Industrial Relations Commission of New South Wales CITATION: Holland v. NSK Services Pty Limited [2005] NSWIRComm 1084 APPLICANT Mandy Holland PARTIES: RESPONDENT NSK Services Pty Limited FILE NUMBER(S): 4456 of 2004 CORAM: Connor C termination of employment - unfair dismissal - delay in proceedings - pressure from a third party to terminate an employee's services - the "fair go all round" concept - lack of evidence to support an allegation of misconduct - impracticability of reinstatement - monetary compensation - transmission of business CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Bateman v. Royal Alexandra for Children (unreported) Bonnici v. Wormald Security (unreported) Bostik (Australia)Pty Limited v. Gorgevski (No.1) (1992) 36 FLR 20 Busways v. Johnson (1994) 55 IR 255 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 Hollingsworth v. Commissioner of Police (No.2) 88 IR 282 Little v. Commissioner of Police (No.2) (2002) 112 IR 212 CASES CITED: Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 McCarthy v. Northern Territory Prestressing Pty Limited (unreported) Oswald v. New South Wales Police Service Outboard World Pty Limited v. Muir (1993) 51 IR 167 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 HEARING DATES: 05/31/2005 DATE OF JUDGMENT: 06/24/2005 APPLICANT Megan Cameron Turner Freeman Lawyers LEGAL REPRESENTATIVES: RESPONDENT Charles Tsalidis DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 24 June, 2005 Matter No IRC 4456 of 2004 Mandy Holland and NSK Services Pty Limited Application under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1084 Preliminary 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, Mrs Mandy Holland lodged an application concerning the termination of her services as a security officer with NSK Services Pty Limited (also known as NSK Security Services). Mrs Holland commenced employment with Good Kids Pty Limited on Saturday, 1 March, 2003. She worked on weekends and was engaged in the Botanic Gardens in Wollongong to, among other things, ensure that children under the age of 13 years of age did not play in or around a duck pond if they were unsupervised by an adult. NSK took over the security operations for the gardens on Wednesday, 7 April, 2004 and she commenced working for it. Her services were terminated on Friday, 16 July, 2004. 2 There was initially some confusion over the identity of Mrs Holland's employer - Good Kids or NSK. In her Part 6 application she was working on the assumption that Good Kids and NSK were different names for the same organisation. However, on Friday, 6 August, 2004 a representative of Good Kids forwarded by facsimile transmission a memorandum to the effect that Good Kids and NSK were separate entities and that Good Kids no longer employed Mrs Holland. That position was accepted by Mrs Holland who on Tuesday, 14 September, 2004 filed a fresh Part 6 application recording her employer as NSK. I noted the file accordingly. 3 The matter was allocated to me. All proceedings were convened by me in the Commission's premises in 90 Crown Street, Wollongong. There was a preliminary hearing before me on Monday, 6 September, 2004. There was no appearance by NSK at that time. I had received a memorandum on behalf of Good Kids on Friday, 6 August, 2004 to inform me that it was not Mrs Holland's employer and it did not appear in the proceedings. Mr Nick Kapolos, the managing director of NSK, had written to me on Monday, 23 August, 2004 to "...declare..." that he would be appearing in the proceedings on Monday, 6 September, 2004. The reason for his failure to do so was conveyed to my assistant after the proceedings had adjourned, ie that he had been called out for a break in the night and had consequently slept in. 4 The matter resumed before me for mention on Tuesday, 27 September, 2004. Mr Kapolos appeared in those proceedings but my attempt at conciliation at that time failed and I programmed Mrs Holland's Part 6 application for arbitration. I made directions in the customary manner for the filing of evidentiary material. Such material from Mrs Holland was lodged on Tuesday, 19 October, 2004 in accordance with my directions. Mrs Holland provided an affidavit as the basis of her evidence. I had received no response from NSK of that nature (although on Friday, 29 October, 2005 it belatedly filed its formal response to Mrs Holland's Part 6 application, setting out in some detail - more detail than would ordinarily be required at that stage in the proceedings - its version of the circumstances under which Mrs Holland's employment ended). 