Industrial Relations Commission of New South Wales CITATION : HERSON AND ONE.TEL LTD [2000] NSWIRComm 3 PARTIES : IRA HERSON (APPLICANT) AND ONE.TEL (RESPONDENT) FILE NUMBER: IRC5181 of 1998 CORAM: Sams DP Termination of employment - allegations of poor sales performance - appropriate warnings - whether dismissal "harsh, unreasonable or unjust" - whether applicant afforded fair process - Relevant general principles - authorities cited CATCHWORDS : Held, Applicant's evidence preferred - employer's expectations unreasonable comparitive performance not assessed - dismissal "harsh, ureasonable and unjust" - applicant denied procedural fairness - reinstatement impractical - Compensation ordered - relatively short service taken into account -costs application reserved LEGISLATION CITED : Industrial Relations Act 1996 (NSW) s84 s89 Workplace Relations Act 1996 Western Suburbs District Ambulance Committee v Tipping (1957) AR 273 per McKeon J Antanakopoulos v State Bank of New South Wales (unreported Wright P Walton VP and Redman C. Matter IRC6863 of 1998) Byrne & Anor v Australian Airlines (1995) 85 CLR 410 Buckman v Burdekin Resources NL (1998) 85 IR 415 Helprin v Westfield Ltd CASES CITED : (1996) 68 IR 25 Ken Beahan v Bush Boake Allen Australia Ltd (unreported Wright P Waton VP Hungerford J Matter IRC621 of 1999 17 December 1999) Outboard World Ltd v Muir (1993) 51 IR 167 Bankstown City Council v Paris (unreported Wright P Peterson J and Bishop C IRC262 of 1999 23 August 1999) Bean v Milstern Retirement Services Pty Ltd (unreported AIRC Moore J 2 June 1995) HEARING DATES: 11/09/1999; 11/11/1999; 11/12/1999; 12/02/1999 DATE OF JUDGMENT: 02/18/2000 APPLICANT Ms C Howell of Counsel LEGAL REPRESENTATIVES: RESPONDENT Ms N Rudland of Counsel JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP February 18, 2000 Matter No IRC98/5181 IRA HERSON AND ONE.TEL LTD Application by Ira Herson re Unfair Dismissal pursuant to s84 of the Industrial Relations Act 1996 1 By application dated 25 September 1998, Mr Ira Herson seeks relief pursuant to s84 of the Industrial Relations Act 1996 (the Act), in respect to his alleged unfair dismissal by One.Tel Limited on 11 September 1998. 2 Following unsuccessful conciliation conferences on 9 November 1998 and other procedural difficulties, the matter was listed for jurisdictional hearing on 2 July 1999. On 20 August 1999 I published a decision on jurisdiction and issued the following statement: For reasons I shall shortly publish I am able to properly conclude that, at its highest, the applicant's annual remuneration, for the purposes of s83(1) of the Act, was $64,302.74 and was probably considerably less. Subsequently the respondent's challenge to the Commission's jurisdiction must fail. The applicant's claim is seized of jurisdiction and will be further processed. In light of this decision I propose to list the matter for further conciliation under my chairmanship on Wednesday, 1 September at 2.30pm. 3 At further conciliation conferences on 1 September 1999, Ms C Howell of Counsel appeared for the applicant and Ms D Banks, Solicitor, appeared for the respondent. These conferences proved inconclusive and pursuant to s87 of the Act, I listed the matter for arbitration and issued directions for the filing and service of affidavit material. 4 In the arbitral proceedings on 9, 11 and 12 November 1999, evidence was adduced from the applicant and Ms Rudland of Counsel (now appearing for the respondent) called evidence from: Mr John Linton Corporate Sales Manager Mr Jeffrey James Parker Senior Account Executive Mr George John Savva General Manager, Australia A further witness, Mr John Malone, gave evidence under summons. 5 By consent, both parties filed written submissions - Ms Howell speaking to her submissions on 2 December 1999 and Ms Rudland filing her submissions the following day. The applicant's submissions in reply were filed on 6 December. I am grateful for the comprehensive and well researched submissions of both Counsel. The Evidence 6 Both parties provided a considerable amount of evidence, adduced both in documentation and the witness box. I do not recount every minute detail of the evidence, but rather provide a summary of that evidence which has a relevant bearing to the ultimate consideration to be faced in this case. 7 The following chronology is extracted from the statement evidence and the transcript of proceedings. I shall deal with the parties' respective evidence shortly. A) the applicant commenced employment on 28 April 1998, after two interviews - both involving Mr John Linton; B) he was employed to sell telecommunications products to large corporate clients, particularly US companies with offices in Australia; C) his remuneration package was partly comprised of commissions; D) the applicant was a member of a sales team headed by Mr Linton; E) every Friday at the weekly sales meeting each employee was required to give a presentation of their previous week's activities; F) after about two months, the applicant with other members of the sales team, attended a BBQ lunch at Mr Linton's home. In a disputed conversation between the applicant and Mr Linton, it would seem Mr Linton questioned the applicant's future with the company. The applicant had said he enjoyed working for the company; G) in early September 1998, Mr Linton adopted a process of having each sales person sign a table outlining their sales targets; H) on 11 September 1998, the applicant was dismissed for failing to meet sales targets; I) later that day, the applicant appealed to Mr George Savva, the National Manager, but Mr Savva refused to intervene in Mr Linton's decision. The Applicant's Evidence 8 In addition to two statements, Exhibits "1" and "2", the applicant gave extensive oral evidence. 9 Mr Herson gave evidence concerning his family company, Nuview Pty Ltd. He said that after he was dismissed by One.Tel he performed some marketing work, for BDO Watson, on behalf of Nuview, for which he received no direct payment. Monies were paid into his family company to reduce debt. At no time, he said, during his employment with One.Tel, did he perform any work for Nuview. He said, that immediately following his dismissal, he was actively seeking full time work. He said that in order to meet living expenses, including car finance, he had received loans from his mother and sister. 10 In cross examination, the applicant said that in his application he was not seeking reinstatement because he found a new position. He thought he was to be offered a position with BDO Watson, the firm he was consulting to - but this did not eventuate. 11 The applicant was questioned on the contents of his electronic diary which disclosed all phone calls made, letters and faxes sent and comments on leads and prospects for business. 