Industrial Relations Commission of New South Wales CITATION: Hayes -v- Network Kitchens Pty Ltd [2006] NSWIRComm 1122 APPLICANT PARTIES: The Construction, Forestry, Mining and Energy Union (NSW Branch) on behalf of Beau Hayes RESPONDENT Network Kitchens Pty Ltd (ABN 32 083 294 277) FILE NUMBER(S): 1499; 1500 of 2006 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - victimisation claim - apprenticeship withdrawn - operation of s.83(3) - probation - operation of cl. 6 of Regulation - absence of substantive basis - procedural errors - denial of natural justice - dismissal held as harsh, unreasonable and unjust - compensation Ordered - victimisation found - orders made for remuneration or other financial benefits lost or foregone - underpayment Orders made. Apprenticeship and Traineeship Act 2001 LEGISLATION CITED: Industrial Relations Act 1996 [NSW] Industrial Relations (General) Regulation 2000 CASES CITED: Jones v Dunkel (1959) 101 CLR 298. D & R Commercial v Flood (2002) Full Commission of Industrial Relations Commission of NSW [Wright P, Walton VP & Tabbaa C] 113IR 344. HEARING DATES: 17/07/06 DATE OF JUDGMENT: 08/08/2006 APPLICANT Ms L Charlson from the CFMEU LEGAL REPRESENTATIVES: RESPONDENT Mr D Strbik, Director of respondent in person DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 8 August 2006 Matter No IRC 1499 of 2006 Beau Hayes -v- Network Kitchens Application by B Hayes pursuant to section 84 of the Industrial Relations Act 1996 re unfair dismissal. Matter No IRC 1500 of 2006 Beau Hayes -v- Network Kitchens Application by B Hayes pursuant to section 213 of the Industrial Relations Act 1996 re relief from victimisation. DECISION [2006] NSWIRComm1122 Introduction 1 Beau Hayes dropped out of school before he turned fifteen. A neighbour helped to get Beau a start as a junior Labourer working at Network Kitchens in Glendenning. Beau enjoyed the new experience of working in a joinery. 2 In about the third week of work, Beau had an accident in the workshop. He mistakenly touched the blades of a planing machine that was running down after being switched off by an experienced tradesman. It could have been much worse. Beau took only the skin off the tops of two fingers. 3 The tradesman put bandages on Beau's fingers and the boss Mr Strbik, had a look at Beau's bandaged fingers. Beau then went back to work. 4 When Beau got home from work he told his mum about the accident and showed her his bandaged fingers. Beau's mum took him to the Doctor. The Doctor said that Beau should have a few days off work so that his cut fingers could be re-bandaged and heal. 5 Beau's mum rang his boss Mr Strbik, and told him that Beau could not come in to work for a few days. Mr Strbik said that he could not afford to keep Beau employed if he made a workers compensation claim for the days that he would be off work. Beau really wanted to keep his new job. 6 Beau and his mum told the Doctor not to record the cut fingers as workers compensation but to provide an ordinary sick certificate. Mr Strbik paid Beau two days sick leave and no pay for the other three days that Beau had off. 7 Mr Strbik was happy with Beau so at Christmas he told Beau that he could start an apprenticeship when he came back to work in January. It was not until late February before all the paperwork for the apprenticeship was signed and sent off. 8 On 1 March the experienced, middle-aged tradesman who supervised Beau had an argument with Beau that wound up with the tradesman grabbing and pushing Beau. Beau attempted to seek help from Mr Strbik, but things did not improve so Beau rang the Police. The Police went to Network Kitchens, things calmed down, and Beau went back to work, although Mr Strbik deducted one and a half hours pay for the time lost during the incident. 9 Mr Strbik was not happy about the incident with Beau and the tradesman. In particular Mr Strbik said that Beau had brought shame on his Company by having the Police come to the workshop. Mr Strbik decided to withdraw Beau's apprenticeship. A few days later he gave Beau a letter which told Beau that he no longer had an apprenticeship. The letter also said that Beau could work on as a junior Labourer until the end of March. 10 Beau was very upset, he went home and showed the letter to his mum. Beau did not go back to work at Network Kitchens, he believed that he had been sacked and that he had been treated unfairly. Beau and his mother contacted the Construction, Forestry, Mining and Energy Union (the CFMEU) and asked for help. The Proceedings 11 Subsequently, the CFMEU on behalf of Beau Hayes (the applicant), made two claims under separate sections of the Industrial Relations Act 1996 [NSW], (the Act). This Decision is made as a consequence of the two claims filed on behalf of the applicant. 12 The first claim (IRC2006/1499), was made pursuant to section 84 of the Act and involves an alleged unfair dismissal. The second claim (IRC2006/1500) was taken under section 213 of the Act and seeks relief from victimisation. Both claims were filed on 15 March 2006, and each named the respondent employer as Network Kitchens Pty Ltd, (ABN 32 083 294 277) (the employer). 13 In addition, the CFMEU sought to utilise section 380 of the Act and made a claim for underpayment of wages and other amounts alleged to be owing to the applicant by Network Kitchens. Proceedings in respect of all matters have been held concurrently. 