100106736

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MARK WISEMAN

APPLICANT

 -v-

 HILLS INDUSTRIES LIMITED

RESPONDENT

CORAM COMMISSIONER J F GREGOR

DELIVERED TUESDAY, 21 AUGUST 2001

FILE NO APPLICATION 65 OF 2001

CITATION NO. 2001 WAIRC 03577

____________________________________________________________________________

Result Unfairly dismissed that reinstatement is unavailing.  Compensation awarded

Representation

Applicant Mr D. Schapper (of Counsel) appeared on behalf of the Applicant

Respondent Mr P. Robertson appeared on behalf of the Respondent

____________________________________________________________________________

Reasons for Decision

1         On 10th January 2001 Mark Wiseman (the Applicant) applied to the Commission for orders on the grounds that he had been unfairly dismissed from employment with Hills Industries Limited (the Respondent).  He claims the dismissal occurred either in December 2000 or in January 2001, the relationship between the parties is not capable of being restored and he therefore seeks compensation for unfair dismissal.  The Respondent denies that the Applicant was unfairly dismissed, on the contrary it says that the Applicant was the architect of his own misfortune in that he abandoned his contract of employment.  That abandonment took place in early December 2000 and therefore the application filed by the Applicant on 10th January 2001 is out of time.

2         The dispute between the parties can be described in general terms, albeit incompletely, as follows.  The Applicant went on approved leave in November 2000.  While he was on leave he discovered his father was gravely ill in England and he departed from Australia to be by his side.  While he was away the Respondent formed the view that he abandoned his employment. Subsequently when he returned to Australia in January 2001 there was no job available to him.  He discovered his services had either been terminated or his employment contract was treated as being at an end by reason of the Respondent’s view that he had abandoned the employment contract in late November or early December 2000.  The Applicant says that in all the circumstances the Respondent was wrong to reach that view; the employment had come to an end either when the Respondent filled his job in December 2000 or when he returned to Australia in January 2001 and presented for work.

3         The Applicant told the Commission that he had commenced working for the Respondent on 1st July 2000, at the time he had been working for another company in the industry and the Principal of the Respondent in Western Australia, Mr Paul Knight, spoke to him and offered him a position.

4         The Applicant says that about one month into the employment he drew to Mr Knight’s attention that he had holidays pre-booked in Melbourne and Mr Knight agreed without demur that he could have two weeks leave in November 2000.

5         When November arrived he went to Melbourne, met his friends and as a matter of courtesy called in on Mr Rick Stokes, the General Manager of Pacific Communications, an associated Company.  He had informal discussions with Mr Stokes about how the Applicant’s employer was performing in Perth and expressed some views.  His leave was due to end on or about 17th November 2000.

6         In September he had been made aware that his father was unwell but there was no specific knowledge about the extent of his illness.  At that time he had mentioned the matter to Mr Knight who had suggested that the Applicant use the two weeks leave that he had booked and go to England. He declined to do that because even though his father had been diagnosed with cancer, his prognosis was unknown at that time.

7         In November during the last week of his leave he received a call from England to say that his father’s condition had deteriorated and his mother felt that he should return to England urgently if he wished to see his father who was then very ill.

8         The Applicant immediately made arrangements to go to England. According to his evidence he rang Mr Knight and told him of his predicament.  Proof that he did so, he says, is contained in  his telephone account (Exhibit S1).

9         The Applicant says he explained the situation during a short telephone call to Mr Knight, he told him exactly what had happened, he says that Mr Knight expressed his regret, the phone call ended with the Applicant saying that he would see Mr Knight on Thursday in Perth before he left for England.

10      He returned to Perth and went into the office, Mr Paul Knight was off ill but his wife Cherri was present, she saw him return his car keys, company phone and credit card, he asked her where he should put the keys.  He returned these items as he understood it was company policy for that to happen if the holder was to be absent for any time.  He left telling Mrs Knight that when he reached England he would be able to make an assessment of his father’s condition and give her more information as to when he would be returning.

