Industrial Relations Commission of New South Wales CITATION: Mace v Kwongs Pty Ltd t/as S K Real Estate [2005] NSWIRComm 1182 APPLICANT Susan Mace PARTIES: RESPONDENT Kwongs Pty Ltd t/as S K Real Estate FILE NUMBER(S): 7239 of 2004 CORAM: Macdonald C CATCHWORDS: unfair dismissal claim - dismissal denied by employer - casual or part-time? - circumstances surrounding last day at work - credit of employer - dismissal found - unfair dismissal - compensation awarded LEGISLATION CITED: Industrial Relations Act 1996 Outboard World Pty Ltd v Muir (1993) 51 IR 167 CASES CITED: D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 HEARING DATES: 08/15/2005; 08/24/2005 DATE OF JUDGMENT: 12/01/2005 APPLICANT Ms S Mace appeared in person LEGAL REPRESENTATIVES: RESPONDENT Mr C Byrnes Real Estate Employers' Federation of NSW DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 1 December 2005 Matter No IRC 7239 of 2004 Susan Mace and Kwongs Pty Ltd t/as S K Real Estate Application by Susan Mace re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ­­­­­­­­­­­­­­­­­­­­­­­-------------------------------------------------------------------------------------------------------------------- DECISION [2005] NSWIRComm 1182 1 This is an application by Susan Mace ("the Applicant") for unfair dismissal against Kwongs Pty Limited t/as S K Real Estate ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions on 11 January 2005. The Applicant appeared but there was no appearance by the Respondent. My office contacted the Respondent's place of business and we were advised that Mr Sherman Kwong was the responsible officer but that he was overseas. We were also advised that his office had no knowledge of the unfair dismissal application. 3 The matter was set down for Conciliation and Directions on 15 February 2005. The Applicant appeared but there was no appearance by the Respondent. My office made contact with Mr Kwong who advised he had not received a copy of the Applicant's unfair dismissal application which had been sent by my office, by registered mail, to 107 Forest Road, Hurstville. Mr Kwong advised my office that his correct business address is Shop 6, 107 Forest Road, Hurstville. My office arranged with him to send a copy of the unfair dismissal application by facsimile that day. 4 The matter was listed for Conciliation and Directions on 28 February 2005. The Applicant appeared. Mr Kwong appeared for the Respondent. Conciliation took place but the matter remained unresolved. 5 The matter was set down for a Report Back on 7 March 2005. The Applicant and Mr Kwong were in attendance. The matter remained unresolved and was set down for a Hearing. 6 The Hearing took place on 15 and 24 August 2005. The Applicant appeared as a witness and represented herself. The Applicant called two witnesses: · Ms Helen Wettengel · Ms Barbara Burrows The Respondent was represented by Mr C Byrnes, industrial advocate of the Real Estate Employers' Federation. Mr Byrnes called the following witnesses: · Mr S Kwong - the Respondent · Mr Andrew Gerasimoski - sales representative Background 7 The Applicant was employed in July 2004, after responding to an Internet job advertisement. She initially worked three days per week but this was reduced to two days per week. She said she was a part-time employee. This was disputed by Mr Kwong. 8 The Applicant said she was approached around mid November 2004 by Mr Kwong, to work extra hours. She agreed. This approach was disputed by Mr Kwong. 9 Mr Kwong provided her with an employment contract on 18 November but already dated 1 November. This document stated that she was a casual. The Applicant said she needed the work (and hence extra income) and signed the employment contract even though her view was that she was not a "casual". 10 On 18 November, Mr Kwong handed the Applicant a letter he had received from Centrelink. This letter was making enquiries about a certain person by the name of "Susan Mace or Male". The letter sought work details about Centrelink's customer entitlements. Under the words "Yours faithfully" appeared the following: "Jessica Tomczyk Sydney Fraud Investigation Team Centrelink" (Exhibit 3 - Annexure A) 11 That day, 18 November, was the last day the Applicant worked. She received a phone call from Mr Kwong the following week about not returning to work and that conversation was the subject of dispute between the parties. FINAL SUBMISSIONS For the Applicant 12 The Applicant submitted that: a) She was employed as a part-time employee. b) She was interviewed by Mr Kwong's daughter and Mr Kwong was not present for that interview. Therefore, he cannot say she was not employed as a part-time employee. c) Mr Kwong had authored a letter on behalf of the Applicant in