Industrial Relations Commission of New South Wales CITATION: Yael Abraham v Jasmann Pty Limited [2006] NSWIRComm 1047 APPLICANT Yael Abraham PARTIES: RESPONDENT Jasmann Pty Limited FILE NUMBER(S): 2572 of 2004 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - defacto or employer/employee relationship - dismissal - compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Outboard World Pty Ltd v Muir (1993) 51 IR 167 D and R Commercial Pty Ltd v Flood (2002) 113 IR 344 HEARING DATES: 09/11/05 DATE OF JUDGMENT: 05/04/2006 APPLICANT Self represented (Yael Abraham) LEGAL REPRESENTATIVES: RESPONDENT Self represented (Mark Longobardi) DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 4 May 2006 Matter No IRC 2572 of 2004 Yael Abraham and Jasmann Pty Limited and the Joadja Whiskey Co Application by Yael Abraham re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 D E C I S I O N [2006] NSWIRComm 1047 1 The Commission has before it an application by Yael Abraham ("the Applicant") for unfair dismissal against Jasmann Pty Limited and the Joadja Whiskey Co ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The unfair dismissal application was lodged on 30 April 2004 and was allocated to Commissioner O'Neill. 3 The matter was set down for Conciliation and Directions on 14 May 2004. Arising out of that proceeding, the matter was set down for a Hearing on 30 July 2004. Subsequent to 14 May, this Hearing was vacated. 4 The matter was set down for Hearing on 17 August 2004 but again was vacated, as the Respondent was involved in other court proceedings on that day. 5 The matter was relisted before Commissioner O'Neill on 30 August 2004 and the Hearing dates of 12 and 19 November 2004 set down. These dates were subsequently vacated because of other court proceedings. 6 The matter was relisted before Commissioner O'Neill on 8 August 2005, for the purpose of setting a hearing date. 7 The file was allocated to myself (Macdonald C) owing to the absence of Commissioner O'Neill on extended sick leave. 8 The Hearing took place on 9 November 2005 in Picton Court House. The Applicant represented herself and, apart from calling herself as a witness, called the following witnesses: · Leonie Knapman - formerly tour operator for the Respondent · Myer Zulaikha - friend of the Applicant · Margaret Thompson - school teacher The Respondent was represented by Mark Longobardi (managing director) and who deposed that he is the Respondent in the proceedings. Mr Longobardi called himself as a witness. 9 Arising out of the proceedings, the Applicant was to furnish to the Respondent and the Commission, documentation pertaining to telephone records. The Respondent was given until 30 November 2005, to respond to this further documentation. BACKGROUND 10 The Applicant was in a defacto relationship with Mr Mark Longobardi, one of the directors of the Respondent's business. 11 The Respondent's business was that of operating heritage tours at Joadja Ghost Town - located about 25 minutes by vehicle, west of Mittagong. 12 The Applicant said she resided full time at Joadja. Mr Longobardi refuted this. 13 The Applicant said she worked at Joadja and initially (May 2002) she did not see the relationship as one of employer - employee. Later, she saw herself as an employee and deposed she was treated as such. Her witness statement listed the duties carried out by her in support of the Respondent's business - the heritage tours of the ghost town at Joadja. 14 The Applicant deposed that around early November 2002, she and Mr Longobardi had discussions about the Applicant being remunerated. This culminated in a letter dated 15 December 2002 and which the Applicant said confirmed her status as an employee, specifically as Project Manager on a full time basis. Mr Longobardi said that this letter was a concoction and whose purpose was to obtain a loan from a local bank. The Applicant was also provided with a business card which described her a "Projects Manager". 15 The Applicant deposed that Mr Longobardi had a drinking problem and he could become aggressive. She said she feared for her safety in January 2004 and contacted the police on about four occasions. 16 She deposed that on the night of 3 April 2004, Mr Longobardi began a verbal insult on her family's name, followed by a physical assault upon her. She went to the police who called an ambulance for her. An AVO was issued against Mr Longobardi, preventing him from contacting her, assaulting her or coming near her. 17 She deposed that she stayed away from their cottage at Joadja and attended the Local Court at Moss Vale on 6 April, where at her request, the AVO was varied to enable her to return home, at Joadja, and carry on as before - prior to the issue of the AVO. She deposed that she returned to Joadja on 7 April. Mr Longobardi returned home that night and told her she was not welcome anymore. She said he called the police who said that their records showed that the Applicant had lived at Joadja and could not be forced to leave. She said he physically assaulted her that night and she had to attend Bowral Hospital. 