[2007] AIRC 682

PR977962
Download Word Document

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.643 - Appl’n for relief re (Unlawful and HUU) termination of employment

Mr Paul Lawrence Claypole

and

Australian Native Landscapes Pty Ltd
(U2007/3010)

 
   

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY 6 SEPTEMBER 2007

Termination of employment – termination at the initiative of the employer

DECISION

[1] Mr Paul Claypole (the applicant) was employed as a permanent truck driver by Australian Native Landscapes Pty Ltd (ANL, the respondent) from May 2005 until 29 January 2007, when he contends his employment was terminated harshly, unjustly or unreasonably.

[2] The matter was heard in Sydney on 10 and 12 July 2007. The applicant was represented by Mr Aird from the Transport Workers’ Union of Australia (TWU). Mr Cleary of counsel appeared for the respondent.

[3] The applicant gave evidence on his own behalf. Other witnesses giving evidence for the applicant were: Mr Matt Gall and Mr Mark Gall, both of whom are former ANL employees, and Doug Mihajlovic, who is a current ANL employee. Witnesses for the respondent were Mr Jeff Lennox, Mr Lee Monahan and Mr Reuben Whitcher, the manager, the production manager and the fleet coordinator respectively at ANL’s Badgery’s Creek Depot.

The evidence

[4] A great deal of evidence was submitted by the applicant in order to try and establish that the respondent engaged in “highly dubious work practices”. I have not sought to summarise that evidence as it has little bearing on the issues that I need to determine in this case.

[5] In his statement (Exhibit C1) Mr Claypole said that at the time he gained his position at ANL in 2005 he had been unable to work for the previous five years. He had a serious leg injury at his previous workplace and had suffered from a number of complications. He added:

[6] According to the applicant, for around six months prior to his termination by ANL, he was forced to operate a trailer that had a broken chain inside the trailer. He spoke to Mr Lennox, the site manager, about the problem and he was told to take the truck to the workshop. However, when the workshop informed him that they were too busy, he was told by Mr Lennox to keep driving the trailer as it was. (Exhibit C1 para 4)

[7] With the trailer still not fixed, he had to complete a job at the Glenfield sewerage plant. According to Mr Claypole it is not possible to weigh the load at this site…

[8] According to Mr Claypole, due to the “particularly sludgy” consistency of the load, and the broken chain, when the load was going up a hill it slid from one end of the trailer to the other and bowed the trailer. When he returned to the Badgery’s Creek site the trailer was heavily bowed. He could recall Mr Lennox driving down from the office and saying words to the effect:

[9] He replied with words to the effect:

[10] According to the applicant, Mr Lennox did not respond but went round the back of the truck and spoke with one of the mechanics. He was extremely angry and spoke to the mechanic in a very loud voice, attacking Mr Claypole, saying words to the effect

[11] Following this incident the trailer was sent to the workshop to be repaired. (Exhibit C1 para 8)

[12] When Mr Claypole received his next pay cheque he found that he had been docked his bonus pay. (Exhibit C1 para 9)

[13] He was upset about his bonus being deducted, and when he saw a couple of the other drivers at the yard he spoke to them about it. He was complaining, using words to the effect:

[14] According to the applicant, the other drivers left and he was having a chat to Mr Mihajlovic, the loader driver. As he was standing there, he saw Mr Lennox driving very quickly to where he stood. Mr Claypole’s evidence continued that Mr Lennox got out of the car and was clearly furious.