5 The matter was further mentioned on Monday, 13 December, 2004 for programming purposes. There had been some further confusion over those proceedings. Ms Walsh, who represented Mrs Holland in the proceedings at that time, informed me that she had been in touch with a solicitor who had been briefed by NSK. She had mistakenly given her the wrong date for the proceedings and, consequently, there was no appearance by NSK or the solicitor representing it at that time. I adjourned the proceedings again for mention on Monday, 14 February, 2004. Again there was no appearance by NSK or its representative. My assistant had informed the solicitor of the further proceedings. Ms Walsh had told me that she had also held discussions with the solicitor briefed by NSK. She was convinced that the solicitor was aware of the proceedings and she concluded that the message would have been passed on to NSK, in any event. But apparently it was not. 6 I set the matter down for arbitration in a hearing on Monday, 16 May, 2005, intending to proceed ex parte if necessary. I directed Ms Walsh to alert NSK and its solicitor of the hearing date. She had done so. In fact, the solicitor who had been briefed by NSK wrote to me on Monday, 9 May, 2005 to inform me that she was now ceasing to act for it and that she had informed NSK of that fact. She requested that I note my records accordingly. I received no further contact from NSK but on Monday, 16 May, 2005 Mr Kapolos appeared in the proceedings and sought a further adjournment. That application for adjournment was opposed by Ms Cameron, representing Mrs Holland in the proceedings. 7 It was of concern to me that this matter had remained unresolved for such a long period of time through no fault of Mrs Holland or her representatives. I had a reluctance to adjourn the proceedings again but ultimately did so on the understanding that Mr Kapolos would pay Mrs Holland's costs for the aborted hearing on Monday, 16 May, 2005. I set the matter down for a hearing on Tuesday, 31 May, 2005. In the meantime, I expected Mr Kapolos to explore the prospect of representation in the hearing and pointed out to him in the proceedings on Monday, 16 May, 2005 the difficulties I saw with the material he had already provided to me to properly be accepted as evidence in the hearing. 8 The fact remains that Mrs Holland's dismissal flowed out of a complaint made by a member of the public to the curator of the gardens where she worked the effect of which was to exclude her from the gardens and, as a result, deprive her of employment. Mr Kapolos, in fact, has argued that he had not dismissed Mrs Holland and that, in fact, he had no problem with Mrs Holland. Her dismissal flowed from the decision of the curator of the gardens, an employee of the Wollongong City Council. But it was NSK which employed Mrs Holland and it was NSK which brought her employment to an end, albeit apparently under pressure from other sources. But neither the complainant nor the curator were to give evidence in the proceedings and Mr Kapolos' evidence of the incident which led to her dismissal could only be hearsay and third hand at that - what he had allegedly been told by the curator who was also apparently acting on a complaint from another person. 9 NSK ultimately briefed Mr Tsalidis to represent it in the hearing on Tuesday, 31 May, 2005. Mr Tsalidis informed me at the commencement of hearing that he had only recently been briefed by NSK and, despite efforts on his part, he had not been supplied with the file from the former solicitor acting for NSK. I appreciate that he is therefore acting under some difficulties in presenting a proper case on behalf of his client but it would clearly be unfair for Mrs Holland's Part 6 application to be again adjourned. I consequently proceeded into the hearing. Ms Cameron called Mrs Holland to give evidence which centred around her affidavit. Mr Tsalidis called Mr Kapolos as a witness in the hearing. I admitted into evidence his comprehensive formal response to Mrs Holland's Part 6 application to compliment his evidence. The Circumstances of the Dismissal 10 NSK successfully tendered for the contract to the council to attend to the Wollongong Botanic Gardens up to lock up each day. That contract commenced on Wednesday, 7 April, 2004 (and has been renewed once already). Mrs Holland, who had been working for Good Kids as a security guard in the gardens prior to that time, continued her employment with NSK. She was informed that her employer was NSK by Mr Kapolos and she was given new patches with the NSK logo on it to sew onto her uniform. She claims in her evidence that to be the only time she had met Mr Kapolos. 