11      About a week or so later when he was in possession of that information he rang as promised, he was unable to speak to either Mrs Knight or Mr Knight who was off sick again but he did speak with Mr John Todd and explained the situation to him.  He asked that Mr Todd pass on the message to Mr Knight and get him to call.  There was no response immediately from Mr Knight and so later the Applicant rang the company’s Melbourne operations explaining the situation. He was assured that he should not be worried about the situation and the person to whom he was speaking said they were sure Mr Knight would give him a call.

12      On 4th December 2000 Mr Knight called but the Applicant was not present at the house, Mr Knight spoke to the Applicant’s mother, he told her he would call back the following day.  There was another call by the Applicant to Melbourne but he waited for Mr Knight to call him the following day.  That occurred on 5th December 2000.  The Applicant says he was awakened by the call at 6:00am, he disputed with Mr Knight the suggestion that he had abandoned his employment, he vigorously assured Mr Knight that was not the case.

13      The Applicant says his pressing family matters overtook him at that stage and he was fully committed in attempting to deal with those.  They culminated with the death of his father on 9th December 2000.  Arrangements were then made for the funeral which occurred on 16th December 2000.  The Applicant said dealing with the death of his father and making arrangements to look after his mother kept him occupied until on 21st December 2000 he received advice from a friend that two letters had come for him from the Respondent.  They were read to him over the telephone and in response he asked the person who collected them to contact the writer, Ms Jane Pfitzner.  He was assured the person tried to do this by leaving a message for her on 21st December 2000.

14      The two letters are important for the disposition of this case and are incorporated hereunder:

“24 November 2000

Dear Mark

It has come to my attention that you have abandoned your employment as a Sales Representative – Major Systems with Direct Alarm Supplies, a division of Hills Industries Limited, effective Monday 20 November 2000.

I confirm that you were on Annual Leave from Monday 6 November 2000 up to and including Friday 17 November 2000.  You were expected to return to work from Annual Leave on Monday 20 November 2000.  Your absence from work now exceeds three (3) working days during which you have made no attempt to notify Hills of your intention to return to work.

Although I can confirm that your Branch Manager has advised that during the period of your leave you returned your company supplied motor vehicle and fuel and credit cards to the branch, you made no attempt to officially resign your position nor discuss this matter with him.  Are we to assume that by you returning these items, you have resigned?  As a monthly paid employee it is a condition of your employment that you provide one (1) month’s notice of your intention to resign your position.  To the date of this correspondence, you have failed to provide this notice nor notify your Branch Manager of your intentions.

Should your absence be due to illness or incapacity please contact me on (08) 83013340 by no later than 5.00pm on Friday 1 December 2000.”

Yours sincerely

  [Exhibit S2]

“8 December 2000

Dear Mark

I refer to correspondence sent to you dated 24 November 2000 requesting that you contact me no later than 5.00pm on Friday 1 December 2000 to confirm whether your absence from work since Monday 20 November 2000 is due to illness or incapacity.  To the date of this letter you have failed to comply.

As a result of your abandonment of employment, you were paid into the nominated financial institution of your choice on or around 15 November 2000 for the period up to and including 30 November 2000.  You did not present yourself to work for the period Monday 20 November up to and including Thursday 30 November 2000 nor did you notify the company of your intended absence on any of these dates.  You were also inadvertently paid for some Annual Leave which you had not yet accrued an entitlement to.  Nor have you satisfied notice requirements and as a result of your actions, we are entitled to claim payment from you for one (1) month’s salary in lieu of the one (1) month notice period required.  Consequently, the Payroll Office have calculated that monies owed by you equate to a net amount of $3,419.72.  Details are attached.

We require you to repay the total net amount of $3,419.72 by Thursday 21 December 2000 or as agreed in writing with us.

