Industrial Relations Commission of New South Wales CITATION: Ljupce Talevski v Christopher Kelly [2008] NSWIRComm 1122 APPLICANT Ljupce Talevski PARTIES: RESPONDENT Christopher Kelly FILE NUMBER(S): 847 of 2008 CORAM: Tabbaa C CATCHWORDS: Constructive dismissal or resignation; alleged failure to disclose all relevant information to assist with medical diagnosis; abusive and disrespectful behaviour to the Employer; monetary compensation. LEGISLATION CITED: Industrial Relations Act 1996 HCF Aust. Pty Ltd v Anastasios [(2003) 127 I CASES CITED: R 475] Federated Municipal & Shire Council Employee's Union of Australia, NSW Division v Sydney City Council [1987 23IR 454] HEARING DATES: 05/09/08 DATE OF JUDGMENT: 17 November 2008 Mr A Morris for the Applicant LEGAL REPRESENTATIVES: Mr D Alexander for the Respondent DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Tabbaa C 17 November 2008 Matter No. IRC 847 of 2008 LJUPCE TALEVSKI AND CHRISTOPHER KELLY Application by Ljupce Talevski re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ........................................................................................................................................... D E C I S I O N 1 Mr Ljupce Talevski, the Applicant, filed a claim pursuant to s 84 of the Industrial Relations Act 1996 in which he contended that he commenced employment with Mr Christopher Kelly of Orthoplant Dental Laboratories, on 4 July 2005 as a casual Dental Technician under a contract of employment. At various times during his employment, he worked either full-time or part-time hours and, as at the date of the cessation of the employment relationship, he was in a casual capacity pursuant to the terms and conditions of the Dental Technicians (State) Award 2006. 2 Briefly, in late 2007, the Applicant noticed a gradual increase in itchiness on his left hand which developed into a rash. He consulted a skin specialist and was provided with medical certificates for periods of sick leave commencing 25 January 2008. Later, the Applicant produced a medical certificate certifying that he was allergic to acrylates and, to a lesser extent, cobalt gold sodium thiosulfate. The GIO accepted provisional liability for each of the periods of absence on sick leave in relation to the subject rash. 3 In April 2008, Mr Christopher Kelly, the Principal of the Respondent firm, called the Applicant and urged him to discuss with his treating doctor the possibility that his partial chrome denture may be causing/exasperating/contributing to the rash not healing. Mr Kelly was frustrated with the fact that the treating doctor was refusing to discuss the Applicant's medical condition with him. The Applicant baulked at what he perceived to be pressure to ignore his doctor's advice and, in the course of that conversation, advised Mr Kelly that he was "a pain in the butt". Mr Kelly pointed out that the Applicant had an "attitude" which, if maintained, may result in the longest holiday the Applicant has ever had. The Respondent wrote to the Applicant seeking an apology for his rudeness and clarification as to whether the Applicant wished to remain in the employment of the Respondent. A few days' later, the Applicant offered a verbal and written apology for his rudeness but argued against other matters included in the Respondent's correspondence. The Applicant received further correspondence from Mr Kelly in the same terms as the previous letter with the added ultimatum that unless the Applicant replied to it demonstrating a full act of contrition, it would be presumed that he did not wish to return to work for the Respondent. That ultimatum was repeated to the Applicant during a subsequent conversation with Mr Kelly. The Respondent wrote to the Applicant once again expressing regret at the failure of the Applicant to respond adequately to the ultimatum. Mr Kelly interpreted that to mean that the Applicant had chosen to resign his employment. The Applicant was asked to return any property belonging to the Respondent prior to the release of any termination monies. 4 The Applicant contended that he had been constructively dismissed by the Respondent. The Respondent contended that no dismissal had occurred. 5 The Commission is required to determine, firstly, whether there had been a dismissal and, if determined in the affirmative, whether that dismissal was harsh, unreasonable or unjust. AGREED FACTS 6 The Applicant commenced employment with the Respondent on 4 July 2005 as a casual Dental Technician. 7 Mr Kelly encouraged the Applicant to undertake a TAFE course which he commenced at Randwick TAFE in mid 2006. It is a condition of entry into that course that students either have employment or the promise of employment at a dental laboratory. 8 During September/October 2007, the Applicant discussed a number of skin irritations with Mr Kelly who recommended that he consult a skin specialist. 9 On or about 10 December 2007 the Applicant noticed a gradual increase in itchiness on his left hand which developed into a rash over the palmer surface and the fingers of that hand. He noted that the rash eased over the Christmas break (21 December 2007 to 7 January 2008) and re-appeared when he resumed his duties in January 2008. 10 On 15 January 2008 the Applicant consulted a medical practitioner, Dr Ali Kutlu, who referred him to Dr Ingrid Bassett, a dermatologist. In the referral, Dr Kutlu advised that the Applicant wanted to know what chemicals he was using at work that were causing his dermatitis in order to avoid contact with them. Dr Kutlu stated that he had advised the Applicant to use "protective" gloves. He had not stipulated the type of gloves to be used. Mr Kelly had not received a copy of that referral and therefore was not aware that the Applicant was diagnosed as being allergic to acrylics until February 2008. 11 The Respondent was already providing all its employees with nitrile gloves, the industry standard for protective gloves in laboratories. 12 On 23 January 2008, the Applicant consulted Dr Bassett who, in turn, referred him to Dr Chow. On 25 January 2008, Dr Chow issued him with a WorkCover Certificate stating that the Applicant was unfit for work until 8 February 2008. The Applicant was referred for patch testing during that period. 13 At that time, the Applicant worked three days per week for the Respondent and attended TAFE on the other two days. 14 On 17 February 2008, Dr Chow informed the Applicant that Mr Kelly had written to her setting out a list of his duties and seeking a confirmation of what duties the Applicant was able to perform as part of his return to work assessment. Mr Kelly advised Dr Chow that he had followed her advice and supplied the silver shield gloves she recommended for all his employees. Those gloves provided eight hours' protection. 15 On 19 February 2008, the GIO advised that it accepted provisional liability and would be making workers' compensation payments direct to the employer for the period from 18 February 2008 to 28 February 2008. 16 On 28 February 2008 Dr Chow issued the Applicant with a medical certificate certifying that he was allergic to acrylates and, to a lesser extent, cobalt gold sodium thiosulfate. He was prescribed a cream to be used on the rash. 17 For a period of five weeks commencing 4 March 2008, the Applicant was required to undertake phototherapy each Tuesday and Thursday. 18 On 18 March 2008, GIO advised the Applicant that the payments would continue for the period from 18 February 2008 to 10 April 2008. 19 On 8 April 2008, Dr Chow issued the Applicant with a medical certificate certifying him unfit for work from 4 April 2008 until 10 June 2008. He was required to continue with phototherapy until a further review was carried out. 20 Phototherapy was undertaken as previously scheduled for a further period of five weeks from 4 April 2008. 21 Unable to reach him by phone, Mr Kelly sent a text message to the Applicant on 8 April 2008 advising that there were some documents he needed to pick up when he returned the articulator and tools later that day. He asked that the Applicant advise him if he would not be attending as arranged. The Applicant called the Respondent and explained that he would not be contactable because his uncle had passed away in Melbourne. He undertook to attempt to call in as arranged. 22 The Applicant received a telephone call from the Respondent on 11 April 2008. Mr Kelly advised that he disagreed with Dr Chow's diagnosis and that Dr Chow had declined to answer any questions he had put to her regarding the possibility that the partial chrome denture the Applicant wore was affecting his hand from healing. Mr Kelly asked the Applicant to speak to Dr Chow about that prospect. The Applicant baulked at what he perceived to be pressure to ignore Dr Chow's advice and, in the course of the conversation, advised Mr Kelly that he was "a pain in the butt". Mr Kelly pointed out that the Applicant had an "attitude" which, if maintained, may result in the longest holiday the Applicant has ever had. After Mr Kelly hung up, he called back and asked the Applicant to return all the equipment he had borrowed from the laboratory for his TAFE course. 