18 She asserted that on 9 April, Mr Longobardi told her she was not welcome anymore and she was to leave straight away. She said she was locked out of the cottage, suffered a nervous reaction, was partially paralysed and could not move. The police were called again. Later that night, she claimed she was assaulted again. She went to the police and the hospital. 19 The Applicant entered into correspondence with John Peters, another director, about, inter alia, collecting her personal belongings from Joadja. She arranged for removalists to attend Joadja to collect the remainder of her belongings. A note advising of that removalist's function was sent to the director of the business. A handwritten comment to the Applicant appears at the bottom of that note as follows: " Yael, You Do Not Have Permission To Attend Joadja. John Peters " FINAL SUBMISSIONS For the Applicant 20 Ms Yael Abraham, the Applicant, made the following points in final submissions: (a) She had been unfairly dismissed. (b) Her services with the Respondent had been as an employee and not as part of a defacto relationship with Mr Longobardi, one of the two directors. (c) Proof of an employment relationship was by way of a letter of employment dated 15 December 2002. (d) She had not been paid wages in the time she had been with the Respondent but this was in recognition by her that the company was experiencing financial hardship. (e) Her employment role with the Respondent was as Projects Manager. The witness, Ms Knapman, gave evidence in support of that employment role. The business cards show the Applicant to have the title of Projects Manager. The Applicant issued invoices to clientele. (f) She worked full-time and the evidence of Mr Zulaikha supported this claim. She was not part-time as claimed by the Respondent. Telephone records would also support that she was working full-time (and living full-time) at Joadja, the site of the business. (g) She was seeking compensation of 26 weeks based on a salary of $45,000 per annum. For the Respondent 21 Mr Longobardi, co-director, made the following points in final submissions: (a) The relationship between himself and the Applicant was a defacto relationship from around October/November 2002. (b) There was no employment relationship. (c) The alleged letter of employment of 15 December 2002 was not proof of an employment relationship. The document was drawn up for the purpose of seeking a bank loan. (d) The relationship was defacto and the Applicant worked hard at the Joadja business site but it was still a defacto relationship. Applicant in Reply 22 Ms Abraham stated that a letter of demand had been sent against the Respondent for back wages. The letter is dated 1 June 2004. The letter was sent after the defacto relationship had broken up. The date of the break up was 9 April 2004, after the Applicant said she was assaulted by Mr Longobardi for a second time. CONSIDERATION 23 The Applicant contends she was unfairly dismissed. The Respondent denies this and raised the jurisdictional issue that the Applicant was not in an employment relationship with the Respondent. Rather, it was submitted that the Applicant had been in a defacto relationship and in that capacity performed work at the business site. 24 The issues then for the Commission's deliberation are as follows: (a) Was there an employment relationship in existence? If not, the Applicant's unfair dismissal application is at an end. (b) If there was an employment relationship, was there a dismissal at the hands of the Respondent? If not, the Applicant's unfair dismissal application is at an end. (c) If there was a dismissal, was that dismissal unfair (harsh, unjust or unreasonable)? The outcome of that question decides whether compensation should be considered. Employment Relationship? 25 Was there an employment relationship in existence? 