12 Mr Herson gave evidence as to what he was told at the interviews with Mr Linton and others prior to commencing employment. Of particular relevance is whether he was told that he was expected to generate $5,000,000 in sales per annum. He said this figure was never described as a budget or target, but rather given as an example of what commission could be earned at that level of sales, ie $400,000. He understood that every employee was expected to strive very hard to achieve maximum sales and each Friday, a sales meeting would be held where each sales person was expected to present a weekly report. Based on the sales achieved in three months, he believed that, over twelve months, he would achieve the minimum $250,000 in sales at which the commission scale cut in. He gave evidence that Mr Linton was unhappy with all the sales team's performance and he often singled out individuals for criticism, including himself. He made it clear that jobs were at stake. At one meeting Mr Linton had complained that the applicant had no credibility with anyone and that his prospective clients keep appearing each week. 13 Mr Herson was questioned as to whether he agreed that he was comfortable selling to medium to large companies with a target of $5,000,000. He said he was comfortable selling to medium to large companies, but not that he was comfortable selling to a level of $5,000,000. This explained his statement in para4-Ex"2" with the apparent conflict with his oral evidence. 14 In respect to Mr Linton's conversation with the applicant at the BBQ lunch, Mr Herson said that Mr Linton had said "You don't like working at One.Tel - do you?" He described Mr Linton as being "quite intoxicated". Ms Rudland put a different version of the conversation to him in cross examination, which he denied. He also denied having a conversation at the BBQ with another employee, Mr John Malone. 15 In August 1998 Mr Linton took the applicant from the office and accused him of doing non-One.Tel work in working hours and this was the reason for his poor sales. He denied that Mr Linton had put him on notice that he might be dismissed. 16 In cross examination, Mr Herson described the process of contacting clients, signing them up and billing them. This might occur over a number of months, depending on the clients' size and needs. 17 The applicant was questioned as to a three month assessment document (Ex"1"-Annex.B) given to him a few days before dismissal, but covering a period from 1 July. He said he was told to sign it or resign. Ms Rudland asked about another assessment document - but Mr Herson categorically denied ever seeing it (it was not produced and was apparently lost). 18 On the day of dismissal (11 September 1998), Mr Linton showed the applicant his billing report and said it was unsatisfactory and his services were no longer required. Ms Rudland put a series of propositions, said to have been put by Mr Linton at this meeting, but denied by the applicant. 19 He then went to see Mr Savva, the National Manager. He said Mr Savva told him Mr Linton's decision was his and he would support it. Mr Herson asked for some other position in the company, but was told none was available. 20 The applicant denied having an earlier conversation with Mr Savva in which he complained about "having a rough time with Linton". He said he had no such conversation with him at any time. 21 In re examination, the applicant was asked whether he was told he was to be assessed on each of the criteria identified in column 2 of Annex.B-Ex"1". To each question he answered in the negative. The Respondent's Evidence 22 Mr John Linton is One.Tel's Corporate Sales Manager and the applicant's direct supervisor. In response to the company's desire to expand its corporate client base, six employees, including the applicant, were employed at about the same time, and on the same commission structure. Four were in Sydney and two in Melbourne. 23 At the applicant's interview he was asked whether he was comfortable selling new products to medium to large companies with a first year sales target of around $5,000,000. Mr Linton said the applicant replied "definitely, yes". 24 The applicant's first quarter target was around $1,000,000 and this was reflected in the commission structure recorded in his letter of appointment (Annex.A-Ex"A"). 25 Mr Linton conducted weekly sales meetings where staff would report on billings, prospective sales and actual revenue. He said that none of the applicant's sales during his employment were likely to be significant in meeting his quota. 26 Annexure B to Ex"A" records actual sales from the applicant's accounts from April 1998 to September 1999 as $87,250.28 whereas annualised billings were expected to be $6,000,000. 27 Mr Linton attested that in early August 1998 he became particularly concerned with the applicant's sales and at the weekly meetings described the applicant's reports as having "no credibility". 28 Mr Linton said the purpose of the BBQ lunch at his home with staff was to discuss "the inadequacy of their performance". He had conversations to this effect with the applicant and two other employees, Mr Malone and Mr Shaw; both of whom subsequently resigned and another, Mr McClintock, was dismissed in November. To the applicant he suggested that things weren't working out and he should look at working somewhere else. 29 At a subsequent meeting with the applicant, Mr Linton accused him of undertaking outside work during work hours and said that this was one of the reasons for his poor sales. Mr Herson had denied the conversation. 30 As to the assessment document (Annex.B-Ex"1") Mr Linton said this was a formalisation of the applicant's targets set out in the letter of appointment. He said the annexure was an incomplete document and that it had been completed in early September by himself and the applicant - although the completed copy could not be located. 31 Mr Linton formed the view in August and September 1998, that the applicant's employment should be terminated for poor performance. The dismissal meeting on 11 September 1998 is described in detail at para16 of Mr Linton's statement. The applicant says Mr Linton's version of the conversation is inaccurate. Mr Linton said he rejected claims by the applicant that his dismissal was personal. He said comparisons to other sales staff were not relevant. 32 Mr Linton denies the applicant's sales were satisfactory or that he was not counselled about his sales performance. 33 He believed that, if the applicant was reinstated, his performance would not change. 34 In oral evidence, Mr Linton attested that he couldn't remember much of the detail of the interviews with the applicant - but there was never any doubt that the sales target was $5,000,000 annually. He gave evidence of his own selling performance and said in five months in 1997 he made sales equivalent to $8,000,000 annually. He said the period between targeting a client and signing up, varied between a few days and two months. No client took six months. 35 In cross examination, Mr Linton acknowledged that not one employee of the six mentioned in para2 - Ex"A" met the $5,000,000 target and one, Mr Jeff Parker, whose sales were $3million, remains in employment. He said that it was not the company's case that Mr Herson's performance was inferior to others, but rather his performance was inferior to the company's standards. Mr Linton said that his belief that Mr Herson was doing outside work was not a factor in his decision to dismiss him. He wasn't certain when he actually came to the conclusion to dismiss him, but at the end of August he was in possession of updated sales figures for all employees - all of which he described as "equally pathetic". He refused to acknowledge that Mr Herson's figures were the best and that Mr Parker's were worse than the applicant's. He also refused to identify a sales figure which would trigger dismissal. 