23 The Applicant did not return the equipment until 14 April at which time he was unable to speak to Mr Kelly who was attending to a patient. He picked up an envelope which contained a letter to him dated 12 April in which the Respondent proposed conditions for a return to work which included an apology for his rudeness and clarification as to whether the Applicant wished to remain in his employment. 24 Regain Health Management formally advised the Applicant on 14 April 2008 that its principal, Ms Rebecca Jackson, was his case manager in relation to his workplace rehabilitation. 25 On or about 16 April 2008, the Applicant attended the workplace and had a conversation with Mr Kelly during which he issued a verbal apology for the incident, advised that he enjoyed working for him and confirmed that he wanted to return to work as soon as possible. He provided a written response to the letter of 12 April. The Applicant said that the Respondent was critical of Dr Chow's diagnosis and held the view that the patch test was wrong. Mr Kelly offered the Applicant a return to work on the award rate of pay and training in the chrome area. The Respondent was handed a sealed envelope, they shook hands and the Applicant left after offering to remain and help the Respondent move to the new premises the following day. 26 On 21 April 2008, the Applicant received correspondence from Mr Kelly which, more or less, mirrored the previous letter with an added ultimatum that unless the Applicant replied to it demonstrating "a full act of contrition", he would be presumed to have resigned his employment. Mr Kelly also wrote to Ms Jackson in anticipation of a return to work by the Applicant. 27 During the weekend of 21 April 2008, the Applicant attended the work premises and removed a chair and a manual. 28 The Applicant contacted Ms Jackson on 22 April who advised him to contact the GIO about both the issue of the reduction in pay and the contents of the correspondence from the Respondent. 29 On 23 April 2008, Mr Kelly forwarded a revised suitable duties plan for the Applicant to Ms Jackson. 30 A WorkCover medical certificate, issued by Dr Chow on 29 April 2008, certified the Applicant as fit for full-time, permanently modified duties from 5 May 2008. The certificate stipulated that the Applicant was to avoid all acrylates permanently/indefinitely and was required to wear gloves when handling cobalt and gold salts. The Applicant told Ms Jackson that he was keen to resume work and wanted to meet with Mr Kelly to discuss his options. 31 Ms Jackson organised a meeting on the same day at the workplace with herself, the Applicant and Mr Kelly to discuss the Applicant's return to work plan. Mr Kelly did not attend the conference. However, he contacted Ms Jackson later regarding the outcome of that conference. Ms Jackson confirmed the stipulations laid down by Dr Chow. 32 The Applicant rang Mr Kelly at work on 1 May 2008 advising that he was certified fit to resume work on the following Tuesday. 33 Mr Kelly forwarded an email to Ms Jackson at 11.09 pm on 1 May 2008 advising that he had no immediate duties available for the Applicant and had no reason to anticipate the Applicant returning to work on 5 May 2008. 34 Mr Kelly received an email on 2 May 2008 from Ms Jackson regarding suitable duties for the Applicant. The Applicant rang and left a message for Mr Kelly who was out of the office. The Applicant also called Ms Jackson and informed her of his inability to contact Mr Kelly. Ms Jackson passed on a message from Mr Kelly asking him not to call the business again. 35 Mr Kelly forwarded another email to Ms Jackson on 6 May 2008 advising that he no longer considered the Applicant to be his employee. 36 The Respondent ceased payment of wages to the Applicant on 17 May 2008. 37 The Applicant received correspondence from Mr Kelly on 21 May 2008 expressing disappointment at the failure of the Applicant to respond to the correspondence of 13 April and surmising that the Applicant had selected the option to resign his employment. Mr Kelly asked for the return of his property prior to release of any further monetary entitlements to the Applicant. 38 On or about 1 June 2008, Ms Jackson called the Applicant and advised that she was arranging for an appointment with another specialist for a second opinion at the request of the Respondent. 39 Ms Jackson advised the Applicant on 2 June 2008 that an appointment had been made for him to consult Dr Lobel on 10 June 2008 for a medical review. 40 The Applicant held a conversation with Ms Jackson regarding new employment. 41 On 13 June 2008, upon advising the GIO of what had transpired with the Respondent, the Applicant was advised that his payments would now cease. 42 Mr Kelly wrote to the Applicant's Solicitor on 3 July 2008 regarding the return of the manual which had allegedly been removed by the Applicant. 43 The Applicant completed his TAFE course in June 2008. He obtained his licence to practise as a dental technician a couple of days prior to the hearing. 44 The Applicant commenced a week's trial at a crown and bridge laboratory on 24 July 2008 for which he was paid $200 for fuel expenses. THE EVIDENCE 45 The Applicant tendered a statement in the proceedings in which he stated that he believed that his employment was terminated on 21 May 2008. The termination advice was contained in the last letter he received from Mr Kelly. 46 The Applicant insisted that he had responded both orally and in writing to the first letter he received from Mr Kelly. Mr Kelly had required a written confirmation of two things - firstly, the Applicant's commitment to the work and secondly, a more formal apology for the fact that he had called him a "pain in the arse" or a "pain in the butt". The Applicant stated that he replied to him in writing on 21 April 2008 and also attended the workplace to apologise to him in person. 47 During cross-examination, however, the Applicant agreed that he was aware, right up until May 2008, that Mr Kelly was awaiting a written apology from him. 48 The Applicant further agreed that although he was aware, as at 21 April, that Mr Kelly required a letter from him, he did not write to Mr Kelly after 16 April 2008. He conceded that Mr Kelly sent him three letters over the relevant period. He had forwarded a written response to the first and provided a verbal response over the telephone to the second. 49 In his statement, the Applicant stated that he advised Ms Jackson, on 4 June 2008, that "I have started looking for new employment as Chris has told me to resign". He was unable to explain why he had used those words when he believed that he had been dismissed: "A. I don't know. It's just the words that came out of my mouth at the time.......... I don't know, I don't know why I didn't say that. That's what I said at the time, that's what I remember to have said." 50 The Applicant was of the opinion that he had mailed Ms Jackson a copy of the last communication he received from the Respondent advising him of his termination. Nevertheless, when she called him on 1 June to advise him that Mr Kelly required a second medical opinion from Dr Lobel, he had not mentioned that correspondence to her. 51 He denied that, on or about 23 April 2008, he took a black chair from the premises and a green Bridges and Crown Manual. He was aware that his contract required him to return any property belonging to the Respondent at the conclusion of his employment. He insisted that he had borrowed a manual to assist him with his TAFE studies at the beginning of his last semester, he was aware that he was required to return that manual and had done so through his Counsel at the last conciliation conference: A. Well, I didn't know it was a manual. It's a folder that keep, like, a record of my hours for TAFE and there was a couple of drawings that I did while I was working with Chris of teeth and some of the appliances that I was making when I first started there. 52 During cross-examination, he conceded that, in the week of 23 April 2008, he had taken a second manual, contained in a blue folder, which had material pertaining to appliances used by Mr Kelly. He claimed, however, that it contained three or four of his drawings in it which he did not consider to be the property of his employer. He denied the suggestion that he took the manual at that point in time because he anticipated terminating his employment, pointing out that it was because the folder contained his TAFE attendance log and he had a couple of hours left to complete the course. 