14 The matters were the subject of conciliation proceedings conducted before Tabbaa C. The transcript of proceedings from a second conciliation conducted by Tabbaa C held on 5 May 2006, indicates that some extended time (circa 4 hours), was devoted to the pursuit of settlement of the three identified claims. The transcript of these proceedings further indicates that agreement had been reached to settle the applicant's underpayment of wages claim for a figure of $700 net. 15 However, the remaining two claims, the unfair dismissal and the relief from victimisation, were clearly unresolved. In addition, a third issue had arisen whereby the respondent employer contended that the unfair dismissal matter should be dismissed for want of jurisdiction. It was alleged that because the applicant was an "indentured apprentice on probation" Part B of respondent's Notice of Motion filed 16 May 2006. the Commission lacked jurisdiction in respect to both the unfair dismissal claim (IRC2006/1499) and the relief from victimisation claim (IRC2006/1500). 16 The question of the jurisdictional challenge was advanced by Notice of Motion filed on 16 May 2006. The procedural issues that were promoted by the respondent's Notice of Motion were dealt with by his honour Staff J during proceedings held on 23 May 2006. In brief, Staff J determined that the respondent's Notice of Motion should not be determined separately from the substantive proceedings which had been fixed for Hearing on 17 July 2006. An amended timetable was established to facilitate the Hearing of all issues. 17 During the course of the proceedings on 23 May, the issue of the agreement reached before Tabbaa C on 5 May, to settle the applicant's underpayment claim, was the subject of considerable discussion. Although agreement had been reached on 5 May to settle the underpayment "...for $700 net payable into the applicants bank account within 7 days of today's date" Transcript of proceedings (05/05/06) @ page 6. Mr Strbik, Director of the employer, advised the Commission that only $209 had been paid. 18 Mr Strbik said that he had deducted "overpayments" from the agreed amount. Ms Charlson for the CFMEU, disputed that Mr Strbik had any right to make any deductions and in particular, as Ms Charlson said that the issue of "overpayments" had been mentioned during the conciliation discussions on 5 May, it was an issue comprehended by the settlement as recorded by Tabbaa C. Ms Charlson said that Mr Strbik was in breach of the agreement to settle the underpayment claim. 19 Consequently, although there had been an earlier agreement to settle the underpayment claim that issue returned as a matter of contest which would be included with all issues requiring determination and fixed for Hearing on 17 July 2006. 20 At the hearing on 17 July, Ms Charlson from the CFMEU appeared for the applicant and Mr Strbik appeared unrepresented for the employer. 21 The Hearing identified four primary issues that required determination. 1. The respondent's Notice of Motion that challenged the jurisdiction of the Commission on the basis that the applicant was an apprentice on probation. 2. The applicant's claim for unfair dismissal. 3. The applicant's claim for relief from victimisation. 4. The applicant's claim for recovery of remuneration. 22 In order to deal with all four issues in composite fashion the Commission proceeded to hear the evidence from the applicant and then the employer, followed by submissions in the usual sequence. The Evidence 23 There were three witnesses called to provide evidence on behalf of the applicant. In addition, affidavits of a John Sykes were also introduced into evidence at the instigation of the applicant's representatives. 24 Mr Strbik, the employer's Director, represented the employer at the Hearing and he was the only witness called to provide evidence on behalf of the employer. 25 There were various matters of clear and direct factual contest that arose from the evidence presented. The resolution of many of these contests has unfolded as part of the determination of two of the four primary issues under examination, namely, the unfair dismissal and victimisation claims. However, all issues would be capable of determination by hypothetically adopting the employer's version of the evidence where that differed from the applicant's case. 26 The applicant's first witness was Mr T Kesby, an organiser with the CFMEU. The evidence provided by Mr Kesby was particularly relevant to the apprenticeship that had been offered to the applicant. Mr Kesby is a member of the NSW Vocational Training Tribunal and also a director of the Construction Industry Training Advisory Board. He was able to provide evidence about matters of detail relating to the process that led to the offer and subsequent withdrawal of the applicant's apprenticeship. Mr Kesby also provided important evidence about the correct remuneration that the applicant was entitled to receive. 27 The applicant's mother, Annette Hayes gave evidence about various events that she naturally became involved with as they related to her son's employment. Ms Hayes provided evidence in connection with events including the applicant's workplace injury on 21 November 2005, and the incident of 1 March, concerning the applicant's altercation with the tradesman. Although she was not a witness to the workplace events, the evidence about her conversations with Mr Strbik regarding these incidents has been important and was generally directly contradictory to the testimony of Mr Strbik. 