to move some quantity later in the year, I have worked a long time in bananas with a fellow named Peter Colosimo whom I am sure you met while you were in Sydney last, he is sales driven, organised and very presentable, I am sure he will be able to liase (sic) with the chain stores successfully when the time comes. Looking forward to seeing you soon and meeting with the new growers and having discussions about our future when we will be able to discuss this further. Sincerely Greg Bradshaw Mr Bradshaw said the applicant had met Frank and Dianne Sharpen. The applicant denied he had. 55 Mr Bradshaw said he spoke to the applicant on 14 September and asked him to come in on Monday "about getting you back to work." He said there was no conversation about collecting entitlements. The applicant claimed this conversation never took place. 56 On 17 September, Mr Bradshaw said he told the applicant: "I can offer you award wages until November and this will help the company get back on its feet. By then the red tip bananas of Woolworths may be a completed deal." Mr Bradshaw claimed the applicant again refused to work for award wages and asked for a reference so he could look for work elsewhere. 57 Mr Bradshaw denied a conversation with the applicant in which it was alleged he had said Mr Burgess was out to get rid of him. There was no reason to believe Mr Burgess would want to lose a salesman of the applicant's calibre. As he and Mr Burgess were partners, there would have been a fall out if Mr Burgess had wanted to get rid of the applicant. The applicant worked hard and was honest and they had been friends for thirteen years. 58 It had been intended that the Company would pay the applicant ten weeks up front. However after discussion, Mr Bradshaw had put that he collect his pay every fortnight and the applicant had agreed to this. In oral evidence, Mr Bradshaw reaffirmed that an arrangement existed with the applicant whereby he would come in on a Saturday morning and spend about an hour and a half discussing the Company's situation. Mr Bradshaw claimed that this was a means of keeping the applicant in touch with the business and with the customers. He said the applicant was a well known character at the Markets. 59 While he didn't direct the applicant to take his holidays, Mr Bradshaw believed that, as they were friends, the applicant understood the situation. Mr Bradshaw said he did not say that there was an expectation of a return to work. Rather, it was his intention that the applicant not lose his holiday pay. Other employees had also been adversely affected. Working hours were reduced, the forklift driver went from five to three days and Tim Walker went on holidays and eventually left for another job. He and Mr Burgess had taken a one third pay cut. 60 Mr Bradshaw conceded that he had assured the applicant his job was secure. He denied telling him that there was no work to be offered. The applicant could have worked on an interim basis for award wages. 61 Mr Walker participated in the 5 July meeting with Mr Bradshaw and the applicant. He deposed that Mr Bradshaw had said words to the effect "I believe that with the downturn in the industry we could be in financial difficulties which we may be able to trade out of later." Mr Walker said he recalled Mr Bradshaw had suggested the applicant take his holidays. The applicant agreed on the basis he would collect his holiday pay every second week. In oral evidence, Mr Walker conceded that this conversation may have been with Mr Bradshaw on the following Monday. 62 Mr Walker agreed a number of options were mentioned on 5 July including working two days a week. However he said nothing was "concrete". He said the taking of holidays was certainly mentioned. Nothing had been said about termination of employment. It was more or less left on the basis that the employees would work it out themselves. 63 Mr Frank Arcella provided an affidavit. He was not required for cross examination. Mr Arcella operated a wholesale banana business at Flemington Markets, three stores away from the respondent's premises. He was acquainted with Mr Bradshaw, Mr Burgess and the applicant. 64 Mr Arcella said he had a conversation with the applicant in July 2002 in which the applicant told him he had been put on holidays. The applicant had asked him for a job. Mr Arcella had told him it was a matter for his family and he would talk to them. Nothing had eventuated. 65 Mr Burgess gave evidence that when the applicant asked for a pay rise in 2002, had he told him that "sales are down you know the problem with the disease in the crops." Mr Burgess said that at the time the Company was in danger of going out of business. 