respect of her loan with a finance company and this letter did not refer to her job status as a casual. d) She disputed Mr Kwong's claim that he had not dismissed her. e) Her last day at work was 18 November. Mr Kwong said this was so as there was a fall off in workload for the Applicant. The Applicant disputed this as the Respondent's business remained open until 23 December and all other employees worked up to this time. Further, the Applicant was being trained in other tasks to be performed in the absence of certain staff, one of whom (Mr Kwong's wife) was to be absent overseas during the Christmas - New Year period. The training would result in the increased hours of work that had been offered by Mr Kwong on 15 November and then, all of a sudden, her last day at work was 18 November. f) Mrs Wettingel, a witness for the Applicant, said she performed work that the Applicant would normally do but could not do, as Mr Kwong had asked the Applicant to work extra hours over the Christmas - New Year period. g) She asserted she had been dismissed because of the letter from Centrelink. h) She rejected the evidence of Mr Gerasimoski whom, she said, would not be aware of her employment details with Mr Kwong. i) Mr Kwong had never provided her with pay slips. j) She rejected Mr Kwong's claim that he had contacted her regarding offer of work after she had filed her unfair dismissal application. k) The employment contract she signed on 15 November showed that Mr Kwong intended to continue her employment but she was finished up three days later. For the Respondent 13 Mr Byrnes, for the Respondent, made the following submission: a) The evidence of the Applicant's two witnesses (Messrs Wettingel and Burrows) was hearsay. b) The Applicant had been employed as a casual employee and the proof of that was found in oral and documentary evidence. c) The letter that was used for obtaining finance had been authored by the Applicant, so she was the person who inserted the part-time employee status in the letter - not Mr Kwong. He signed the letter. d) As to the job interview, the Applicant agreed under cross-examination, that Mr Kwong's daughter had not said her job was that of a part-time employee. e) The Applicant agreed that Mr Kwong had not said words, to the effect, that she had been dismissed. f) The evidence of Mr Gerasimoski supported a finding that the Applicant was a casual employee. g) The Applicant had been engaged as a casual employee and she had been informed by Mr Kwong on 18 November that she was no longer required in the lead up period to Christmas but might have got a telephone call in the New Year offering additional work. h) It was not being submitted that as a casual employee, the Applicant was barred from bringing her unfair dismissal claim. It was submitted, however, that there had been no dismissal. CONSIDERATION 14 The Applicant claimed that she had been dismissed by Mr Kwong and that that dismissal came about by his not offering her further work. Her last day at work was 18 November. Mr Kwong, through is representative ( Mr Byrnes), denied that the Applicant had been dismissed. He asserted that the Applicant was a casual employee and, as such, she had not been offered any further work beyond 18 November due to a downturn in workload. 15 In determining the competing above claims, the Commission has had regard to the following issues: a) Was the Applicant a casual employee as claimed by Mr Kwong or a part-time employee as claimed by the Applicant? If it was held that she was a casual employee, then this would be consistent with Mr Kwong's claim that the Applicant had not been dismissed and not offered any further work due to a downturn in workload. If, however, it was held that the Applicant was a part-time employee, then this would be consistent with her claim that she had been dismissed as she did not work beyond 18 November. Although the Commission uses the term "consistent" in the above scenarios, it does not follow that a finding of "consistent" scenario represents a final determination of the matter before myself. b) What were the circumstances surrounding the Applicant's no longer performing work for Mr Kwong, beyond 18 November? Do such circumstances support the Applicant's view that she was dismissed or Mr Kwong's view that there was a downturn in workload and hence no work for the Applicant (in her capacity as a casual as argued by Mr Kwong)? Issue: Part-Time or Casual Employee? 16 The Applicant deposed that she was employed as a part-time employee, when interviewed by Miss Rainbow Kwong (a daughter of Mr Kwong who was not present at the job interview). (exhibit 3 - page 1, third dot point) The Commission notes that Ms Rainbow Kwong was not called as a witness by the Respondent to rebut the Applicant's claim. 