28 The applicant also gave evidence as a witness. The evidence of the applicant about significant workplace events including the injury to his fingers on 21 November 2005, and the altercation with the tradesman on 1 March 2006, was broadly at odds with the evidence from Mr Strbik. The most significant points of contest between the evidence of the applicant and that of Mr Strbik related to; (a) whether or not Mr Strbik told the applicant and his mother, that if a workers compensation claim was made for the absence arising from the injury sustained on 21 November, the applicant would not be continued in employment; and (b), the detail of the altercation on 1 March, in particular the applicant's alleged verbal abuse of the tradesman and the extent to which the tradesman either pushed, shoved, grabbed or otherwise made physical contact with the applicant. It should be noted that there was no dispute that there was physical contact made and that contact was solely by the man against the boy, and there was no suggestion of any physical contact made by the boy upon the man. 29 Mr Strbik was the only witness called to provide evidence on behalf of the employer. Consequently, potentially important evidence from individuals who witnessed the events of both 21 November 2005 and 1 March 2006 was not led by the employer. The Commission was invited to draw an adverse "Jones and Dunkel " Jones v Dunkel (1959) 101 CLR 298. inference that the evidence from these individuals, who were and apparently remain, either employees or contractors of the employer, would not have assisted or supported the version of these events as asserted by Mr Strbik. 30 There were two other notable features of the evidence provided by Mr Strbik. Particularly when issues requiring determination might in part, be subject to consideration that includes the question of credit, the conduct of individuals both before the Commission and in respect to prior conduct generally, may become important. 31 In this regard the evidence of the agreement made before Tabbaa C to settle the underpayment claim and the subsequent reneging upon that agreement by Mr Strbik reflects very poorly upon his integrity. Likewise, the veracity and integrity that might be attached to the words and deeds of Mr Strbik must be assessed against his conduct where he paid the applicant two days sick leave when he knew that the five days absence was caused by an injury sustained at work. Amazingly, Mr Strbik then claimed that he overpaid the applicant because "...Beau had only been employed for 2 week[sic] prior to the injury, according to the award[sic] he was entitled to only 1 day paid sick leave." Exhibit 8 @ paragraph 20. 32 The other unusual feature of the evidence provided by Mr Strbik involved his election to state an affirmation when entering the witness box as opposed to swearing an oath. Ordinarily this would be of no consequence, however Mr Strbik emphasised both in his affidavit and during his cross examination of witnesses, that he was a Christian with strong believe in honesty and integrity before God. 33 In contrast, there were no significant features of the evidence presented by the applicant and his mother that would provide basis for successful impeachment. The evidence provided by the applicant and his mother was generally consistent, plausible and believable. The most significant deficiency in the evidentiary case presented for the applicant was the absence of any Police report about the incident of 1 March 2006. However, the Commission's consideration has focused on resolution of various direct conflicts arising from the respective evidentiary cases and for which there was little or no collaboration provided. A pertinent example of the distinction between the respective evidentiary cases involved the contest about the workplace injury sustained by the applicant on 21 November 2005. 34 There was clear, direct contradictory evidence between Mr Strbik on the one hand and the applicant and his mother on the other, as to whether Mr Strbik had said that if the applicant claimed workers compensation he would lose his job. Mr Strbik bluntly denied that he made such a statement, he said "I strongly and vigorously deny this nasty accusation against me and believe this a lie of the worst possible kind." Exhibit 8 @ paragraph 14. 35 If this accusation was an invention of the applicant and his mother there was no plausible explanation for the applicant to request that his Doctor treat the medical certificate as other than workers compensation. Mr Strbik knew that the injury was sustained at work and he could offer no plausible explanation as to why the applicant's absence had not been properly recorded and processed as a workers compensation matter at the time. Mr Strbik provided no collaborative evidence to support his version of the event, while there was strong, consistent, supportive evidence for the applicant's version including the mention of the issue in the Workcover report Exhibit 8 annexure "B". that was introduced into evidence by Mr Strbik. 36 The evidence relating to the workplace injury of 21 November 2005, is but one example of various points of contested fact that, when carefully examined, and properly evaluated, having regard for weight, balance, level of consistency, plausibility, absence of supportive evidence and other deficiencies, provides compelling basis for the Commission to adopt a strong preference for the evidence of the applicant over that of the employer. The Case For The Applicant 37 Ms L Charlson from the CFMEU represented the applicant at the Hearing. Ms Charlson filed written submissions that she referred to and supplemented by way of additional oral submissions. 