36 Mr Linton was shown a company document which stated that staff not performing to expectations were to be appraised monthly. Mr Linton agreed that the applicant had not been so appraised - but he had not seen the policy document. He gave further evidence that he did not know what the company policies were on anything. 37 Mr Linton said in cross examination that he didn't dismiss the applicant - it was decided by four people Mr Herson, Mr Savva, Mr Hodgson and himself. He couldn't remember who first raised it, or when. 38 Mr Jeffrey James Parker provided a witness statement (Ex"C") and gave oral evidence. He is a senior account executive for One.Tel having commenced employment in May 1998. He said that, during the applicant's employment, each sales person had a target of $5,000,000 in the first twelve months. He had attended the Friday sales meeting during this period, during which Mr Linton commented unfavourably on the sales team's performance using words such as "either your performance must improve or you will no longer have a job". He described these meetings as very tense. He recalled some heated exchanges between the applicant and Mr Linton when the applicant attempted to explain his performance or defend his actions. After these meetings the sales team would gather for a coffee and make comments about their job security. 39 In oral evidence Mr Parker commented on his move from Telstra to One.Tel which resulted in some of his Telstra portfolio, of between $50-70 million, moving across with him. There was an agreement with Mr Linton that $5,000,000 in sales in the first year would be reasonable. He attested that while not thinking this was unrealistic, he recalled it being very difficult to achieve. He referred to the One.Tel sales manual (Ex"D") which had been given to all new employees. He described the sales technique used, particularly where he was attempting to bring customers over from Telstra. He said that as a new area for the company (medium to large corporates), there was a continual threat from Mr Linton of not being employed if sales weren't made. He described Mr Linton as someone who doesn't suffer fools gladly, could be abrupt and straightforward and was sometimes difficult to approach. In cross examination, he said that the time from signing up to billing (the pipeline) could be a month to a month and a half and sometimes, in transfer situations, it was possible to take longer than two months. 40 Mr George John Savva is One.Tel's General Manager with supervisory responsibilities over Mr Linton. He was involved in formulating the budget, the staffing and defining industries for Mr Linton's team. Mr Herson was to target American companies. He said the targets were based on a real, hard and fixed basis of 20% of the market. 41 Mr Savva said he participated in the decision to terminate the applicant's employment by reviewing the sales targets over a period of several weeks. He said that in assessing performance, comparisons were made to others and this was done in Mr Herson's case. A decision had been made six weeks prior to termination. He later clarified this by saying the sales figures were discussed six weeks prior, and a joint decision to dismiss was made a week before. He said no one person actually came up with the suggestion to terminate, but it had been made collectively. The joint decision was his and Mr Linton's. No warning had been given to the applicant, that unless he performed satisfactorily in six weeks, he would be dismissed. 42 Mr Savva gave evidence that when the applicant appealed to retain his job, he had said "John is running the team on a day to day basis. He is in control of the budget. The budget has been broken down from him to the team. The decision is his and I support him in it". He said that Mr Herson was conciliatory and he did not protest the decision. 43 Mr John Malone gave evidence under summons by the respondent. He had worked as a sales representative for One.Tel, commencing about the same time as the applicant and resigning in November 1998. It was his understanding from Mr Linton that he had a target of $5,000,000 annually. He described the Friday sales meetings as "very tense, a very antagonistic environment with a lot of stress". The constant message was if things don't change "all" would be out of a job. He had observed that there was more conflict between Mr Linton and Mr Herson, than the others. He couldn't understand why. The sales team would have a cup of coffee after the meetings and discuss how their jobs were on the line. 44 Mr Malone, a sales representative with 15-16 years' experience, described his work and said he felt under a lot of personal pressure to succeed. 45 Mr Malone had attended the BBQ at Mr Linton's home and witnessed an "intense conversation" between the applicant and Mr Linton. He hadn't heard the conversation, but learnt from someone else that Mr Linton was "having a go at him". 46 Mr Malone was shown an evaluation document, and said he had filled one out, but couldn't remember when - probably in June, 1998. 47 Mr Malone gave evidence that depending on the client, large corporate customers could take from three months to a year to convert initial contact to sales. Six months was not unreasonable. 48 He said that Mr Linton didn't want him to resign. He also said that Mr Herson had helped him with technical matters during his employment. 49 The applicant was recalled to give evidence as to a computer disk produced under subpoena (Ex"G") and referred to earlier in his evidence. The document was a hard copy of the contact and activities undertaken by the applicant in respect to numerous companies. 50 Mr Herson was also taken to the staff policy document (Ex"8") and said he was given it by an office manager in the first week of employment. SUBMISSIONS For the Applicant 51 Ms Howell sought orders for reinstatement, or alternatively, for compensation submitting that the applicant's dismissal was "harsh, unreasonable and unjust". She specifically referred to the matters considered in s88 of the Act. Her arguments may be summarised as follows: A) the stated reason for dismissal - poor sales - had no basis in fact. The applicant's sales performance was the best in his team, although Mr Linton described them all as "uniformly pathetic". Nevertheless, Mr Herson was singled out for dismissal and no comparison was made to the other employees; B) the respondent's two main witnesses gave hopelessly conflicting evidence as to: i) who dismissed the applicant? ii) what factors were taken into account? iii) whether the reason was based on actual results or projected performance? C) other evidence contradicted Mr Linton's, particularly as to the sales cycle; D) the sales target was manifestly unreasonable. No employee got remotely close; E) it was never stated that $5,000,000 was a