If we have not received payment for the total amount of monies owed by that date, we will commence legal proceedings to recover the monies owed.

Should you have any queries or wish to discuss this matter further please do not hesitate to contact me on (08)83013340.

Yours sincerely”

 [Exhibit S3}

 The Applicant returned to Perth on Sunday 7th January 2001.  He called Mr Knight and asked if he could see him.  In a brief conversation and was told that he no longer had a position.  The Applicant says he was shocked to be told this.

15      Thereafter he filed the Application and on 11th January he received a letter from Ms Pfitzner making demands for payment of money.

16      The Applicant says that since his dismissal he had actively sought employment, made numerous applications, had a number of interviews and eventually obtained a job in the first week of June 2001.

17      The Commission heard evidence on behalf of the Respondent from Mr Paul John Knight who is the Branch Manager of Direct Alarm Supplies which is a division of the Respondent.  Mr Knight has been the Branch Manager for nine years having started the branch on transfer from South Australia.  He told the Commission that he knew of the Applicant through the industry and invited him to have an interview, Mr Knight says that at the point of interview the Applicant had told him that he would like two weeks leave in September, to which he agreed.

18      The Applicant commenced on duty on 3rd July 2000 and in September the Applicant had told him that his father was not well.  It was at that time that Mr Knight asked him to rethink his holiday plans to accommodate the possibility of him having to go back to England.  The response of the Applicant had been aggressive, he said that his holidays were booked and he was going to take them.  This surprised Mr Knight, it seemed to him that the Applicant thought the holiday was more important than his father’s health.

19      In November the Applicant duly left on his holidays and to the knowledge of Mr Knight attended the Melbourne Cup.  According to Mr Knight he received reports from Melbourne of comments attributed to the Applicant that some of the work allocated to him on the trade counter was demeaning.  The Applicant had not raised any such issues with Mr Knight.

20      Mr Knight denied that the Applicant telephoned him on 15th November 2000, he was in the office on that day, but not on 16th when he was ill.  He was told by his wife Cherri that the Applicant had returned his company accoutrements.  When Mr Knight looked at the Applicant’s office he thought that it had been cleaned out as if the occupant had gone for good.  This was  because not only had all company property had been returned including a credit card, phone but personal items had been taken as well.  He knew nothing of the Applicant’s intentions, all he knew was that his father was ill in England.

21      Mr Knight says that he contacted the Respondent’s Human Resource Department to let them know of the absence, they then took over the preparation of correspondence.  It was a busy time for the Respondent and Mr Knight was pre-occupied with dealing with business matters.

22      On 25th November 2000 Mr Knight received an email from Mr Todd which told him of a telephone conversation Mr Todd had had with the Applicant (Exhibit R2).  The email is as follows:

“Paul I spoke to Mike yesterday, nothing much to say, he still doe’s (sic) not know when he is coming back anyway can you give him a call his UK number is 00 11 44 1243 379674 See you on Thursday”.

23      Mr Knight gave evidence that Christmas was a busy time, there was a rush and he did not have time to deal with the issue for a couple of weeks.  He described himself as being “out of the loop” and “very busy” he says that the email from Mr Todd sat in his in tray for that period.

24      It was not until 4th December 2000 Mr Knight rang the Applicant at his mother’s home in England, but was unable to make contact with him  He rang again on 5th having discovered that there had been a call by the Applicant to Pacific Communications in Melbourne in the meantime.  Mr Knight’s evidence of the response from the Applicant was that he said “you are telling people that I don’t have a job” to which he had responded “basically you have abandoned it …you left us with no authorisation” he then told the Applicant to direct any correspondence to the Human Resource Department.  Mr Knight thought the Applicant’s attitude was aggressive and he found it personally threatening.  Mr Knight claimed it was well known that the emergency call number for the company was his mobile and he could have been called at any time by the Applicant.