[15] Towards the end of his statement, Mr Claypole said:

[16] According to Mr Doug Mihajlovic’s statement (Exhibit C13) Mr Mihajlovic was operating the loader on site on 29 January 2007 when he observed Mr Claypole in the yard. Mr Claypole motioned him to come over and he drove the loader over to where his truck was parked. According to Mr Mihajlovic, Mr Claypole said words to the effect:

[17] According to Mr Mihajlovic, Mr Claypole had spoken to him previously on a number of occasions about how he had been trying to get his trailer repaired as the dog chain was broken. He said to Mr Claypole

[18] He then advised Mr Claypole with words to the effect:

[19] Mr Mihajlovic’s statement continues:

[20] In his statement (Exhibit ANL 1) Mr Lennox gave evidence that on 15 January 2007 Mr Claypole overloaded his truck at the Glenfield Sewerage Treatment Plant. He returned to Badgery’s Creek with the truck’s tarpaulin only covering half of the load in the trailer. The uncovered bio-solids were over the rails of the trailer and were spilling over the tail gate and mud flaps of the vehicle. (Exhibit ANL 1 para 11)

[21] According to Mr Lennox’s evidence he approached Mr Claypole together with Mr Whitcher and had a conversation in words to the following effect:

[22] Subsequently, Mr Lennox and Mr Whitcher agreed that Mr Claypole should lose his bonus as a result of his actions on 15 January 2007. According to Mr Lennox, this was in accordance with Mr Claypole’s Australian workplace agreement (AWA).

[23] Mr Claypole’s AWA provides for a productivity bonus. However it contains a clause that reads:

[24] According to Mr Lennox’s evidence, on the morning of 27 January 2007 Mr Claypole left the Badgery’s Creek site with a load of bark product to be delivered to the North Ryde retail operation. At approximately 2:00 pm Mr Lennox received a phone call from Mr Whitcher and they had a conversation in words to the following effect:

[25] Mr Lennox’s evidence continues as follows:

[26] The vending machine referred to was at the office. It belonged to Mr Claypole and could be used by staff to buy food. Mr Lennox, in his statement (paragraph 42) describes how a few days later Mr Claypole’s father and some other family members came to the office to remove the vending machine. He had a conversation with Mr Claypole’s father, in words to the following effect:

[27] According to Mr Lennox he formed the impression from this conversation, and the fact that the vending machine was being removed, that Mr Claypole was having some personal issues and would not be returning to work for ANL. On or about 6 February 2007, ANL had received no correspondence or contact from Mr Claypole and Mr Lennox told the pay master to record that Mr Claypole’s employment with ANL had ceased from that date.

[28] Under cross examination, Mr Claypole denied that he drove from the weighbridge to the batching area in a dangerous manner (PN410) as alleged by Mr Lennox in his statement at paragraph 25.

[29] Mr Claypole denied that he had an argument with Mr Lennox, when the latter came up to him.

[30] Mr Claypole conceded that when he drove away he did not know at what speed he was driving, though he denied that he would drive the truck in a dangerous manner. He was very worried for his safety, and was being chased by Mr Lennox. (PN423 – 428)

[31] According to Mr Claypole, Mr Lennox

[32] After pulling over, Mr Lennox got out of his car and came up to Mr Claypole who was stepping down out of his truck and his lunchbox fell to the ground. Mr Lennox kicked his book under the truck while he was leaning over. (PN439) According to Mr Claypole he thought Mr Lennox

[33] In response to the proposition that he said to Mr Lennox “I’m going on compo, you watch me, you watch me,” he responded:

[34] The cross examination continued:

[35] According to Mr Claypole, he walked off after being abused by Mr Lennox, expecting to be chased. (PN454) He indicated that if anyone from the company had rung his mobile phone after these events he would not have spoken to them as he had been verbally assaulted, abused and sacked. (PN 456) However he denied that he received any phone call from Mr Whitcher. For a couple of weeks he was scared, shocked, terrified, looking out of his window all the time, not even being able to think straight about what Mr Lennox had done to him and the company. (PN457)

[36] Mr Claypole conceded that everyone swore at the depot,

[37] In his statement (Exhibit ANL 3) Mr Lee Monahan said that on about 15 January 2007 he saw Mr Claypole drive into the Badgery’s Creek site with an overloaded trailer. Mr Claypole told Mr Monahan that the side of the truck had gone because it had been overloaded.