53 He further conceded that he had taken a white chair from the premises which, he contended, belonged to him. 54 The Applicant stated that he had received an offer to undertake contract work once he obtained an ABN. He did a trial with that employer - Dmitri - in Menai on 24 July 2008. He was offered $500 a week which he declined. Following further negotiations the offer was increased to $150 per day which he was still considering. 55 He agreed, during cross-examination, that he was less experienced in relation to crown and bridge work than general orthodontic work. He further agreed that Mr Kelly had offered to train him in crown and bridge work. He could not be sure when that offer was made pointing out that he and Mr Kelly had, during the course of his employment, talked about a lot of opportunities as the business grew. 56 When the Applicant was on Workers Compensation, he was originally being paid at a rate of about $240 a week. He conceded that the quantum was later increased to $358 a week as a result of intervention from Mr Kelly in February 2008 who made representations on his behalf. By agreement with the Respondent, the Applicant had two days TAFE and three days at work each week. 57 The Applicant confirmed, during cross-examination, that he had participated in spray painting cars in his private time and that the paint contained some acrylic. He denied that he had a conversation with the Respondent in about September/October 2007 about spray painting a car on the weekend. Mr Kelly did mention to him that his father had been a panel beater/spray painter but the Applicant could not recall in what context that information was relayed to him. He denied that he had any reaction to the paint although he had mentioned that activity, and other activities, to Dr Chow: A. Yes, I did. She asked me all the things that I do. I told her that I work with cars, I touch oils, I use spray cans. She even suggested that garlic, chopping salads, could be a cause of dermatitis, so she actually patch tested me for everything. 58 He denied that, towards the end of 2007, he had assisted his father with gardening: A. I didn't tell him that I was gardening with my father, no. I never do the gardening. 59 He agreed that he had assisted his cousin in tiling over the last few years but denied telling Mr Kelly that he had assisted with a tiling job in Newcastle during the Christmas holidays. 60 Although the Applicant volunteered the information that he had done odd jobs as a labourer, he was not able to be precise about the dates. 61 He agreed that he has an acrylic and chrome plate in his mouth. He pointed out that he had mentioned that fact to Dr Chow who, in conversation with him, offered an opinion that it had no effect on the allergy on his hand. He could not explain why Dr Chow did not mention either the labouring work or the plate in any of her reports. 62 The Applicant agreed, during cross-examination, that he had worked right up to 21 December 2007. His application for relief from unfair dismissal stated that he had not worked since 14 December 2007. He explained that he was unsure of the dates but he noticed the allergy on his hand around 10 December. Later in cross-examination, he denied that he had worked right up until the laboratory closed for the Christmas/New Year break stating that he was unsure of the date he ceased to work because he had holidays right after he consulted a doctor over his itchy skin and then in less than a week after he returned to work after the holidays the dermatitis returned. He had initially consulted a doctor at the Five Dock Medical Centre who referred him to another doctor in Drummoyne and further referred to Dr Chow whom he consulted in February 2008. 63 The Applicant initially agreed that he returned to work briefly in January 2008, but denied that he had worked at all in March 2008. He agreed with the suggestion that he was off work from 21 December 2007 until 6 January 2008. He did not deny the suggestion that he consulted Dr Chow on 22 January 2008 and had patch testing in February 2008. 64 He agreed that Mr Kelly has always had gloves available for use by his employees - latex gloves and nitrile gloves. Mr Kelly did not provide him with the specific gloves he required for undertaking acrylic work. He agreed that it was Mr Kelly who originally advised him to consult a skin specialist. He thought that it may have been around 10 December 2007 but was unsure of the date. 65 About February 2008, Mr Kelly sent Dr Chow a job description and asked Dr Chow to indicate which duties the Applicant could perform safely. As a consequence of the patch tests, Dr Chow indicated that the Applicant had to avoid working with acrylics and acrylates. Mr Kelly also inquired whether or not gloves were required to be worn by the Applicant. In February 2008 Dr Chow concluded that, with appropriate gloves, the Applicant could do more than simply crown and bridge work. 66 The Applicant was very evasive in responding to cross-examination as to the efforts by Mr Kelly to determine, during the month of April 2008, what activities the Applicant was capable of performing. He agreed that Mr Kelly had a number of conversations with him during which the latter sought to work out ways in which there might be mutual satisfaction in terms of what work the Applicant could safely perform around the laboratory. 67 The Applicant agreed that there was a conversation with Mr Kelly on about 11 April 2008 about what work he could usefully undertake around the laboratory. He gave evidence that Mr Kelly asked him to inquire from Dr Chow on the chrome and gold issue because the Applicant had chrome in his mouth. He contended that Mr Kelly had been less than complimentary about her expertise causing the Applicant to feel uncomfortable about having such a conversation with her. He suggested to Mr Kelly that he ring her personally to discuss those issues. He further agreed that, during the course of their conversation, he referred to Mr Kelly as "a pain in the butt". He also agreed that Mr Kelly responded with words to the effect, "Be careful how you speak to me". He agreed that he had omitted reference to that exchange from his statement. He denied that he had responded with the words "Or what?". He recalled that Mr Kelly asked him whether he wanted to remain employed by him and he had responded in the affirmative. He further recalled that Mr Kelly told him "It'll be the longest holidays you take" for talking to him like that. The Applicant explained that round about the time when they had that conversation, his uncle was either very ill or had passed away and that had a significant emotional impact on him. 68 69 The Applicant stated that, on 16 April 2008, he wrote a letter of apology to Mr Kelly and also apologised in person. 70 71 He recalled that they shook on it and made small talk after that. 72 He agreed that Mr Kelly was critical of Dr Chow because, while he accepted that the Applicant had a problem working with acrylics, he was not satisfied that there was a problem with him working with gold and chrome. 73 The Applicant agreed that Dr Chow had indicated that gold and chrome were a lesser problem. However, he refused to concede that Mr Kelly was attempting to find ways to get him back to work by discussing other useful duties that the Applicant could undertake in the laboratory. The Applicant held the belief that the thrust of that conversation was to pressure him into saying things to Dr Chow that he was not comfortable saying to her. He believed that Mr Kelly wanted him to attempt to get the diagnosis changed in order to widen the number of activities that he could perform in the workplace and get him back to work sooner. 74 He agreed with the suggestion that, with the benefit of hindsight, maybe some of the upset that he felt in relation to his uncle might have caused him to perceive wrongly some of Mr Kelly's intentions. 75 He could not recall at what time of the day the telephone conversation took place with Ms Jackson on 21 April when he agreed to provide a written apology in response to the first letter that Mr Kelly sent him. He could not recall saying anything to her about meeting with Mr Kelly later that day. 76 On 1 June 2008, in a telephone conversation with Ms Jackson, the Applicant recalled that she advised him that Mr Kelly wanted a second medical opinion. During cross-examination, he denied that it ought to have been apparent to him at that stage that the opportunity for continued employment with Mr Kelly was still open. He argued that the only reason he obtained the second medical opinion on 10 June was that Ms Jackson had suggested and encouraged it, even though he was dismissed from employment, and he was open to the idea as he was worried about his health. 