25      Mr Knight says that after 5th December 2000 he started negotiations with Mr Todd to take over the Applicant’s work.  He made Mr Todd an offer on 17th December 2000 which he accepted on 22nd December 2000.

26      His next meeting with the Applicant in person was on 11th January 2001 when he came in to the office.  He said the Applicant asked if his job was open, Mr Knight’s response was ‘no’ as had been explained to him while he was in England.  The Applicant then went to his office and picked up some personal effects and left.

27      According to Mr Knight the Respondent has a policy (Exhibit R4) which deals with abandonment of employment, this policy should have been known to the Applicant who would have known that under it abandonment of employment constitutes grounds for dismissal.

28      Mrs Cherri Anne Knight gave evidence on behalf of the Respondent. Mrs Knight is married to Mr Paul Knight and had worked in the business since 1991.  She recalled that the Applicant came into the office on or about 17th November 2000, informed her that he was flying to England and left keys and his mobile telephone.  They had a conversation about his holiday.  She knew he was flying out to England to see his father, who though previous conversations she knew was very ill.  The Applicant gave her no indication at all about how long he might be away.  He declined an offer Mrs Knight made for a cab or a lift to the airport.  The Applicant asked her to let Mr Knight know what had happened.

29      Evidence was also taken from Mr John Todd; Mr Todd is a sales representative who now occupies the position previously filled by the Applicant.

30      Mr Todd says on 24th November 2000 he received a telephone call from the Applicant who wanted to speak with Mr Knight, however he was off sick.  Mr Todd enquired about the condition of the Applicant’s father, he was told that it was fluctuating and the Applicant did not know how long he would be away.  Mr Todd passed on the Applicant’s telephone number to Mr Knight by email.

31      Mr Todd gave evidence that some time in December 2000 he was offered the position previously occupied by the Applicant.  In cross examination he said there were no negotiations at the time he was offered the job, they came after he decided to accept it.

32      Evidence was also taken from Mr Darren Lee Thomas, a customer of the Respondent, who had seen the Applicant on a flight to Singapore, on or around 17th November 2000.  He said he had a general conversation with the Applicant who had told him that his father was ill and he had to leave the country to go to his side.  He said that it was hard to remember exactly what the Applicant said but it was words to the effect that he could be away for a week or two weeks or maybe a month, depending upon his father’s condition.

33      The preceding is sufficient summary of the evidence in this matter for the purposes of these Reasons for Decision.

34      The Commission is required to make findings upon the credibility of witnesses. I have had the opportunity of observing the Applicant during his Evidence in Chief and during an extended and vigorous cross examination by Mr Robertson, who appeared for the Respondent.  Nothing in either phase of his evidence gives rise to any doubts about the truthfulness of his story.  There is no ground on which I could reach a conclusion that his version of events should not be accepted.

35      I have not the same comfort with the evidence of the main witness on behalf of the Respondent, Mr Knight.  There are direct contradictions between his evidence and the evidence of the Applicant.  Mr Knight was equivocal under cross examination by Mr Schapper (of Counsel) who appeared for the Applicant.  The equivocation damaged the quality of the evidence of Mr Knight, some of his responses are indicative of what can be described as a petty approach to some of the events.  Under cross examination he modified some statements made in evidence in chief, for instance whether and to what extent the Applicant had cleaned out his office.

36      As I have mentioned there has been a direct conflict between the evidence given by the Applicant and Mr Knight.  None of the evidence that was called to support that of Mr Knight remedied that problem for him.  For instance Mrs Knight gave her evidence clearly about what conversation passed between her and the Applicant, her evidence was not at odds with his evidence.  But the evidence of Mr Todd, called in support of the Respondent directly disputed the clear evidence of Mr Knight that he had been negotiating with Mr Todd over a period of weeks when they were discussing Mr Todd taking over the Applicant’s position.  Mr Todd said that there were no such negotiations and I believe what he said.  This makes it all the more difficult to accept Mr Knight’s version of events as being correct.  I conclude that where the stories of the Applicant and the Respondent particularly the evidence given by Mr Knight differ, I prefer the version offered by the Applicant.

