[2013] FWC 6877

FAIR WORK COMMISSION

SUPPLEMENTARY DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Expedit (Stan) Carvalho
v
J-Corp Pty Ltd T/A Perceptions The 2 Storey Builder
(U2012/17273)

COMMISSIONER WILLIAMS

PERTH, 17 SEPTEMBER 2013

Termination of employment.

[1] This supplementary decision follows the earlier decision [[2013] FWC 4677] which concluded that Mr Expedit (Stan) Carvalho (Mr Carvalho or the applicant) had been unfairly dismissed and is to be reappointed to the position he was employed in immediately before his dismissal. That earlier decision also concluded that it was appropriate to make an order to restore lost pay under section 391(3) of the Fair Work Act 2009 (the Act). This supplementary decision will determine the amount of that lost remuneration to be ordered.

[2] The parties do not agree on the amount of remuneration lost, or likely to have been lost, by the applicant because of the dismissal.

[3] The applicant was remunerated on the basis of commissions earned on contracts he negotiated with customers to have houses built by the respondent.

[4] The parties agree that there are four building contracts relevant to the calculation of lost pay. The issues in dispute between the parties are the applicable values for these contracts, the rate of commission applicable for one of the contracts (the Cowley Deal) and finally the application of the National Minimum Wage Order 2012 [PR062012].

[5] The parties agree the applicant has earned $2 613.25 since the dismissal.

[6] The applicant calculates the amount of remuneration lost to 30 August 2013 as follows:

[7] However the respondent’s calculation is:

Evidence and Submissions

[8] Both parties have submitted that superannuation that would be payable to the applicant should be left out of the Commission’s calculations and any order made because this issue is in dispute and is the subject of a separate application in another jurisdiction. The parties’ submissions and evidence has been put on this understanding and I accordingly will not included superannuation in my supplementary decision on the remuneration lost. As a consequence of this the percentage commission used by both parties in their respective calculations is either 2.75% or 3.43% which are the equivalent of 3% and 3.75% respectively, minus any amount that arguably may be attributed to superannuation.

The applicant

[9] The applicant’s contract 1 provides in Annexure A that commissions are calculated from the “Commission Base Price” which is defined as the Base Retail Price paid to the company as noted in the Preparation of Plans Agreement, plus fixed price variations (i.e. no provisional sums) plus Allowances that are built into the Base Retail Price or have full margin included.

[10] The parties each have a different Commission Base Price. The applicant has used the Base Retail Price plus Fixed Variations. The respondent has used another price. The respondent has not accounted or explained to the applicant how the respondent’s Base Retail Price is calculated.

[11] The applicant contends that the Base Retail Price he has used for the calculation of commissions is correct being based on the provisions in the written contract in Annexure A.

[12] The respondent has also used a different commission rate from that used by the applicant.

[13] The Schedule of Rates contained in Figure 1(a) to Annexure A has no application to the applicant. He is not (and never was) a consultant holding a real estate sales person’s licence.

[14] The agreed commission rate between the applicant and the respondent was at all times prior to 1 July 2012, 3% for less than 4 sales per month.

[15] After 1 July 2012 the rate was changed by the respondent (and accepted by the applicant) to be a flat rate of 3.75% which meant that from then on there was not an increased rate for more than four sales per month.

[16] The applicant has therefore used this rate for the calculation of his commission claimed for all the deals or contracts.

[17] The applicant agrees that he has been paid the sum of $14 706.42 on the Cowley Deal but disputes that this is all that is due and relies upon his calculations for the correct sum.

[18] The second area of disputation is whether the applicant is entitled to payment of the minimum wage for the weeks during which he is paid no commission.

[19] The applicant contends that:

[20] The National Minimum Wage Order 2012 provided for a minimum wage of $606.40 per week up until 1 July 2013.

[21] A total of 36 weeks will have elapsed from the date of dismissal until the further hearing of this matter on 30 August 2013.

[22] Assuming that the four deals which are common ground between the parties as attracting a commission would have been paid in separate weeks this leaves 32 weeks during which the applicant was entitled to be paid the minimum wage.

[23] The applicant disputes that he is a pieceworker as provided for in the Act and the Fair Work Regulations 2009 (the Regulations).

[24] Section 21(1)(c) of the Act provides for award/agreement free employee, that a pieceworker is one who is in a class of employees as prescribed by the Regulations as pieceworkers.