77 He agreed that he had not questioned her about why Mr Kelly would want a second opinion when they were both of the view that he was already terminated. 78 The Applicant agreed that what Mr Kelly wanted from him, at least from 21 April, was firstly, a commitment and, secondly, a formal apology. 79 Dr Lobel conducted a second patch test which confirmed the findings of Dr Chow that he was allergic to acrylates. The Applicant stated that he was not aware that Dr Lobel's report had been sent to Mr Kelly. 80 He denied that he had a conversation with Ms Jackson on 30 April during which he confirmed his desire to maintain his employment. 81 He confirmed that his last written communication to Mr Kelly was on 16 April 2008 and therefore that would have been the last opportunity he had to provide formal confirmation of his desire to maintain his employment. 82 The Applicant agreed that, although he was cleared on 29 April 2008 by Dr Chow to return to work from 5 May 2008 with certain limitations, he had not done so. He was required to avoid acrylates altogether and to wear gloves when handling chrome and gold. He stated that he rang Mr Kelly and said he wanted to discuss his return to work. Mr Kelly asked him whether he wanted to remain in his employment and he had responded in the affirmative. Mr Kelly asked him to respond to his letter in writing and hung up on him shortly after that. He contended that Mr Kelly gave him an ultimatum - he had the option of either responding to the previous correspondence in writing or resigning his employment. 83 He later spoke to Ms Jackson who passed on a message from Mr Kelly that he was not to call the laboratory any more and, as a result, he had not made any contact after that. Thus, from around 1 May onwards, there was no further communication of any type between the parties. 84 During re-examination, the Applicant clarified the reason for the delay in accepting alternative employment. At the conclusion of the trial of 24 July with the prospective employer, he was offered $500 per week gross. He was required to obtain an Australian Business Number ("ABN") and pay tax out of that income. After calculating fuel and other expenses in travelling to the work site, he declined the offer which was subsequently increased to $150 a day gross. 85 Mr Christopher Kelly, a dental prosthetist/dental technician and principal of the Respondent firm, tendered a statement in the proceedings. 86 Mr Kelly recalled that, in September 2007, the Applicant informed him that he could hardly breathe when he spray painted his car inside his garage on the weekend. Mr Kelly had cautioned him against carrying on such activity indicating that his own father had told him it was incredibly dangerous in a confined area. 87 Mr Kelly also recalled that, in September or October 2007, the Applicant told him that he had been helping his father around the garden and had an itchy skin. The Applicant later also mentioned that he thought he had a reaction to chloroform. 88 Mr Kelly stated that, for the above reasons, he had recommended to the Applicant that he consult a skin specialist. He also became more insistent on the Applicant using the stock of nitrile gloves he supplied in the laboratory. He noted that the Applicant only used them occasionally. 89 Mr Kelly stated that he had not been provided with a copy of the referral from Dr Kutlu to Dr Bassett dated 15 January 2008 and therefore did not become aware that the Applicant was diagnosed as having an allergy to chemicals he used in the laboratory until February 2008. 90 Upon receipt of advice that the Applicant had a positive reaction to cobalt, chrome and gold, as well as acrylates, Mr Kelly stated that he set about putting a suitable return to work plan in place. He provided silver shield gloves for all employees as recommended by Dr Chow. He faxed and posted a questionnaire to Dr Chow setting out the duties undertaken by the Applicant prior to him suffering from dermatitis and seeking a response by 22 February 2008 on the tasks that the Applicant would be able to perform on his return to work. 91 Mr Kelly pointed out that he had been very frustrated by the fact that the Applicant made very little contact with him during the period February to May 2008 because it gave the impression that the Applicant was not actively pursuing a return to work plan. He, on the other hand, was actively pursuing the matter with the Applicant's treating doctors and the rehabilitation provider. 92 Mr Kelly recalled a conversation he had with the Applicant on 11 April 2008 during which the latter was questioned about his attitude towards a return to work: Kelly: Why do you always have an attitude when I suggest steps that might be taken to get you back to work? Talevski: Because you're a pain in the butt. Kelly: Luke, be careful how you talk to me. Talevski: Or what...? Kelly: Luke I am just trying to help you here. 93 Mr Kelly wrote a 7-page letter to the Applicant in which he raised a number of issues including the fact that the Applicant had arranged for his younger brother to drop off his medical certificate at the workplace. Mr Kelly, on its receipt on 8 April 2008, telephoned the Applicant to empathise with him on the fact that he was not responding to the treatment. He urged him to discuss the issue with Dr Chow particularly in view of the fact that she had found that he was allergic to acrylates as well as gold and chrome without addressing the fact that he wore a cobalt chrome framed partial denture with an acrylic tooth. 94 Mr Kelly stated that he had continued to pay the Applicant until 17 May and continued thereafter to regard him as an employee. He was awaiting a response from him. He was confused as to whether the Applicant would or would not return to work. Until June 2008, he wanted the Applicant to obtain a second medical opinion. eHHe had no further contact with the Applicant until he was contacted about the conciliation conference some time in mid June by Mr Morris, the Applicant's Solicitor. 95 Although Mr Kelly was extremely evasive in his response to cross-examination in that regard, he insisted that up until that time, he "regarded that Luke could return to work for me", and that "I considered that Luke still could be my employee in June 2008". 96 Mr Kelly argued that he had accepted Dr Chow's findings in relation to the patch test, however, his view, which did not waiver throughout April and May 2008, was that she had misinterpreted the test results. He contended that the Applicant had asked him for help in challenging Dr Chow on the metal allergy question back in February 2008. He wanted to help the Applicant return to work with a wide scope of duties. 97 Mr Kelly confirmed that he was aware of a meeting held between the Applicant, Dr Chow and Rebecca Jackson on 29 April 2008. He stated that he had not attended because he had not been required to. He was also aware, as a result of an email from Ms Jackson dated 30 April, that the Applicant was deemed fit to return to full-time work from 5 May and that his modified duties medical certificate precluded him from touching acrylics with his bare hands. 98 He confirmed that, having held a telephone conversation with the Applicant earlier in the day, he had responded to Ms Jackson by email at 11.09 pm on 1 May 2008 advising that he had no immediate duties available for the Applicant and had no reason to anticipate the Applicant returning to work on 5 May 2008. 99 Mr Kelly also confirmed that he forwarded an email to Ms Jackson on the evening of 6 May 2008 advising that he no longer considered the Applicant his employee "in the literal sense". He acknowledged that the email was sent on the same date that he prepared the third letter. 100 Mr Kelly insisted that his attempts were merely to get Ms Jackson to assist the Applicant by talking to him about the issue. He disagreed with the proposition that the email to Ms Jackson of 6 May and the third letter to the Applicant both confirmed that the Applicant was no longer considered by him to be an employee of the Respondent firm. 101 Mr Kelly pointed out that Ms Jackson had advised him that the Applicant could be released from his employment if the Respondent did not have suitable duties for him to perform. 102 He disagreed with the proposition that he was deliberately presenting a case before the Commission designed to convince the tribunal that he believed the Applicant to be his employee up until he received notice of the conciliation conference in June so as to try and defeat the Applicant's claim for unfair dismissal. 