37      In examining the issues raised by this application it appears the Respondent has proceeded with the dismissal upon the presumption that there has been a repudiation by the Applicant of his contract of employment by abandonment.

38      The Texts indicate that although repudiation may have a variety of meanings it is accepted that a repudiation will exist either when there is a breach of a condition going to the essence of the contract or when one of the parties to the contract has evinced an intention through conduct either expressly or by implication no longer to be bound by it.

39      Whether there has been a repudiation of the contract in an individual case is not a question law but a question of fact (see discussion on the concept in The Law of Employment Macken, O’Grady and Sappidean, Fourth Edition, LBC Information Service 1997).  The concept of abandonment, upon which the action of the Respondent in this case seems to be premised, involves a unilateral act by an employee which ends the relationship.  For abandonment to be established it must be shown that there was clear intention to do so, that intention may be evinced when the employee’s absence is against the express instructions of the employer, and there is a substantial absence or where the employee has acted in a manner inconsistent with an award definition of the abandonment of employment.  In Unfair Dismissal in New South Wales by Mark Baragwanath, LBC Information Services 1999, the learned author observes “…a clear indication that the employee is treating his/her employment contract as continuing, despite an absence, may have the effect of rendering the abandonment of employment a mere unauthorised absence”.

40      I need to examine the facts in the matter against the law to be applied.

41      Previously I have made findings on witness credibility, applying those I find that the Applicant was employed by the Respondent on or about 1st July 2000 in a sales position.  His evidence, which I accept, is that during his interview with Mr Knight he requested, and it was agreed, that he could take leave in the following November.  I reject the contention of Mr Knight that the request for leave was made in September.  I find that it was well known amongst the Respondent’s employees, including Mr Knight, that the Applicant’s father was ill and that there were in fact discussions about that between the Applicant and Mr Knight in September 2000.  I accept the Applicant’s version of those discussions that his father was ill with a terminal illness but his prognosis was unknown at that time, that his father’s condition deteriorated in November, that the Applicant was advised during the time he was on holidays of that situation and that the deterioration of his father’s condition was so bad that he decided, after discussing the matter with his mother, that it was essential that he returned to England to see his father before he died.

42      I accept the Applicant’s assertion that on 15th November 2000 he rang the office of the Respondent in Perth at 4:24pm and that more likely than not he had a discussion with Mr Knight during which he advised Mr Knight of the situation and of his intentions.  Even if there is any doubt about the knowledge held by Mr Knight about the Applicant’s intentions that doubt would have been removed on the following day when the Applicant attended the office in Perth to hand in his company accoutrements during which time he had a discussion with Cherrie Knight, Mr Knight’s wife.  I accept the submission of Mr Schapper that if “she knew, he knew”.  I cannot believe that Mrs Knight did not tell her husband about the Applicant’s intentions, or that his father was then gravely ill.

43      It is open to find and I do that about the time the Applicant left Australia to fly to England to see his father that the Respondent’s officers knew of his intentions.  They also knew that he was unaware of how long he would need to deal with the urgent family situation that confronted him.  His lack of knowledge in this respect is clear from the comments he made to Mr Thomas at the Singapore Airport and later to Mr Todd.

44      Having found that officers of the company were in position of the knowledge of the Applicant’s intentions to go England it is passing strange that on 24th November 2000 when Mr Knight advised the company’s Human Resources Department the Applicant had departed that he did not give this information to them.  The letters that have been produced earlier in these Reasons show no sign that the writer, Ms Pfitzner, knew of the Applicant’s situation.  It is inconceivable that a professional human resources officer would write such a letter if she were in possession of such information.  It is open to conclude therefore that Mr Knight did not tell her.