17 The Applicant relied upon a letter signed by Mr Kwong in which it stated that the Applicant was employed on a "Permanent/Part-Time Basis". (exhibit 3 - annexure B) Under cross-examination, the Applicant said that she had typed the letter. (Tr 15/08/05 - p 22) She denied she had told another member of staff that it was good of Mr Kwong to sign the letter as she was a casual. (Tr 15/08/05 - p 23) (The letter was required by the Applicant in order to obtain a loan.) 18 Under cross-examination, the Applicant gave the following responses in support of the Respondent's argument that she was employed as a casual employee: a) She was shown a copy of a job advertisement for "casual admin all-rounder" and agreed that that may have been the job she applied for. b) This job was advertised at an hourly rate of $15 per hour and she agreed she was paid $15 per hour. She agreed she carried out the duties described in that job advertisement. (Tr 15/08/05 - pp 15 & 16) 19 There was other evidence brought out by the Respondent to prove its case that the Applicant was a casual: a) A tax declaration form (exhibit 5) which had a tick against the job status of "casual". The Applicant denied that the signature was her own and said her alleged signature was dated 16 November but that she was not at work that day. (Tr 15/08/05 - pp 16 & 17) The Commission notes that the Applicant was not challenged on this response of hers. The Commission further notes that the date, 16 November 2004, is a Tuesday. The Applicant gave evidence under cross-examination that the two days she worked each week were: " Monday and Thursday, that never changed " (Tr 15/0805 - p 18) Elsewhere, she said it was " Monday and Friday ". (Tr 15/08/05 - p 29) In any event, none of those days is a Tuesday. b) It was put to the Applicant that as she worked odd Saturdays, this showed she was a casual employee. The Applicant denied this and reiterated that she had two fixed days of work during the week, each week. The Commission concurs that the working of the odd Saturday did not necessarily mean she was a casual. c) The Applicant was taken to exhibit 3 - annexure I. This one page document opened with the Applicant's words: "Mr Kwong keeps stating I was casual." The Applicant agreed under cross-examination that this quoted extract was another way of saying: "I know I was classed as casual". (Tr 15/08/05 - p 19) With all due respect to the Applicant (who was not represented), the Commission does not agree. The quoted extract is telling any reader of this quoted extract as to what Mr Kwong says about her job status, not what the Applicant says. Further, this same document contains a submission by the Applicant disputing that she was a casual employee. d) The Applicant agreed that her hourly rate did not match the hourly rate for a part-time employee under the Real Estate Clerical and Administrative Employees (State) Award ("the Award"). e) Finally, the Applicant was referred to the employment contract (which she said she signed on 18 November). This contract described her status as that of a casual. The date of 18 November was her last day at work. 20 Following cross-examination, the Commission questioned the Applicant about the actual job interview. Mr Kwong's two daughters (Rainbow and Queenie) were in attendance. The Applicant confirmed again that Mr Kwong was not at the interview. As to what was said by one of the daughters, as to the Applicant being engaged on a part-time basis, the Applicant said: "Like, I told them what I was looking for. I needed regular work for regular income and they did not tell me it's only a casual basis worked on hours only. They mightn't have come out exactly and said it was permanent part-time, but I said I needed regular income." (Tr 15/08/05 - p 31) (emphasis added) It seems to the Commission from this quote that the Applicant is saying that the two daughters did not expressly state that the Applicant was to be employed as a part-time employee. Further, it seems that it can not be said that the two daughters indirectly said that the Applicant was to be employed as a part-time employee. It is open to conclude that the parties to the job interview were in agreement that the Applicant was to be engaged on a regular basis and this suited the Applicant who wanted an engagement that produced " regular income ". 21 Summary: The Commission has considered the above evidence and come to the conclusion that the Applicant was engaged on a casual basis. The Applicant had deposed in her statement that she was engaged on a part-time basis arising out of the job interview with the two daughters who were not called as witnesses to rebut this claim. This failure to appear strengthened the Applicant's claim that she was engaged on a part-time basis. 