[38] According to Mr Monahan’s statement Mr Claypole said:

[39] Mr Monahan replied:

[40] According to Mr Monahan’s statement, Mr Claypole then said

[41] In Mr Claypole’s statement in reply (Exhibit C2) he denied that Mr Monahan was there when he returned from the Glenfield site or that he had a conversation with him at all at the time and as best he could remember at any time afterwards.

[42] In his statement (Exhibit ANL4) Mr Reuben Whitcher described how Mr Claypole arrived on 15 January 2007 from the Glenfield sewerage treatment plant with his trailer overloaded.

[43] Mr Whitcher attached a copy of a weighbridge docket purporting to show the weight of Mr Claypole’s load on the day in question.

[44] Mr Whitcher’s statement describes a conversation he had with Mr Claypole on 27 January 2007.

[45] Later in his statement, Mr Whitcher says that he did not hear anything else from Mr Claypole after 29 January, and never called him again after that.

The applicant’s submissions

[46] Mr Aird, on behalf of the applicant, submitted that the dismissal came about because of events on 29 January 2007. The evidence clearly established that there was a one sided verbal assault by Mr Jeff Lennox on the applicant. Mr Claypole’s version of events was strongly corroborated by the evidence of Mr Mihajlovic. Combined with leaving Mr Claypole on the side of the road, without the vehicle he would normally use to drive home, Mr Lennox’s actions were clearly an indication of termination.

[47] Mr Aird submitted that even if it was not accepted that this behaviour amounted to a formal termination, then it should be found that there had been a constructive dismissal. Mr Aird took the Commission to the judgement of Olson J in the case of Easling v Mahoney Insurance Brokers 1, which was referred to approvingly by Allsop J in Thompson v Orica2, and the decision of Smith C in Betts and Madafferi Haulage3. He submitted that the conduct of the employer was such as to essentially destroy the trust and confidence in the employment relationship.

[48] Mr Aird submitted that there was no valid reason for Mr Claypole’s termination. The conduct of the respondent could only be characterised as “capricious, fanciful, spiteful or prejudicial”, the terms used in Selvachandran v Peteron Plastics 4 to describe reasons for termination that could never be valid. Even if the applicant was considered to have engaged in some misconduct (which was not conceded by Mr Aird), the termination of his employment was harsh. On this point attention was drawn to the cases of Barclay v Nylex5 and Potter v WorkCover6

[49] Mr Aird contended that the failure of the company to contact Mr Claypole after the incident on 29 January was further evidence that his employment had been terminated.

The Respondent’s Submissions

[50] Mr Cleary, on behalf of the respondent, submitted that the applicant had abandoned his employment or resigned, and there was no termination of his employment at the initiative of the employer.

[51] Mr Cleary submitted that Mr Claypole was a deeply unimpressive witness, who exaggerated when he could, and often failed to give a direct answer, tailoring his responses to support his case, rather than the truth. Mr Lennox’s evidence about what occurred after Mr Claypole drove the truck out of the site should be preferred to that of the applicant.

[52] Mr Cleary submitted that even Mr Claypole’s own evidence supported the position that Mr Claypole chose to leave rather than being terminated by his employer.

[53] The altercation between Mr Lennox and Mr Claypole needs to be understood in the context where the latter was unhappy about not receiving his bonus. This boiled over on 27 January when he could not get any relief or any answers about why he had had his bonus deducted. He told Mr Monahan that if he did not get his bonus he would leave.

[54] On 29 January he is upset about what has gone on. He has still not got any answers as to why he has lost his bonus. Mr Cleary’s submission continued:

[55] In response to a question from the Commission, Mr Cleary submitted that Mr Claypole decided to leave the employment at some stage after he got out of the truck and walked off. The evidence from Mr Lennox was that he was under the impression that Mr Whitcher had called or tried to call Mr Claypole. Mr Cleary drew attention to the decision in Pickerd and J&G Brunt 7. Based on the summary of the law of abandonment of employment in that decision, it was submitted on behalf of ANL that the onus was on the applicant to call up and advise the employer that he had a reason for being away from his employment. However, as far as Mr Lennox was concerned he thought Mr Claypole was coming back. In fact, consistent with what he told Mr Monahan, Mr Claypole had left because he was unhappy with losing his bonus.