26 The Applicant placed emphasis on the letter of employment dated 15 December 2002, in support of her claim of an employment relationship. (ex 4, annex. A) That letter is addressed to the Applicant and is in the following terms: "Dear Yael: As per our recent conversations and discussions, I confirm the company has agreed to employ you on the following basis: · for you to work as Project Manager at Joadja on a full-time basis · for you to be paid $45,000 per annum gross wages. In consideration of the above, and you waiting to be paid until Joadja is sold or you cease working for us, you are also to receive the following: · accommodation and food · your electricity and phone bills paid by us. Yours faithfully, MARK LONGOBARDI Company Director" 27 Under cross-examination, the Applicant denied Mr Longobardi's assertion that the letter of employment was a concoction; that its purpose was not employment related but its purpose was to gain a bank loan by creating the impression that the Applicant had income. (Tr 10, line 43 to Tr 12, line 8) The Commission notes that a certain inference falls from Mr Longobardi's assertion (denied by the Applicant) that the letter of employment was a concoction. 28 The Commission, prima facie, finds that there was an employer - employee relationship in existence between the Applicant and the Respondent. The evidence in support of that finding is the letter of employment. 29 Apart from his "concoction claim" given above, Mr Longobardi also raised other claims against there being no employer - employee relationship. He deposed, for example, that it was a ludicrous proposition that there was an employer - employee relationship because the directors would not have agreed to pay the Applicant $45,000 per annum when she was only there on a part-time basis. In support of that claim, he said that (a) the Applicant "worked two to three days a week for her employer, Myer Zulaikha" from her residence at Rose Bay; and (b) the Applicant spent a lot of her time at Rose Bay, particularly during the second half of 2003 and up until 11 April 2004. (ex 12, paras 25 & 26) The Applicant denied the above claims. 30 As to Mr Longobardi's first claim ((a) above), the Applicant deposed she resided full-time at Joadja from 25 May 2002 until 9 April 2004. (ex 4, pars 25 & 26) Under cross-examination she said that she worked for Myer Zulaikha on a decreasing basis. For the first couple of months when she moved to Joadja, she worked for him one day a week, half a day on Friday afternoons. Then that arrangement became once fortnight and then once a month. (Tr 36, lines 15 to 20) 31 Mr Zulaikha, company director, was called as a witness by the Applicant. His witness statement confirmed the frequency of the Applicant's visits to him. This frequency of visits began in May 2002. (ex 7, para 4) He would ring her (at home in Joadja) on average three to four nights per week, mostly after 7pm when the rates were free of charge. (ex 7, para 5) He gave evidence that the Applicant performed typing and office work for him on her visits to him - for which she was remunerated $700 less GST per month. (Tr 55, lines 22 to 28) He said that the Applicant did not live in Rose Bay. (Tr 58, lines 9 to 11) & (Tr 60, lines 6 to 52) 32 The claim of Mr Longobardi ((a) above) was that the Applicant worked for Myer Zulaikha two to three days a week from her residence at Rose Bay. In considering the evidence, the Commission finds that the claim has not been made out by Mr Longobardi. Thus, not only did the Applicant deny the claim but so did Myer Zulaikha. 33 The second claim ((b) above) by Mr Longobardi was that the Applicant spent a lot of her time at Rose Bay, particularly during the second half of 2003 and up until 11 April 2004. 34 The Commission firstly notes that Mr Longobardi brought no evidence to support this claim. 35 The Applicant emphatically denied under cross-examination that she spent two days per week at Rose Bay. (Tr 22, line 58 to Tr 23, line 1) 36 The Applicant raised this claim of Rose Bay during her cross-examination of Mr Longobardi. He then expanded his claim beyond Rose Bay. He said the Applicant spent two or three days at St Ives and spent time at her mother's place as the mother was very, very ill. He said the Applicant spent at least two or three days in a row at least every second week, at her mother's place over a twelve month period. (Tr 110, lines 44 to 48) Mr Longobardi again expanded during cross-examination, on the foregoing geography by stating that the Applicant, as well, spent time regularly at her brother's house in Surry Hills; and at her brother's house in Newington; and the Applicant dropped in to see her sister at Bondi Junction. (Tr 111, line 54 to Tr 112, line 10) The Applicant challenged the foregoing in her questioning of Mr Longobardi. (Tr 112, lines 52 to 55) 37 In considering and rejecting this evidence of Mr Longobardi, the Commission points out that this "expanded geographical evidence" (beyond Rose Bay) was not put by Mr Longobardi to the Applicant when he was cross-examining her. Further, Mr Longobardi brought no