103 During re-examination, Mr Kelly clarified what he meant when he discussed the Applicant having "a bigger scope" of work that he could carry out. A. What I meant by that was that I needed to know that Luke was able to do work on chromes and crown and bridge without having to wear gloves because of the dangers associated with using rotary instruments that spin at 50,000 rpm and below with using rubber gloves. It was dangerous. I wrote emails to GIO and Rebecca to that effect through the whole period, expressing my concerns that if I was allowing him back in it was just potentially going to injure him again. 104 On 1 May he indicated that he had no immediate work for the Applicant: A. Because I had just moved out of my smaller laboratory in Macquarie Street where all we did was acrylic work that's how and why Luke was employed with me we were opening up a crown and bridge section and a chrome section in the new lab and at that point we had no work in that respect, except for the chromes which you can't trim when you've got gloves on. 105 Mr Kelly denied any knowledge, prior to preparing his statement for the proceedings, that the Commission would have no jurisdiction to deal with the matter if it is held that no dismissal had taken place. SUBMISSIONS 106 Mr Morris submitted on behalf of the Applicant that he had been constructively dismissed from his employment. 107 Mr Morris pointed out that much of the facts were agreed between the parties barring one - whether or not the letter received by the Applicant on 21 May was a termination letter. 108 It was submitted that the case did not involve an issue of credibility. The credibility of either party was not necessarily determinative of the issues to be decided. 109 There were a series of events culminating in a letter being received by the Applicant on 21 May which, the Applicant says, is a letter informing him of his termination. The argument that Mr Kelly believed the Applicant to be still employed by him until he received notice of the conciliation conference in June was not supported by the evidence. 110 Mr Morris pointed out that the letter to the Applicant dated 6 May clearly speaks for itself. In it, the Respondent clearly stated, "I have accepted your resignation", "I hope you are more mature with your next employer". It was submitted that in the absence of any logical explanation from Mr Kelly as to his intentions, the Commission cannot but find that the correspondence was intended to be a notice of termination. 111 It was further submitted that the intention to terminate the Applicant was supported by the unambiguous email from Mr Kelly to Ms Jackson dated 6 May in which he clearly stated "I no longer consider the applicant an employee of mine". 112 The termination was also supported by the fact that the Respondent stopped paying the Applicant, said Mr Morris. 113 The Commission was urged to determine that the Applicant's employment was terminated upon him receipt of the letter on 21 May 2008. 114 The Commission was further urged to determine that the employment was terminated at the initiative of the Respondent and not by the Applicant. Mr Morris submitted that the Respondent's evidence did not suggest that the Applicant resigned, nor indicated an intention to anyone to resign, his employment. Mr Morris reminded the Commission that Mr Kelly had insisted throughout his cross-examination that he still considered the Applicant to be his employee beyond the letter of 6 May and up until the conciliation conference. That evidence clearly confirmed the fact that the Applicant had not resigned. 115 At all material times the Applicant clearly expressed his desire to return to work. He expressed that desire in his correspondence to the Respondent dated 16 April 2008 wherein, in response to a query as to his intentions regarding his employment, he unambiguously stated his intention to remain an employee of the Respondent. Upon receipt of that letter, further confirmation of his intentions was required in writing. It was submitted that the Applicant's failure to respond in writing did not amount to an abandonment of his employment. It was not in dispute that the Applicant responded verbally upon receipt of that letter. Mr Kelly accepted that the Applicant called on 1 May, after being cleared by his doctor to return to work, and said to him "I'm ringing to talk about coming back to work", albeit it was also not in dispute that Mr Kelly had requested that he put it in writing to him to which the Applicant replied, "Look, I want to put this behind us and move forward". Mr Morris drew the Commission's attention to the progress report of 30 April which mentioned the fact that the Applicant was keen to resume work. The Applicant called Ms Jackson and was advised that he was not to call the business again. That advice was followed by the letter he received on 21 May from which he understood his employment to be terminated. The Applicant relied on a closure report from Ms Jackson which stated in part, "The employer subsequently withdrew the offer of suitable duties and a second opinion was sought. Mr Talevski is now independently seeking employment following his reported termination from the employer Ortho plant". 116 In conclusion, it was submitted that there was no express or implied offer to resign nor was there any written or oral resignation by the Applicant. 117 The Applicant relied on the contents of the email from Mr Kelly to Ms Jackson dated 6 May 2008 and the fact that the Respondent stopped paying him wages as clear evidence that his employment was terminated, at the behest of the Respondent, at least as of 17 May and certainly by 21 May when he received the final letter. 118 In relation to the merits of the claim, Mr Morris was submitted that there were three principal reasons why the dismissal was unfair, unreasonable or unjust. Firstly, there were no grounds for summary dismissal and none were argued. Secondly, the Applicant was not permitted to return to work after being medically approved fit to return to work. The Respondent gave evidence that he was aware of the Applicant's fitness to resume duties as of 30 April. Thirdly, there was no reference in any discussions or correspondence with the Applicant in relation to the return of a manual containing confidential material and the issue arose subsequent to the Applicant filing for unfair dismissal. It was submitted that the whereabouts of the manual was not a factor that played any role in the dismissal of the Applicant. That issue, it was submitted, was not relevant to the determination of the question whether the dismissal was harsh, unreasonable or unjust. 119 Mr Alexander agreed on behalf of the Respondent that there were no grounds to summarily dismiss the Applicant. 120 He submitted that the proposition that the Applicant considered the letter of 6 May (received on 21 May) as a termination letter was clearly contradicted by the evidence. Firstly, the Applicant admitted that his contract of employment required him to return any property of the employer that was in his possession. The Applicant conceded that he had property that belonged to the Respondent which he had not returned. In other words, if he indeed considered that he had been terminated on 21 May, then he was in breach of his contract. Secondly, the letter of 21 May quite clearly set out that the Respondent considered the Applicant to have abandoned his employment bearing in mind there was a lack of response which exceeded a month. The reasons for the lack of response required no speculation. The Applicant advised Ms Jackson, in a conversation they had on 27 May, that he had been busy with examinations and other matters. He made no reference whatsoever to having been terminated at that stage. Further, it was odd that, on 1 June, during another conversation with Ms Jackson, he did not query why Mr Kelly was interested in obtaining a second medical opinion if he considered that he had already being dismissed. That request by Mr Kelly is clear evidence that the Respondent was still interested in maintaining the employment relationship. 121 It was submitted that the Respondent was consistent and encouraging in its efforts to re-establish a working relationship with the Applicant from about October/ November 2007 to June 2008. Mr Kelly had considered the medical reports very carefully, advanced his own theories in relation to the reports, and suggested second opinions to the point where, on 11 April, the Applicant told Mr Kelly that he was a "pain in the butt". The Applicant confirmed that the Respondent had offered him training in crown and bridge work. The Applicant had, somewhat begrudgingly, conceded that the Respondent had supported an increase in his Workers' Compensation pay from two days to three days in early 2008. Mr Kelly repeatedly stated in his evidence that he was looking for ways to enlarge the scope of what could be done by the Applicant. The Respondent was proactive in sending to Dr Chow a list of duties attached to the position and the means by which they could be fulfilled consistent with the safety of the employee. It was pointed out that all of those actions on the part of the Respondent directly contradicted the proposition that it wanted to terminate the employment of the Applicant. 