minimum for continued employment; F) as to procedural fairness, the applicant was denied any proper appraisal of his performance; G) the respondent could produce no reliable evidence that Mr Herson's sales were less than the applicant contends; H) the company's staff policies were not applied to the applicant; I) an appraisal form for the period 1 July - 30 September was given to him in early September with goals that had never been conveyed to, or discussed with, him; J) the applicant received no proper warning that his employment was in jeopardy. Rather, threats of dismissal were frequent and indiscriminate; K) the applicant was given no opportunity to defend himself, as Mr Linton had made up his mind to dismiss the applicant some time before 11 September 1998; L) Mr Linton's response to questions was highly evasive and argumentative and conflicts with that of Mr Savva and Mr Malone. The applicant's evidence should be preferred where it conflicts with Mr Linton; M) the applicant should be reinstated with all remuneration paid from dismissal to reinstatement; N) alternatively, compensation of an amount of $28,923.00 should be paid - being actual earnings for the 4.5 month period immediately before dismissal. No account should be taken of the amount paid into Mr Herson's family company, Nuview Pty Ltd, for work performed by him for it. For the Respondent 52 Ms Rudland's submissions may be summarised as follows: A) the applicant was always aware there was a sales target of $5,000,000. Such a target was confirmed by the evidence of Mr Savva, Mr Linton, Mr Malone and Mr Parker; B) the applicant was aware that there was no formal training as he had presented himself as experienced, skilled and knowledgeable. The salary package reflected this; C) the applicant was in no doubt that his position was at risk following the weekly staff meetings. He was often singled out for criticism. Job security was a major topic in the post meeting coffee discussions; D) Mr Malone's and Mr Parker's evidence was to the effect that the applicant would have been aware - as were others - that his position was at risk if sales did not improve; E) Mr Savva's evidence was to the effect that the applicant knew his sales target was $5,000,000 and that there was a process for assessing the performance of each employee; F) Mr Linton continually monitored his performance and he was spoken to on two occasions about his failure to perform and the likelihood of losing his job; G) senior management held regular discussions to review performance. In early August 1998, there was a consensus that the applicant was not meeting targets and was not likely to; H) there was a consensus about one week prior to dismissal that the applicant's employment should be terminated; I) as to the conflict in the evidence of Mr Savva and Mr Linton, this is explained by each having a different criteria for arriving at the same conclusion; J) even if Mr Linton was the driving force behind the decision it doesn't matter, because Mr Savva had ratified the decision; I) the contention that Mr Herson was singled out in comparison to others is based on false assumptions. 53 Ms Rudland relied on a number of principles and authorities to support her submissions including Western Suburbs District Ambulance Committee v Tipping (1957 AR 273); Paul Antonakopoulos v State Bank of New South Wales (IRC6863 of 1998); Byrne & Anor v Australian Airlines (185 CLR 410); Buckman v Burdekin Resources NL (85 IR 415) and Helprin v Westfield Ltd (68 IR 25). These authorities and principles could be applied to the instant case thus: A) the applicant knew his failure to meet an agreed target would result in his dismissal; B) the actual sales were substantially below target; C) this assessment was made by experienced senior management on a regular basis; D) the applicant had an opportunity each week to explain how he would meet the target; E) Ex"8", the staff policy, was not a policy document of the respondent; F) the applicant was directly warned about his performance on two occasions; G) it is accepted that the applicant was: i) not directly told that if he did not perform to a particular standard in a particular time he would be dismissed; ii) not forewarned of the purpose of the 11 September meeting or an opportunity to have a witness or the privacy of an office separate to the main work area. H) if these submissions are not supported, then the remedy of reinstatement would be impractical; I) alternatively, any compensation should take into account: i) $20,200 paid into the applicant's family company; ii) the fact that he was unable to work because of a road accident; iii) the statement in his original application that he was not seeking reinstatement as he had another position. J) taking the above into account the applicant was only unemployed for two weeks. However, based on the authorities, the amount would be 4.5 months' salary less the amount received into his family company, ie $21,273.88 - $20,200 = $1,073.88. K) costs were also sought. In reply 54 Ms Howell submitted that the respondent's submission was repetitive and did not address a number of substantive and procedural matters going to the unfairness of the dismissal. These include: A) ignoring conflicting evidence; B) failure to address the need for a comparative performance; C) ignoring the appraisal form given in early September and the significance of the staff appraisal policy; D) not appreciating the distinction between a target and a required minimum; E) even if there was a target, Mr Herson's dismissal was unfair as none of the sales team had, or were likely to, meet it and it was not possible to make a fair assessment after 4.5 months; F) omitting two areas of conflicting evidence of Mr Malone and Mr Linton regarding the sales cycle and the circumstances of Mr Malone's resignation; G) Mr Parker remains employed, but did not meet the sales target in the first year; H) it is remarkable to claim two persons, Mr Savva and Mr Linton, could arrive at the same conclusion regarding the dismissal after taking into account different factors; I) Mr Linton's evidence on his role in the dismissal is contradictory; J) not making assessment of sales employees is contrary to authority; K) Tipping is not a contemporary authority; L) if the entire sales teams' performance was "equally pathetic" why was Mr Herson most deserving of dismissal? M) how could the applicant defend his position if he didn't know what factors both Mr Savva and Mr Linton had taken into account? N) it is unchallenged that Ex"8" was One.Tel's staff policy; O) the respondent's documentation of billing sales, actual and prospective, is unreliable; P) reliance on relative poor performance as a reason for not reinstating the applicant is unavailable as a defence; Q) the respondent incorrectly states the amount of remuneration earned during the applicant's employment. It was $28,923.00; R) the amount paid into Nuview was not remuneration. Personal benefits from Nuview in the form of car repayments, misstates what the car was used for during employment and after dismissal; S) it is absurd to suggest that Mr Herson was only unemployed for two weeks; T) the application for costs is improper and should be disregarded. The applicant reserves its right to argue costs in light of the Commission's decision and at the appropriate time. CONSIDERATION Authorities and Principles 55 For a succinct chronology of the development of the unfair dismissal jurisprudence in New South Wales, a recent judgment of the Commission in Court Session in Beahan v Bush Boake Allen Australia Ltd (IRC621 of 1999) is particularly useful. While the judgment dealt primarily with the effect and operation of new s109A of Part 9 of the Act - Unfair Contracts, in doing so it was necessary, in the light of the construction of s109A to consider its "interface" with ch2 pt6 - Unfair Dismissals. 