66 Around early July, either he or Mr Bradshaw had asked the applicant to take his holidays. The business borrowed $50,000 in order to have sufficient capital to operate. Mr Burgess had also told the applicant that the business couldn't afford to pay the full amount of holiday pay and it was proposed that he come in every two weeks to collect his pay. Mr Burgess denied the applicant was kept waiting for his pay. 67 Mr Burgess deposed that in September the Company was still having problems. However, it had been hoped that by November the position would improve. Mr Burgess said he had not spoken to the applicant about this, but believed Mr Bradshaw had. 68 Mr Burgess said the applicant was not dismissed; both he and Mr Bradshaw expected the applicant to return full time in November. This evidence was not mentioned in Mr Burgess' affidavit. However it is referred to in a typed response to the applicant's affidavit given to the respondent's solicitors (Ex "K"). Allegations of harassment 69 The applicant deposed that during his employment with the respondent he was constantly exposed to unwelcome racial and sexual jokes, offensive verbal comments and visual displays. Mr Burgess had been the main offender. The harassment was at its peak in 2000 and continued until his dismissal. Details of the documentary material were attached to the applicant's affidavit and, for the most part, were not denied by the respondent. The exception was a lurid sexually explicit photo on a business card marked Annexure N. Mr Bradshaw said he had never seen this business card until he saw the applicant's affidavit. He did not believe the respondent produced it. He said it would be unacceptable to circulate such a card in the workplace. 70 Another document was of a false business card suggesting the applicant was providing sexual services. The applicant said his wife found the card and was most distressed by it, resulting in him having to explain the difficulties he was experiencing at work. Mrs Colosimo said her husband was compelled to reveal the treatment he was receiving from Mr Burgess after she had found the business card. She said her husband was a proud man. He had tried to conceal the treatment he was receiving at work. She was concerned with the embarrassment it would cause for the family. She and her husband discussed going to the Police, but agreed the risk of losing his job was too great. She said her husband loved his work and was worried at the prospect of being unemployed at his age. 71 Mrs Colosimo gave specific evidence over the hurt and pain she felt when she saw the fake advertisement headed "Professional Mourner." (Annexure P to Ex "1"). Mr Burgess had created this document about the time her uncle had unexpectedly passed away. Mr Bradshaw said this incident occurred at a time when the applicant had attended three or four funerals over a two - three month period. People at the Markets had made jokes about it. Mr Bradshaw didn't know if this document was created at the time of Mrs Colisimo's uncle's death. He said it would not have been done if it had been known the funeral was of a close relative. In any event, Mr Bradshaw didn't believe the applicant took offence at the document. 72 Mr Bradshaw also remembered the applicant laughing over another document making fun about persons with hernias (Annexure R). Mr Bradshaw believed that Mr Burgess produced the business card entitled "I'll bend over backwards to help you" (Annexure O). Mr Bradshaw said he had seen the card, but not the picture accompanying it. He explained that the expression "bend over backwards" had been the applicant's catch cry for a period. Mr Walker confirmed that he also had heard the applicant say, that he would look after the customers and would "bend over backwards for them." 73 Mr Bradshaw said the practice of creating false business cards was in a "spirit of good fun." Mr Burgess claimed that the applicant himself had passed on these cards to customers. 74 Mr Bradshaw did not find the majority of the documents offensive. He said they were quite tame for the Markets. They were not meant to be personally derogatory. He felt that the respondent had done nothing to humiliate the applicant. 75 The applicant said that he also experienced unwelcome sexual advances from Mr Burgess. Mr Burgess had tried to touch him, to kiss him and had exposed his penis. While there was no grievance procedure, the applicant claimed that he had repeatedly complained to Mr Bradshaw about Mr Burgess' behaviour. However, no action was taken. The applicant took the matter no further because he feared losing his job. 76 The applicant said that Mr Bradshaw had once told him "Steven Burgess will get rid of you one day." The applicant believed his complaints about Mr Burgess' behaviour contributed to the decision to terminate his employment. 