[25] Regulation 1.12 provides as follows:

“1.12 Meaning of pieceworker

[26] The remuneration on commission for the negotiation and achievement of the signing of a contract for the construction of a house for the respondent based on a percentage rate does not fall within the definition.

[27] Consequently the averaging calculation from Regulation 1.09 to determine a pieceworkers base rate of pay have no application to the applicant. The respondent’s reliance on this to argue the National Minimum Wage Order 2012 has complied with is wrong. The national minimum wage amounts are remuneration lost that should be include in the amount to be ordered by the Fair Work Commission.

The respondent

[28] The Fair Work Commission’s ability to make an order to restore lost pay is set out in section 391(3) of the Act, which provides:

[29] The clear purpose of this provision is to ensure that a person who has been dismissed and reinstated by an order of the Fair Work Commission is not disadvantaged and left out of pocket for remuneration which they have lost or would otherwise have earned had they not been dismissed.

[30] It is not for the purpose of assisting a reinstated employee to make a claim for remuneration to which they say they are entitled but has never been paid. A claim of this nature, which would be a claim for a different entitlement and therefore a different claim, should be brought as an application under section 539 of the Act.

[31] The respondent submits that the order which the Fair Work Commission should make is one which would restore the applicant to the actual financial position he would have been in had he not been dismissed by the payment of his actual earnings, not what he contends he should have been paid but was not in fact paid. In other words what he would actually have received in the hand between 18 December 2012 and the date of reinstatement (the Period), had he not been dismissed and had instead remained in continuous employment.

Calculation of Commission

[32] Clause 6 of the applicant’s contract provides that the applicant is entitled to remuneration in accordance with the formula in the Commission Schedule in Annexure A to the contract (or some other commission payment as nominated by the respondent in respect of sales relating to group housing, promotional or tendered projects).

[33] The respondent submits commission becomes payable during employment when the relevant home building contracts becomes unconditional (clause 6.7).

[34] The applicant asserts that Annexure A of the contract does not apply to him on the basis that it is headed: “for Consultants holding real estate sales person’s licence” which he does not hold. This assertion is wrong for the following reasons:

[35] Clause 3 of Annexure A provides:

“3 Commissions are calculated from the "”Commission Base Price”.

[36] The Commission Base Price (CBP) is calculated from the sum of the Base Retail Price (BRP), and any fixed price variation less any allowances built in to the BRP.

[37] The Preparation of Plans Agreement (PPA) is the agreement entered into at the initial stages of a client sale. The BRP is now referred to as the Standard Price in the PPA. The BRP does not include site works. GST is also not included by virtue of clause 6.4 of the contract.

[38] Any fixed price variation and any allowance in the BRP can be ascertained from the Home Building Contract (HBC).

[39] Once the CBP is ascertained, the respondent calculates the percentage commission which is due.

[40] The respondent’s position is that throughout the applicant’s employment since September 1999 the applicable commission rate paid has been 3% inclusive of superannuation. Whether or not the 3% rate includes superannuation is in dispute between the parties.

[41] An exception to the respondent’s practice of paying 3% commission (inclusive of superannuation) has been when the respondent has agreed to pay a higher rate of commission for a limited period, such as for promotions to stimulate sales amongst its sales representatives. This occurred in 2012 when there was a temporary increase in the commission rate to 3.75% inclusive of superannuation for HBC’s signed between 1 August 2012 and 31 October 2012.

[42] It is common ground between the parties that four of the applicant’s HBCs have become unconditional during the Period. Two of the HBCs (Kurgat and Collie) were signed and became unconditional between 1 July 2012 and 31 October 2012 and a commission rate of 3.75% (inclusive of superannuation) applied.

[43] The HBC for Cowley was signed up on 28 November 2012 and the HBC for Williams was signed up on 30 May 2012. The standard 3% commission therefore applied to these.

[44] In accordance with the table annexed to the witness statement of Mr Stuart Brown 2, had the applicant remained employed, he would have been paid $41 467.13 in commission during the Period.

National Minimum Wage

[45] The applicant wrongly contends he is entitled to the national minimum wage for the weeks when he did not receive payment of commission. In those weeks when he did not receive payment of commission he did not receive any payment. This has been the case since the inception of the contract. It is not only a term of his employment but also the basis and manner in which he has been remunerated since the very beginning of his contract.

[46] It is common ground that the applicant is a national system employee, an adult worker and that he is award/agreement free.

[47] The National Minimum Wage Order 2012 obliges an employer to pay an employee a base rate of pay that must at least equal the national minimum wage (clause 4.3).

