Industrial Relations Commission of New South Wales CITATION: Bench -v- NRMA [2006] NSWIRComm 1133 APPLICANT PARTIES: Craig Bench RESPONDENT National Roads and Motorists Association Ltd FILE NUMBER(S): 6703 of 2005 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - absence of proper substantive basis - procedural errors - denial of natural justice - no proper warning of dismissal for failure to attend meeting with employer - unreasonable for employer to refuse to allow employee to have legal representatives attend meeting - dismissal held as harsh, unreasonable and unjust - compensation Ordered. LEGISLATION CITED: Industrial Relations Act 1996 [NSW] HEARING DATES: 18/07/06,19/07/06 DATE OF JUDGMENT: 09/06/2006 APPLICANT Mr M Gibian, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr J Darams, solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 6 September 2006 Matter No IRC 6703 of 2005 Craig Bench -v- National Roads and Motorists Association Ltd (NRMA) Application by C Bench pursuant to section 84 of the Industrial Relations Act 1996 re unfair dismissal. DECISION [2006] NSWIRComm 1133 1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 20 December 2005, by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, (the AMWU), on behalf of Craig Bench, (the applicant). The application named the respondent employer as the National Roads and Motorists Association Ltd (the NRMA). 2 The claim was the subject of unsuccessful attempts at reaching conciliated settlement conducted before McKenna C. Subsequently the matter was reallocated to McLeay C for Arbitration. It appeared that some difficulties arose in respect to the prosecution of the matter and the applicant withdrew instructions for the AMWU to represent him. The matter was then reallocated to the Commission as currently constituted and ultimately required two days to complete the Hearing, 18 and 19 July 2006. BACKGROUND 3 The applicant is a male who was some 39 years of age at the time of his dismissal on 1 December 2005. The applicant had worked for the NRMA as a Patrol Officer for approximately 19 years. 4 The applicant was provided with a letter of dismissal dated 1 December 2005, which stipulated that the applicant had failed to fulfil his obligations as an employee under his contract of employment by frustration and blocking of attempts to manage and communicate with his relevant superiors. The letter of dismissal referred to a chronology of events broadly described as occurring within the past year and which were summarised as the following dot points: § Missing during the course of work § Damage to vehicle § The manner with which you undertake your duties § Complaints from Members 5 Although not specifically comprehended by the applicant's letter of dismissal, the difficulties associated with his employment appeared to commence from about August 2004, and the employment relationship seemed to have generally deteriorated thereafter. 6 The applicant was physically assaulted by a member of the public whilst he was at work on 6 August 2004. The applicant had parked his NRMA patrol vehicle at a service station and some dispute arose between the applicant and a member of the public apparently about the applicant parking in a designated disabled parking place. The disputation escalated and the applicant was physically assaulted by the member of the public who was subsequently charged by Police and apparently convicted of the assault of the applicant. 7 Difficulties arose between the applicant and the NRMA regarding the extent to which the applicant was prepared to divulge details of the assault incident. The applicant had apparently been advised that as the matter was the subject of Police charge, he should not disclose details of the incident to others. The applicant was therefore reluctant to provide the NRMA with details of the assault incident and this seemed to frustrate the relevant managers at the NRMA. 8 Further, the applicant believed that the NRMA had not properly supported and assisted him in respect to the assault incident. Apparently the assailant was a member of the NRMA and had made a complaint about the actions of the applicant relating to the assault incident. Although the assault was duly and properly disposed off via the criminal proceedings, the difficulties, particularly in respect of communication between the applicant and the NRMA, were maintained, and in many respects expanded after the eventual disposal of the assault proceedings. 9 In November of 2004, a complaint was made against the applicant by a Control Room Operator at the NRMA. It appeared that the applicant had been impolite and perhaps even abusive during a radio conversation between himself and the Control Room Operator, who subsequently made complaint against the applicant. During the course of the NRMA investigation into the complaint from the Control Room Operator, the communication difficulties between the applicant and his superiors at the NRMA continued and escalated. 10 In May of 2005, another event compounded the problems that the applicant was experiencing with his employment. The applicant had difficulties in attending to a particular call that he was required to respond to. A motorist requiring assistance was initially not attended to, and then subsequently the applicant had to return to the location of the first call and ultimately did complete the work required to attend to the NRMA member. 