77 In oral evidence the applicant agreed there was nothing that Mr Bradshaw had done which indicated he wanted to get rid of him. He admired Mr Bradshaw, even though he used names like "Old Fart" and "Uncle Peter" in conversation with him. 78 In cross examination the applicant said that he accepted the uncomfortable and stressful work environment because Mr Burgess had been the only one responsible. He had made complaints to Mr Bradshaw on a regular basis about Mr Burgess "going overboard in a big way." He had told Mr Bradshaw from late 1999 that Mr Burgess had continually tried to touch him or to kiss him. However, Mr Bradshaw had ignored him because Mr Burgess held the "purse strings." 79 Mr Bradshaw denied that the applicant was constantly exposed to unwelcome racial and sexual jokes. At no time had the applicant complained to him about any of the matters referred to in the annexures to his affidavit. Mr Bradshaw further denied that the applicant complained to him about the alleged sexual advances by Mr Burgess. Mr Bradshaw said no one bullied the applicant. If the applicant didn't like something "he would have let you know." 80 Mr Bradshaw said he and his wife would mix socially with the applicant, Mr Burgess and their wives. The applicant agreed they had, but said he reluctantly attended social functions with Mr Burgess out of fear of aggravating problems at work. 81 Mr Bradshaw said the applicant and his wife had an Easter Egg business and certain materials for their business were supplied from Banana Traders. The applicant said he had always taken the week off before Easter to assist with his wife's confectionary business. Mr Bradshaw also believed the applicant worked for an irrigation company. He had observed irrigation equipment in the back of the applicant's car. The applicant denied ever working for an irrigation company until he commenced part time work on 1 November 2002. 82 The applicant said he shared his hurt and embarrassment with Mr Walker on many occasions. Mr Walker said the applicant had never complained to him about the business cards or other alleged harassment. He said the applicant had told him that he treated such matters as jokes made in good fun. All employees engaged in such jokes in a spirit of light heartedness. The applicant rejected this aspect of Mr Walker's testimony. 83 In oral evidence, Mr Walker was shown the annexures to the applicant's affidavit. He denied ever seeing Annexure N. He had seen Annexure O but wasn't aware of the image on it. Mr Walker accepted that other employees in the workplace might have found such material offensive. However, he said the applicant never had and never discussed it with him. Mr Walker agreed that it would be unacceptable to circulate such material to customers or clients. 84 Mr Wong was also shown the annexures to the applicant's affidavit. He said he had not seen them in the workplace and would not have allowed them. He found some of them offensive. 85 Mrs Norma Wong had worked in the office of the respondent for about four years. She saw the applicant on a daily basis, although she acknowledged that until 2000 she mostly worked upstairs. She commenced work at around 6.00am and worked from an office where she could see and hear what was going on. Her shift would overlap with the sales team by five to six hours. 86 Mrs Wong said that on no occasion had she observed Mr Burgess act in the manner alleged by the applicant. Mrs Wong regularly observed employees, including the applicant, and customers engaged in light hearted jokes. She said the men would joke around, but would always ensure she didn't hear them. She found the Markets a wonderful place to work. 87 Mrs Wong said the applicant had never raised any complaints with her regarding racial or sexual discrimination. Mrs Wong remembered two pictures - Annexure Q and another with the applicant wearing a crown. She said people had just laughed over the pictures. In the witness box, Mrs Wong did not want to see the more explicit annexures. She said if such documents were in the workplace, the men would not show her such things. She said that "boys will be boys." 88 The applicant said he did not discuss these matters with Mrs Wong because he considered it improper. The applicant believed Mrs Wong was reluctant to disclose that she heard racial and sexual jokes about him because of concerns for her own livelihood. Mrs Wong said she always spoke the truth and was not afraid of losing her job. She accepted racial jokes were made and people would laugh. They were not intended to cause offence. 89 The applicant recalled an incident, in which Mr Bradshaw had pulled another employee's pants down in front of Mrs Wong. Mrs Wong remembered the incident. She had been upset and had cried. However she said she later believed she had overreacted and felt silly for crying. Her father had been very sick at the time. The applicant was very sympathetic towards her. She said it was to the mens' credit that such an incident never happened again and she had forgotten about it. 90 Mrs Margaret Burgess provided an affidavit. She was not required for cross examination. Mrs Burgess said she and her husband had been married for 20 years and she found the applicant's allegations against her husband to be "laughable." She said she had never observed anything in her husband's manner which would lend support to the applicant's allegations. 