45      I accept the Applicant’s evidence that on 24th November 2000 he rang and tried to make contact with Mr Knight.  The evidence in Exhibit R2, which is an email that Mr Todd sent to Mr Knight to tell him of the phone call, supports such a finding.  That email clearly gives the contact number for the Applicant, therefore his whereabouts and contact details were known to the Respondent as early as five days after he left Australia.  On any reasonable examination of the passage of time this was the first opportunity which presented itself for the Applicant to advise the Respondent where he could be contacted.  The evidence of Mr Knight is that he did not look at that email until the 4th December 2000 he explained the delay by saying it was in his in tray but he was busy.  The conclusion that is open to be drawn is that he did not give the matter priority because he knew where the Applicant was and he knew what was happening.  The alternate view is that if he did not know he was at the very least tardy in dealing with the issue.

46      By this time the Applicant knew through contact with the Respondent’s Melbourne office and through advice received from the person accepting his redirected mail that there was a view that he had abandoned his contract of employment.  Mr Knight eventually got around to ringing the Applicant on 4th December 2000, he was not available and on 5th December Mr Knight rang again and spoke to the Applicant.  It is not at all surprising that if the Applicant was aggressive at the time it was because, notwithstanding his efforts to advise the Respondent of his intentions and whereabouts, it appeared that his job was in jeopardy.  I accept that Mr Knight said words to the effect to the Applicant that “… basically, Mark, you’ve abandoned your job….’.

47      These dates are crucial in the disposition of this matter, it is a matter of fact and not law whether there has been repudiation, and it is a matter of fact whether there has been abandonment.  At the time Mr Knight spoke to the Applicant on 5th December 2000 as a matter of fact he had not abandoned his contract and had taken every reasonable action he should have to tell the Respondent as much as he could about his intentions.  I therefore find that if it was suggested that he was dismissed on that day or knew of his dismissal on that day as a matter of fact and law that was wrong.

48      Concerning the matters after 5th December 2000 I accept the evidence of Mr Todd in preference to the evidence of Mr Knight that there were no negotiations between them concerning the details of the employment arrangements between the Respondent and Mr Todd as they would apply to the position previously occupied by the Applicant.  Mr Todd’s evidence is that he simply was offered the job and took it, there were no negotiations.  He considered the offer and a week later he told Mr Knight that he would take the job, they then discussed terms and conditions.  Mr Knight tried to give the impression that there was a series of negotiations between him and Mr Todd.  I reject those contentions as being fictional.  What they show as part of a continuum is that Mr Knight did not attend to matters arising from the Applicant’s absence with any alacrity at all.  He excuses himself by saying it was a busy time of the year, however he then relies on his own lack of attention to dealing with the matter as grounds to terminate the Applicant in that it extended the period of absence without contact from the Applicant, at least in Mr Knight’s contention.

49      The Applicant’s father died on the 9th December 2000 it is reasonable to accept that the Applicant had family and other obligations from that time and up till Christmas.  It is quite understandable that he stayed with his mother during that period and it is not unreasonable that he did not return to Australia until the 10th January 2001.  It is open to find that when he did return he made his presence known as soon as practicable and attended the Respondent’s office where he was told by Mr Knight that his job was gone and his services had been terminated.

50      On the basis of the above findings of fact I need to deal with the issues raised by the Respondent concerning the date of filing of the Application.  On the basis of the findings I conclude that the Applicant was dismissed on or about 10th January 2001.  He had no knowledge that the Respondent had appointed Mr Todd to replace him and had done so early in December 2000.  It could be found that the appointment of Mr Todd by the Respondent at that time when the contract of employment with the Applicant was extant constituted a repudiation of the contract by the Respondent.  However the Applicant was in no position to either accept or reject the repudiation because he did not know about it directly until January 2001.  Be that as it may it is clear that the contract between the Applicant and the Respondent was not available to him from the date that Mr Todd was formally appointed and if I am wrong about 10th January 2001, as the date when the Applicant was dismissed, he may well have been dismissed when Mr Todd was appointed.