11 Once again communication difficulties were experienced when the NRMA sought to investigate the detail of the circumstances that led to the initial failure to attend to the NRMA member requiring assistance. The NRMA requested that the applicant attend a meeting scheduled for 3 June 2005, as part of its investigation into the complaint that had arisen regarding the apparent failure to attend the call out on 30 May 2005. The request to attend the meeting was met with a response from the applicant's solicitors objecting to, and advising that the applicant would not attend the proposed meeting. 12 Thereafter a "paper war" developed between the applicant's solicitors and the NRMA which broadly involved the NRMA seeking to have the applicant attend meetings with his managers to further explain the circumstances of the events of 30 May, and the applicant's solicitors requiring that the applicant's attendance be conditional upon the applicant being accompanied by his solicitors. The NRMA responded with repeated denials of the requests to have the applicant's solicitor attend the proposed meetings, but instead offered that the applicant could have alternative "non legal" support persons in attendance. 13 During the period that the "paper war" was transacted, the applicant also provided medical certificates from his treating Psychiatrist indicating that he was suffering from depression and unable to resume his normal duties. The NRMA suspended the applicant from duty whilst these matters were under examination. Ultimately the difficulties that have been recorded by the various communications between the NRMA and the applicant's solicitors, culminated in the applicant's dismissal as advised by way of the letter dated 1 December 2005. 14 The applicant has asserted that the NRMA did not properly accommodate his psychiatric difficulties which underpinned the communication problems that gave rise to the apparent frustration experienced by the NRMA. The applicant claimed that the NRMA was aware that he had suffered from depression for a number of years, and that his general psychiatric condition had deteriorated as a result of his communication problems which first manifest following the assault incident of 6 August 2004. The applicant therefore asserted that his dismissal had been determined without proper regard for the underlying psychiatric state that provided foundation for the communication difficulties and the subsequent frustration that the NRMA experienced. 15 Further, the applicant claimed that he had been denied due process in respect to the refusal for his solicitor to be permitted to attend the meetings that had been scheduled for the various occasions that the NRMA sought to investigate issues relating to the alleged failure of the applicant to properly perform his work as a Patrol Officer. In this regard the applicant stressed that there had been insufficient regard for the applicant's lengthy period of employment during which he had a generally satisfactory employment record. 16 Consequently the applicant asserted that his dismissal was unfair and he has sought reinstatement to his position as a Patrol Officer. THE EVIDENCE 17 The evidence of the chronology of events relating to the applicant's dismissal was well chronicled via the "paper war" that emerged between the applicant's solicitors and the NRMA. In broad terms the series of events that involved the process that led to the applicant's dismissal was not contested. The various documents that relate to the process by which the NRMA was investigating matters concerning the applicant's employment establish a clear and incontrovertible record of the sequence of relevant events. 18 The evidence that has required more detailed examination related to the psychological state of the applicant both during the period up to dismissal, and subsequently including the date of Hearing. The applicant adduced evidence from two medical experts. In addition to the applicant being called as a witness, a Dr Thomas Oldtree Clark, the applicant's treating Psychiatrist, provided extensive evidence about the applicant's psychological state. The applicant also called a Mr Tim Watson-Munro, a Consultant Forensic Psychologist, who had examined the applicant and provided further expert medical evidence. 19 The medical evidence provided by Dr Oldtree Clark and Mr Watson- Munro, confirmed the applicant's clinical history establishing his depression and the post traumatic stress disorder that arose following the workplace assault that occurred on 6 August 2004. Overall, the medical evidence has been strongly supportive for the applicant establishing that the NRMA did not have a proper regard for his psychological state, particularly, when it denied him the opportunity to be represented by his solicitor in meetings involving the investigation into aspects of his work performance and/or conduct. 20 Further, although the medical evidence was on its face, very supportive of the applicant returning to work at the NRMA as part of some potential assistance for the recent improvement in the applicant's psychological disposition, the extent and nature of the applicant's psychological evidence has introduced certain concerns regarding the practicality of reinstatement. It is therefore perhaps ironic that the applicant's medical evidence might ultimately become something of a "doubled edged sword". Although this evidentiary material was very helpful in establishing the genuine psychological difficulties that were not properly appreciated by the NRMA, it also created clear impediments in respect of the prospect of reinstatement which was the applicant's desired outcome in these proceedings. 