38 On the issue of the alleged absence of jurisdiction Ms Charlson submitted that even if the applicant was an indentured apprentice and or an employee serving a period of probation at the time of his dismissal, he would not be prevented from making the claim for relief from victimisation under section 213 of the Act. 39 Ms Charlson then made detailed submissions about the operation of the Apprenticeship and Traineeship Act 2001 (the Apprenticeship Act) as it applied to the circumstances of the applicant. In brief, Ms Charlson submitted that the employer had withdrawn from the apprenticeship during the 3 month apprenticeship probationary period and reverted the applicant to the junior Labourer position. Therefore, according to Ms Charlson, the applicant was not an indentured apprentice at the time of his dismissal and not excluded from making a claim for unfair dismissal. 40 Ms Charlson also made submissions about that aspect of the alleged absence of jurisdiction as it related to the applicant being excluded on the basis that he was an employee serving a period of probation as stipulated in clause 6 of the Industrial Relations (General) Regulation 2001, (the Regulation). In this regard Ms Charlson said that the applicant commenced employment in November 2005, and there was no probation of qualifying period established prior to the commencement of the employment. Further, the probationary period that operated by virtue of section 11 of the Apprenticeship Act applied only to the apprenticeship and not to the applicant's employment. 41 Ms Charlson also submitted that the alleged resignation of the applicant which was said to deprive the Commission of jurisdiction, could not be sustained upon the evidence of the circumstances surrounding the employer's actions on 9 March, involving the issuing of the letter dated 3 March 2006. Ms Charlson submitted that the applicant's employment came to an end at the initiative of the employer. 42 Ms Charlson then submitted that the dismissal of the applicant was harsh, unreasonable and unjust. Ms Charlson said that the applicant was dismissed for two reasons. Firstly the applicant was dismissed because he had called the Police to attend the employer's workshop on 1 March, and secondly because of alleged poor work performance and attitude problems. Ms Charlson submitted that the first reason was an improper basis for dismissal, and the second reason could not be substantiated as a fact, and in any event, there had been no warning given to the applicant of any inadequate work performance. In particular, Ms Charlson stressed that it was not plausible that performance problems developed or became apparent over the few days between 27 February when Mr Strbik signed the apprenticeship contract document, and 1 March when he signed the "not proceeding" document. 43 Ms Charlson then made detailed submissions in support of the claim for relief from victimisation. In brief, Ms Charlson submitted that the employer had not discharged the rebuttal presumption as required by section 210(2) of the Act. The substantial and operative cause of the detrimental action, being the withdrawal of the apprenticeship and the dismissal from employment, was, according to Ms Charlson, the complaint made by the applicant about the risk to his health that manifest in his requiring the attendance of Police at the workplace on 1 March 2006. Ms Charlson made further submissions about the amount of lost remuneration that was said to arise from the victimisation and the consequential Orders that were sought. 44 Ms Charlson made further detailed submissions in respect to the underpayment of wages and other entitlements issue. These further submissions provided elaboration of the rationale that had been used to establish the quantum that appeared in the applicant's amended particulars of small claim filed on 7 July 2006. Ms Charlson acknowledged that the employer had paid and amount of $280.14 instead of the $700 net figure that was agreed in proceedings before Tabbaa C. and this amount should therefore be deducted from the figure stipulated in the amended statement of small claim. 45 In summary, Ms Charlson submitted that the Commission had jurisdiction to deal with both matters (IRC2006/1499 and IRC2006/1500) and that the applicant had been unfairly dismissed, unlawfully victimised, and underpaid. She sought consequent Orders as Relief available under the various relevant sections of the Act. The Case For The Employer 46 Mr Strbik a Director of the respondent employer, represented the employer at the Hearing. Mr Strbik commenced his submissions by stating that he had followed all the correct procedures when registering the applicant's apprenticeship and then withdrawing from it, so that the applicant was an apprentice on 9 March 2006. Therefore, according to Mr Strbik the applicant was an apprentice and he did not have a right to have his unfair dismissal case heard. 47 Mr Strbik made further submissions that mentioned that he did not even have to provide for any reason for his decision to withdraw from the apprenticeship. Mr Strbik said that on 9 March 2006, he gave the applicant written advice of the withdrawal of the apprenticeship and that at this point the applicant resigned from employment. 48 Mr Strbik submitted that the applicant had not been victimised but that he had been distracting other employees, not taking orders, not being obedient and caused a big disruption. Mr Strbik said that he was shocked and concerned about the incident on 1 March. As the employer was only a small company, Mr Strbik said he did the right thing for the good of the company when, having witnessed the incident of 1 March, he decided to end the employment with the apprenticeship. 49 Mr Strbik also said that the applicant would not have got any other employment so he really didn't lose nothing[sic]. Mr Strbik said that the applicant could learn from the mistakes that he made, it was a good learning curve, and the applicant was still young so he could learn to be obedient. 