91 Mr Burgess strenuously denied the applicant's allegations of racial and sexual discrimination. He said in a workplace with many nationalities, no business could operate for long if it involved itself in racial discrimination. 92 In cross examination, Mr Burgess acknowledged that he was the author of all the false business cards and other material annexed to the applicant's affidavit, except for Annexure N, which he claimed to have never seen. 93 Mr Burgess said the applicant would regularly state to customers "I'll bend over backwards for you." As a result Mr Burgess had produced that card which he said was accepted as a light joke. The other documents were also produced for a similar purpose - to be treated as a source of good humour. It was not at the expense of the applicant. It was meant to be a fun thing. He said the applicant laughed a lot of the time and had never complained. Similar material was also circulated about himself and Mr Bradshaw. 94 Mr Burgess said he was outraged by the allegations against him of sexual discrimination. He knew of no complaints by the applicant about anyone's improper conduct. Mr Burgess rejected any suggestion that he touched or interfered with the applicant. The allegations had shocked him and were a total fabrication. 95 Mr Burgess deposed that he valued the applicant as a good worker. The Company had had plans for him. He had never said that the applicant's employment should be terminated. Post termination of employment 96 The applicant gave evidence that he now works part time at Dural Irrigation where he commenced employment on 1 November 2002. It took about two months to get this job. He had asked someone at the Markets for a job, but nothing had come of it. 97 Mr Bradshaw said he spoke to the applicant and his wife on 11 October and three days later received notice of the alleged unfair dismissal claim. Mr Bradshaw maintained that it was clearly understood that the applicant would return to work once the business got back in gear. SUBMISSIONS For the applicant 98 Mr Searle submitted that there were four principle issues for the Commission to consider in this case. 99 Firstly, the sexual and racial harassment of the applicant. Mr Searle said the respondent had acknowledged that Mr Burgess was the author of the offending documents annexed to the applicant's affidavit (except for annexure N). The evidence of Mr Wong and other workers was that such material was unacceptable in the workplace. The Commission could comfortably find that this material was distributed to customers. The applicant remained unshakeable in his evidence that he had made numerous complaints about the material. Mr Searle said the applicant tolerated the situation because as a man in his fifties, without qualifications, he would have had difficulty obtaining alternative employment. However, it was not suggested that the applicant was forced to resign because of this harassment. 100 Secondly, whether the applicant was directed to take his annual leave. The evidence, Mr Searle put, was that the respondent was experiencing financial difficulties. He said it was open for the employer to make lawful reasonable directions, such as requiring the applicant to take his accrued leave. The applicant would have hardly refused to do so. 101 Thirdly, whether there was an upfront arrangement that the applicant take all his accrued leave. Mr Searle said the evidence was that the applicant was required to collect his pay every fortnight without knowing if he was going to be asked to come back. It was unrealistic to expect the applicant to have made other arrangements acceptable to the management. Mr Searle submitted that the respondent's evidence on this issue was contradictory. He pointed out that Mr Walker's evidence was that nothing definite was agreed to. 102 Fourthly, how was the applicant's employment brought to an end? The applicant said he was told there was no work and he was not required to report for work. This was said at the time his accrued leave was running out. The respondent's evidence was that the company was experiencing financial difficulties. Accepting Mr Bradshaw's evidence was to accept that the respondent could not afford to pay the wages of the applicant. Mr Bradshaw had proposed a wage cut of 65 per cent. Mr Searle said that a significant cut in wages was a repudiation of the employment contract. Consequently, on any view of the evidence, the termination of employment was at the employer's initiative. 