122 Mr Alexander further submitted that the Commission could either find there was a dismissal or there was no dismissal of the Applicant, but there were no grounds made out for a finding that there had been a constructive dismissal. The Respondent made it quite clear exactly what he was seeking from the Applicant - the letter from the Applicant dated 16 April did not discharge that obligation. 123 The letter from the Respondent dated 21 May 2008 was not a notice of termination, said Mr Alexander. It was clearly advice to the Applicant that he was on notice that if he was not prepared to communicate with the Respondent despite his undertakings to Mr Kelly and Ms Jackson over a long period of time, then he could be considered to have resigned his employment. 124 In conclusion, it was submitted that in light of the above evidence, it was clear that there had not been a dismissal by the Respondent and to that extent, the action cannot be maintained for want of jurisdiction. 125 In addition to the above, it was submitted that it was apparent from the evidence that the Applicant, contrary to his evidence, failed to inform Dr Chow about any of risk factors attached to duties he undertook outside of the work place. Such failure on the part of the Applicant was an indication of dishonesty. The Applicant conceded that he had made unsuitable remarks to his employer and had to take steps to rectify the situation. He made a series of promises to Ms Jackson and others that ultimately produced a degree of frustration. Each of the aforementioned instances displayed a similar pattern of inactivity by the Applicant or a lack of preparedness to address issues. It was also consistent with his evidence in the proceedings and consistent with his pattern of employment. 126 The Applicant chose to interpret the letter received on 21 May in a manner which was inconsistent with its face. The Respondent had not bluntly and clearly advised the Applicant that his employment had been terminated. The correspondence stated, "I think you have chosen not to be employed by me any more", a conclusion which, it was submitted, was open to the Respondent to reach. 127 The Commission was reminded that the Applicant conceded that he was aware from the time he wrote his last letter to the Respondent on 16 April that the latter required formal communication from him. The Respondent required, not unreasonably, a formal written apology for an intemperate remark. Stating that he had been discouraged by the Respondent from writing was an unacceptable explanation albeit it represents, once again, a consistent pattern of the Applicant. 128 Mr Alexander also reminded the Commission that the Applicant had conceded that his responses to the Respondent had been adversely affected by the emotional pressure he was under, largely induced by the illness and subsequent death of his uncle. 129 The Respondent expected, but did not receive, apart from a telephone call on about 1 May, communication from the Applicant regarding return to work duties, particularly when there was an active proposal in relation to that. Ms Jackson's notes indicated that the Applicant was aware of that and did not cavil with it. It occurred at a time when Mr Kelly was going out of his way to facilitate matters for the Applicant. In the circumstance, if there had been a dismissal, it would not have been unreasonable, said Mr Alexander. 130 It was further submitted that there was no reason to suppose, and no reason why the Applicant would form the impression, that the Respondent did not want him back. Mr Kelly consistently reiterated that he wanted him back at work. The evidence quite clearly indicated that Mr Kelly was still taking an active interest in the Applicant in early June 2008. Ms Jackson gave the Applicant no indication that Mr Kelly did not want him back. Mr Kelly continued to offer the Applicant work, even after there had been a significant incapacity. The Applicant was also offered training in a different area which would not involve working with acrylics. Those offers were made despite the following - the Applicant's failure to make certain relevant disclosures to Dr Chow, his rudeness to the Respondent, his failure to present to work, his retention of company property and his failure to communicate. Mr Alexander submitted that the relevant test was clearly spelt out in HCF Australia Pty Limited v Anastasios (2003) 127 IR 475 in relation to whether the act of the employer resulted directly or consequentially in the termination of the employment. The Applicant must have known at least as late as early June that it only required him to make it clear that he wished his employment to continue for that to occur. In addition, he did not contact the Respondent immediately upon being advised by Dr Chow of his ability to return to work. 131 In view of the above, even if the Commission took the view that there was a dismissal, Mr Alexander submitted, it could not be regarded as having been unjust for the employee to have been dismissed in the circumstances. REMEDY 132 It was submitted on behalf of the Applicant that, if the question is decided in his favour, then reinstatement or re-employment would not be suitable or practicable in light of what had transpired between the parties. It was clear, from the Applicant's point of view that a workable employer/employee relationship could not be re-established. 133 It was the Applicant's view that the appropriate remedy would be monetary compensation. The Applicant was seeking the maximum amount of compensation which would amount to a relatively small amount of money. According to Mr Morris, it was estimated that it would equate to just over $10,000. 134 It was submitted on behalf of the Respondent that the jurisdiction was not intended to either enrich the Applicant nor punish the Respondent. 135 Mr Alexander submitted that there was a pattern of deception - over a sequence of times - from early 2008 until May 2008. The Respondent's concern was to do everything that he could to bring about Mr Talevski's return to work and the allegation that he made in relation to his intent on 21 May was inconsistent with the steps that he had taken. 136 It was conceded that the Respondent made no payments to the Applicant beyond 17 May 2008. The Applicant's evidence was that, in conversation with the GIO on 13 June, he was advised that "GIO will now stop paying" implying that payments would cease in mid June. 137 The Applicant was paid for work which he undertook for another employer since the cessation of the employment relationship. On 14 August it was confirmed to him that contracting work was available to him provided he applied for an ABN. To date he has failed to make such application despite the fact that the qualification he required for such contractual employment had been available to him for a few days. He appeared to have, once again, sat on his hands in relation to his employment resulting in a failure to mitigate his losses. In that regard, the Respondent relied on the findings of the Commission in Federated Municipal & Shire Council Employees' Union of Australia, NSW Division v Sydney City Council [1987] 23 IR 454 in which the Commission determined that the Applicant was held to have resigned his position in similar circumstances. 138 The Applicant appeared to have had work in at least the period of the last week of July, seems to have had work or at least payment in relation to a period up until mid June. It appears that he has not been paid in relation to the month of August but might have been paid had he been more proactive in seeking an ABN, at least from early September. In all of those circumstances it would appear that the period of compensation should be maximised at about 15 weeks. 139 It was submitted on behalf of the Applicant that the Respondent's argument regarding attempts to get the Applicant back to work might have been persuasive were it not for the following: Firstly, in response to the 30 April email from Ms Jackson seeking what work was available in view of the Applicant's fitness to return to work, the Respondent had replied on 1 May that there were no duties available and he was not prepared to take work away for another technician to give to the Applicant; secondly, the Applicant contacted the Respondent by telephone to discuss his return to work and was brushed aside; and, thirdly, the Applicant did not receive direct payments from GIO. The money was paid to the Respondent who, in turn, paid the Applicant. In other words, the Applicant had not received money up to 13 June directly from the GIO. CONSIDERATION Dismissal or Resignation? 