evidence to support this expanded geographical claim of his - either in his affidavit or by way of evidence in the proceedings. The Commission as well notes that Mr Longobardi also said, erroneously, during this period of cross-examination ("expanded geographical evidence") that: " Even Myer (Zulaikha) admitted one day a week in Rose Bay..." (Tr 112, line 57 to 58) The Commission states that Mr Zulaikha's evidence was that the Applicant spent a diminishing period of time with him at Rose Bay. Mr Zulaikha deposed that from May 2002, the Applicant came to Sydney on average three Fridays per month during the initial months she spent at Joadja, and progressively reduced those visits to about twice, sometimes once per month for half a day. (ex 7, para 4) Thus, at the period of time in question, second half of 2003 until 11 April 2004, it is Mr Zulaikha's evidence that the Applicant was visiting him once or twice per month (not one day per week). Accordingly, the Commission rejects Mr Longobardi's second claim that the Applicant spent a lot of time at Rose Bay and elsewhere. 38 The Applicant also brought evidence to rebut Mr Longobardi's claim that she spent a lot of time at Rose Bay, particularly during the second half was put by her of 2003 until 11 April 2004. This rebuttal evidence of the Applicant was put by her to establish a residential connection by the Applicant with Joadja during the period in question. Thus: (a) Affidavit of Leonie Knapman (ex 6). Ms Knapman is an historian by profession. She wrote a book: "Joadja, The Ghost Town and Its People". She was engaged as a tour operator by Mr Longobardi. She met the Applicant in May 2002. For the relevant period in question, she deposed that in late 2003, the Applicant wanted to create a museum at Joadja. The Applicant needed Ms Knapman's assistance in collecting the material needed for this project and in doing the project. Ms Knapman provided the Applicant, over the next three months, with material for the Applicant to copy in preparation of the museum. The two of them had several meetings about it and Ms Knapman visited the proposed venue to discuss display, presentation, and content issues in relation to the museum. Ms Knapman also said that the Applicant assisted looking after Mr Longobardi's son (Luke). None of the above was challenged by Mr Longobardi when he cross-examined this witness. (b) Evidence of Margaret Thompson. This witness did not make out a witness statement. In examination-in-chief, she said she was a school teacher at Mittagong Public School. She was the primary teacher of Mr Longobardi's son, Tal. Ms Thompson confirmed that the Applicant collected and returned Tal Longobardi to and from school " most days " during the period " February 2004 to about April/May 2004 " Ms Thompson said that Tal's mother was doing periodic detention; that Tal was living with the Applicant and Mr Longobardi at the ghost town of Joadja; and that Tal said to Ms Thompson that the Applicant would pick him up from school. (Tr 106) Mr Longobardi had no questions for this witness. (c) Telephone records of Myer Zulaikha. The Commission permitted the Applicant to file additional material, being telephone records, as proof that the Applicant was still residing at Joadja at the time in question. The Applicant filed that additional material which went beyond just telephone records. The Commission records below the data about telephone calls made by Myer Zulaikha to the Applicant. The telephone number highlighted in his telephone records is the same telephone number for Joadja Creek Heritage Tours at Joadja and this is the name appearing on the Applicant's business card which also names her as the "Projects Manager" (ex 12, annex A) Mr Longobardi claimed that the Applicant was not at Joadja from late 2003 until 11 April 2004. The Commission records below, Myer Zulaikha's telephone calls (by date) to the Applicant from November 2003 and onwards. Virtually every call (to the Applicant at Joadja) was made in the evening/night time. Thus: · November 2003 - 19, 20, 22, 24, 26 & 30 · December 2003 - 4, 7, 8, 10, 20 & 23 · January 2004 - 1, 2, 5, 7, 8, 9, 11, 12, 13, 21, 22 & 23 · February 2004 - 4, 5, 8, 9, 10, 11, 12, 15, 17, 19, 23 & 26 · March 2004 - 1, 2, 4, 5, 7, 9, 10, 14, 15, 18, 20, 21, 23, 24, 25 & 28 The Applicant provided the Commission with proof of delivery (of this additional material) to Mr Longobardi. She had sent the material by registered post. Mr Longobardi's signature appears on the "Delivery Confirmation - Advice Receipt" The Commission had permitted the Applicant to file this additional material and provided Mr Longobardi, unto 30 November 2004, the opportunity to respond. The Applicant's additional material is dated 21 November 2005. The Commission has had no response from Mr Longobardi as to this additional material. 