50 In conclusion, Mr Strbik said that the applicant and his Union had fabricated the case against him and that they had made statements that were dishonest and unfactual[sic]. Mr Strbik stated that before God he had said exactly the truth, the actual facts, and that he knew that he was speaking the truth before God. Consideration 1. The Jurisdictional Challenge 51 The consideration of the four primary issues that have emerged in these matters should logically commence with the issue regarding the alleged absence of jurisdiction. 52 Although the employer's Notice of Motion filed on 16 May 2006, sought "... an order[sic] that the application of unfair dismissal & victimization hearin[sic] be DISMISSED", there was no identified basis upon which the victimisation matter, taken under section 213 of the Act, was said to be absent of jurisdiction. It would seem that the capacity to make a claim pursuant to section 213 of the Act is open to ".. an industrial organisation or by any person affected by a contravention of this Part." Section 213(1) of the Act. Therefore even if the applicant was established to be an indentured apprentice on probation that would not deprive him of the right to make claim under section 213 of the Act. In any event, there is specific capacity for the CFMEU as an industrial organisation, to make claim under section 213 of the Act. 53 Consequently, the jurisdictional challenge could only potentially effect the unfair dismissal claim taken under section 84 of the Act. 54 Although it was not clearly articulated by the employer, it is plain that section 83(3) of the Act removes access to the unfair dismissal provisions of the Act for employees who are apprentices or trainees (other than existing worker trainees) within the meaning of the Apprenticeship Act. Therefore if the applicant was an apprentice within the meaning of the Apprenticeship Act, his unfair dismissal claim would be disbarred. 55 It was undisputed that up until 1 March 2006 the applicant and the employer had taken appropriate steps to establish a training contract of apprenticeship, and that from January 2006 the Parties had treated the employment to be that of an apprenticeship. The apprenticeship was subsequently withdrawn in accordance with section 11 of the Apprenticeship Act. Section 11 of the Apprenticeship Act states; 11 Withdrawal from apprenticeship or traineeship during probationary period (1) At any time during the apprentice's or trainee's probationary period, and whether or not a training contract is in force, either the employer or the apprentice or trainee may, by notice in writing addressed to the other, withdraw from the apprenticeship or traineeship. (2) An application for the establishment of an apprenticeship or traineeship is taken to have been withdrawn, and need not be dealt with, if notice is given to the Commissioner, before the application is dealt with, that the employer or the apprentice or trainee has withdrawn from the apprenticeship or traineeship during the probationary period. 56 It would seem logical that if the applicant's apprenticeship was withdrawn in accordance with section 11 of the Apprenticeship Act, then the applicant could not be an apprentice for the purpose of the Apprenticeship Act. It is also relevant to examine the definition of apprentice as provided in the dictionary contained in the Apprenticeship Act which states: apprentice means an employee who is party to an apprenticeship contract, and includes a person who is employed as an apprentice but in respect of whom an apprenticeship contract is not yet in force. 57 It appeared that this definition was specifically worded to encompass periods of employment prior to an apprenticeship contract coming into force such that any such period would be treated as a period of the apprenticeship. In the circumstances of this case, the apprenticeship contract never came into force because it was withdrawn during the probation period. 58 The operation of various sections of the Apprenticeship Act establishes that a withdrawal from an apprenticeship during the probation period ensures that no apprenticeship contract comes into force. This is specifically reinforced by the provisions of section 12 of the Apprenticeship Act that relevantly states: 12 Training contracts are binding (1) A training contract has effect as if it were a deed duly executed by the employer and the apprentice or trainee. (2) Subject to section 11: (a) the training contract for a full apprenticeship binds the employer and the apprentice: (i) from the time the employer is notified that the establishment of the apprenticeship has been approved, or (ii) from the end of the probationary period, whichever is the later, until the end of the term of the apprenticeship, and 59 Therefore the effect of a withdrawal from an apprenticeship during the period of probation is that no apprenticeship contract comes into force. Consequently any individual who had been employed as an apprentice up to the withdrawal can not be a party to an apprenticeship contract nor is there any prospect for the apprenticeship contract to come into force. The absence of any binding apprenticeship contract means that, consistent with the definition of apprentice, the individual is not an apprentice for the purposes of the Apprenticeship Act. It follows therefore that the applicant, or for that matter, any person who withdrew or was withdrawn from, an apprenticeship during the probationary period, is not an apprentice for the purposes of section 83(3) of the Act. 60 The withdrawal of an apprenticeship during the period of probation causes the person who, up to the withdrawal, was considered an apprentice, to become an employee as opposed to an apprentice. The rights, obligations and other terms and conditions applicable to an employee as opposed to an apprentice, then apply. This alteration to the employment position is supported by the inclusion of the following sentences in the "not proceeding" pro forma document provided to Mr Strbik by Australian Business Limited-New Apprenticeships Centre Exhibit 1 Annexure "C" and "D". ; "Employer advised of the possibility of back-pay issues" and "Employer advised that they may be subject to unfair dismissal legislation". 