[2010] FWA 8797

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amer Deng
v
Inghams Enterprises Pty Ltd
(U2010/9693)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 23 NOVEMBER 2010

Termination of employment - valid reason - warnings - termination disproportionate response - reinstatement.

[1] On 15 June 2010 Ms Deng lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act), through which she sought relief with respect to the termination of her employment with Inghams Enterprises Pty Ltd (Inghams).

[2] Ms Deng’s application was unable to be resolved through conciliation and was the subject of a hearing on 4, 5 and 9 November 2009. At this hearing Ms Deng was represented by Ms Price of the National Union of Workers (NUW) and Mr Luke, of counsel was granted permission to represent Inghams.

[3] The background to Ms Deng’s application follows. Ms Deng commenced employment with Inghams on 14 January 2008. She undertook various processing duties. Ms Deng worked on a full-time basis until January or February 2010 when her hours were reduced by mutual agreement, together with those of some four other employees who were not able to accommodate an hours change which involved a 6.00 am start, because of family responsibilities. Ms Deng consequently remained, for the duration of her employment, working on the basis of a 7.00 am start and reduced ordinary hours.

[4] On 8 February 2010 Ms Deng was given a warning, described as a final warning, for attendance and punctuality. She, and her union delegate argued that she should not receive this warning and refused to sign it. The circumstances relative to this warning are matters in dispute.

[5] Notwithstanding this, Ms Deng subsequently reached agreement with her supervisor such that she could arrive at work late until she made alternative childcare arrangements. The duration of this alternative agreement is also a matter in dispute.

[6] Depending on the accuracy of the Inghams time records, from the time of the February 2010 warning to the termination of her employment, Ms Deng was commonly late for an average duration of 4 minutes. There is no apparent dispute that, with one exception, Ms Deng made up all of the time associated with her lateness by working longer hours.

[7] The issue of Ms Deng’s work attendance was not further raised with her until 1 June 2010, when she was requested to meet with Inghams’ Management. A union delegate attended this meeting where Ms Deng was told that her punctuality was not acceptable. She was invited to provide a reason for her continuing lateness and explained it on the basis that she had to take her child to before school hours care. Inghams’ Management determined this not to be an acceptable reason and terminated Ms Deng’s employment. The termination of employment advice referenced various previous warnings given to Ms Deng and asserted that her punctuality had not improved. Whilst the conduct of this meeting is disputed, there is no dispute that the termination of Ms Deng’s employment was on a summary basis.

The submissions

[8] Ms Deng asserts that there was no valid reason for the termination of her employment in that Inghams was aware of the legitimate reason for her lateness and had acquiesced to this lateness. Further, this lateness did not impact on Inghams operations and Ms Deng made up any time shortfall.

[9] Ms Deng asserts that the termination of employment process followed by Inghams was flawed in that no opportunity was given to her to respond before the decision to terminate her employment was made. Further, that the warning process was flawed on the basis that the final warning given to her in February 2010 was not sustainable and the termination of employment decision did not properly take the events which had occurred since that time into account. Ms Deng asserts that the reason is contrary to the requirements set out in section 351 of the Act. Ms Deng specifically relies on an alleged breach of the Sex Discrimination Act.

[10] Ms Deng asserts that account should be had to the consequences of the termination of her employment given that she is a refugee from Sudan and a single parent. Finally, Ms Deng asserts that the termination of her employment was disproportionate to the allegations that were made against her.

[11] The Inghams position is that Ms Deng’s continued failure to attend for work at the clearly articulated time was a valid reason for the termination of her employment. Inghams assert that Ms Deng was advised of the reason for the termination of her employment and was given an opportunity, at the meeting on 1 June 2010, to explain her lateness. Whilst she cited childcare problems as a reason, this was not accepted as a reasonable excuse given earlier discussions over this issue.

[12] Inghams assert that Ms Deng had a union delegate present with her on all relevant occasions. Further, that Ms Deng had been appropriately warned that continuing behaviour of this nature could result in the termination of her employment.

[13] Inghams assert that there was no breach of section 351 of the Act or any other relevant legislation.

The Evidence

[14] Whilst I have taken all of the evidence and material given to me into account, I have summarised the evidence of the witnesses in this matter in the following non-exhaustive terms.