39 In summary of the Applicant's evidence to rebut Mr Longobardi's claim that she spent a lot of time at Rose Bay, the Commission finds that her evidence supports the Applicant's claim that not only was that not so, but as well, that she was a full time resident (with Mr Longobardi as part of their defacto relationship) at Joadja. In coming to that view, the Commission relies upon the evidence of Ms Knapman, and Ms Thompson - both of whose evidence was uncontested by Mr Longobardi. The Commission also relies upon the telephone records. 40 The Commission considered and rejected Mr Longobardi's claims that: the Applicant was an employee of Mr Zulaikha and worked for him from her residence at Rose Bay; and that she spent a lot of her time at Rose Bay (and hence, he said, not at Joadja). Thus, the Commission has found that the Applicant resided at Joadja, and worked there as Projects Manager, on full time basis. Mr Longobardi also raised another argument that there was no employer - employee relationship because she did not carry out the work she claimed and she performed. 41 The Applicant's witness statement set out an array of duties associated with the Joadja Ghost Town (ex 1, paras 2, 4 to 9 inclusive, and 12). Broadly put, the Applicant said she maintained the grounds and the kiosk, greeted and assisted the visitors (including bus tours), prepared food and utilities for the tourists, cooked for the tours and carried out administrative duties. Mr Longobardi deposed that she welcomed tourists for the few tours that occurred between September and October 2002: she turned on the BBQ but he did the cooking during the period. There were no tours from November 2002 till March 2003. From April 2003 and onwards, Mr Longobardi said a Lyn Vaughan acted as hostess/sandwich hand because of the souring of the relationship between the Applicant and himself. The Applicant may have helped on one or two tours. (ex 12, paras 7, 8 and 14). 42 There was evidence from Leonie Knapman that showed that the Applicant was doing more work than made out by Mr Longobardi: (a) Ms Knapman, the historian, deposed that she met the directors of the Respondent in the year 2000. She began to work for the Respondent as a tour operator, making and procuring bookings for tours, doing mail outs, typing and other clerical work. (b) She met the Applicant when the latter moved to Joadja in May 2002. Ms Knapman was progressively asked to do less and less work, as the Applicant took over those duties. She said that Mr Longobardi started to do the tours and the Applicant did the catering, preparation of meals, secretarial and administrative work. (c) Ms Knapman then stated that in late 2002, the applicant advised of her appointment as Projects Manager and being in charge of all staff. From a meeting between the two of them, Ms Knapman said she realised that the Applicant was doing most of the work at Joadja that was once performed by Ms Knapman and other staff. (d) She said that the Applicant resided and worked at Joadja on a full time basis. (ex 6, paras 3 to 6 inclusive) 43 The significance of Ms Knapman's evidence is that she had been associated with Joadja from the year 2000 and onwards - both as a worker, historian and visitor. Her witness statement directly refers to a time frame from 2000 to April 2004. Thus she was in a position as worker, historian and visitor to observe the involvement of the Applicant at Joadja. Given that significance, the Commission then notes that Mr Longobardi's cross-examination of Ms Knapman, did not challenge her witness statement as to these significant observations. 44 The Applicant also provided documentary evidence that showed her issuing receipts to various tours. The time frame covered by this documentary material is April 2003 to April 2004 inclusive. (ex 2) Mr Longobardi cross-examined the Applicant on this duty but in the context of the Applicant performing this duty as part of the Applicant's own business enterprise. She denied this claim. (Tr 24, line 16 to Tr 25, line 14) 45 Having considered all of the evidence on this point, the Commission finds that the Applicant was engaged in the performance of work from 2002 till April 2004. Summary 46 In summary of this first issue as to whether there was an employer - employee relationship, the Commission has concluded that there was such a relationship. The prima facie position adopted by the Commission, was that such a relationship existed because of the letter of employment. (ex 4, annex A) 47 The Commission then considered Mr Longobardi's claims contrary to that prima facie finding. Mr Longobardi claimed that the Respondent would not have agreed to pay the Applicant $45,000 per annum when, he claimed, she was only there on a part-time basis. The Commission considered this claim and the evidence to the contrary (the Applicant's denial, the denial of Mr Zulaikha and the uncontested evidence of Ms Knapman and Ms Thompson). The Commission finds that the Applicant was a full time assistant of Joadja. 