103 Mr Searle put that even if there was a genuine redundancy, it was unfair. No reasonable alternatives were put. The alternatives, such as a 65 per cent pay cut were not reasonable. The applicant was just put on the "drip feed" by being told to come back every fortnight. Given his long history of unblemished service, such treatment was harsh and unfair. 104 Mr Searle said the applicant had now secured alternative employment working 28 hours a week for $440.00. This compared to his previous weekly rate of $1131.00. 105 Mr Searle argued that the business was transmitted by Mr Wong to Mr Bradshaw and Mr Burgess in 1998. It was a true transmission of business. All Mr Wong told the applicant was that he was finishing up. He was not told of the break up of the payment he received at the time. Mr Searle put that the applicant was not terminated and was not told he was terminated. As a result the applicant's unbroken service from 1989 should be taken into account for the purposes of any compensation awarded for his unfair dismissal. For the respondent 106 Mr Jamieson submitted that Mr Searle's arguments did not make common sense. It was put that the applicant didn't know he was terminated in 1998 by Mr Wong, but he now says he was terminated by Mr Bradshaw. Mr Jamieson said one must have grave doubts as to anything the applicant says. Mr Jamieson said the applicant knew Mr Wong had terminated his employment; so much so that he had disputed his entitlements at the time. 107 Mr Jamieson put that what really happened in September 2002 was a "mess." Friends who had worked together for many years were dealing with a difficult situation as best they could. Mr Bradshaw was trying to work things out. However, at no point was there a termination of the applicant's employment. The applicant had said Mr Bradshaw had told him "as long as I am here, you will have a job." Mrs Colosimo had confirmed Mr Bradshaw's view, although most of her evidence was hearsay. Mr Bradshaw and Mr Burgess were adamant the applicant was a good worker and they didn't want him to go. There was no "dressed up" reason to get rid of him. On the contrary, the Company had plans for him. 108 Mr Jamieson put that the applicant put himself in direct conflict with the weight of evidence. Mr Jamieson said the applicant put himself at odds with the evidence of Mr Arcella, Mr Wong, Mr Bradshaw and Mr Burgess. Accordingly, it was argued that findings of witness credit must be determined against the applicant. 109 Mr Jamieson submitted that there were nothing in the respondent's conduct which evinced any intention that the employer wanted to get rid of the applicant. The Woolworths contract was in the offing. Rather than wait and discuss the options, the applicant said he wanted a reference and that he would be looking for a job elsewhere. Therefore, there was no actual termination of employment by the employer. In cross examination, the applicant was asked whether he was told he was sacked, terminated or his job had finished. To each question the applicant had answered no. The applicant merely assumed he had been dismissed. 110 In reply, Mr Searle put that it was up to the respondent to call Mr Arcella. The evidence of Mr Wong largely supported the applicant's evidence. Credit findings should go in the applicant's favour. 111 As to what words Mr Bradshaw used at the time of dismissal, it was that there was no work and the applicant was not to report for duty. This must be a dismissal. Vague notions of work being available in November, simply don't stack up. In any event, Mr Searle rhetorically asked, what was expected to happen to the applicant in the six - eight weeks to November? Moreover, at the time this matter was before the Commission (after November) Mr Searle said no offer of re-employment was put, even though the Woolworths contract had by then been secured. 112 Having regard for his length of service, age, skills and blemish free work history, the applicant sought compensatory relief in the order of three to four months. While he had mitigated his loss, he was now earning only a third of what he had earned at the Markets. CONSIDERATION Was there a dismissal? 113 It is trite to observe that a claim of unfair dismissal requires the applicant to establish that a dismissal has actually occurred. Put another way, the onus rests with the applicant to establish the factual basis of his/her dismissal. 114 In most cases, the question of whether a dismissal has occurred will not be an issue. However, here the circumstances of the termination of employment were strongly contested. The applicant said he was told, on or about 17 September 2002 that there was no work and not to return to duty. Whereas the respondent argued that the applicant sought a reference and went to look for alternative work when he refused to work for award wages. 