21 A similar dilemma arose in respect of the applicant's contested evidence relating to, in particular, incidents where he was alleged to have sworn at and insulted his superiors. The applicant categorically denied using the language attributed to him by the relevant NRMA superiors. However when giving evidence about a variety of other contemporaneous events that coincided with the alleged swearing incidents, the applicant repeatedly acknowledged that he had significant memory difficulties. 22 The contested evidence about the alleged swearing incidents was not vital to the determination of this matter particularly as the applicant's employment endured those events. However, the resolution of the contested evidence regarding the swearing incidents might represent further manifestation of the applicant's ongoing psychological difficulties. The applicant's evidence has consequently be treated with considerable caution. The Commission is cognisant of the sensitivity that should be applied to any detailed review of the applicant's testimony in circumstances where there were psychological issues that underpinned the applicant's case. The care that must be exercised when reviewing the applicant's testimony prevents a detailed critique. In the circumstances such a detailed examination is neither necessary nor desirable. 23 The NRMA led witness evidence from three individuals. The testimony provided by the witnesses for the NRMA was coherent, consistent and generally believable particularly in respect to the points of direct contest. The most significant evidentiary defect in the case presented for the NRMA involved the absence of any evidence from the person who made the decision to dismiss the applicant, a Mr Grossrider. The absence of any direct evidence from the person who made the decision to dismiss might normally provide considerable difficulty for any defence of an unfair dismissal claim. In many respects the absence of the decision maker from the witness box can be treated as a signal upon which to infer that the respondent had conceded the claim. THE CASE FOR THE APPLICANT 24 Mr M Gibian, barrister, appeared for the applicant at the Hearing. Mr Gibian provided written submissions which were elaborated upon by way of additional oral submissions. Mr Gibian submitted that the dismissal of the applicant was harsh, unreasonable and unjust. Mr Gibian urged the Commission to grant the Relief sought by the applicant and make Orders providing for his reinstatement. 25 The submissions made by Mr Gibian outlined the chronology of relevant events that had led to the applicant's dismissal as conveyed by way of the letter of 1 December 2005. Mr Gibian submitted that the dismissal of the applicant was unfair because there had been no proper reason to justify the dismissal and further, the procedure adopted by the NRMA failed to properly warn the applicant that his employment was in jeopardy during the extended exchange of communication between his solicitors and the NRMA. 26 In respect of the alleged substantive reasons that were provided for dismissal, Mr Gibian challenged the underlying factual basis for such reasons. Firstly, in respect of the alleged failure of the applicant to attend meetings and cooperate with the NRMA in its investigation of work related issues, Mr Gibian submitted that the NRMA had failed to properly appreciate the psychological difficulties that the applicant experienced since the workplace assault on 6 August 2004. Mr Gibian submitted that it was simply unreasonable for the NRMA to refuse to have any person of the applicant's choosing whether it be solicitor or someone else, attend the management meetings to which he had been summonsed. 27 Mr Gibian submitted that the applicant had not refused to cooperate and had simply sought to have his solicitors attend as part of the process by which he would cooperate with the NRMA requirements. Therefore, according to Mr Gibian, the inability of the applicant to attend the meetings as summonsed by the NRMA, was created by the NRMA's refusal to permit the applicant's solicitors to attend. Therefore the NRMA was not justified in dismissing the applicant on the alleged basis that the applicant was deliberately refusing to cooperate with the reasonable requirements of the employer. 28 Mr Gibian made further submissions which highlighted the absence of any clear warning to the applicant that a failure to attend a specified meeting would result in his dismissal. In particular, Mr Gibian referred to correspondence dated 18 November 2005, from the NRMA to the applicant which stated, inter alia, that, "Should you choose not to attend this meeting without an acceptable reason, NRMA Motoring & Services may have cause to determine what further course of action may need to be taken." Mr Gibian submitted that there was no specific warning provided by this correspondence. The next communication from the NRMA involved the letter of dismissal and Mr Gibian submitted that therefore there had been no clearly stated warning that the failure to attend any meeting (with or without solicitor), would lead to dismissal of employment. 29 Mr Gibian further submitted that the NRMA had not appropriately considered the length of the applicant's service before making the decision to dismiss. Mr Gibian submitted that the dismissal of the applicant after nineteen years employment and during a period of difficulty associated with the applicant's psychological issues, should render the dismissal to be harsh. 