[56] This interpretation was reinforced, according to Mr Cleary, by Mr Claypole senior arriving at the work site a few days later to remove the vending machine.

[57] Mr Cleary characterised the altercation between Mr Claypole and Mr Lennox on 29 January thus:

[58] Mr Cleary drew attention to differences in the evidence of Mr Mihajlovic and Mr Claypole concerning the altercation between the latter and Mr Lennox on 29 January. He contended that the discrepancies meant that Mr Mihajlovic’s evidence could not be regarded as corroborating that of the applicant. Nor should Mr Claypole’s version of the conversation before his departure be accepted over that of Mr Lennox.

[59] Mr Cleary submitted that even if his primary submission (that there was no termination at the initiative of the employer) be rejected, Mr Claypole’s dangerous driving that day justified his summary dismissal, consistent with a clause in his AWA.

Consideration of the issues

[60] The first issue to be determined in this case is whether Mr Claypole’s employment was terminated at the initiative of his employer, or whether he voluntarily abandoned his employment. The relevant law on what constitutes termination at the initiative of the employer where it may appear that the employee has terminated his own employment was summarised by a Full Bench in O’Meara 8. While the decision refers to a resignation rather than abandonment of employment, it is equally relevant to the issue in this case.

[61] Applying these principles to the circumstances of this case, there needs to be an objective analysis of the respondent’s conduct to determine whether it was of such a nature that Mr Claypole’s leaving his employment was the probable result of the respondent’s conduct and that he had no real or effective choice but to leave his employment.

[62] A large part of the evidence presented by Mr Aird concerned a range of alleged wrongdoings by ANL. I have not sought to summarize these, nor do I make any findings about them, because I do not consider that they are relevant to the issues that have to be determined.

[63] I am satisfied that Mr Claypole overloaded his truck on 15 January 2007, though I also note that it was suggested by the applicant that there was pressure to overload rather than “underload”, and there were difficulties in accurately measuring the correct weight at the Glenfield site as there was no weighbridge. Moreover there is no doubt that Mr Claypole’s trailer bowed, though again the applicant suggested that this was at least in part due to a broken spreader chain which he had been unable to get fixed.

[64] The applicant’s AWA provided for a productivity bonus, but that bonus could be forfeited in certain circumstances. In particular any driver who damaged company equipment through negligence could lose his bonus for a month. It is at least arguable that ANL were within their rights to suspend Mr Claypole’s bonus as a result of the damage caused to his truck on 15 January.

[65] Mr Claypole seemed unaware of the precise terms of his AWA; indeed during cross examination he stated that he had not read the AWA and did not know what it contained. In his statement he said that he believed that his bonus was deducted in order to pay for the cost of repairing the trailer. He thought this was unfair as he did not believe that it was his fault that the trailer had been damaged.

[66] Mr Claypole was clearly angry and upset about the loss of his bonus, and says himself that he complained to other drivers about the matter. However there is a considerable discrepancy between the evidence of the applicant and Mr Lennox about what transpired between them when the latter approached the former at the Badgery’s Creek depot on 29 January 2007.

[67] According to Mr Lennox he approached Mr Claypole, stood beside his truck and asked him what his problem was. The latter responded that he should not have to pay for the damage to his truck and that he was not happy about losing his bonus. He then violently opened the door of his truck, stood on the fuel tank on the side of the prime mover and was “wildly aggressive” in his conversation with Mr Lennox. The latter asked Mr Claypole to come up the office, and walked back to his car. As he was walking back to his car he heard Mr Claypole crunch the truck into reverse gear and reversed the truck aggressively and dangerously. Mr Lennox got into his car and went back to his office, expecting to be joined by Mr Claypole. During his cross examination by Mr Aird, he effectively denied screaming at Mr Claypole or abusing him.