22 However, certain evidence that came out during her cross-examination weakened the Applicant's claim. This evidence was her concession that a job description about a "casual admin all-rounder" may have been the job advertisement she answered. And then under questioning from myself, the Applicant's version of the job interview confirmed that there was no agreement at that interview that she was employed as a part-time employee. It was this last piece of evidence that caused the Commission to find that the Applicant was not engaged as a part-time employee. Issue: Was the Applicant Terminated? 23 What were the circumstances surrounding the Applicant's no longer performing work for Mr Kwong, beyond 18 November? Do such circumstances support the Applicant's view that she was dismissed or Mr Kwong's view that there was a downturn in workload and hence no work for the Applicant (in her capacity as a casual as argued by Mr Kwong)? 24 The Applicant and Mr Kwong had differing accounts as to the circumstances surrounding the Applicant no longer performing work after 18 November (a Thursday). In determining which account the Commission prefers, I have relied upon contradictory evidence given by Mr Kwong - with the result that I prefer the account of the Applicant. The Contradictory Evidence 25 The contradictory evidence went to whether Mr Kwong had spoken to the Applicant in the year 2005 but prior to 28 February 2005. As Mr Kwong had gone overseas prior to the Applicant filing her unfair dismissal application and had not returned to Australia till mid January 2005, then the contradictory evidence issue went to whether Mr Kwong had spoken to the Applicant between mid January and 28 February 2005. The significance of 28 February is that it was the third court listing of the application before myself but the first time Mr Kwong appeared before the Commission. He had not appeared at the first listing (11 January) as he was still overseas. He did not appear at the second listing (15 February) as he said he had not received a copy of the Applicant's application. 26 As previously stated, an issue arose during the Hearing as to whether Mr Kwong had spoken to the Applicant between mid-January and 28 February 2005. He gave certain evidence on this issue during the Hearing. This certain evidence caused the Commission to read an extract of proceedings from 28 February to Mr Kwong, being what he had said on that date on the same issue - and in doing so, the Commission was raising with Mr Kwong the issue of contradiction in his evidence. 27 In putting the extract from the transcript of 28 February to Mr Kwong whilst he was in the witness box on 15 August, the Commission was providing natural justice to Mr Kwong - that is giving him an opportunity to respond to the contradiction. In so giving Mr Kwong that opportunity, the Commission was following the express view of the Full Bench (on so providing that opportunity) in: D & R Commercial Pty Ltd v Flood (2002) 113 IR 344.. That is, the Full Bench held that a member of the Commission could not rely upon matters said during preliminary listings (in this case, Conciliation and Directions listing), unless such matters were put to the witness, in question, for comment. 28 The contradictory evidence arose from the cross-examination of Mr Kwong by the Applicant on 15 August. Thus his evidence as to whether he rang the Applicant or not between mid January and 28 February was as follows: a) "Q. Since 24 November have you rung me and offered me any work? A. No, I didn't because……I got no chance to discussion with you." (Tr. 15/08/05 - p66, lines 45-49) b) "COMMISSIONER: Q. So you never spoke to her at all? A. I do have the conversation. After she send the letter to unfair dismissal I do ring her…." (Tr 15/08/05 - p66, lines 51-53) c) COMMISSIONER: Q. What do you say about that, Mr Kwong? A. I do not remember the day I rang her, but I do spoke to Susan (the Applicant) after 24 November one time or two time. We discussion her job and I explain to her why you send me to the unfair dismissal because I never dismission with you. Q. And this was before you appeared in front of me (28 February), is that what you say? A. Yes, I think so. APPLICANT: I dispute that.": (Tr. 15/08/05 - p67, lines 42-52) From the foregoing extracts, it can be seen that Mr Kwong initially said he had not been in contact with the Applicant (paragraph (a)). But in the next two extracts, his evidence is that he did ring and speak to her. It was these last two responses that caused the Commission to put the extract of proceedings from 28 February to Mr Kwong because his last response in that extract was to the contrary to what he was saying on 15 August - that is, he had not rung and spoken to the Applicant. As will be seen from the extract, Mr Kwong's evidence as to whether he had rung or not, was not consistent. Thus: d) "COMMISSIONER: No, that's not answering my question. You're telling me you haven't sacked her. KWONG: No. I didn't. COMMISSIONER: So why didn't you ring her and say, I don't understand this (the unfair dismissal application), I haven't sack you, I've got work for you? KWONG: I did ring her and asked her; "What is that mean?"