56 At page 44 of the unreported judgment, their Honours observe: The subject matter dealt with by s84 broadly concerns proceedings as to a claimed unfair dismissal or, as the section more specifically states, a dismissal claimed to be 'harsh, unreasonable or unjust'. The unfair dismissals regime in industrial legislation in this State is of long-standing. It was recognised under the 1940 Act as within the jurisdiction of the former Industrial Commission to deal with as an 'industrial matter' and the under pt8 of ch3 of the 1991 Act for the former Industrial Relations Commission to deal with where a dismissal was found to be 'harsh, unreasonable or unjust'. Howsoever one may describe it, and we will refer to it as 'unfair dismissals' by adopting the heading to pt6 of ch2 of the present Industrial Relations Act, a well-settled and consistent jurisprudence has developed . 57 Their Honours then trace the development of the jurisdiction through the 1940, 1991 and 1996 Acts referring to a number of authorities, including: Western Suburbs District Ambulance Committee v Tipping [1957] AR at pp276-277 Re Loty and Holloway and Australian Workers' Union [1971] AR (NSW) 95 at 99 New South Wales Independent Teachers' Association v St Aloysius' College [1976] AR (NSW) 91 at 95-97 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) [1990] 35 IR 70 at 83-84 Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 Terrigal Memorial Country Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1992] 46 IR 145 at 151-152 Orange City Bowling Club v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1979] AR NSW 90 Royal Children's Hospital v President of the Industrial Relations Commission of Victoria [1989] VR 527 at 536 Bowling v General Motors-Holden's Pty Ltd [1980] 42 FLR 309 at 325-326 Australasian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (t/as Sunland Wholesale Meats) [1988] 25 IR 137 at 146 Printing and Kindred Industries Union v Vista Paper Products Pty Limited [1992] 45 IR 268 at 271-272 58 In specifically considering the Act's use of the term "harsh, unreasonable and unjust", it is pertinent to note that an unfair dismissal need only disclose a positive finding on one of the terms used in the expression. In the words of the High Court in Byrne v Australian Airlines: termination may be harsh, but not unjust or unreasonable, unjust but not harsh or unreasonable or unreasonable, but not unjust or harsh . 59 This principle was elaborated on in Outboard World v Muir where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 (Cahill J delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power. In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made". 60 More recently this principle was reaffirmed by an appeal bench in Bankstown City Council and Paris (IRC262 of 1999 - 23 August, 1999). The Full Bench said at p20: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specifity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 61 For reasons which will become evident later I am amply convinced that Mr Herson's dismissal was one attracting a finding on all three heads, being "harsh, unreasonable and unjust". Procedural Fairness 62 While this term is not expressly used in the statute, let alone defined, there is no doubt that matters of procedural fairness are contemplated by s88 of the Act. In any event, there is abundant authority for the proposition that the notions of "harsh unreasonable or unjust" apply to both the merits or substance of the dismissal and/or the procedures leading up to, and surrounding, the dismissal (ie procedural fairness). 63 As discussed in Byrne & Another v Australian Airlines, considerations of unfairness might be disclosed in both the procedure and substantive merit of the dismissal. The High Court said at p465: The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing and limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl.11(a). That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (218). But the question under cl.11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second . 64 Put another way the Commission might find the merit of a dismissal justified but the procedure attending to it, unfair. Of course, the reverse might be similarly applicable. The principle has been further discussed in a recent decision of a Full Bench of the Commission in Antonakopoulos v State Bank of New South Wales. At page 6 of the unreported decision the Full Bench said: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, if harsh, unreasonable or unjust. and later, at page 9: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . 65 In considering the instant circumstances of this case and my later findings, I have also been conscious of the plain language expressed by Marks J in Helprin v Westfield Ltd: In these circumstances it is my opinion that fairness dictates that the applicant's employer should have afforded him some regular feedback as to his performance in terms of how that performance was measuring up against what was reasonably expected of him by the employer. This could be accommodated either by means of a formal assessment process or by means of an informal regular review. In order to render the employment situation fair if(sic) would also have been necessary for the applicant's employer to counsel him about any perceived failure to measure up to any performance criteria, to warn him if his employment prospects were in jeopardy and to give him a reasonable time in which to take such steps as were open to him to improve his performance. As I have said above, all of these conclusions are arrived at by reference to the particular circumstances of this particular applicant as an employee of the first respondent . 66 To complete the discussion of procedural fairness and because I intend to take into account the relevant discretionary provisions of the statute, I quote s88 in its entirety: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether a warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement, or re-employment with the employer, and f) such other matters as the Commission considers relevant. Background 67 The Commission well appreciates the intensely competitive nature of the telecommunications industry. It could be variously described as ruthless, unrelenting and cut throat. It is a tough business. The evidence in this case starkly demonstrates these descriptors. 