11 When Mrs Holland had commenced employment as a security guard with Good Kids on Saturday, 1 March, 2003 she had initially made contact with Mr Shane Court who still apparently supervises the security work with the council. It had been Mr Court who offered her the job which Mrs Holland described in the affidavit she provided as the basis of her evidence in this hearing, viz: "...My job involved standing at the duck pond at the gardens, making sure that no children under the age of 13 years were near the duck pond without an adult present. I was required to patrol the area of the gardens surrounding the duck pond. Mr Court informed me in the first week that I commenced employment that I should make a report at the end of each day if I had spoken to a member of the public. If there were ever any incidents in the garden during my work day, then I was required to document the incident by writing an incident report. Therefore I always prepared a written report in notepad at the end of each shift as was required of me... My hours of work varied at the garden. I worked on Saturday and Sunday from 10.00am until 6.30pm during daylight saving times of the year and during non-daylight saving times of the year I worked on Saturday and Sunday from 10.00am until 4.30pm. I worked every public holiday in addition to the weekends. I worked the same hours on the public holidays as I worked on the weekends. I was not paid any penalty rates for the work that I performed on Saturday, Sunday or public holidays. I simply earned the flat rate of $19.38 per hour. I was employed as a casual..." 12 Mrs Holland claims that she had received only one verbal warning whilst she was employed by NSK when she brought her car into the gardens and sat in it during inclement weather. Mr Court told her to "...stop whinging about bringing the car in..." to the gardens and described the warning he gave her as a "...second warning...". But Mrs Holland does not recall any earlier warning. According to Mrs Holland, the job could be monotonous at times, especially during winter months and she got into the habit of bringing in a small pocket radio to work, which she claimed was done with the knowledge and implicit approval of Mr Court. She placed the radio in her top pocket and listened to it through an earphone in one ear at times when there was no one present in the garden. 13 On Sunday, 11 July, 2004 Mrs Holland was working in the gardens when a young girl, whom Mrs Holland estimated was around 9 years of age, came running up to the duck pond. She was not accompanied by an adult and Mrs Holland approached her: "Excuse me possum, you need to wait for your mum because you need adult supervision when near the duck pond." The girl looked surprised that Mrs Holland had spoken to her and she ran back to two women on the opposite side of the pond. The older woman walked up to Mrs Holland and asked: "Who do you think you are to tell my granddaughter what to do?" Mrs Holland responded: "I'm here to make sure that children under the age of 13 have adult supervision when near the duck pond." The woman said: "I've been in the gardens through the week and I haven't seen you then." Mrs Holland answered: "I'm sorry. I'm just here on the weekends. That's what I'm here for." 14 That was the end of the conversation. And the end of Mrs Holland's employment because on Tuesday, 13 July, 2004 Mr Court telephoned her at her home and told her that the curator of the gardens "...doesn't want you to be at the gardens anymore...". It appears that the woman had made a complaint that Mrs Holland had been rude to her. Mr Kapolos indicated in his evidence that, although he did not know the identity of the woman, he understood her to be influential in the council. Mr Kapolos indicated in his evidence in this hearing that he would not have dismissed Mrs Holland were it not for the fact that he had received a direction to that effect from the curator of the gardens. But it was still his decision to dismiss her. 15 Mrs Holland attempted to contact the curator but was unsuccessful. She was told by Mr Kapolos not to do so. Mr Kapolos told Mrs Holland to prepare her incident report and she did so. Ultimately, Mr Kapolos dismissed Mrs Holland. Mrs Holland recalled Mr Kapolos saying: "You've got no job because of the earphone in your ear." Mr Kapolos suggested in his formal response to Mrs Holland's Part 6 application that the curator of the gardens had telephoned him and told him that Mrs Holland was not "...suited to the position anymore due to the incident over the weekend..." in that she was (i) wearing headphones, (ii) not displaying a security license, (iii) not dressing appropriately in that she was wearing jackets over her uniform and a backpack, and (iv) was rude to the woman. It had been suggested that Mrs Holland's conduct constituted a breach of the Botanic Garden pond patrol specifications laid down by the council for NSK employees. 16 Mrs Holland denied that she had been rude when she had spoken to the woman and that she had an earphone in from her radio in her ear when she spoke to her. The woman whose complaint had led to Mrs Holland's dismissal was not called to give evidence in the proceedings and the only evidence properly before me in this hearing is that of Mrs Holland, which I have no reason to doubt. Moreover, Mrs Holland asserted that the fact that she had an earphone to listen to the radio had never presented a problem in the past. She claimed that the woman had not asked her for her identification. 