30 The submissions made by Mr Gibian then turned to the question of the Orders sought regarding reinstatement. Mr Gibian made detailed submissions regarding the desirability of reinstatement of the applicant. Mr Gibian referred to a variety of cases which established that reinstatement was the primary remedy and that impracticality for reinstatement needed to be carefully considered. In particular Mr Gibian submitted that the Commission had been minded to reinstate in a variety of cases where there was evidence of certain difficulties that had arisen in respect to the employment relationship but that particularly in large organisations that had diverse employment opportunities, there had been many instances of reinstatement even when an employer has asserted that the employment relationship had broken down. 31 In summary, Mr Gibian urged the Commission to find that the applicant had been unfairly dismissed and that the appropriate remedy involved his reinstatement to the position of Patrol Officer together with Orders for lost remuneration and continuity of employment. THE CASE FOR THE NRMA 32 Mr J Darams, solicitor, appeared for the NRMA at the Hearing. Mr Darams provided an outline of submissions which was supplemented by way of further oral submissions. Mr Darams submitted that the dismissal of the applicant should not be held to be harsh, unreasonable or unjust. 33 Mr Darams outlined a chronology of relevant events relating to the deteriorating state of the applicant's employment commencing from about late 2004. Mr Darams submitted that the NRMA had properly considered all of the circumstances relating to the deteriorating state of both the applicant's mental health, and its impact upon his employment situation. 34 Mr Darams submitted that at all times the applicant was afforded procedural fairness. In particular Mr Darams submitted that the applicant was afforded the opportunity to have a Union representative present during all meetings regarding review of his various employment issues. Further, according to Mr Darams, the issues that the NRMA raised with the applicant were put in writing so the applicant could respond clearly to the issues as they emerged. The applicant was given every opportunity to provide proper responses to the various issues that had unfolded particularly in the months between June and December of 2005. Mr Darams submitted that the applicant had been provided with procedural fairness throughout the process that led to his dismissal. Mr Darams submitted that the applicant's failure to comply with the reasonable instructions of the NRMA involving his attendance at various meetings, provided proper substantive basis for his dismissal. 35 Mr Darams made further submissions regarding the contested aspects of evidence as between the applicant and that of two of the NRMA witnesses, Messrs Fitisemanu and Heng. In particular Mr Darams referred to the incidents involving the applicant allegedly swearing and insulting Mr Heng and Mr Fitisemanu. Mr Darams submitted that the Commission should be prepared to adopt the evidence of Messrs Heng and Fitisemanu over that provided by the applicant. Mr Darams submitted that the evidence provided by the applicant involved nothing more than a blunt denial of the alleged swearing incidents, and that this evidence had allegedly been fabricated by Messrs Heng and Fitisemanu. Mr Darams submitted that Messrs Heng and Fitisemanu gave frank and believable testimony, and that the Commission should be persuaded to resolve these areas of contested evidence in favour of the NRMA over the applicant. 36 In summary, Mr Darams submitted that the applicant had failed to discharge the onus required to prove that his dismissal was harsh, unreasonable or unjust. Further Mr Darams submitted that the NRMA had established that there was valid reason for the dismissal of the applicant. The applicant's behaviour and conduct represented a deliberate attempt to frustrate the NRMA's reasonable approach to manage the applicant's workplace performance and conduct. In addition Mr Darams submitted that the applicant had been dismissed by way of a process that was fair and provided for every opportunity for the applicant to appropriately respond and address the legitimate concerns that had been raised by the NRMA. Therefore according to the submissions made by Mr Darams, the applicant's dismissal was both substantively and procedurally fair. CONSIDERATION 37 The primary determination of this matter has been strongly influenced by two factors. Firstly, the absence of any evidence whatsoever from the person who made the decision to dismiss the applicant is manifestly problematic. Secondly, the decision to dismiss was prompted by the failure of the applicant to attend a scheduled meeting in circumstances where solicitors acting for the applicant had advised that they requested to be in attendance at that meeting and that request was flatly rejected. 38 The decision to dismiss the applicant was taken by a Mr Grossrider who was not called to give evidence in these proceedings. The absence of evidence from the decision maker will ordinarily create difficulties with the defence of one of these matters. Further, in this instance, this difficulty was exacerbated by evidence that the decision maker had no direct contact with the applicant, particularly concerning the issues that acted as the catalyst for the decision to dismiss, namely, the applicant's absence from the meeting scheduled for 23 November 2005. 