… (Tr. 28/02/05 - p10, lines 43-52) e) "COMMISSIONER: Well, why didn't you phone her? KWONG: No, I been ringing her and try to discussion the letter... COMMISSIONER: Have you had any conversations with Mr Kwong this year? APPLICANT: No. COMMISSIONER: Why haven't you phoned Ms Mace (the Applicant) in 2005 after receiving this unfair dismissal application and say to her-- KWONG: No, I didn't her ring her because I'm assume you want to put me to IRC that's mean we have to sitting down and discussion. Like I say, if someone send you a letter or trying to put you to somewhere to the court or something like that and before the court hearing, if I'm the solicitor how can I contact with her to try to sort out. I only trying to ask her, what do you want, and by the meantime is look-.." (Tr. 28/02/05 - p.11, lines 27-48). The above two extracts from the proceedings of 28 February, have Mr Kwong saying he did not ring the Applicant. 29 The contradiction between the proceedings of the Hearing (Mr Kwong stated he did ring and speak to the Applicant) and of Conciliation and Directions of 28 February (Mr Kwong stated he did not ring the Applicant), caused the Commission to pursue this contradiction. Under questioning from myself, Mr Kwong said he had not ("No, I didn't.") rung the Applicant prior to 28 February. (Tr. 15/08/05 - p72, lines 27-27). But with the very next question, he said he had rung the Applicant. This response caused the Commission to go off record and exercise its discretion to attempt conciliation of the matter, but to no avail. 30 In assessing the contradictory nature of the evidence, extracted above, the Commission has drawn a conclusion adverse to the credit of Mr Kwong based on the concept of prior inconsistent statement. In the alternate (should that finding be not appropriate), that Mr Kwong's evidence about an important issue, vacillated so much, as to make his evidence on that point (and generally), be unreliable where it conflicts with that of the Applicant. 31 As to the concept of "prior inconsistent statement", Mr Kwong said on 28 February that he did not ring the Applicant, but later at the Hearing, said he did ring the Applicant. Thus his evidence at the Hearing is inconsistent with the prior statement made on 28 February. This allows for a finding by the Commission that Mr Kwong is not a credible witness and that Mr Kwong did not ring the Applicant between mid January and 28 February 2005. The Commission so finds. 32 In the alternate, if the Commission's finding about the concept of "prior inconsistent statement" is not supported by the evidence, then an adverse finding about Mr Kwong's credit is still made out. As to that concept not being made out, this may be due to there being no clear cut contradictory statements between only two statements. That is, it is not the case that Mr Kwong said "X" and "X only" on 28 February but the "opposite (and hence contradiction) of X" and "X only" on the day of the Hearing. What Mr Kwong said on 28 February was both "X" (he spoke to the Applicant) and the "opposite of X" (he did not speak to the Applicant). Then on the day of the Hearing, Mr Kwong said the "opposite of X" (he did not speak to the Applicant) on one occasion and he said "X" (he spoke to the Applicant) on two occasions. If, because of these contradictory statements made even on each day, there is doubt that the concept of "prior inconsistent statement" has been clearly made out (in that "X" was said on one day and the "opposite of X" on a separate day), then the Commission still relies upon these vacillating contradictory statements for the finding that Mr Kwong's credibility as a witness has been brought into question and so Mr Kwong's evidence on this point, and generally, is unreliable. 33 The significance of this point (did he or did he not speak to the Applicant between mid January and 28 February 2005), turns on the defence by Mr Kwong to the unfair dismissal application. Mr Kwong asserted that he had not dismissed the Applicant. This was at the heart of his defence. The Commission then asked of Mr Kwong (and this is contained in the extract of transcript from 28 February): "COMMISSIONER: So why didn't you ring her (between mid January and 28 February) and say; I don't understand this (the unfair dismissal application), I haven't sacked you, I've got work for you? (Tr. 28/02/05 - p10, lines 48-50). It was this question to which the Commission obtained the contradictory responses of "X" (I did speak to her) (Tr. p.10) and the "opposite of X" (I did not speak to her (Tr. p.11) to the Commission's question on 28 February. 