61 In addition, in the present circumstances there was abundant evidence that the employer had unilaterally altered the applicant's engagement from about 4 March 2006, to reflect employment as an "Unapprenticed Junior" as it was stated on the applicant's pay record dated 10/03/2006. Further, the employer's letter dated 3 March 2006, which advised of the withdrawal from the apprenticeship, also provided an option of ongoing work as "a casual junior till[sic] the completion of the church pew job Ending 31st March 2006...". Therefore, upon a variety of different foundations it can be established that the applicant's employment as at 9 March 2006, was not that of an apprentice. 62 Although the applicant can not properly be considered an apprentice for the purposes of section 83(3) of the Act, the employer's jurisdictional challenge also involved the issue regarding probation. 63 The employer broadly asserted that the applicant was excluded from access to the unfair dismissal provisions of the Act by virtue of the operation of clause 6 of the Regulation. The relevant part of clause 6 states: 6 Other exemptions from unfair dismissal provisions (1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: ... (c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months—the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment, 64 It appeared that the employer sought to rely upon the probation period established for the apprenticeship commencing on 9 January 2006, and fixing a period of 3 months. The alleged unfair dismissal occurred on 9 March 2006, during the probation period stipulated in the apprenticeship contract document. 65 However, importantly, the apprenticeship training contract document was signed by Mr Strbik on 27 February 2006, and by the applicant and his mother on the following day, 28 February 2006. Therefore the probation period was not determined in advance of either the engagement as an apprentice, circa 9 January 2006, or in advance of the commencement of employment, circa 7 November 2005. Consequently the applicant was not serving a period of probation that was determined in advance and he is therefore not subject to the operation of clause 6 of the Regulation. 66 In summary, the applicant was not an apprentice at the time of his alleged unfair dismissal on 9 March 2006, nor was he serving a period of probation that was determined in advance. The applicant is not excluded from access to the unfair dismissal provisions of the Act and the employer's Notice of Motion alleging an absence of jurisdiction is accordingly dismissed. 2. The Unfair Dismissal Claim 67 There are a number of disturbing aspects of this case. Most notably the employer, in particular Mr Strbik, appeared to have little appreciation for the applicant's young age and inexperience. Following the events of 1 March 2006, when the applicant called the Police to the employer's premises, Mr Strbik commenced to withdraw from the apprenticeship and terminate the applicant's employment without giving the applicant any indication of the pending loss of the apprenticeship and the finalisation of the employment. It was not until about 3pm on 9 March, when Mr Strbik gave the applicant a letter dated 3 March 2006, (Exhibit 6 - Annexure "A") that the applicant was advised of the termination of the indentured apprenticeship. 68 The letter of termination commences "Further to the violent incident with Robert Fuimaono on Wednesday morning...". This is a reference to the incident of 1 March, when a mature age man made physical contact with a fifteen year old boy. The termination letter continues "You provoked Robert to be stern With[sic] you, because you have recently had a serious attitude problem where you have been repeatedly disobeying all work instructions given to you." 69 It must be unequivocally stated that no amount of "attitude problem" or "disobedience" can justify physical contact of any nature, let alone contact by a mature man against a boy. 70 There was no evidence of any performance or conduct problems with the applicant prior to the incident of 1 March, other than one occasion in January when the applicant was told to "pull your weight more". It should be noted that in the two days preceding the incident of 1 March, Mr Strbik and the applicant and his mother, signed the apprenticeship training contract documents. It is simply inconceivable that the alleged attitude and performance problems with the applicant could manifest such that at the start of the week, Monday 27 February, Mr Strbik signed a 4 year apprenticeship contract and by the Friday, 3 March, he wrote a termination letter. 71 The performance and attitude issues were elevated by the employer beyond any level of genuine or realistic concern. The issue that caused the dramatic change of mind for Mr Strbik was the incident of 1 March and in particular the applicant's action in involving the Police. The termination letter reveals that Mr Strbik was severely embarrassed by the Police attendance at the workplace as he expressed, "Your dissobediance[sic] when told to put the phone down and stop the offensive language when you were calling the police is unacceptable. You wasted valuable resources and brought shame to my company by doing such a stupid thing." 