115 So the question arises, did the conversations between the applicant and Mr Bradshaw on or about 17 September 2002 constitute a dismissal, or more correctly, a constructive dismissal? To find an answer to this question one turns to the definition of constructive dismissal, which has now been well established in industrial jurisprudence. 116 A dismissal (be it constructive or otherwise) has been defined as a "termination at the employer's initiative", or where the conduct or actions of the employer is the real and effective initiator of the termination of employment. 117 The oft quoted authority for this proposition is found in Allison v Bega Valley Council (1995) 63 IR 68 at p72-p73: It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning. In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment. Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue. In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer. Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed. 118 The discussion in Allison primarily concerned the notion of a forced resignation. However, the notion of dismissal as being a "termination of employment at the initiative of the employer" sits at the heart of the decision. See also Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296, St Vincents Hospital Sydney Pty Ltd v Harris (unreported) Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998, Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999, Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000 and Police Service of New South Wales v Batton (2000) 98 IR 154. A recent Full Bench decision in Ward v Mobile Innovations Limited [2002] NSWIRComm 287 reaffirmed the decision in Allison and made these observations: The Commission has authoritatively addressed the question of constructive dismissal in Allison v Bega Valley Council (1995) 63 IR 68 (although the Full Bench in Allison expressed the need for caution in the use of that expression). Hence, the principles for determining whether a termination constitutes a "constructive dismissal" are now well settled, in our opinion, and do not require revisiting in this appeal. In particular, Allison makes clear (at 72) that the proper approach in this context involves an identification of whether the employer was the true initiator of the termination of employment . (my emphasis) Each such inquiry must relate to the facts and circumstances of a particular case. This matters(sic) represents no exception in this respect. And at para [6] said: It may be that the conduct of an employer is so onerous or unreasonable prior to a termination that a termination will be found to lay in the hands of the employer, even where the employer has not expressly required an employee to offer resignation or threatened dismissal in lieu of such an offer. However, this notion merely accords with that which has already been formulated in Allison . 119 In my opinion, there can be no doubt as to the meaning and intention of the words used in the conversations of 14 and 17 September 2002. I accept the applicant was told that there was no work available and he was given no firm indication of when work would be available. There was some contest as to whether the expression used was "no more work'. In my view, little turns on this point. It is a difference without a distinction. A plain English meaning of the conversations can lead to no other conclusion than the applicant's termination of employment was at the employer's initiative and thereby constituted a dismissal. 120 Nevertheless, I accept that the respondent had the applicant in mind for work with the proposed Woolworths contract in November 2002 (see letter of 6 September). However, as at the 17 September this was not a definite prospect. Nor was it reasonable to expect the applicant to wait without work or work for award wages until November. 121 There was undisputed evidence that the applicant was told of an industry downturn and had accepted that the respondent had a cash flow problem. As a consequence, he and other employees were required to either work reduced hours or, as happened to the applicant, exhaust their annual leave accrual. Mr Bradshaw said that both he and Mr Burgess took a one third pay cut. In these circumstances and particularly when his annual leave ran out, it was very likely the applicant would have had serious doubts as to his future employment. It would hardly be surprising that he may have been looking for alternative employment. 122 Furthermore, it seems to me that while the applicant denied he was ever asked to work for award wages and would have, had he been asked, it would have been unreasonable and unrealistic for any employee to accept what amounted to a 65 per cent reduction in earnings. I concur with Mr Searle's submission that such a wage cut, or being required to work two days a week would have constituted the effective repudiation of the contract of employment by the employer. 