34 Because Mr Kwong changed his mind on a fact in issue (the Applicant denied he had telephoned her) then the Commission finds that Mr Kwong did not telephone the Applicant between mid January and 28 February. 35 Outside of that point in issue, the Commission also finds that it prefers the evidence of the Applicant where there is conflict between her evidence and that of Mr Kwong. Was the Applicant Terminated? 36 In assessing the question as to whether the Applicant was terminated, the Commission will give preference to the evidence of the Applicant, for the reasoning stated above. 37 The relevant events/conversations for considering the question of termination or not, are set out below: (a) 15 November: The Applicant claimed that Mr Kwong spoke to her on this day and asked her to work extra hours over Christmas because Mr Kwong was going overseas with his wife and needed her to man the office to carry out administrative tasks. Mr Kwong denied this claim. He said he would not discuss such personal matters with someone he did not know and rhetorically asked why would he discuss such personal matters with someone who had only been working for him for just one week. (Tr 15/08/05 - p37, line 54 to p38, line 10). The Commission prefers the evidence of the Applicant and holds that the above conversation did in fact take place and in the form as claimed by her. The evidence also shows that Mr Kwong did travel overseas before Christmas and returned mid January 2005. The Commission notes that Mr Kwong said he would not discuss such personal matters with a person he had only known for one week. As at 15 November, he had not known the Applicant for one week but approximately four months. It also seems odd to the Commission that Mr Kwong would not discuss such personal matter (an overseas trip) with the Applicant, but signed a letter for her (seeking a loan to purchase a car) and which letter he knew to be false. Mr Kwong knew that the letter made the false claim that the Applicant was a part-time employee (and it was his evidence that she was a casual employee). (Tr 15/08/05 - p40, lines 44 to 50). At the time that he signed this falsely premised letter (dated 15 August), Mr Kwong had only known the Applicant for about 3 weeks. It seems odd to the Commission that Mr Kwong can claim he would not discuss with the Applicant such a "personal matter" as travelling overseas but signs a letter that makes a false representation. This is so odd as to be unbelievable and the Commission so finds. In summary , the Commission prefers the evidence of the Applicant and finds that the telephone conversation of 15 November did in fact take place and in the form as claimed by her. Further, and separate to that finding, the Commission rejects the claim by him as to why he would not have had such a telephone conversation with the Applicant. b) 18 November : This was the last day that the Applicant worked. The Applicant claimed that on this day, a telephone call came into the office from Centrelink. Mr Kwong gave varying responses as to the date of this telephone call: " September or November " (Tr 15/08/05 - p46, line 10); "...maybe that day (18 November), maybe not that day " (Tr 15/08/05, p47, lines 26 to 28). The Commission prefers the evidence of the Applicant and holds that the telephone call from Centrelink came in on 18 November. The Applicant claimed that Centrelink faxed a document through to the Respondent's office. Mr Kwong confirmed that he received a facsimile from Centrelink. (Tr 15/08/05 - p44, lines 31 to 35). The facsimile (exhibit 3, Annexure A) is a request for information about a " Susan Mace or Male ", having a certain birth date. The Applicant explained that Centrelink's request for information arose from a spelling error appearing in her tax declaration form and Centrelink's enquiry was directed to ensuring that the Applicant was not working under two different names. (Tr 15/08/05 - p16, line 57 to p17, line 8). The facsimile identified the author of the letter as being from the " Sydney Fraud Investigation Team ". The Applicant claimed and the Commission accepts that the Applicant then telephoned Centrelink and left the telephone line open whilst the Centrelink contactee was transferred to Mr Kwong's telephone. Mr Kwong confirmed that he spoke to Centrelink by telephone and that the