[48] Clause 3.1 of the National Minimum Wage Order 2012 provides that the base rate of pay is defined in the Act. Section 21 of the Act provides that the definition in respect of pieceworkers is provided by the Regulations.

[49] The applicant is paid a rate of commission for each home that he sells, irrespective of how many hours he works. If he does not produce any output in terms of sales, he is not paid commission, and has not and will not receive any remuneration.

[50] The respondent refers to the definition of peaceworker in Regulation 1.12 and submits the applicant is a pieceworker. The examples used in Regulation 1.2 do not define what or who is a pieceworker. It merely provides a non-exhaustive list of some examples to assist in the understanding of what or who is one.

[51] “Piecework” is defined in the Macquarie Dictionary (Fourth Edition) as:

[52] “Piecework” is defined in the Shorter Oxford English Dictionary (Sixth Edition) as:

[53] On any proper construction of the facts the applicant is a pieceworker. He is paid on the basis of a quantifiable output.

[54] Regulation 1.09, to the extent it is relevant and applicable in this case, relevantly sets out the manner in which the base rate is calculated for pieceworkers who are award/agreement free. This provides that:

[55] The correct order, to the extent to which it is relevant and applicable is the National Minimum Wage Order 2012. Under this order, the correct weekly rate is $606.40 per week or $15.96 per hour.

[56] The applicant actually earned $92 095.54 in the 12 months prior to 30 August 2013. Assuming he worked on a full-time basis, his base rate of pay applicable was $46.61 per hour (or $1 771.18 per week), far in excess of the national minimum wage at that time.

[57] The purpose of the national minimum wage is to provide a minimum safety net for low earning employees. The effect of ordering the payment of the minimum wage under section 391(3) of the Act, which cannot in the respondent’s submission be ordered, would be to provide the applicant with a windfall for which no provision has been made in the contract. This outcome would not be consistent with the statutory purpose underlying the legislation for the payment of the minimum wage. Moreover, it would amount to a payment which he has not ever received in the whole of the time he has been employed by the respondent.

[58] The statutory predecessor to sections 391(3) and (4) of the Act were sections 654(4) and (5) of the Workplace Relations Act 1996 (the WR Act).

[59] The wording is very similar to that now contained in the Act.

[60] Section 654(5) of the WR Act was inserted into the then legislation by the Workplace Relations Amendment (Work Choices) Bill 2005 (No. 153, 2005). The applicable explanatory memorandum at the time said at Item 125 that the section was being inserted to:

[61] Those additional matters were the income earned during the period between dismissal and reinstatement and likely to have been earned by the employee during the period between the making of an order for reinstatement and actual reinstatement.

[62] It is submitted that recent authorities have confirmed that the calculation of lost pay

[63] Where in previous cases there has been a degree of uncertainty as to what an applicant would have earned due to variable hours and variable over time the applicant’s past remuneration has been relied upon as was the position adopted in C McClean v Transfield Services Ltd [[2013] FWC 2573] at paragraph 139 were the Fair Work Commission explained:

[64] A claim for an entitlement to the minimum wage is properly the subject of a separate claim. It is beyond the jurisdiction of the Fair Work Commission in this application.

[65] Finally it is submitted that the wording in section 391(3) of the Act demonstrates the Fair Work Commission’s decision is discretionary. The Fair Work Commission is to make an order it considers appropriate. It is submitted that in this case it would be improper for the Fair Work Commission’s discretion to be exercised to make an order which would provide Mr Carvalho with a windfall gain and such that he would be placed in a better financial position than he would have experienced had he not been dismissed.

Legislation

[66] The Act in section 391 provides the power for the Fair Work Commission to order an applicant’s reinstatement and to order the respondent employer to pay to the applicant an amount for the remuneration lost, or likely to have been lost, by the applicant because of the dismissal.

Consideration

Was the 3.75% commission applicable to all sales?

[67] It is agreed between the parties that the applicant was a sales consultant and the arrangements that determined his remuneration were set out in the Agreement for Home Building Sales Consultants (the agreement) 3.

[68] Annexure A to the agreement at 3.1 explains that commissions are calculated on the Commission Base Price which is defined as the Base Retail Price paid to the respondent as set out in the Preparation of Plans Agreement which a customer enters into.

[69] Annexure A at 3.2 says that provisional sum allowances are not included in the Commission Base Price nor are area loadings, landscaping allowances, additional legal fees and sales promotional giveaways that do not have full margins. Both parties accept that this provision of the agreement was applicable to the applicant.