72 In reality, the shame that has been visited upon the employer is of Mr Strbik's making. It is a sad reflection upon Mr Strbik and his managerial and interpersonal inadequacies, that a fifteen year old boy could feel so physically threatened and unsafe that he would call the Police to attend the workplace. Even if there was an element of over-reaction by the applicant, in circumstances where a fifteen year old boy was physically confronted by a mature age man, it is a shocking indictment of the employer if they can not act to quickly defuse the incident and reassure the boy that he is under no threat of any further physical contact. 73 Over a week after the incident, and without any discussion, consultation or counselling with the applicant, Mr Strbik issued the applicant with a termination letter that disingenuously offered further limited work as an un-apprenticed junior. The effect of the termination letter given to the applicant over a week after the incident, would on any reasonable contemplation, cause the applicant great distress and represented both advice of the withdrawal of the apprenticeship and dismissal from employment. 74 Any suggestion that the applicant resigned because he did not take up the option of further un-apprenticed work fails to appreciate the impact that the loss of the apprenticeship would have on the applicant. The applicant was unaware that Mr Strbik had unilaterally altered his employment to un-apprenticed labourer and commenced to withdraw from the apprenticeship. Instead the applicant had continued to work as usual and was given to believe that his employment as an apprentice had endured the incident of 1 March. 75 Consequently, the applicant was dismissed when given the letter of termination on 9 March 2006, and that dismissal was harsh, unreasonable and unjust. The dismissal was in large part, based upon the unfortunate incident of 1 March, and in particular the applicant's action in calling the Police to attend the workplace. The employer did not have proper regard for the applicant's young age and inexperience when considering the applicant's actions. Therefore in the absence of such consideration, it was harsh to dismiss the applicant for his actions in respect to the calling of the Police. 76 Further, it was unreasonable and unjust to dismiss the applicant without providing an opportunity for the applicant to offer any explanation about the incident of 1 March. The dismissal of the applicant was also unreasonable and unjust because the performance and attitude aspects of the alleged reasons for dismissal can not be substantiated as having any factual basis whatsoever. 77 The Commission finds that the dismissal of the applicant was harsh, unreasonable and unjust. The dismissal was harsh, unreasonable and unjust because it was without proper basis and implemented with deficient process. 3. The Victimisation Claim 78 The claim for relief from victimisation was advanced under section 210(1)(j) of the Act which relevantly states; 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: ... (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000, or 79 The complaint made by the applicant pursuant to section 210(1)(j) of the Act, involved his telephone call to the Police on 1 March 2006. There was no dispute that the Police attended the employer's premises in response to the applicant's call. Further, it was clear that the altercation between the applicant and another person, Robert Fuimaono, acted to initiate the applicant's call to the Police. 80 There was a regrettable lack of potentially important evidence about the incident of 1 March, including from Mr Fuimaono or any Police report. However Mr Strbik described the incident as "violent". The evidence also established that all physical contact was made by Mr Fuimaono and none was made by the applicant. 81 Notwithstanding the limited evidence of the incident of 1 March 2006, it is clear that the applicant made a complaint and that the complaint was about a workplace matter, although, I note that workplace matter is not defined, and so it presumably encompasses an incident in the workplace such as that which occurred on 1 March 2006, at Network Kitchens' premises. Further, it seems undeniable that the applicant considered that his circumstances as a result of the physical contact made by Mr Fuimaono, were not safe and that there existed some risk to his health and safety. 82 As indicated in findings made earlier in this Decision relating to the basis for the applicant's unfair dismissal, Mr Strbik acted to withdraw from the apprenticeship and dismiss the applicant from employment primarily because of the applicant calling the Police to attend the workshop. In any event, the employer has not rebutted the presumption that is required under section 210(2) of the Act. The substantial and operative cause of the withdrawal of the applicant's apprenticeship and his dismissal from employment, was the applicant's complaint to the Police about his concern for his safety at work. 83 Therefore the employer has victimised the applicant in contravention of section 210(1)(j) of the Act. 4. The Claim for Recovery of Remuneration 84 The CFMEU has utilised the provisions of section 380 of the Act and made application for an Order under Part 2 of Chapter 7 of the Act, Recovery of Remuneration and Other Amounts. The section 380 application is to be dealt with under section 379, Small Claims Procedure. 