17 The patrol specifications of the council cover a range of issues. In particular, to: "...ensure that each security officer is physically fit and mentally alert..." And: "...ensure that each security officer carries identification by clearly displaying security licence..." And: "...ensure that each security officer remains alert, courteous, helpful, efficient and conscientious during a shift..." And: "...ensure that each security officer does not use offensive language and is aware of the requirement to maintain self-control and remain courteous to the public during a shift..." And: "...ensure that the reputation and character of each security officer is beyond reproach, and that they possess an abundance of common sense and appropriate skills and training to enable them to cope with any situation which may arise in the course of their duties..." And: "...ensure that each security officer carries out their duties in a disciplined and businesslike manner..." 18 All well and good. But I would have thought the primary responsibility that Mrs Holland was given - and the reason she was employed in the first place - was to keep unattended children away from the duck pond. That she was doing. And, apart from the allegation that Mrs Holland was rude to the woman - which allegation is denied by Mrs Holland and whose evidence, with nothing before me to rebut it, I am entitled to accept - there does not appear to me to be any breach of the patrol specifications, in any event. The Unfairness 19 My chief function with Part 6 applications has historically been described using the language approved by Sheldon J of the former State Industrial Commission in Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 at p.99 as ensuring a "...fair go all round...". That is to say, the employer should give his employees a "fair go" and, equally, the employer is entitled to expect a "fair go" from his employees. More recently, greater emphasis seems to have been placed on the actual words of S.84(1) - "harsh", "unreasonable" or "unjust" [Outboard World Pty Limited v. Muir (1993) 51 IR 167 at pp.182 and 183, Busways v. Johnson (1994) 55 IR 255 at p.261 Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 at p.192.]. But as I indicated in Parker v. Capital Painters Pty Limited (1996) 68 IR 100 at p.104: "…it still seems to me that the words 'harsh', 'unreasonable' or 'unjust' contemplate that long established principle of industrial fairness in the State unfair dismissal jurisdiction...which, to my mind, flows naturally out of the ordinary meaning of the words 'harsh' (meaning too severe, having regard to all the circumstances), 'unreasonable' (meaning immoderate, excessive or extravagant) and 'unjust' (meaning unfair, inequitable, undeserved or biased)…" 20 I believe it to be wrong to depart too far from the traditional concept of the "fair go all round" in Part 6 proceedings. That approach relies on a concept fully understood in the context of employment in Australia and imports into the Part 6 jurisdiction a more realistic, rather than an artificial, guide to what, to my mind, properly forms the basis for intervention by the Commission. In Bostik (Australia) Pty Limited v. Gorgevski (No 1) (1992) 36 FLR 20 the Full Bench of the Federal Court (Sheppard, Gray and Harley JJ) considered the words "harsh", "unjust" and "unreasonable" and the majority (Sheppard and Harley JJ) commented (at p.28) as follows: "…These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision of the employer. Any harsh effect on the individual employee is clearly relevant but, of course, not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct…" 21 On the basis of the evidence before me in this hearing, Mrs Holland's dismissal was unfair. She was simply doing what she was paid to do: keeping children away from the duck pond. She should not have been penalised in any way for simply doing her job. There is no evidence before me to support any allegation that Mrs Holland was rude to the woman whose complaint ultimately led to her dismissal. If she was not permitted to have had a radio in her top pocket with an earphone in her ear whilst she worked or wear clothing over her uniform she should have been told that was the position and warned that her job was in jeopardy if she did not comply with such a direction. It seems to me that her listening to the radio at work and wearing clothing over her uniform were tolerated up to the time of the incident which gave rise to her dismissal. 22 There is no evidence before me to corroborate Mr Kapolos' claim that the curator of the gardens had insisted on Mrs Holland's dismissal. No written reports from the council or diary notes from it were provided, notwithstanding the fact that Ms Cameron sought discovery of such material. Nevertheless, I hold no doubts that Mr Kapolos is accurate in his assertions. He has indicated in his formal response to Mrs Holland's Part 6 application that he had no choice other than to dismiss Mrs Holland, given the council's decision to exclude her from the gardens. NSK engages only one employee - the person occupying the position formerly held by Mrs Holland - and its sole contract was with the council. Therefore it had no other suitable work for Mrs Holland. Mr Tsalidis suggested in his submissions that, because of the directions from the council, Mr Kapolos was "...between a rock and a hard place...", ie if he wanted to preserve his contract with the council, he was obliged to comply with directions made by council employees - even where they constituted an unfairness on his employee. 