[68] According to Mr Claypole, he was having a chat to Mr Mihajlovic, when Mr Lennox drove very quickly towards him and then got out of the car clearly furious. The latter started screaming and swearing at him and yelled at him to get up the office. Mr Claypole said he was afraid for his safety, and in a panic jumped into the truck and drive off. Mr Lennox started to follow, and began beeping at him and flashing his lights.

[69] Mr Mihajlovic’s version was largely consistent with that of Mr Claypole. Despite Mr Cleary’s submission I do not consider that any marginal discrepancies are such as to undermine their corroborative nature. As Mr Mihajlovic was talking to Mr Claypole, he saw Mr Lennox driving over to them in a hurry. He got out of his vehicle “and just started going off.” He was yelling abuse and swearing at Mr Claypole. “It was not an argument it was just Jeff Lennox yelling abuse.” Mr Claypole responded that he should not be spoken to like that – that he was not some kind of animal. Mr Mihajlovic said Mr Claypole then started to drive off, and Mr Lennox jumped in his vehicle and started to follow him. Mr Lennox continued to abuse him over the CB, yelling words to the effect:

[70] While Mr Mihajlovic has known Mr Claypole “for years”, he also remains an employee of the respondent. While he was briefly cross examined by Mr Cleary he was not seriously challenged about his version of what happened on the day in question. I see no reason not to accept his version of events as accurate. This leads to the inference that Mr Lennox’s version – where he effectively denies screaming at and abusing Mr Claypole – is not accurate.

[71] There is some discrepancy in evidence of Mr Claypole and Mr Lennox concerning what happened after Mr Claypole drove out of the depot, followed by Mr Lennox.

[72] According to Mr Claypole, he pulled the truck over and got out. As he did so, his lunch box fell to the ground in front of him. As he climbed down to pick up his lunchbox and, one of his books fell out of his bag. Mr Lennox came over to him in a rage and kicked his book, which was in front of him, under the truck. If Mr Claypole had not moved his head as he was bending down he would have been kicked in the head. Mr Lennox started screaming at him again, yelling

[73] Mr Claypole said

[74] He walked away, eventually ringing his parents to tell them that he had been assaulted and sacked, and then rang a neighbour to come and pick him up.

[75] According to Mr Lennox, Mr Claypole pulled over after Mr Lennox threatened “to call the fucking police.” He denied that he kicked Mr Claypole’s book after it fell out, but says that as Mr Claypole got out of the truck it started to roll back and he got back in the vehicle, put the brake on, picked up his gear, then started ranting and raving as he walked up the road. (PN1559) He concedes that he told Mr Claypole to:

[76] In his statement he says that he did not mean by this comment that he was terminating Mr Claypole’s employment. He was so angry that he wanted him to leave so that they could both calm down. Mr Claypole walked off shouting that he was going “on compo” and that he would be back in the afternoon to collect his vending machine.

[77] Having considered the evidence of both Mr Claypole and Mr Lennox, particularly while both were being cross examined, I am more inclined to accept the applicant’s version of these particular events, including that Mr Lennox kicked Mr Claypole’s book under the truck. While this was an angry and violent act, I see no reason to believe that Mr Lennox was deliberately aiming at Mr Claypole’s head.

[78] Mr Claypole’s behaviour in complaining about losing his bonus may or may not have been justified. It has little bearing on this case. Mr Lennox’s conduct on 29 January 2007 in pouring a torrent of abuse on Mr Claypole at the Badgery’s Creek depot, and then pursuing him in his vehicle, only to pull him over and continue the abuse both verbally and through physical action was a violent overreaction.