51      I find the Application was filed in time and is not dismissible on that ground.

52      The determination of matters such as this depends on whether there has been a fair go all round [FMWY v Undercliffe Nursing Home (1985) 65 WAIG 305] .The events have to be considered from both points of view, it is understandable that an employer faces a dilemma when in a team of three or four, one member is absent, but against that must be weighed that the Respondent clearly knew that the Applicant’s father had been suffering a terminal illness.  Similar matters have been before tribunals previously and in E.B. Skamantzaris v Autotech International Pty Ltd (Print M8491) about similar circumstances Commissioner Merriman made the following comment “it is inconceivable that when a person is faced with a situation of the impending death of their partner that an employer would seek to sack an employee in such circumstances”.  Those are comments apposite here.  The Applicant knew of his father’s illness, he had not hidden it from his employer; he may have had a disagreement with Mr Knight in September about whether he ought to go and see his father that time.  That was a decision for him, he was in a much better position than Mr Knight to know his father’s prognosis.  The Applicant knew in November that his father was ill but his condition deteriorated rapidly and on the 14th November 2000 the Applicant was told by his mother that the situation was grave and that he should come to his father’s side.  It is perfectly understandable that he did so.

53      The Applicant did not leave the country without talking to his employer, he did all of the things that he should have done, that is he let the Respondent know.  It is a perverse view of his conduct that he returned his company equipment because he was clearing out his office.  That contention by Mr Knight is unsustainable.  There was no express instruction from the Respondent not to go.  The Respondent went about dealing with the issue in what must be categorised as a strange way.  It did not attempt to contact the Applicant with any sort of haste even though he gave them his contact number as soon as practicable.  It sent mail to him at an address that it knew would not reach him.  As I understand the law an employer is obligated to do far more than this Respondent did to ascertain whether an employee intends to continue with their contract of employment.  It is inconceivable that a professional human resource officer with knowledge of the Applicant’s situation would have written the letter that Ms Pfitzner wrote if they were in possession of the information that I find Mr Knight was.  In short there was no unilateral act by the Applicant to end the relationship, there was no clear intention to abandon and the absence was not contrary to any express instruction of the employer.  Clearly there has not been a fair go all round in this matter and the Applicant has been unfairly dismissed.  The Commission finds accordingly.

54      There has been a considerable time passed since the Applicant’s dismissal and clearly the remedy of reinstatement is unavailing and I so find.  I need now to consider the question of compensation.  The rules to be applied have been subject to a number of Decisions in this Commission, Boganovich v Bayside Western Australia (1999) 79 WAIG 8 describes these. I accept that in applying those rules the Applicant has to demonstrate that he sought to mitigate his loss, I accept his evidence that he did not work until June 2001 and that he pursued employment opportunities as best he could.  The evidence is that he accepted money from Centrelink in the sum of approximately $3,500.00 and he now has other work at $12,000.00 a year less salary than he had before.  He lost salary at the rate of $4,000 per month between January and May 2001 plus $500.00 in June which constitutes part of his loss.  There is ongoing loss which could be qualifiable at $12,000 per year and it is reasonable to allow two years loss at that rate.  In addition the Commission is to assess injury caused to the Applicant.  In the circumstances here the conduct of the Respondent could not have done anything other than to contribute to the grief and upset the Applicant was suffering at the time through the loss of his father and in the circumstances it is reasonable that a sum of $5,000.00 be awarded.  The sums that I have identified as being lost total more than the equivalent of six months remuneration.  By s.23A the Commission any award of compensation is capped a six months, the parties agree that the sum of $24,084.70 constitutes six months remuneration for the calculation of compensation.  I accept that that is the correct figure and compensation in that amount will be ordered.

55      Orders that the Applicant was unfairly dismissed, that reinstatement is unavailing and that he be paid compensation in the sum of $24,084.70 will issue.