23 I accept that there may be occasions where an employee is dismissed by an employer under pressure by a third party. I discussed that type of situation in my unreported decision of Friday, 7 November, 2003 in McCarthy v. Northern Territory Prestressing Pty Limited [Matter No.5838 of 2002]. There I considered an allegation that a trade union activist employed by a contractor on a construction project had been dismissed because the site management had insisted on his removal from the site. Whilst I concluded that there was no evidence to support that allegation, I made the following observations in my decision (at pp.19 and 20): "...It may well happen that an employee is dismissed by an employer under pressure by a third party. That type of territory was explored in my unreported decision of Friday, 1 September, 1995 in Bonnici v. Wormald Security [Matter No.IRC 1016 of 1995] where I commented (at p.17) that it was fundamental in unfair dismissal applications that '…the unfairness must be inflicted on the employee by the employer and not because of some other person, such as a client of the employer or because of something over which the employer had no real control - the frustration of the contract of employment, in a sense…' On the evidence before me in this hearing, I do not accept that in terminating (the employee's) services, (the employer) was motivated by a desire, dictated by...site management, to be rid of a trade union activist. But, put simply, even if it were established that...site management were creating a situation on the site which effectively outlawed (trade union) involvement, (the employer) was not in any position to exercise any control over the situation..." 24 Nevertheless, there were a number of steps Mr Kapolos could have taken to ensure that Mrs Holland retained her employment. He could have further investigated the matter with the council and attempted to find some compromise with it. He could have interviewed the woman who had made the complaint in the first place and attempted to explain Mrs Holland's motives. He did neither. He did not even know the identity of the complainant. He simply accepted without question the ultimatum placed on him by the council - which, on the part of the council, appears to me, as it appeared to Ms Cameron, to be an improper interference of NSK's contract with it. It was Mr Kapolos who employed Mrs Holland and not the council and there is nothing in the contract NSK had with the council which would have permitted it to interfere as it had done. In the circumstances, the council's action appears to me to be a breach of its contract with NSK. 25 And, as far as NSK was concerned, I believe that Mr Kapolos had certain obligations to his employee which he was prepared to ignore to blindly follow the direction of the curator. Council employees had no right to deprive Mrs Holland of her employment. I appreciate that Mr Kapolos was anxious to ensure he retained the contract he had with the council, which is reviewed annually, but I do not believe that he should simply have sacrificed Mrs Holland in the process. To that extent, he acted unfairly to Mrs Holland. Remedy 26 In her Part 6 application Mrs Holland has primarily sought her reinstatement in employment as a security officer with NSK. She has continued to press for that claim. Reinstatement under S.89(1) is the principal remedy for an unfairly dismissed employee. That has consistently been described as the preferred remedy for an unfairly dismissed employee [Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67, Hollingsworth v. Commissioner of Police No.2 (1999) 88 IR 282 at pp.341 and 342, and Little v. Commissioner of Police (No.2) (2002) 112 IR 212 at p.243]. I note also what was said by the Full Bench of the Commission (Walton J - Vice President, Hungerford J and Bishop C) in Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346, viz: "…In considering the practicability of reinstatement, we are very much mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at pp.191 and 192 where their Honours observed that '…each case must be decided on its merits…' but that '…in most cases, the employment relationship is capable of withstanding some friction and doubts…'. As their Honours observed further, '…what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive…' and '…if the employer is of even average fair-mindedness, (the problems) are likely to be short-lived…'..." Mrs Holland worked alone. Her contact with Mr Kapolos was minimal. She claimed that she had a good working relationship with the other council employees in the park. But those other council employees were not called to give evidence in the hearing to back up her claim. Her relationship with Mr Kapolos is not the issue. There certainly appear to be problems in her working relationship with Mr Court and the curator of the garden and that is where the difficulties lie for her reinstatement, in my opinion. 