39 It would seem to be fundamentally unreasonable and unjust for any employee to be dismissed without being provided with an opportunity to put a case, face to face, with the decision maker. Although the requirement for such process is primarily derived from the notions of natural justice, its absence can also properly infer a lack of courage to face the accused employee. If the decision maker determines to dismiss without providing an opportunity for the dismissed employee to be heard, the consequence represents a potential denial of natural justice. Consequently on both legal and ethical foundations the decision to dismiss is open to clear challenge. 40 In some exceptional circumstances involving acts of gross and wilful misconduct, admitted or undeniably existent, there might be some futility involved in having the employee provided with an opportunity to be heard before the decision to dismiss is taken. However such circumstances would be rare, such that it would be undeniably established that no further inquiry would be warranted because there would be no possible explanation or mitigation that could alter the decision to dismiss. The circumstances in this case did not involve some gross and wilful misconduct that could in any way provide for potential futility to providing the applicant with an opportunity to be heard before the decision to dismiss was taken. 41 Regrettably the Commission has no evidence as to what weight, if any, the decision maker, Mr Grossrider, may have given to factors that could have provided for a determination to apply a lesser punishment than dismissal. Although Mr Heng had recommended that the applicant be dismissed, the Commission is simply unable to establish any conclusions about the evaluation of that recommendation that was undertaken by Mr Grossrider. For instance, the Commission has no direct evidence about what extent, if any, Mr Grossrider had for the applicant's extensive work record and his psychological state particularly as it related to the ongoing impact of the assault at work in August 2004. 42 Consequently in the absence of any evidence from Mr Grossrider, the Commission is compelled to conclude that the failure to provide the applicant with an opportunity to put his case to Mr Grossrider before the decision to dismiss was taken, must represent a denial of natural justice. 43 Although the Commission can appreciate that the NRMA would have been greatly frustrated by the applicant's inability to communicate about issues that would ordinarily involve routine inquiries of an employer with an employee, the applicant was not clearly warned that the communication difficulties had been elevated to a point that termination of employment was under consideration. In particular, the final paragraph of the letter of 18 November 2005, sent to the applicant by the NRMA, is imprecise and equivocal, rather than establishing any form of adequate warning. 44 Particularly given the history of extensive communication between the NRMA, the applicant, and his solicitors, the applicant and his solicitors would have been entitled to assume that the further request for the solicitors to be permitted to attend the scheduled meeting accompanied by a further letter from the applicant's treating Psychiatrist, Dr Oldtree Clark, would have provided sufficient basis for the applicant to absent himself from the scheduled meeting without potential for dismissal to arise. Particularly in circumstances where an employee had elected to have legal representatives act on his behalf in connection with employment matters, and where there is clear evidence of the employee having some psychiatric issues, there can be no justification for refusing the employee's request to have his legal representatives act on his behalf and attend meetings which appear to have some significance in the employment context. 45 It would seem that even if the employer considered that the matters under discussion were not sufficiently serious to warrant the attendance of legal representatives, the only harm created by a refusal to allow the legal representatives to attend is visited upon the employer rather than the employee. Consequently even though the NRMA might not like the idea of the applicant attending with legal representatives, apart from the obvious cost to the applicant, what possible difficulty could be contemplated? The subsequent dismissal of the applicant, precipitated by the applicant's failure to attend in circumstances where he could not be represented by persons of his choosing, must constitute a dismissal that was unreasonable and unjust. 46 The question of appropriate remedy for the applicant's unfair dismissal has required much careful consideration. The issue as to whether the reinstatement of the applicant would be impracticable has required detailed examination. In circumstances where reinstatement is sought for an employee of long standing there is considerable prospect that reinstatement, or perhaps re-employment, would represent appropriate remedy. There is even greater momentum for re-employment arising where there are potentially more employment opportunities available in larger organisations. 47 However in the circumstances of this case the prospects for re-establishing any employment relationship are significantly impacted upon by two inter-related factors. 48 Firstly, there was extensive medical evidence about the psychological problems that impeded the applicant from attending meetings and communicating with his employer in what would be considered the usual manner. Although Dr Oldtree Clark provided evidence that he thought that the applicant's psychological state had greatly improved, and that reinstatement or re-employment would be advantageous for the ongoing wellbeing of the applicant, there was further evidence of ongoing difficulty that the applicant exhibited in respect to his contemplation of the NRMA generally, and his immediate superiors specifically. 