123 It follows then that I accept that the applicant was dismissed for reasons of lack of work and that he was genuinely made redundant. Mr Searle's submissions seem to acknowledge as much. However, the circumstances surrounding his dismissal were, to my mind, most unfair. 124 That being so, it is appropriate at this juncture to refer to the relevant principles to be applied when determining whether employees have been treated fairly in redundancy situations. 125 In Thomas v Christie Direct [2002] NSWIRComm 161 the Commission, as presently constituted, said at paras 111 -116: Considerations of unfairness may still arise in circumstances of genuine redundancy. The oft quoted authority for this proposition is Outboard World v Muir. I cite the relevant passage: While in the ordinary case it may be that a redundancy genuinely occurring would not come within the parameters of Part 8, Unfair Dismissals, it takes little imagination to apprehend a situation which is both a redundancy and a harsh, unreasonable or unjust dismissal. For example, it may be that in selecting employees for redundancy an employer unilaterally decides to terminate an employee of long and exemplary service over another employee. The facts of the case may demonstrate both redundancy of one position but unfairness as against the employee selected. Once that position is accepted then it follows that an employee is not necessarily incapable of suffering an "unfair" dismissal in the context of a position becoming redundant. Other examples come readily to mind. There are many other authorities emphasising the same point. Some were referred to by me in Arslan and Others and Berkeley Challenge (Commercial) Pty Limited and Others . It is unnecessary to cite them all, but I have had regard for them in deciding this case. Both Mr Young and Mr Britt referred to my later decision in Shop, Distributive and Allied Employees' Association, New South Wales and WD & HO Wills Holdings Ltd , wherein I summarised the obligations of employers in redundancy situations. At para 66: In redundancy situations an employer is obliged to: 1. Give reasonable notice to employees and/or their Unions; 2. Adequately consult with employees and/or their Unions on the impact of the proposed changes; 3. Explore genuine alternative options for redundancy, such as redeployment or relocation; 4. Ensure such options are fairly offered to the affected employees; 5. Provide reasonable standards of redundancy benefits; 6. Provide appropriate ancillary services, such as time off to seek alternative work, retraining opportunities, outplacement services or financial planning; 7. Ensure employees nominated for redundancy are fairly selected on an objective and unbiased basis. Counsel for the respondent submitted that this case can be distinguished from the principles discussed in WD & HO Wills, because it involved a large employer in dispute proceedings under s130 of the Act. I respectfully disagree. The size of the employer's workforce is really not the issue. Plainly it was a small employer. Nor is it relevant that proceedings were dealt with under s130 of the Act. It is clear that s137(1) comprehends similar considerations of unfairness as contemplated under Pt 6 ch 2 of the Act. The principles in WD & HO Wills were distilled from a number of seminal authorities of various industrial tribunals. The principles are, in my opinion, applicable to any dismissal in which it is claimed that a genuine redundancy involved elements of unfairness. They are, to my mind, a useful guide as to whether an employee has been afforded procedural fairness in genuine redundancy situations. That is not to say that every case will disclose each of the matters I discussed in WD & HO Wills . Obviously, not all the matters apply to the facts and circumstances of this case. 126 In my opinion, the respondent was derelict in its obligations to the applicant in that it failed to give reasonable (or any at all) notice to him of his actual termination. I concur with the observation that requiring him to collect his pay every fortnight was akin to keeping him on a "drip feed." Further, the respondent did not adequately consult with the applicant on the impact of the lack of work, nor did it explore genuine alternatives to dismissal. Offers of a 65 per cent wage cut or working two days a week could not be viewed as acceptable options. It is also apparent that the applicant received no redundancy benefits and no offers of ancillary services. 127 In accordance with the authorities cited above, these matters in my judgement, constitute unfairness to the applicant which warrant the Commission's intervention in his termination of employment. I find that the applicant was constructively dismissed and that his dismissal was harsh and unjust within the meaning of Pt 6 ch 2 of the Act. 128 Accordingly, it is unnecessary for me to determine whether there were other reasons for the dismissal unrelated to a lack of work. However, I shall return to the allegations of sexual and racial harassment shortly. Was there a transmission of business in 1998? 