68 For employees, life is highly pressurised with the threat of dismissal, like the Sword of Damocles, constantly invoked as an "incentive" to ensure, often absurdly unrealistic sales targets are met. Good sales people are head hunted; others are enticed by competitors in order to strip accounts from the competition. While these practices might appear to be ethically suspect, they are, nevertheless, a fact of life in this industry. On the other hand, it does not follow that decent and responsible employment practices can, or should, be sacrificed at the altar of sales, sales and more sales. 69 I am bound to observe that the employment practices of this company (as disclosed by the evidence) are nothing short of appalling. They strike me as positively medieval. Let me chronicle the most obvious example. 70 Employee motivation and encouragement to perform are based on fear and crude threats of dismissal. Experienced sales people, who could not meet the unrealistic targets set by the company or, who could no longer cope with the extraordinary pressure, either resigned or were dismissed. 71 The Friday sales meetings have all the hallmarks of the 15th century Spanish Inquisition - with burning at the stake the only missing aspect. I tried to imagine what it would have been like attending those meetings and experiencing the degrading and threatening atmosphere, week after week. I could hardly imagine a more unpleasant, stressful and unproductive workplace. The Evidence 72 There can be no dispute as to the actual sales achieved by the applicant during his 4.5 months of employment. What is disputed is whether these sales were grossly inadequate to a supposedly acknowledged sales target, and whether there were prospects of these sales approaching $5,000,000 annualised. For reasons which shall become obvious, it is unnecessary for me to speculate on claims by the applicant that his performance would improve as contacts or leads converted to actual sales. 73 Despite Ms Rudland's valiant attempts to gloss over or explain away the respondent's conflicting evidence, I find the respondent's primary evidence (that of Mr Linton) to be hopelessly flawed and unbelievable. He twisted words, definitions and questions in a display of obfuscation and evasion of truly classic dimensions. Most of his answers were unresponsive, and at times offensive and insulting. Mr Linton is an intelligent individual whose evidence brought little credit to himself or the respondent. 74 On occasions his evidence bordered on fanciful. I enumerate but a few examples: A) he claimed to be unaware of the company's staff policies on anything (T.p142). He said, in any event they didn't apply to Mr Herson or could be waived by him as the manager. For a senior manager to make such a claim displayed either gross negligence or a deliberate attempt to avoid the truth. I find Ms Rudland 's attempt to discredit Ex"8", the One.Tel Staff Policy to be entirely disingenuous. It would have been sensible to admit the truth; namely that the staff policy, particularly in respect to appraisals was ignored in Mr Herson's case; B) in his statement (Ex"A") Mr Linton said the sales team were invited to a BBQ, with their families, at his home as a means of telling them how poorly they were performing. This was later embellished to be described as a formal warning to Mr Herson. Mr Linton said he raised similar concerns with Mr Malone and Mr Shaw. No employee, of course was told of the purpose of the BBQ - most believing (as Mr Linton grudgingly acknowledged in evidence) that it was to celebrate the winning of an account from the Commonwealth Bank. As I am invited by Ms Rudland to accept the conversation at the BBQ as a formal warning to Mr Herson, I will do so and identify how absurd it is to be so described: i) no one was warned of the ulterior motive of Mr Linton's BBQ. Had they been, I doubt any would have attended - let alone taken their families! ii) an informal social BBQ is hardly the proper or appropriate venue to warn or counsel employees; iii) what bizarre thought process would occur to a senior manager to concoct a social event as a means of disciplining employees- particularly where family members and others are present? It would be laughable if its purpose was not so sinister. I am appalled that a senior manager would behave in such a cavalier and underhand manner; C) towards the end of his evidence Mr Linton claimed the applicant's dismissal was a collective decision involving himself, Mr Savva, Mr Hodgson and even the applicant himself. While not seriously pressing the last named participant, Mr Linton persisted in this claim of collective decision making. I am not the least bit impressed with this preposterous evidence. Mr Linton knew, as did everybody else involved, that it was he - and he alone - who made the decision to dismiss. Mr Hodgson provided no statement and gave no evidence, while Mr Savva's evidence was that the day to day budget was Mr Linton's responsibility and he supported his decision. Mr Savva's later oral evidence of his own somewhat enlarged role in the dismissal, is little more than a cover up of Mr Linton's earlier evidence. Mr Savva's role was passive, almost subordinate. He was dismissive of the applicant's appeal from Mr Linton's decision. Indeed, this was no appeal. Like Pontius Pilate, Mr Savva merely washed his hands of any involvement; D) the missing appraisal document is most instructive as to the respondent's suspect evidence. The document was said to have been filled in prior to when Mr Herson claimed. This proved, it was said, that he first saw such document earlier than two weeks before his dismissal. However, the document mysteriously disappeared and could not be located. Does the respondent seriously expect the Commission to believe that such a document ever existed before its first airing two weeks before dismissal? Such a claim is completely implausible. I reject it; E) in another hopeless attempt at justifying his position, Mr Linton said that he regarded the probation period as commencing on July 1 (the new billing period) rather than Mr Herson's start date, of 28 April. Even if this was true (which I doubt) he most certainly didn't tell Mr Herson. Common courtesy would have dictated no less. While claiming not to be a lawyer, this was hardly a complicated legal issue. It is just plain nonsense for anyone in Mr Linton's position to advance such a ludicrous theory. 