49 Unfortunately, during the proceedings, certain aspects of the applicant's evidence and other non verbal responses revealed a troubling ongoing resentment of his former employer. Consequently, and notwithstanding that the applicant's treating Psychiatrist believed that his psychological state had stabilised, there appeared to be great potential for a return of the communication difficulties that had beset the employment circumstances during the last half of 2005. The applicant's residual animosity toward his employer represented clear basis for impracticality arising in respect to the re-establishment of any employment relationship. 50 The evidence relating to the applicant's psychological difficulties inter-related with the most significant factual contest that was presented by the evidence. There were two separate incidents where the applicant was alleged to have sworn and insulted firstly Mr Heng, and then also Mr Fitisemanu. The applicant flatly denied the conduct that was alleged by Messrs Heng and Fitisemanu. Upon a careful examination of the contested evidence, the Commission is persuaded to adopt a preference for the evidence of Messrs Heng and Fitisemanu over that of the applicant. 51 The Commission would hesitate to suggest that the applicant provided false evidence in respect of these particular factual contests. The applicant's admitted memory deficiencies may have operated such that he genuinely did not recall the detail of the two particular incidents where he insulted his superiors. Consequently the Commission would be greatly concerned to return the applicant to employment where there appeared to be considerable prospect for ongoing friction arising from conduct that the applicant may subsequently be unable to recall. 52 Regrettably therefore even though the applicant was unfairly dismissed from employment that he had held for approximately nineteen years, the applicant's psychological state including his ongoing memory difficulties, combined with identified residual animosity towards the NRMA, provided, on balance, impracticality for re-establishment of the employment relationship in any form. CONCLUSIONS 53 The issues that have surrounded the unfair dismissal of the applicant have in large part related to the applicant's identified psychological difficulties. While the applicant had apparently suffered from depression for many years without significant impact upon his work performance or conduct, the unfortunate assault at work in August of 2004, appeared to have triggered a series of ongoing psychological difficulties that were not properly handled by the NRMA. Unlike the NRMA, the Commission has attempted to treat the psychological circumstances that have underpinned the applicant's dismissal with care and compassion. 54 Upon a careful review of all of the evidence and having particular regard for the sensitivities attached to the psychological aspects that have contributed to the circumstances that gave rise to the applicant's dismissal, the Commission has concluded that the applicant was unfairly dismissed. Although the Commission has some understanding of the frustration that the NRMA would have experienced with trying to communicate with the applicant during his period of psychological difficulty, such level of frustration cannot be translated into justification for a dismissal without proper substantive basis and via a process that was absent natural justice. 55 It was manifestly unreasonably to dismiss the applicant in large part because he failed to attend a meeting at which he was denied legal representation. Further, it was unreasonable and unjust to dismiss the applicant for failing to attend a meeting, when he was not warned that any failure to attend that meeting might constitute in part or in full, basis for dismissal. 56 The applicant was denied natural justice when he was not provided with an opportunity to be heard by the decision maker before the decision to dismiss was taken. The Commission was provided with no evidence as to what weight, if any, the decision maker gave to the applicant's long employment record and/or the psychological difficulties which underpinned the communication problems that created the frustration that was said to provide the basis for dismissal. 57 Consequently the dismissal of the applicant was harsh, unreasonable and unjust. The applicant's dismissal was without proper substantive basis and implemented with deficient process. Following further detailed examination of all of the evidence, the Commission has concluded that reinstatement or re-employment of the applicant would be impracticable. Therefore the Commission is prepared to provide for remedy for the applicant's unfair dismissal by way of compensation. The compensation provided to the applicant has been determined in accordance with sections 89(5) and 89(6)of the Act. ORDERS ORDER 1 The Commission Orders, pursuant to sections 89(5) and 89(6) of the Act, that the NRMA pay to the applicant an amount of compensation of $12,000.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. ORDER 2 The amount of compensation specified in Order 1 above is to be paid by the NRMA to the applicant within 21 days from today, 6 September 2006. 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.