48 Mr Longobardi also claimed that the Applicant was not in an employer-employee relationship, because, he claimed, she did not carry out the work she said she performed. The Commission rejected this claim and found that the Applicant was engaged in the performance of work from 2002 till April 2004. 49 Accordingly, the prima facie finding of the Commission that the Applicant was engaged in an employer-employee relationship, has not been rebutted by the claims of Mr Longobardi. Indeed, the Applicant brought evidence in support of that initial finding. Dismissal? 50 Was there a dismissal at the hands of the Respondent? 51 The Commission has found that there was an employer-employee relationship in place and that the Applicant resided and worked at Joadja from 2002 until the cessation of her employment relationship. How did that employment relationship come to an end? Mr Longobardi deposed that the Applicant left Joadja on 11 April 2004. (ex 12, para 27) The Applicant deposed to different circumstances as for the reason for the cessation of the employment relationship. Those circumstances concerned the breakdown of their defacto relationship. 52 The Applicant deposed that, on 3 April 2004, she was physically assaulted by Mr Longobardi. Distressed and hurt she went to the police who called an ambulance since there was blood running down her head and ear. She said that he was issued with an Interim Apprehended Violence Order ("IAVO"). She further stated that she stayed away from Joadja and attended the Local Court at Moss Vale on 6 April, when at her request, the IAVO was varied to enable her to return home, to her duties, and to be able to communicate with her defacto partner, Mark Longobardi. (ex 1, paras 15 & 16) 53 The Commission confirms that there is an IAVO annexed to the Applicant's exhibit (annex E). This IAVO is dated 6 April 2004 and sets out orders consistent with the Applicant's claim about a physical assault. 54 The cross-examination of Mr Longobardi has him confirm that he called the police on 6 April to have the Applicant removed from Joadja. He confirmed that the same scenario occurred on 7 April. (Tr 121, line 51 to Tr 122, line 53) The Applicant deposed as to her returning to Joadja on 7 April, along with his son (aged 6) from his first wife. The front gate to the property was locked. It was a fifteen minute walk to the cottage. She said that her defacto stated that she was " not welcome anymore. You have to leave right away ." The police were then called by Mr Longobardi, who sought to have her removed from the property. She deposed that the police declined to do so because of proof of her entitlement to reside there. (ex 1, para 16) 55 The Applicant deposed that on 9 April, around 4.30 pm, she was told by Mr Longobardi that she was to leave, as she was not welcomed anymore. She claimed that she started to collect her things and had also gone outside to pick up clothing from the line. She could not re-enter the cottage because her defacto had locked all the doors. She deposed she suffered a nervous breakdown which partially paralysed her and she could not move. He called the police who arrived two hours later. She said that as the front gate was locked, they had to traverse the property, at night, using torches. She deposed that the police cautioned him and left. She said she was assaulted later that night. She left the cottage and went to the police and the hospital. She has not returned to Joadja since. (ex 1, paras 17 to 19 inclusive) 56 Mr Longobardi was not cross-examined on the detail given by the Applicant in her witness statement, as to those events on 9 April. It is also the case, however, that his witness statement (ex 12), filed one month after the Applicant deposed to those details, did not make any comment - let alone refute - those details. 