129 Notwithstanding the rather sloppy and unprofessional way the applicant was informed of the sale of the business in 1998, I am of the view that the applicant and the other employees were paid out their accrued entitlements by Mr Wong around that time. That there may be an argument as to the correct amount paid is really not the point. Exhibits "D" and "E" disclosed that calculations in respect to annual leave and long service leave were made by Mr Wong's accountant on 28 August 1998. 130 Everyone was aware the business was to be sold. Having received an amount of money unrelated to wages, it could not have been construed as anything other than an amount related to accrued entitlements. If it wasn't payment for accrued entitlements, it is hard to imagine what else it could have been. Moreover, the applicant's own evidence was that he queried the payment and, in particular, the calculation for long service leave. 131 That being so, I am comfortably satisfied that there was no transmission of entitlements and no transmission of the business such as to justify a conclusion that the applicant had 14 years of total service with the same employer. His effective period of service was from 31 August 1998 to 17 September 2002. 132 I turn now to make some short observations as to the complaints by the applicant of sexual and racial harassment. 133 On the respondent's own evidence, material was generated and distributed in the workplace which, to any fair minded person, would be considered as offensive and unacceptable. While Mr Bradshaw said he didn't find the material offensive, I have no doubt that most persons would. Mr Jamieson frankly agreed it was offensive to him. The fact that the employer generated the material was, in my view, utterly incredible. Such conduct was reprehensible and grossly improper. 134 I reject the explanation that this was acceptable conduct because the Markets are a "rough male workplace." It was inexcusable conduct - a fortiori for an employer and the owner of the business. I trust that it will not be repeated. It is worth remembering that in most workplaces such conduct by employees would be grounds for instant dismissal. 135 There were other serious allegations of unwelcome sexual contact by Mr Burgess towards the applicant. The applicant said the harassment was at its peak throughout 2000 and continued until he was terminated. Mr Burgess vehemently denied the allegations. I have some trouble accepting the conduct of the kind described by the applicant would have been tolerated over a two year period - notwithstanding the applicant's explanation that he feared losing his job. Mrs Wong and Mr Walker, whom I found to be impressive and truthful witnesses, said that at no time had they observed Mr Burgess acting improperly or had the applicant complained to them about such behaviour. On the balance of probabilities, I cannot be satisfied that such behaviour occurred. In any event, it was not claimed that the applicant's termination of employment was a forced resignation arising from the alleged harassment. Accordingly, I do not find it necessary to take this matter any further. Appropriate relief 136 The primary remedy for unfair dismissal under Pt 6 ch 2 of the Act is reinstatement (See Leeds and Northrup Australia Pty Ltd v Hull (1992) 46 IR 11 and Little v Commissioner of Police (No.2) [2002] NSWIRComm 52, at para 88). Reinstatement is not sought by the applicant in this case. He has secured alternative employment - albeit for less remuneration than he previously enjoyed. 137 However, in view of the heightened emotions generated by this case, it would appear to me that the employment relationship has irretrievably broken down. Accordingly, I find that reinstatement or re employment would be impractical and propose, in the alternative, to order compensatory relief. 138 In doing so, I have had regard for the applicant's length of service, his age and limited skills. However, he is obviously not unemployable. I have also had regard, pursuant to s89(6) of the Act, to his obtaining alternative employment. ORDERS 139 Pursuant to s89(5) and (6) of the Industrial Relations Act 1996, the Commission orders that: 1. The respondent, Banana Traders Pty Ltd t/as P W Chew and Co, shall pay to the applicant, Mr Peter Colosimo, an amount of $13,575.70 based on 12 weeks pay at a salary of $58,828.00 per annum (see Ex "1", Annexure I)) 2. The amount ordered in one above shall be paid within 28 days of today. 3. These proceedings are now concluded. Peter Sams Deputy President- 3 - 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.