call was about the Applicant and the spelling of her name. (Tr 15/08/05 - p52, lines 7 to 9). In summary , the Commission finds that Centrelink facsimiled its enquiry about the Applicant to the Respondent's office on 18 November and that Mr Kwong spoke to a Centrelink contactee on that same day and the subject of the Centrelink enquiry was the Applicant. The purpose of the enquiry was to ascertain if the Applicant was defrauding Centrelink by the use of two names. The evidence showed that the Applicant had another job for a different employer. c) 24 November : The Applicant received a telephone call from Mr Kwong on this day. He rang to advise her not to come to work the next day. That much about this call is in agreement but beyond that is in dispute. Again, the Commission prefers the evidence of the Applicant as to that disputed conversation. The Applicant claimed that in that telephone call, Mr Kwong said to her: " I will not need you to come to work tomorrow because I am closing the business down till next year. I will call you some time next year and create another position for you ". Mr Kwong denied the foregoing and gave his version of the call as : " You not come to work next week until we are holiday break and then you come back to work again ". (Tr 15/08/05 - p53, lines 43 to 50). As already stated, the Commission prefers the Applicant's account of the telephone call. Mr Kwong gave evidence that the Applicant challenged him about his decision not to have her work for the remainder of the year. She did not accept that the office would close for two or three weeks around Christmas. The Applicant further said to Mr Kwong: "... you just don't want me to work ". (Tr 15/08/05 - p49, lines 39 to 40). Mr Kwong denied this and went on to give evidence that the Applicant was welcome to come back after the holiday. The Commission notes that this evidence of Mr Kwong showed that the Applicant challenged Mr Kwong's decision and specifically it can be inferred that the Applicant was saying that she had been terminated pursuant to this telephone call. As well, the Commission notes that Mr Kwong's version has him putting the position that the Applicant will have a job after the holiday period. That being so, then why didn't Mr Kwong respond differently to the unfair dismissal application? His evidence was that she had not been dismissed. This is what he put to myself on 28 February when he first appeared before the Commission. That claim of there being no dismissal, prompted me to say to him: " So why didn't you ring her and say; I don't understand this (the unfair dismissal application), I haven't sacked you, I've got work for you ". (Tr 28/02/05 - p10, lines 48 to 50). And it was this question to which the Commission obtained contradictory responses of Mr Kwong as to whether he had or had not telephoned the Applicant between mid January and 28 February and which became part of the Commission's deliberation in this Decision and led to a conclusion adverse to Mr Kwong as to his credit. 38 Having considered these three events/conversations, the Commission finds that Mr Kwong terminated the services of the Applicant. Mr Kwong offered extra work to the Applicant and the Applicant accepted that offer. He gave a reason (overseas trip) for so offering the Applicant extra work. Mr Kwong did travel overseas for the period December - January. Subsequently, Mr Kwong changed his mind and advised her not to come to work until next year. Why the withdrawal of work? The inference that the Commission draws in answering this question relates back to the intervening event between the extra work offer and the withdrawal of that offer. This intervening event was the enquiry by facsimile and telephone from Centrelink - specifically the Sydney Fraud Investigation Team. This enquiry was about the Applicant who had two jobs. This enquiry went to whether she was using her real name "Mace" or another name "Male", in the employ of the Respondent. Following this enquiry from the Centrelink Sydney Fraud Investigation Team, Mr Kwong withdrew his offer of extra work. 39 When the Commission views the foregoing scenario of events/conversations, the Commission finds that they represent a striking scenario that goes beyond coincidence. That Centrelink facsimile coincided with the withdrawal of the extra work offer. The evidence that has been accepted by the Commission is that she was offered extra work because Mr Kwong and his wife were going overseas. Because of that absence, she was offered extra work. That Centrelink letter coincides with the withdrawal of the extra work offer but yet there was extra work for her to perform because of the Kwongs' overseas absence from the office. Thus, there is more than just coincidence at play with the above scenario of events/conversations. 