[79] This was not just a “doozy”, to use Mr Cleary’s description. It was conduct of a kind that is completely unacceptable, whether by an employee or an employer. I accept that Mr Claypole was shocked – and indeed frightened - by Mr Lennox’s behaviour. No employee could reasonably be expected simply to continue to turn up to work as if nothing had happened. The chain of events is not consistent with a finding that Mr Claypole simply chose to leave because he was unhappy with losing his bonus. Mr Lennox may not have meant to terminate Mr Claypole’s employment on 29 January 2007, but – applying the test in O’Meara – that is what he did.

[80] Having determined that the respondent terminated the applicant’s employment, it is necessary to decide whether the termination was harsh, unjust or unreasonable.

[81] Section 652 (3) of the Workplace Relations Act (1996) (the Act) provides as follows:

[82] In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

[83] Accordingly, the first issue to be considered is whether there was a valid reason for the termination of the applicant’s employment.

[84] Mr Cleary drew attention to a clause of the applicant’s AWA which provided that certain breaches would mean instant dismissal. This included exceeding the speed limit, and unacceptable driving practices that endanger other road users, the driver or company property. He submitted that there was uncontested evidence that the applicant drove in an erratic manner in excess of the speed limit on 29 January 2007, including when he left the Badgery’s Creek site.

[85] There are clearly difficulties in the respondent claiming that they did not dismiss Claypole, but arguing as a fall back that they dismissed him for his dangerous driving. It is not correct to say that the evidence about Mr Claypole’s driving is uncontested. In particular he specifically denied driving in a dangerous manner. It is quite possible that he drove too fast on exiting the Badgery’s Creek depot but this has to be seen in the context that he had just been seriously abused by Mr Lennox and was then chased by Mr Lennox who was driving another vehicle, while continuing to abuse him over the CB radio. Given the circumstances, even if speeding were established, this would not justify dismissal of the applicant’s employment. Moreover, there are no other grounds that could constitute a valid reason for the termination of his employment.

[86] Given the way the dismissal took place, the applicant was clearly not notified in any proper manner of the reason for his termination, or given an opportunity to respond. Nor was he given any warning that was relevant to his eventual dismissal.

[87] The employer is large enough that it should reasonably be expected to apply proper human resource policies. It clearly needs to do something to train its managers in how to treat their staff. Its size and apparent lack of dedicated human resources staff provide no excuse in this regard.

[88] I reiterate my previous comments about Mr Lennox’s conduct in abusing Mr Claypole. I acknowledge that swearing and bad language are normal practice in some workplaces. Mr Claypole himself clearly swore on occasion. However there is a clear distinction between swearing and the kind of abuse to which Mr Claypole was subject. Mr Claypole was in fear of his personal safety. However “rough” the workplace, that could never be regarded as acceptable. According to Mr Mihajlovic’s statement, at one point Mr Claypole objected to Mr Lennox abusing him

[89] I agree.

[90] Having regard to all these factors, I find that the termination of Mr Claypole’s employment was harsh, unjust and unreasonable.

[91] Section 654(1) of the Act provides that the Commission may make an order providing for a remedy if it has determined that the termination was harsh, unjust or unreasonable.

[92] Section 654(3) provides that if the Commission considers it appropriate, it may make an order requiring the employer to reinstate the employee.

[93] Section 654(7) provides that if the Commission considers the reinstatement of the employee inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement.

[94] Section 654(8) states that in determining an amount for the purpose of an order under 654(7) the Commission must have regard to all the circumstances of the case including:

[95] Section 654(9) provides that any amount the Commission may order to be paid to an employee may not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the employee by the manner of terminating the employee’s employment.

[96] Section 654(10) states that if the Commission is satisfied that misconduct of the employee contributed to the employer’s decision to terminate the employee’s employment, the Commission must reduce the amount it would otherwise fix by an appropriate amount on account of the misconduct.

[97] Sections 654 (11) and (12) provide an overall “cap” on the amount that can be ordered under Section 654(7).