[70] The evidence of Mr Carvalho 4, Mr Dias5 and Mr Baker6 was that there was sliding scale of commissions payable dependent upon the number of sales a consultant achieved in a month. The commission paid for up to 3 sales per month was 3%, if four or five sales were achieved per month the commission rate was 3.75% and when six or more sales were achieved per month the commission was 4.5%. I find that this was the scale of commissions payable prior to early July 2012 and that this had been in place for Mr Carvalho since as early as 1999.

[71] The evidence is clear that at sales meetings on 2 July 2012 and again on 23 July 2012 Mr Baker advised the sale consultants who were in attendance at those meetings, including Mr Carvalho, that the commission rate would be increased from 3% to 3.75%.

[72] The parties however disagree as to whether the increase to 3.75% was for a limited period or not. The respondent submits that the increased rate of commission was only applicable for sales achieved up until the end of October 2012. The applicant submits that the increase to 3.75% was ongoing.

[73] The witness evidence on this question is split. Mr Carvalho and Mr Rogers gave evidence that Mr Baker at the time of advising of the increase in commission to 3.75% did not advise that it was limited to sales contracts achieved by the end of October 2012 and that the increase applied from 1 July 2012.

[74] However Mr Baker and Mr Dias gave evidence that at the time Mr Baker announced the increase in commission to 3.75% he also said that this was for sales achieved up until the end of October 2012 and it applied from 1 August 2012.

[75] The respondent tendered the “Perceptions Meeting Notes” for the sales meetings on 2 July 2012 and 23 of July 2012 7 which were effectively minutes of those meetings. The notes for the 2 July 2012 meeting simply record “commission structure changed to flat 3.75%” and the notes for the 23 July 2012 meeting record “3.75% commission”.

[76] The evidence is that these notes were prepared by Mr Baker’s personal assistant.

[77] These notes confirm that the increase to commissions was first mentioned in the 2 July 2012 meeting and again during the 23 July 2012 meeting. The dates when this matter was raised with the sales consultants, being after 1 July 2012 and before 1 August 2012 is consistent with the evidence of Mr Dias and Mr Baker that the increase was to commence from the beginning of August 2012 and so I do not accept the evidence of Mr Carvalho and Mr Rogers that the increase was to apply from 1 July 2012.

[78] Mr Baker was the newly appointed General Manager having taken up his position in May 2012. The evidence is that in the lead up to this increase in the commission rate it was generally accepted that the level of sales had been poor for a number of years.

[79] Mr Baker says that the increase to commissions was one of a number of other actions taken to improve the businesses operations. One of those was to relocate the business to reduce its overheads. Other actions included new product promotions and some price point promotions.

[80] Mr Baker’s evidence was that the situation was desperate and he needed to generate sales activity urgently.

[81] Mr Baker explained that the reason the increase from 3% to 3.75% was only for three months was that without an end date it would have been unlikely that the sales representatives would have felt an urgent need to get sales finalised, which was what he wanted to achieve in order to generate construction work. Mr Baker believed the respondent’s sales model meant it took a long time for sales to be finalised and setting a finite date for the commission increase was more likely to encourage the sales consultants to urgently increase their sales activity in the short term to capitalize on the temporarily increased rate of commission 8.

[82] The evidence of Ms Burgess was that some time prior to the hearing of this matter Mr Baker had explained to her that the commission increase to 3.75% was for sales between the period of 1 August 2012 and the end of October 2012. Mr Baker’s evidence was that this discussion he had with Ms Burgess occurred well before the preparation of evidence for these proceedings.

[83] Having considered the conflict in the evidence over the question of whether the increase in commissions from 3% to 3.75% was only for sales achieved through to the end of October 2012 there are a number of indicators that leads me to conclude that I prefer the evidence of Mr Baker and Mr Dias on this point.

[84] Firstly as noted above the timing of the sales meetings where the increase in commission was discussed being 2 and 23 July 2012 is consistent with the respondent’s witnesses’ view of the commencement date for the new commission arrangement than that of the applicant’s witnesses.

[85] Further the evidence of Ms Burgess confirms Mr Baker’s evidence on this issue is not a recent self-serving invention. In addition the evidence of Mr Baker as to the business circumstances that led him to make the decision to increase the commissions to 3.75% and the reasons why the increase should only be for a limited time are a coherent contextual explanation for the change which does support the respondent’s position.