57 In any event, Mr Longobardi confirmed that: an IAVO had been taken out against him on 3 April; and he had locked the front gate to the property so that the Applicant could not come onto the property on 6 April. He also said that the Applicant had been asked to leave the property continuously since September 2003. The Applicant demonstrably denied this claim ("you're lying Mr Longobardi"). (Tr 123, line 6 to 31) 58 Subsequent to the above events, the Applicant corresponded with the directors (13 and 20 April 2004) about getting access to the property in order to collect the remainder of her belongings. (ex 1, annexures F & G) 59 The Applicant received a facsimile, dated 25 April 2004, from one of the directors, John Peters, advising that the Applicant is not to attend the property because she has taken an IAVO against Mark (Mr Longobardi). (ex 5) 60 On 26 April 2004, she sent a short note to the directors that she and two removalists would attend the property to collect her belongings. That short note has a handwritten comment (see paragraph 19 above) advising she does not have permission to attend the property. (ex 1, annexure H) Summary 61 Having considered all of the evidence, the Commission finds that there was a cessation of the employment relationship and that it was at the hand of the Respondent. That cessation occurred on 9 April when, finally, the Applicant left the property at the direction of Mr Longobardi. Unfair Dismissal? 62 Was there an unfair dismissal? That is, was the dismissal harsh, unjust or unreasonable? 63 The Commission has already concluded that there was an employer - employee relationship and that that relationship came to an end on 9 April 2004 at the hand of the Respondent. In coming to that view, the Commission set out the events surrounding the cessation of that employer-employee relationship (paragraph 50 to 61 inclusive above). 64 The circumstances surrounding that cessation, show that the Applicant was successful in obtaining an IAVO against Mr Longobardi. She returned to the cottage at Joadja on 6 April but Mr Longobardi called the police in order to have her removed. He confirmed that that scenario occurred the next day, 7 April. Mr Longobardi did not refute the Applicant's evidence that she suffered a nervous breakdown and partial paralysis of her body when he stopped her from re-entering the cottage. The police were called but left after their enquiries. She was later assaulted that night. And all of this occurred after he once again asked her to leave the property. 65 The Commission finds that those circumstances constitute an unfair dismissal - specifically, the circumstances constitute a harsh, unjust and unreasonable dismissal. Further to those circumstances, there was no evidence that the Applicant was incompetent in the performance of her duties. The Applicant showed a commitment to her role, by liaising with the local historian (Ms Knapmann), for a project to create a museum at Joadja. (ex 6, para 7) These other circumstances constitute an unjust and unreasonable dismissal. CONCLUSION 66 Having considered all of the evidence, the Commission concludes that the summary dismissal of the Applicant was harsh, unjust and unreasonable: Outboard World Pty Ltd (t/as Budget Waste Control Sydney) v Muir (1993) 51 IR 167. 67 The Applicant has sought compensation as her remedy. In assessing a claim for monetary compensation, the Commission must consider the provisions of s 89(6) - that is, whether an Applicant made a reasonable attempt to find alternative employment and the remuneration gained by an Applicant who succeeded in obtaining alternative employment. However, s 89(6) is not to be taken as a simple, mathematical formula in the assessment of compensation and the Commission retains its discretion to order the appropriate quantum of compensation, as the Commission deems appropriate for the circumstances under consideration: D and R Commercial Pty Ltd v Flood (2002) 113 IR 344. 68 The Commission also notes the reinstatement was not sought and the Commission has formed the view that reinstatement is impracticable. 69 In considering the quantum of compensation that is appropriate, the Commission has had regard to a number of matters: · the circumstances surrounding the cessation of the employer - employee relationship; · the Applicant was summarily dismissed but the Commission has found without basis; and · the Applicant was a full time employee of approximately 17 months standing. O R D E R S In this matter, for reasons outlined herein, I have determined that the dismissal was harsh, unjust and unreasonable and I hereby make the following orders: (a) The Commission orders that the Respondent pay to the Applicant an amount of compensation of $22,500 gross. (b) The amount of compensation specified above has been determined, having regard to section 89(5) and 89(6) of the Act. (c) The amount of compensation specified above is to be paid by the Respondent to the Applicant within twenty-one days from the date of this Decision. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.