140 The Applicant's dermatitis developed approximately 1.5 years after commencement of his employment. The Applicant commenced periods of sick leave from 25 January 2008. He remained unfit for work in any capacity until 4 May 2008. 141 The Respondent was not aware that the Applicant was diagnosed as having an allergy to acrylates and, to a lesser extent, cobalt gold sodium thiosulfate until 28 February, 2008, even though he had been employed since 4 July 2005. 142 The Applicant was certified as fit for full-time permanently modified duties from 5 May with two limitations - he was to avoid contact with acrylates and was required to wear gloves when handling cobalt and gold salts. The Respondent was unable to offer suitable duties as those limitations could not be accommodated and sought a second opinion which was obtained from Dr Lobel. 143 It is noted that none of the medical reports tendered in the proceedings made any mention of the fact that the Applicant had participated in any extra curricular activities nor the fact that he wore a dental plate, any of which may have had an influence on his dermatitis. 144 Mr Kelly outlined, in considerable detail in a 7-page letter to the Applicant dated 12 April 2008, his frustrating attempts at getting the Applicant and Dr Chow to logically and systematically exclude various materials with which the Applicant came into contact both inside and outside the workplace in relation to allergens he needed to avoid. Mr Kelly made the following points: · the growing animosity the Applicant appeared to display towards him whenever Mr Kelly sought to speak to him about his injury/treatment; · the refusal by the Applicant to go into the office to speak to Mr Kelly and his insistence that their discussion take place over the telephone; · the shock he felt at the "abusive and disrespectful way" the Applicant spoke to him despite their employer/employee relationship and their personal friendship since July 2005; · despite the fact that the Applicant had agreed with him that he was not allergic to chrome or gold, he argued with Mr Kelly when the latter insisted that he question his doctor about that issue. Mr Kelly informed the Applicant that he undertaken considerable research into the issue and was willing to share the information with the Applicant, however, the latter had "in an abrupt and rude manner" pointed out to him that he was not a doctor and was not interested in the information he had gleaned on the subject; · the Applicant's failure to initiate the contact with the Respondent and his decision to "abuse, rebuke and chastise your employer and friend" after all what Mr Kelly has done for him and his clearly expressed intention - verbally, in writing and by deed - to return the Applicant to employment, appeared to indicate that the Applicant was persisting in a charade of pretending to want to return to work without showing genuine remorse for his behaviour; · he was already training another staff member in the Applicant's work and intended, when the Applicant returned to work, to open up more scope for him. However, Mr Kelly required the Applicant to acknowledge that his behaviour towards him had been "erroneous" by performing "an act of sincere contrition". The requirement would be satisfied by the Applicant providing, in writing, an apology and a commitment to "absolute tolerant compliance and respectful deportment"; and finally, · the Applicant had seven days from receipt of that correspondence to write to Mr Kelly to either clarify his intention to remain employed by the Respondent and provide a written and verbal apology or tender a resignation. 145 The Applicant attended the workplace on 16 April and provided Mr Kelly with a verbal apology. He also handed Mr Kelly correspondence dated the same day in which he elected to remain in the employment of the Respondent. He complied with the Respondent's requirements by confirming his wish to remain in the employment of Mr Kelly and by apologising for his remark that Mr Kelly was "a pain the butt". Nevertheless, he rejected totally the suggestion that he had been abusive or disrespectful towards Mr Kelly. He clarified that, as a gesture of goodwill, he had agreed to accept the lower award wage whilst he was physically unable to work but expected to return to work on his actual rate of pay. 146 Despite the fact that the Applicant had complied with the ultimatum, it appears that Mr Kelly took offence at the fact that the Applicant had disagreed with some other aspects of his 12 May correspondence. Mr Kelly had checked with GIO and, as at 21 May, the Applicant had not requested a second medical opinion. He wrote to the Applicant on 21 April 2008 providing the Applicant with a further seven days in which to demonstrate "a full act of contrition" otherwise he would be considered to have resigned his employment. 147 It is quite unreasonable, in my opinion, for the Respondent to respond in the manner in which he did. The Applicant had provided both a verbal and written apology for his abusive remark and had confirmed his intentions in relation to his continued employment with the Respondent. He had, as at 16 April, complied, within the period stipulated, with the ultimatum provided by the Respondent. The Applicant also confirmed that he was prepared to have the GIO arrange for a second medical opinion. The Applicant was perfectly entitled to clarify his position in relation to his wage rate. I do not consider that clarification to constitute insubordination. 148 I do appreciate the fact that Mr Kelly was frustrated at what he perceived to be inaction or lethargy on the part of the Applicant in fast tracking his rehabilitation and subsequent return to work. However, I do not accept that the tone of Mr Talevski's reply was arrogant, nor do I accept the contention that, just because Mr Talevski had a different account of what had occurred between them, the Applicant was accusing the Respondent of being untruthful. 149 Mr Talevski did not provide a written response to that correspondence within the time limit or at any other time. An analysis of both letters indicate that nothing would have satisfied Mr Kelly short of a complete capitulation in relation to all issues, including the reduction in wages. 150 The events thereafter are unusual and the Applicant may be excused for being in a state of flux regarding his employment. If the Respondent considered that the Applicant had opted to resign his position within seven days of that correspondence, then his actions belied that expectation. Mr Kelly appeared to have left his options open - if the Applicant satisfied his requirements then he could return to employment and if chose not to, then he would be considered to have opted for the resignation option: · The Respondent had allowed a conference to take place at the workplace on 29 April to discuss a return to work on modified duties from 5 May 2008. Although it was arranged with Mr Kelly, he had not attended the meeting which included Dr Chow; · On 1 May, during a telephone conversation initiated by the Applicant, Mr Kelly had indicated that the Applicant still had an opportunity to respond positively to the letter of 21 May or resign and asked the Applicant to think about it; · Mr Kelly confirmed that he sent an email to Ms Jackson on 6 May 2008 advising that he no longer considered the Applicant to be his employee. He explained, during cross-examination, that he meant that "in the literal sense"; · The Respondent ceased making payments to the Applicant on 17 May 2008; · Mr Kelly wrote to the Applicant on 21 May 2008 advising that he considered the latter to have resigned his employment in view of the fact that he had not responded to the correspondence dated 13 April (sic); · Ms Jackson advised the Applicant on 1 June 2008 that she was arranging a second medical opinion at the request of Mr Kelly. An appointment was made with Dr Lobel for 10 June 2008. It is noted that Dr Lobel had confirmed Dr Chow's diagnosis; and · During cross-examination, Mr Kelly insisted that he still regarded the Applicant as his employee in June 2008; 151 In all of the circumstances, I have come to the conclusion that the Applicant was dismissed from employment by the Respondent on 17 May 2008 when his payments ceased and that termination was confirmed in writing on 21 May 2008. Was the Dismissal harsh, unreasonable or unjust? 