40 The Commission also finds that Mr Kwong terminated the Applicant's services, based on other evidence. It was Mr Kwong's version of events that he had no work for the Applicant because of the Christmas shutdown. He then said under cross-examination, that he told the Applicant to "come back to work again" after the holiday break (see para. 37(c) above). That being the case, why did he not do so? As already stated before, the Commission asked Mr Kwong as to why he had not telephoned the Applicant to offer her work, given his claim that he had not sacked her. There was always a simple resolution to this unfair dismissal claim, given Mr Kwong's claim he had not sacked the Applicant (and that she was mistaken in so thinking that way). All he had to do was to offer her work. He did not do so. The above leads the Commission to find that Mr Kwong dismissed the Applicant by not offering her further work. (The Applicant was engaged on weekly regular work. The Commission rejects Mr Kwong's claim that the Applicant did not know her hours of work from one week to the next). 41 Accordingly, for the above reasons, the Commission finds that Mr Kwong terminated the services of the Applicant. ANOTHER ISSUE - APPLICANT'S CORRECT GRADE 42 During the proceedings, the Commission became aware of the Applicant's cause of action before the Chief Industrial Magistrate, in respect of an underpayment claim. The Applicant's claim being that she had been underpaid vis-a-vis the dispute as to whether she was a part-time or a casual employee. The Commission further understands that the matter before the Chief Industrial Magistrate was adjourned pending the outcome of the case before myself because of the need for myself to determine the issue as to whether the Applicant was a casual or part-time employee. The Commission has decided that the Applicant was engaged as a casual employee. 43 As already stated, the Commission became aware of the other cause of action and found out that the Applicant was apparently graded by the Respondent at Grade 1 (one) under the Real Estate Industry (Clerical and Administrative) (State) Award ("the Award"). The Commission raises an issue for the Chief Industrial Magistrate, as to the appropriate grade for the work being performed by the Applicant. The Award is an award of an industrial organisation of employees (a trade union) and for which trade union I was a union official, for twenty-nine years. I have knowledge about the five grade competency based structure that is a feature of some awards of that trade union, including the Award in question. Hence, I questioned why the Applicant was considering her correct rate of pay at the lowest grade in that competency based structure, given what the Commission had been told as to her duties. CONCLUSION 44 Having considered all of the evidence, the Commission concludes that (a) the Applicant was engaged as a casual employee and (b) the Applicant's services had been terminated by Mr Kwong. 45 As to the termination of the Applicant's services, the Commission concludes that this conduct by Mr Kwong was unjust: Outbound World Pty Ltd (t/as Budget Wast Control Sydney) v Muir (1993) 51 IR 167. This conclusion is based on the reasoning found in paragraphs 36 to 41 inclusive. 46 The Applicant has sought compensation as her remedy. In assessing a claim for monetary compensation, the Commission must consider the provisions of s89(6) - that is, whether an Applicant made a reasonable attempt to find alternative employment and the remuneration gained by an Applicant who succeeded in obtaining alternative employment. However, s89(6) is not to be taken as a simple, mathematical formula in the assessment of compensation and the Commission retains its discretion to order the appropriate quantum of compensation, as the Commission deems appropriate for the circumstances under consideration: D & R Commercial Pty Limited v Flood (2002) 113 IR 344. 47 The Commission also notes that reinstatement was not sought and the Commission has formed the view that reinstatement is impracticable. ORDERS In this matter, for reasons outlined herein, I have determined that the dismissal of the Applicant was unjust and I hereby make the following orders: (a) The Commission orders that the Respondent pay to the Applicant an amount of compensation of $2,000 gross pay. (b) The amount of compensation specified above (less taxation) has been determined, having regard to section 89(5) and 89(6) of the Act. (c) The amount of compensation specified above is to be paid by the Respondent to the Applicant within twenty-one days from the date of this Decision. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.