85 The CFMEU filed an amended statement of small claim on 7 July 2006. The amended claim sets out alleged underpayments not made to the applicant in respect to; Wages and Entitlements, Rostered Days Off - worked, Rostered Days Off - accrued hours, Unpaid Public Holidays Annual Leave and Superannuation. The written submissions filed by the CFMEU provide explanation for the various calculations of alleged underpayments said to be payable pursuant to the Joiners (State) Award, (the Award). 86 It is a matter of great regret that the agreement reached before Tabbaa C to settle the underpayment issues, did not provide an enduring resolution of this aspect of the various contests between the Parties. 87 Having examined the amended statement of claim, together with the submissions that provide explanation for the various calculations contained in the amended claim, and having regard for the submissions made by the employer, on the basis of equity, good conscience and the substantial merits of the case, the Commission is prepared to grant the amended claim in full, less the amount of $280.14 already paid by the employer. Consequential and appropriate Orders for the recovery of remuneration and other amounts and for the recovery of unpaid superannuation will therefore be made. Conclusions 88 The determination of these matters has involved the resolution of four primary issues. 89 Firstly, in respect to the employer's challenge to jurisdiction, the Commission has examined the provisions of section 83(3) of the Act and determined that the applicant was not an apprentice within the meaning of the Apprenticeship Act. Further, the Commission has determined that the applicant was not serving a probation period that had been determined in advance. Therefore the employer's challenge to the Commission's jurisdiction is dismissed. 90 Secondly, following an examination of the circumstances leading up to and including the issuing of the letter of termination dated 3 March 2006, the Commission determines that the actions of the employer on 9 March 2006, constituted the dismissal of the applicant. Further the Commission finds that the dismissal of the applicant was harsh, unreasonable and unjust on both substantive and procedural foundations. 91 Having regard for the very unfortunate employment circumstances that included the altercation incident at the workplace on 1 March 2006, the Commission considers that reinstatement or re-employment of the applicant would be impractical. Therefore the Commission is prepared to provide for remedy for the applicant's unfair dismissal by way of monetary compensation. The amount of compensation has been determined having regard for sections 89(5) and 89(6) of the Act. 92 Thirdly, the Commission finds that the employer victimised the applicant in contravention of section 210(1)(j) of the Act. The detrimental action suffered by the applicant included the withdrawal from an apprenticeship and the dismissal from employment. The Commission is therefore prepared to make an Order pursuant to section 213 of the Act. 93 The Commission has been prepared to make an Order pursuant to section 213(2)(c) of the Act and in doing so has been cognisant of the need to avoid any prospect for duplication that might be construed as "double counting" for a period of lost remuneration for which compensation has been provided under sections 89(5) and 89(6) of the Act. In this respect it is important to record that the principles as established by the Full Bench of this Commission in the matter of D & R Commercial v Flood D & R Commercial v Flood (2002) Full Commission of Industrial Relations Commission of NSW [Wright P, Walton VP & Tabbaa C] 113IR 344. have been followed in the determination made of the compensation Ordered under sections 89(5) and 89(6) of the Act. 94 Fourthly, the Commission is prepared to grant the amended small claim for underpayment of remuneration and other amounts filed by the CFMEU on behalf of the applicant. The amount already paid by the employer in respect of an alleged underpayment will be offset against the amounts claimed. 95 In consequence of the aforementioned findings made by the Commission in these matters the Commission makes the following Orders: ORDERS ORDER 1 The Commission Orders, pursuant to sections 89(5) and 89(6) of the Act, that the employer pay to the applicant an amount of compensation of $4,000.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. ORDER 2 In addition to the amount Ordered in Order 1 above, the Commission Orders, pursuant to section 213(2)(c) of the Act, that the employer pay to the applicant an amount of remuneration and other financial benefit lost or forgone, of $10,659.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. ORDER 3 In addition to the amounts Ordered in Orders 1 and 2 above, the Commission Orders, pursuant to sections 379 and 365 of the Act, that the employer pay to the applicant an amount of remuneration and other entitlements payable under the Award, of $1,516.12. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. ORDER 4 In addition to the amounts Ordered in Orders 1, 2 and 3 above, the Commission Orders, pursuant to sections 379 and 368 of the Act, that the employer pay to a superannuation fund nominated by the applicant, an amount of unpaid superannuation of $106.37. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. ORDER 5 The amounts specified in Orders 1, 2 and 3 above, are to be paid by the employer to the applicant within twenty one days from today, 8 August 2006. ORDER 6 The amount specified in Order 4 above is to be paid by the employer to a superannuation fund nominated by the applicant within twenty one days from the date that the applicant provides the employer with written advice of the details of the superannuation fund so nominated. oooOOOooo 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.