75 I turn now to discuss such other aspects of conflicting evidence as emerged in this case. 76 Ironically, there was significant contradictory evidence advanced by the respondent's witnesses: A) Mr Linton said that the decision to dismiss Mr Herson was not based on any comparative performance to other members of the sales team; Mr Savva said there was such a comparison (T.p211); B) Mr Linton said three persons were involved in the decision to dismiss - himself, Mr Savva and Mr Hodgson; whereas Mr Savva said it was only himself and Mr Linton; C) Mr Linton said that the decision was based on past and projected sales; Mr Savva said it was based only on actual performance; D) Mr Linton said he had spoken to Mr Malone at the BBQ about his performance; Mr Malone denied any such conversation (T.p102); E) Mr Savva said that in developing the budget, each industry, eg banking, travel and American companies, was broken down and allocated 20% as a target. This cannot be so, as each salesperson had the same "target", ie $5,000,000. It is implausible that $5,000,000 would be exactly 20% of each industry's value; F) Mr Linton said that employees who didn't take the hint and resign (as Mr Malone and Mr Shaw did) were dismissed; Mr Malone's evidence is that Mr Linton did not want him to resign; G) Mr Linton said that Mr Herson had little or no technical knowledge; unyet Mr Malone said the applicant had assisted him with a number of technical matters; H) Mr Linton said the sales "pipeline", ie the period between initial contact and signing, was never longer than two months; the Commonwealth Bank Account had taken four to five months. 77 It is for these reasons that I find the respondent's evidence to be of little credit and close to worthless. It is why I am well satisfied that, in the areas of conflict in the evidence of Mr Linton and the applicant, that it is Mr Herson's evidence which is to be preferred. 78 Notwithstanding this finding, I would observe that the applicant acquitted himself admirably in the witness box. He was patient, courteous and co-operative. The Findings 79 In testing the evidence against the authorities and principles earlier discussed I am more than satisfied that the applicant's dismissal was "harsh, unreasonable or unjust" within the contemplation of ch2 pt6 of the Act. 80 I also observe that if this dismissal was to be graded according to its degree of unfairness, I would categorise it in the higher range. In making this observation, I hasten to add that the severity or degree of unfairness is not a consideration to be taken into account in determining the amount of compensation which may be awarded in terms of s89(5). The express intent of ch2 pt6 proceedings, and the relief flowing therefrom, is entirely compensatory in nature and form. Compensation orders cannot be regarded as punitive against an employer or serve to act as some quasi penalty against an employer's errant behaviour. Support for this proposition is to be found in analogous considerations under the Federal Workplace Relations Act and in decisions arising therefrom. I need only refer to what Moore J said in Bean v Milstern Retirement Services Pty Ltd (Unreported, Industrial Relations Court of Australia, 2 June 1995) to emphasise this point: The provisions of s170EE which enable compensation to be ordered are not intended to punish an employer for contravening the Act on the basis that a less serious contravention should attract a small amount of compensation while a more flagrant contravention should attract a greater amount of compensation. The purpose of s170EE(3) is to compensate an employee for the unlawful termination though plainly the subject matter of the statutory provision that is found to have been contravened may, be relevant. 81 I find that the applicant's dismissal was, both substantially, and procedurally unfair. In so concluding I make the following observations and findings: Substantive Unfairness A) the sales "target" set by management was absurdly unrealistic, and based on little more than fanciful and baseless predictions. Such a view must be validated by the fact that not one of the experienced sales persons on the team came remotely close to the "target"; B) the commission earnings on unrealistic "targets" were designed to cruelly mesmerise employees into believing that sales of this magnitude were achievable; C) this was a new area for the company with a new sales team. It would be unrealistic to expect substantive sales in the first few months of employment; D) the company staffing policies, particularly in respect to appraisals, were ignored, and even ridiculed as being irrelevant by senior management; E) the appraisal form given to the applicant two weeks before dismissal, covering a period six weeks earlier, was an abysmal and pathetic attempt at validating Mr Linton's determination to dismiss the applicant; F) it was unfair not to have made a comparative assessment of the performance of the sales team (although Mr Savva said he did, he seemingly arrived at a strange conclusion as Mr Herson's sales were the best of the team). Such a comparison would have proven that, not only was the applicant comparing favourably to the others, but his actual figures to date were the best of the team. This would seem to infer that there was some other, undisclosed reason or reasons for the dismissal; G) it was alleged that the applicant was warned on two occasions - at the coffee shop meeting and the BBQ. At the coffee shop, Mr Linton accused the applicant of "moonlighting" without a shred of evidence. His own evidence reveals no enthusiasm for pursuing these allegations and, indeed, they seem not to have been raised again in the lead up to, or at the time of dismissal. In any event, I find such allegations to be unsubstantiated and baseless; H) Mr Linton, for spurious and ridiculous reasons, ignored certain sales made by the applicant. The Australian Higher Education Industrial Association account, for example, was conveniently ignored because it was Victorian based and said to be not part of Mr Herson's portfolio area; I) the scatter gun approach of berating a group of employees, week after week, that they will be sacked if they don't perform, is crude, unprofessional and unacceptable industrial relations behaviour. It borders on the irresponsible. No employee was given direct or explicit warnings; J) the respondent relied on cl6 of the employment contract as a sales target. I have earlier accepted Mr Herson's understanding of what was intended by this clause. In my view, the clause is little more than an indicative example of how the commission system operates. If it had the intention contended for by the respondent, it makes absolutely no reference to any counselling or disciplinary procedures to be invoked if the alleged targets are not met. Ordinarily, this would have been included if the company was so obsessed with the targets it supposedly set for each of the sales team. Procedural Unfairness 82 The respondent admitted (Ms Rudland's submission p27-28) a number of procedural failings in the dismissal of the applicant, namely: A) the applicant was not directly told that if he did not perform to a particular standard, in a particular time, his employment would be terminated; B) the applicant was not warned of the purpose of the dismissal meeting; C) the applicant was not given an opportunity of being represented or having a witness at the meeting; D) the dismissal was not conveyed in the privacy of a separate office to the main work area; 83 Notwithstanding the respondent's grudging concession, it hardly presents a complete picture of the manifestly unfair procedures attached to this dismissal. I chronicle some other examples: i) the respondent claims that the applicant was given two direct and explicit warnings - at the coffee shop meeting and the BBQ at Mr Linton's home. I have already referred to each of these and find that neither amounted to a proper and express warning in the context of any