[86] Finally the applicant’s view that the increase to 3.75% was to be a permanent increase does not explain how the rest of the sliding scale of commissions was to be applied for the future. It appears the applicant’s position is that all sales, whether one, two, three, four, five or six or more in a month, would be paid at the same rate of 3.75% commission. On balance it is unlikely that either the respondent or the sales consultants themselves would have with apparently little discussion agreed to such a sweeping permanent change to the commission arrangement, notwithstanding the difficult sales environment they were all experiencing. It seems unlikely the sales consultants would not have expressed some concerns that replacing the sliding scale commission arrangement with a flat 3.75% commission regardless of the number of sales in a month would deny them the benefit of the higher commission rate of 4.5% should they in future achieve six or more sales in a month when the market improved.

[87] Considering all the evidence my conclusion is that as the respondent has submitted the increase in commission to 3.75% was for a limited time and applied only to sales achieved by the end of October 2012.

Provisional Sum Allowances

[88] Annexure A of the agreement at paragraph 3 specifies that provisional sum allowances, area loadings, landscaping allowances etc, additional legal fees and sales promotional giveaways that do not have full margins, are not to be included in the Commission Base Price to which the commission percentage is applied.

[89] I accept the evidence of Mr Brown the Administration Manager that the manner in which the respondent has calculated that the commissions payable to the applicant for the various sales as detailed in the attachments to his witness statement is the same as would have been applied by the respondent had the applicant not been dismissed and remained in employment.

[90] Mr Brown has given specific evidence that the deductions from the Commission Base Price of the value of the respective site works for each of the houses in question is consistent with the agreements provision that provisional sum allowances are not to be included in the Commission Base Price 9 and I accept that this is correct.

[91] Whilst Mr Carvalho takes a different view of how the calculations should be performed it was acknowledged that this was probably the first occasion on which there has been any forensic examination of the commission calculation and there is no evidence, beyond simple contrary opinion, against the evidence of Mr Brown that the respondent’s determination of various amounts as being provisional sum allowances is incorrect.

[92] My conclusion is that the calculations by the respondent and in particular their deduction of various amounts as provisional sum allowances is correct.

The National Minimum Wage

[93] The evidence is that the remuneration the applicant received during his employment was commissions on sales achieved and occasional bonus payments. The applicant has not during his employment been paid any amounts other than these. This would have continued to be the case had the applicant not been dismissed.

[94] The applicant submits that under the National Minimum Wage Order 2102 he is entitled to payment of the minimum wage for the weeks during which he was paid no commission and therefore for the period since he was dismissed these amounts are to be included in the remuneration lost.

[95] The respondent argues against this firstly in principle pointing out that when considered over a period such as 12 months the applicant has received remuneration from the respondent well in excess of what the National Minimum Wage Order 2012 would require an employer to pay an employee and then specifically by submitting that in any event the applicant would be a pieceworker under the Regulation 1.12 and the averaging calculation that would then apply would mean because of the commissions owing to the applicant the respondent has more than satisfied the terms of the National Minimum Wage Order 2012.

[96] The respondent has also pointed to case law to the effect that an applicant should not receive a windfall gain through the application of section 391(3) of the Act. On this basis it is argued that the applicant should not receive more by order of the Fair Work Commission than he would have been paid had he not been dismissed. The respondent urges the Fair Work Commission to not exercise its discretion in a manner that would provide the applicant with a windfall gain.

[97] The applicant’s position however is that payment to the applicant of a statutory entitlement such as the national minimum wage is not a windfall gain at all and the fact that the respondent has not correctly paid the applicant in the past should not be to the detriment of the applicant at this point.

[98] Section 391(3) of the Act provides that the Fair Work Commision can order the restoration of lost pay where the Fair Work Commission “...considers it appropriate to do so...” and that any order will be one the Fair Work Commission “... considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.” Clearly the making of such orders is a discretionary decision.

[99] Considering the applicant’s submission I doubt that ordering payment of a particular amount or form of remuneration to a dismissed employee which an employer had never previously paid whilst they were employed could be said to be ordering payment for remuneration “lost” or “ likely to have been lost” because of the dismissal. In the case here had Mr Carvalho not been dismissed he would not have been paid the national minimum wage at all. To have lost remuneration because of a dismissal is to have been deprived of that remuneration or to be without that remuneration because of the dismissal. It is difficult to accept that amounts that would not have been paid to the employee had they not been dismissed is remuneration the applicant has lost. I believe the Fair Work Commission should be cautious about adopting an interpretation of section 391(3) of the Act that would cause the Fair Work Commission to make an order that has this effect.