152 The Applicant commenced employment with the Respondent on 4 July 2005. The dermatitis did not manifest itself until on or about December 2007. In the interim, as conceded during cross-examination, the Applicant had participated in spray painting cars in his private time and the paint had contained acrylic. He stated that he had advised Dr Chow of that fact but denied ever informing Mr Kelly of his participation in spray painting although he did recall Mr Kelly talking to him about his own father being a panel beater/spray painter but could not recall in what context that conversation took place. 153 The Applicant also conceded during cross-examination that he had assisted his cousin in tiling work over the last few years but denied discussing with Mr Kelly tiling work he had allegedly undertaken in Newcastle over the Christmas 2007 holidays. 154 The Applicant stated, during cross-examination, that he had undertaken odd jobs as a labourer. Initially he gave evidence that he had done so over "the last couple of years". Then he was not so sure and it could have been back in 2006. Nevertheless he contended that he had advised Dr Chow of that fact. 155 The Applicant denied that he had advised Mr Kelly about assisting his father in gardening. 156 I am more inclined to accept Mr Kelly's recall of the conversations in relation to the Applicant's extra-curricular activities because the Respondent's evidence was firm and consistent in that regard whilst the evidence of the Applicant was vague and inconsistent. 157 Mr Talevski confirmed that he wore a cobalt chrome framed partial denture with an acrylic tooth and contended that he had advised Dr Chow of that fact. I find it extremely unusual for a medical practitioner to provide reports on the medical condition of a compensation patient without including the minutiae of all data provided by that patient. It is therefore unsurprising that the Respondent would agitate to ensure that Dr Chow was made aware of all the facts through him and, in the absence of any positive response from her, via the Applicant. It is noted that the Applicant reluctantly agreed, during cross-examination, that Mr Kelly held a number of telephone conversations with him during April 2008 in an effort to determine the scope of work the Applicant could safely perform in the laboratory. 158 I find that the Respondent was within his rights to bring all relevant and material facts to the attention of the treating doctor to pursue the matter diligently. 159 The Applicant contended that the Respondent had not provided him with the specific gloves required for undertaking work with acrylics. Nevertheless, it was not disputed firstly, that the Respondent had provided his employees with latex and nitrile gloves at all times during the Applicant's employment; secondly, that nitrile gloves are the industry standard for the type of work undertaken by the Applicant; thirdly, that the Applicant did not always wear the gloves supplied by the Respondent; and, fourthly, that the Respondent provided silver shield gloves to all his employees at the recommendation of Dr Chow when she diagnosed the Applicant as being allergic to chemicals at the workplace. 160 As at 17 February 2008 the Respondent was interested in having the Applicant back at work. He had displayed that intention by writing to Dr Chow listing the various duties of the Applicant and seeking her input into the requirements for a back to work assessment. Mr Kelly had also followed her recommendation by providing the requisite silver shield gloves at the workplace. Mr Kelly initiated a number of the contacts with Mr Talevski to talk to him about his injury/treatment. 161 The Applicant's dismissal had resulted from his failure to completely demonstrate "a full act of contrition" that would satisfy Mr Kelly. Although the breakdown in the employer/employee relationship and the friendship between the parties had its genesis in the remark by the Applicant that Mr Kelly was "a pain in the butt", it is surprising that the Applicant omitted that verbal exchange with the Respondent from the statement he tendered in the proceedings. Nevertheless, during cross-examination, he confirmed that he had made that statement to Mr Kelly and that Mr Kelly had warned him to "Be careful how you speak to me". He denied that he had responded "Or what? 162 Once again, I prefer Mr Kelly's recollection in relation to that conversation. The Applicant was aware that he was on shaky ground - Mr Kelly, in light of that exchange, questioned the Applicant as to whether he was interested in remaining in the employ of the Respondent and, upon being assured that he did, cautioned the Applicant to be careful how he talked to him or "it'll be the longest holidays you take". I accept, and apparently so did Mr Kelly, the excuse offered by the Applicant that, at that point in time, the serious nature of his uncle's illness or death had significantly impacted on his reasoning. 163 Nevertheless, Mr Talevski agreed that he was aware, as at 21 April 2008, that Mr Kelly wanted a formal written apology and a confirmation of his commitment to the work. In my opinion, based on the evidence, both were offered verbally and in writing to the Respondent. 164 It is unfortunate that Mr Kelly considered the Applicant's written response to be a qualified apology. I do not hold the same opinion. The apology in relation to the offensive remark was not qualified. The Applicant had taken the opportunity to respond to a number of issues raised in the quite lengthy correspondence from Mr Kelly. Had Mr Talevski remained silent on those issues and merely offered the commitment to work and the apology, his silence would have been interpreted as acquiescence by the Applicant to, amongst other things, a reduction in wages upon physical resumption of work which, he clarified in his response, he had not agreed to. He had a right, indeed an obligation, to clarify that aspect of their earlier verbal discussions beyond any doubt. 165 I do not underestimate the role played by the Applicant in fostering Mr Kelly's doubts and frustrations in relation to the treatment he was obtaining. It is a great shame as the evidence indicates that the Applicant would have had a very rewarding future with the Respondent firm - both in relation to his status as well as his educational prospects in terms of scope of work undertaken. 166 Nevertheless, the Respondent had accepted that the Applicant's reasoning was affected by his Uncle's illness and subsequent death. The Applicant had received conflicting messages from the Respondent as to the status of their relationship as I have outlined above. The Respondent did not clarify, and the Applicant could not therefore comply with, the requirement that the he demonstrate "a full act of contrition" bearing in mind that the Applicant had provided, as previously requested, a verbal and written apology in relation to his abusive remark and a confirmation of his commitment in relation to his work. Finally, the provision of the apology and commitment, as requested by Mr Kelly, confirmed that the Applicant did not wish to resign his position. 167 In the circumstances, I consider that the Applicant's dismissal was harsh and unreasonable. DECISION 168 The Commission finds that the cessation of the employment relationship occurred at the behest of the Respondent. 169 The Commission also finds that the Applicant's dismissal was harsh and unreasonable and warrants redress. 170 I accept the submission of the parties that reinstatement and re-employment are not viable in the circumstances which have been outlined in detail above and that compensation is the most suitable remedy in the circumstances. 171 The compensation ordered takes into account, amongst other things outlined above, the following factors: it allows for the fact that the Applicant received Workers' Compensation until May 2008; the fact that the Applicant did not assist himself in applying for an ABN in a timely manner; and the fact that he had not taken immediate steps to seek a second medical opinion in the knowledge that his job was at risk and that he had undertaken to do so in a conversation with Mr Kelly. 172 In all of the circumstances, I believe the appropriate compensation to be an amount equal to ten (10) weeks' pay at the rate of $358.00 per week. ORDERS 173 The Industrial Relations Commission of New South Wales orders that: 1. Pursuant to s 89 of the Industrial Relations Act 1996, Mr Christopher Kelly shall pay to the Applicant, Mr Ljupco Talevski, the amount of $3580. 2. The amount in order (1) shall be paid within 21 days. 3. These proceedings are concluded. I Tabbaa 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.