[15] Ms Deng’s evidence confirmed that she is a Sudanese refugee who is a single mother and who has only one other relative in Australia.

[16] Ms Deng was commonly late for work.

[17] Ms Deng’s evidence went to the extent of and reason for her lateness. She gave evidence relative to the various meetings and discussions she had with Inghams’ managers, including the discussions in February 2010 and the discussion on 1 June 2010 which resulted in the termination of her employment. Her evidence was that at various times she explained to Inghams managers that the reason for this was that she took her daughter to a before school care facility which opened at 6.45 am before driving to work and changing to be ready for duty.

[18] Ms Deng’ s evidence was that she understood from the February 2010 discussion with her supervisor, Mr Campas, that she was able to be late until she had made alternative childcare arrangements. In this respect she asserted that Mr Campas had allowed her at least five months.

[19] Ms Deng’s evidence about the 1 June 2010 termination of employment meeting was that, after she was told of the termination of her employment, she requested that consideration be given to other employment options. She asserted that this request was refused.

[20] Ms Deng’s evidence also went to her work, subsequent to the termination of employment.

[21] Ms Hollis is an employee at Inghams who worked with Ms Deng. Her evidence was that she was Ms Deng’s union delegate at the meeting in February 2010 where Ms Deng was given a final warning with respect to her punctuality. Ms Hollis provided notes she made immediately following this meeting and detailed her concerns about the extent to which a final warning could properly be issued in these circumstances. Ms Hollis detailed her version of the various discussions which followed relative to her conduct as a delegate in this meeting. Ms Hollis’ evidence was that, at this meeting Mr Campas became angry with Ms Deng’s continued advice that she was unable to get to work earlier because her daughter’s before school care was not opened earlier and that Mr Campas said words to the effect of, “I don’t give a damn, you signed the contract to be here at 7.00 am and no later”, and that Mr Campas later said words to the effect of: “I wasn’t swearing at you, I just said I don’t give a damn”.

[22] I note that Ms Hollis was herself, given a written warning for absenteeism by Mr Campas on 8 February 2010 but that this was revoked after Mr Campas agreed that it was not consistent with the Inghams’ disciplinary policy.

[23] Ms Hollis also attended a subsequent meeting with Ms Deng and Mr Campas on 12 February 2010 where Mr Campas apologised for his earlier comments but she could not recall the detail of any discussion relative to Ms Deng’s future punctuality requirements.

[24] Ms Hollis’ evidence went to the minimal effect of Ms Deng’s lateness on the work in the “Tray Pack” area in which they both worked.

[25] Mr Campas is the supervisor in the area in which Ms Deng worked. His evidence went to his general disciplinary practices and various discussions with Ms Deng with respect to issues associated with her attendance at work. Mr Campas’ evidence was that he gave Ms Deng a verbal warning on 29 January 2009. This was noted in his diary. In February 2009 Mr Campas also gave Ms Deng a written warning in relation to her poor attendance, her failure to provide medical certificates and her failure to notify Inghams of her absence in an appropriate time frame.

[26] Mr Campas’ evidence was that he gave Ms Deng a final written warning on 8 February 2010. He confirmed that, at an earlier meeting on 8 February 2010, he had lost his temper with Ms Deng and had said that “he didn’t give a damn”-presumably with respect to her concerns about family responsibilities, but that he subsequently apologised for making that comment. On 12 February 2010 Mr Campas responded to Ms Deng’s request for leniency for a further week so as to allow her time to change her out of school hours childcare arrangements, by giving her two weeks in which to do so.

[27] Mr Campas’ evidence went to changes to general shift starting times which were implemented in January 2010 such that the standard starting time was changed to 6.00 am. He explained that specific arrangements were reached with a small number of employees, including Ms Deng, to continue to start at 7.00 am in recognition of their family responsibility concerns.

[28] Mr Campas’ evidence also went to the operation of the time recording system and to the impact of Ms Deng’s lateness for work. Mr Campas relied on two different forms of time records relative to Ms Deng. These records showed different work attendance times for the same day. Mr Campas was unable to fully explain these differences.