27 I am satisfied that in the circumstances described to me in this case, reinstatement would not be a viable option for Mrs Holland. In this case the element of trust between Mrs Holland and those persons in the gardens who really appear to exercise authority over her - Mr Court and the curator of the gardens - has broken down completely and, in my opinion, cannot be restored. I think to return her to work in the garden would regrettably create a level of disharmony which would ultimately be intolerable for her. The NSK contract with the council is to be re-negotiated in two months time. Consequently, in the circumstances described to me, the reinstatement of Mrs Holland may prove to be ephemeral. Mrs Holland's claim is therefore confined to monetary compensation under S.89(5) alone. 28 The upper limit for monetary compensation is set by S.89(5) as: "…an amount of compensation not exceeding six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed…" It is implicit that when S.89(5) refers to "…an amount of remuneration of the applicant at the average rate received over the six months immediately before being dismissed…", it is contemplating only the employer against whom the Part 6 claim is made. That was certainly the position taken by the Full Bench of the Commission (Fisher J - President, Hungerford J and McKenna CC) in its unreported decision of Wednesday, 30 March, 1994 in Bateman v. Royal Alexandra Hospital for Children [Matter No. IRC 2865 of 1993 at pp.4 and 5]. Mrs Holland was employed by NSK from Wednesday, 7 April, 2004 to Friday, 16 July, 2004 - 14 weeks. 29 Of course, Mrs Holland commenced work as a security guard in the gardens on Saturday, 1 March, 2003. At that time she worked for Good Kids. But the transmission of a business provisions of Part 8, Protection of Entitlements on Transfer of Business, of Chapter 2, Employment [Ss.101 to 104] do not assist Mrs Holland to extend her level of compensation beyond her period of employment with NSK. S.103 limits the transmission of business provisions to: "…entitlements (the avoided entitlement) that a former employer has failed to provide to a transferred employee in contravention of an industrial instrument or industrial relations legislation…" Therefore, in my opinion, the transmission of business provisions are confined to actual entitlements, ie annual leave, unpaid wages, long service leave etc, and not speculative entitlements, ie entitlements which may (or may not) arise by virtue of S.89(5) but are conditional upon a successful outcome of the Part 6 application. 30 Mrs Holland's claim in this hearing must also be considered bearing in mind the provisions of S.89(6), viz: "When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment." Mrs Holland has found no alternative employment since her dismissal, despite many attempts which she outlined in her evidence. As Mr Tsalidis submitted in the hearing, Mrs Holland has concentrated on security work and work in the hospitality industry, limiting her prospects for finding a suitable job. Also the fact that she has a young family to care for and a husband that works shift work, limits her employment prospects and makes the job she had with NSK more attractive for her. 31 Whilst S.89(5) is concerned with loss of income, not any assessment of damages, it appears to me that there remains some speculation in determining the appropriate level of monetary compensation. In D and R Commercial Pty Limited v. Flood (2002) 113 IR 344, for instance, the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Tabbaa C) alluded to that when (at p.363) it commented that: "…the power in the Commission to make a money order, subject to the limitation on the quantum of compensation and the matters required to be taken into account by S.89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in S.89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made…" 32 Mr Kapolos has acknowledged an underpayment to Mrs Holland which is being addressed separately by him. (She has a similar claim against Good Kids). It is agreed between the parties that the correct weekly rate of pay for Mrs Holland was $444.64. I propose to accept that as the basis of calculations for her Part 6 claim. In the circumstances, based on that figure, and having regard to the provisions of S.89(6), I propose to order that NSK pay to her the sum of $5,600.00. O R D E R 1. NSK Services Pty Limited shall pay the sum of $5,600.00 to Mrs Mandy Holland within 28 days. 2. This order shall take effect on and from Friday, 24 June, 2004 P J CONNOR Commissioner 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.