[98] Section 654(2) states that the Commission must not make an order providing for a remedy unless the Commission is satisfied that the remedy ordered is appropriate, having regard to all the circumstances of the case including:

[99] The applicant did not seek an order for reinstatement. In all the circumstances, I do not consider such an order would be appropriate. However, having regard to all the relevant factors referred to in the Act, it would be appropriate for there to be an order for an amount in lieu of reinstatement.

[100] In considering the appropriate amount in lieu of reinstatement I have had regard, so far as they are relevant, to the Full Bench decisions in Sprigg v Paul’s Licensed Festival Supermarket 9 and Ellawala v Australian Postal Commission10.

[101] The first step in the approach adopted in Sprigg (and further developed in Ellawala) is to estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment.

[102] Mr Claypole was very unhappy with the loss of his bonus, and his relationship with the managers at the Badgery’s Creek site was clearly fractured. There is insufficient evidence to conclude that he was on the verge of resigning; however I am satisfied that he most likely would not have remained working at ANL for more than another two months ( nine weeks) after the date when his payment ceased (6 February 2007).

[103] The second step is to deduct any money earned since termination. Mr Claypole did not earn any money during the nine week period after 6 February 2007.

[104] The third step is to discount for contingencies. Given the relatively short period in question, it would nor be appropriate to apply any discount for contingencies,

[105] The next step is to calculate the impact of taxation to ensure the employee receives the actual amount he or she would have received if they had continued in their employment. The most appropriate course would be for the employer to deduct the appropriate amount of tax as required by law.

[106] According to Ellawala any amount provisionally arrived at by application of these steps is subject to whether offsetting weight is given to other circumstances, including those specifically referred to by the Act.

[107] No evidence was presented that an order of the amount being considered would have any effect on the viability of the employer’s undertaking, establishment or service.

[108] Mr Claypole’s length of service was around 20 months. I regard this as a neutral factor in determining an amount in lieu of reinstatement, being neither particularly long nor particularly short.

[109] The applicant took reasonable action to mitigate his loss. This is borne out by his obtaining alternative employment commencing in mid-April 2007.

[110] While I have already found that the applicant’s conduct did not warrant the termination of his employment, his conduct did play some contributory part in his dismissal. It seems clear that he had overloaded the truck at Glenfield and probably has to take some responsibility for the damage to the truck. Moreover, his response to the loss of his bonus, while in no way warranting the abuse heaped on him by Mr Lennox, was not entirely appropriate or professional. I have decided to deduct one week’s worth of remuneration to take account of the requirement of Section 654(10).

[111] There are no other matters that I consider relevant to the determination of an amount in lieu of termination.

[112] This yields an amount equivalent to eight weeks’ remuneration which is to be paid by the employer to Mr Claypole within 30 days of this decision.

[113] This amount is well within the legislative cap imposed by Section 654(11).

[114] Unfortunately, there was a lack of clear evidence submitted during the proceedings concerning the precise amount Mr Claypole earned during an average week while at ANL. I direct the representatives of the parties to confer to settle the terms of the order that should be issued to give effect to this decision. If they are unable to reach agreement, either party can seek that I relist the matter.

[115] Finally, I note that the application in this matter was made on 7 March 2007, two weeks after the 21 day period referred to in Section 643(14). The employer did not object to an extension of time, and I exercise my discretion under that section to grant such an extension.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C>

 1   Easling v Mahoney Insurance Brokers (2001) SASC 22

 2   Thomson v Orica Australia Pty Ltd (2002) FCA 39

 3   Andrew Betts and Madafferi Haulage Pty Ltd (1998) AIRC Print P9303

 4   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

 5   Barclay v Nylex Corporation Pty Ltd (2003) 126 IR 294

 6   Potter v WorkCover Corporation (2004) 133 IR 458

 7   Stephen Pickerd and J & G Brunt (2004) PR945152

 8   P. O’Meara and Stanley Works Pty Ltd (2006) PR973462 (references not included)

 9   T. Sprigg v Licensed Festival Supermarket (1998) 88 IR 21

 10   N. Ellawala v Australian Postal Commission (2000) Print S5109