acceptable industrial behaviour; ii) the applicant was not accorded the benefit of the company's own policies for appraisal. They were simply ignored and ridiculed; iii) Mr Linton suggested in evidence that he had extended the applicant's probation period. I very much doubt this to be the case. Even if he did, it was a totally flawed approach. There was no provision in the employee's contract for such an extension and Mr Herson was not even told it was extended; iv) Mr Linton agreed and Mr Savva concurred that the decision to dismiss the applicant was made sometime before 11 September. I am unable to determine exactly when. Mr Savva firstly said the decision was made six weeks prior to 11 September, then said that it was a week before. In any event, the dismissal was a fait accompli on 11 September. Mr Linton agreed that it was unlikely to be reversed. v) Mr Herson was given no opportunity to respond to the allegations; vi) his plea to Mr Savva for his job back was no proper appeal process - Mr Savva was dismissive. He meekly backed up Mr Linton without any regard for the fairness of the dismissal or the basis for it. The Remedy 84 As the primary remedy, the applicant seeks reinstatement. In the alternative, compensation is proposed. While I am attracted to the primary option, and appreciate the applicant harbours no ill will towards One.Tel management, I do not believe his long term professional interests would be served by reinstatement or re-employment. The employment relationship has suffered irreparable damage. I am not persuaded that the working atmosphere disclosed by the evidence would be conducive to an ongoing, mutually satisfactory arrangement. Consequently, I am satisfied that compensation is the only appropriate remedy. I propose to so order. 85 By virtue of s89(5) compensation is limited to an amount "not exceeding the amount of remuneration of the applicant during the period of six months immediately before being dismissed". It has oft been held that where service with the employer is less than six months, the statutory ceiling is only that amount that was received for the period so employed. 86 In my view, the limitation of six months compensation is no more than a ceiling or cap, determined by Parliament, to limit the Commission's jurisdiction to make compensatory orders beyond the amounts specified. Viewed in this way, it can logically be sustained that a ceiling or limitation of the kind expressed in s89(5) is not a maximum amount which might be ordered in the most abhorrent or serious cases of unfair dismissal. Indeed, it cannot be gleaned from any of the provisions in ch2 pt6 of the Act, that the Parliament evinced an intention to grant the Commission a power to take into account the seriousness or the severity of the unfairness in any given case. 87 The amount of remuneration of the applicant in the 4.5 months of employment prior to dismissal was $28,923.88. However, in my findings on jurisdiction (Decision, August 20 1999) I assessed the value to the applicant of his remuneration package at $27,740.24 for the 4.5 month period. As the amount I propose to award is less than either amount, it is not materially relevant which figure is regarded as the cap. 88 I earlier said that I regard this dismissal as being in the higher range of severity of unfairness. It was both substantively and procedurally unfair on a grand scale. I repeat, nevertheless, that the severity of the unfairness is not a consideration I have taken into account in the order I will shortly make. 89 Ms Rudland submitted that if compensation was deemed appropriate, I should, pursuant to s89(6) of the Act, take account of the amount paid into the applicant's family company, Nuview Pty Ltd, arising from his consultancy work for which BDO Watson paid $20,200.00. 90 In my view, the remuneration an applicant received in alternative employment is but one of the matters the Commission is required to take into account in assessing the compensation to be ordered pursuant to s89(5). It is to be considered together with the specific matters which may be taken into account pursuant to s88(a)(b)(c)(d)(e) and the more general power to consider "such other matters as the Commission considers relevant" (s88(f)). 91 As required by s89(6) I have taken into account the amount received by the applicant for consultancy fees from BDO Watson and paid to his family company. Nevertheless, I note and accept the applicant's evidence that he received no remuneration for the consultancy work and the amount received and paid to Nuview, merely offset the company's debt. I note also that the respondent offered no alternative evidence to contradict the applicant, nor did it seek to challenge, by company search, the authenticity of Ex"3" - Nuview's unaudited profit and loss statement for the year 1 July 1998 to 30 June 1999. 92 In addition to the matters referred to in s88 of the Act, I have taken particular account of the following matters which the Commission considers relevant: a) the applicant's relatively short service; b) the applicant's age; c) his request to senior management for reinstatement; d) his plea for reinstatement in these later proceedings; e) an amount paid in lieu of notice (presumably one week according to the letter of appointment ) 93 I regard the amount assessed by Ms Rudland of between $1,073 and $2,725 to be manifestly inadequate as compensation for the losses suffered by the applicant and my findings that the dismissal was "harsh, unreasonable and unjust". 94 In view of the matters I have taken into account, I determine that an amount of $18,000 is an appropriate compensatory remedy, pursuant to s89(5) of the Act. 95 I order accordingly. COSTS 96 Ms Rudland made an application for costs based on the alleged unreasonable refusal by the applicant to settle the matter (presumably relying on s181(2)(c) of the Act). This submission was not developed in any substantive way. For the applicant, Ms Howell contended that a costs application was premature, preferring to reserve any such application in the light of the Commission's primary findings. While it would have been preferable to have an application for costs argued in the main case, I am faced with no application for costs (at this stage) from the successful litigant in the proceedings. 97 Accordingly, I grant liberty to apply on the motion for costs, within twenty-eight days of today. However, it would be most desirable that conferences be held between the parties to discuss this matter. Hopefully, an agreement as to costs will avoid further delay and additional costs in what has already been protracted and expensive litigation. 98 I direct the parties to confer accordingly. ORDER 99 Subject to the aforementioned grant of liberty to apply, the proceedings are formally concluded by the order I now make: ORDER 100 Pursuant to s89(5) of the Industrial Relations Act, 1996 the Commission orders: (1) The respondent, One.Tel Limited, shall pay to the applicant, Mr Ira Herson, the sum of $18,000. (2) The amount referred to in (1) above shall be paid within fourteen (14) days of today. Peter Sams Deputy President 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.