[100] The applicant accepts that the national minimum wage would not have been paid to the applicant had his employment continued and the dismissal not occurred. What is argued is that the national minimum wage was an entitlement and so should have been paid had the dismissal not occurred. The applicant’s approach to section 391(3) of the Act requires the Fair Work Commission to effectively embark upon an audit to determine whether the manner in which the respondent has in the past calculated the applicant’s remuneration was correct and if it is not correct what the correct calculation should be. This approach has the potential in many cases to be a complex matter in itself which will inevitably delay the determination of the substantive unfair dismissal application. This approach would be at odds with the Objects of Part 3-2 Unfair dismissal prescribed in section 381 of the Act which include establishing procedures for dealing with unfair dismissals that “...are quick, flexible and informal...”.

[101] I am also hesitant to adopt the applicant’s approach to previously unpaid statutory entitlements because what the applicant seeks is not merely the Commission’s interpretation as to whether the applicant is entitled to payment of the national minimum wage and the extent of those payments but also for the Commission to order the respondent to pay these amounts. Ordinarily should an employee have an entitlement to payment under the National Minimum Wage Order the Commission would not be empowered to order an employer to pay this amount. The compliance and enforcement powers under the Act are reserved to the courts under Chapter 4 Compliance and Enforcement of the Act and I have grave doubts that the Commission can or should be applying such powers even in this situation.

[102] I also note that the applicant’s view that the entitlement is to be paid the national minimum wage for any week in which the respondent did not pay commissions of at least that amount needs to be reconciled with the more limited requirement imposed on the respondent by section 323 of the Act, which only requires an employer pay an employee amounts payable for the performance of work at least monthly.

[103] It is also significant that the determination of the national minimum wage issue has implications for the respondent employer far beyond the question of an order for lost pay for the period since the applicant’s dismissal. The issue may have relevance for a much longer period of the applicant’s employment and also potentially for other employees of the respondent. The applicant’s approach to the issue of the national minimum wage in these circumstances raises matters of interest to the respondent that stand outside the question of whether Mr Carvalho was unfairly dismissed and remedy for that unfairness. To that extent I do not believe that determining this issue in these proceedings is fair to the employer and for the Commission to do so would be at odds with the Objects of Part 3-2 Unfair dismissal prescribed in section 381(2) of the Act below:

[104] My conclusion on this point is that I should not make a determination as to whether or not the applicant is entitled to the benefits of the National Minimum Wage Order 2012. Even if I concluded the applicant was entitled to minimum wage payments I would not consider it appropriate to exercise my discretion to order such payment in the circumstances here and consequently I will not consider whether amounts payable under the National Minimum Wage Order 2012 should be included in an order for lost remuneration. I am comforted in adopting this approach by the fact that the applicant and the respondent’s respective rights regarding any such disputed entitlements will not be determined by the decision and order the Commission issues in this application. The applicant is not prevented from separately pursuing any entitlements he believes have not been paid through other applications including applications in other jurisdictions.

Summary

[105] I find that the amount of remuneration lost, or likely to have been lost, by the applicant because of his dismissal was $41 467.13.

[106] Further I find that the amount of remuneration earned by the applicant from employment or other work during the period between his dismissal and the making of the order for reinstatement is $2 613.25.

[107] Of the amount of remuneration lost the respondent has already paid the applicant $14 706.42.

[108] Consequently an order will be issued for the balance of the amount of remuneration lost being $24 147.46 to be taxed according to law and paid within 21 days of the date of that order.

[109] This order will be issued in conjunction with an order that Mr Carvalho is reappointed to the position in which he was employed immediately before his dismissal and that the continuity of Mr Carvalho’s employment and the period of Mr Carvalho’s continuous service with the employer will be maintained.

COMMISSIONER

Appearances:

P Mullally of Workclaims Australia for the applicant.

A Power of Counsel for the respondent.

Hearing details:

2013.

Perth:

August 30.

 1   Exhibit A1, Document 4.

 2   Exhibit R6.

 3   Exhibit A1, Document 4.

 4   Transcript at PN1087.

 5   Exhibit R9 at paragraph 4.

 6   Exhibit R8 at paragraph 5.

 7   Exhibits R4 and R5.

 8   Transcript at PN1294.

 9   Ibid., at PN1211 and PN1238.

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