[29] Finally, Mr Campas’ evidence was that, notwithstanding continuing lateness on the part of Ms Deng after February 2010, he had not further discussed this with her before 1 June 2010 because of additional production demands associated with a fire in the counterpart Victorian operation. Shortly before 1 June 2010, Mr Campas discussed Ms Deng’s continuing lack of punctuality with his supervisor, Mr Fox. He understood Mr Fox then discussed the issue with Mr Spackman, the Inghams Plant Manager, who made the decision to terminate Ms Deng’s employment. This termination of employment was effected on 1 June 2010.

[30] Mr Hall is a supervisor at Inghams but is not involved in the Tray Pack production area. His evidence went to his involvement as a witness in the February 2010 meetings, including his recollection that Mr Campas had allowed Ms Deng a further two weeks to change her out of school hours care arrangements so as to avoid ongoing punctuality problems.

[31] Mr Fox is the Inghams Production Manager. His evidence went to working arrangements at the plant, including the January 2010 changed shift arrangements and the agreement to allow Ms Deng to continue to start work at 7.00 am rather than the new standard 6.00 am start time.

[32] Mr Fox’s evidence went to the discussions he had with Mr Campas and Mr Spackman which led to the February 2010 final warning being given to Ms Deng and his subsequent consideration of concerns raised by Ms Hollis over the extent to which this final warning was warranted.

[33] Mr Fox recounted his discussions with Mr Campas in late May 2010 and his subsequent discussions with Mr Spackman which, he advised, resulted in the decision to terminate Ms Deng’s employment unless she could provide an acceptable reason for her continuing lateness.

[34] Mr Fox outlined his recollection of, and involvement in the meeting on 1 June 2010 which, following a brief adjournment during which he consulted with Mr Spackman, resulted in the termination of Ms Deng’s employment.

Findings

[35] Section 396 of the Act requires that, before the merits of Ms Deng’s application are considered, I must be satisfied about a number of preliminary issues. I am satisfied that none of these preliminary issues affect this application.

[36] Before considering the factors set out in section 387 of the Act, I have set out my conclusions with respect to a number of disputed issues of fact. I have reached these conclusions on the basis of my assessment of the evidence before me.

[37] I have concluded that the verbal warning given to Ms Deng in January 2009 related to days off work rather than specifically to punctuality. I consider that this is clear from Mr Campas’ diary note of 29 January 2009 in which he identified a number of staff, including Ms Deng with respect to attendance and referred to the number of days off they had and the need to provide telephone notice before the shift and to have accumulated entitlements. There is no mention of lateness for work.

[38] Ms Deng was given a written warning on 13 February 2009. This warning was for “having excessive time off from work”. It specifically referenced attendance, notification requirements, and the requirement for a doctor’s certificate. I have concluded that Ms Deng took this as a warning relative to absenteeism rather than the short times for which she was often late and that, given the wording of this warning, she was entitled to reach this conclusion.

[39] I have concluded that it is most likely that Mr Campas did remind Ms Deng of the need for punctuality at various times in 2009 but that Ms Deng did not consider this to have any significance with respect to the Inghams Employee Counselling and Disciplinary Policy (the disciplinary policy). The introduction to this policy states.

[40] Whilst the policy makes it clear that the hierarchy of disciplinary actions is such that each level is not necessarily dependent on the other, at the lowest level, it provides for verbal counsellings which are recorded on an employee’s history card. At a higher level are formal written warnings in the form of conduct improvement reports which generally precede a final warning.

[41] I have concluded that the February 2009 warning did not cover punctuality concerns on the basis of both Mr Campas’ evidence about these discussions, the extent to which the disciplinary policy is specific about management actions and, most significantly, the extent to which I have observed that while she has a reasonable grasp of the English language, Ms Deng adopted a very precise view of the disciplinary process and management instructions.

[42] At the meeting on 8 February 2010, with Mr Campas and Mr Hall, both Ms Deng and Ms Hollis were particularly concerned that a basis for a final warning had not been substantiated in that there had been no earlier warning given to Ms Deng with respect to punctuality. I have concluded that this issue and Mr Campas’ conduct in the meeting were particularly significant in terms of both the meeting and subsequent discussions. This is clear from the evidence of Ms Hollis and her notes made shortly after the meeting. It is also clear from the evidence of Mr Campas, Mr Hall and Mr Fox. I have also concluded that, in this context, Ms Deng and Ms Hollis bluntly advised Mr Campas that Ms Deng’s childcare position was the reason for her lateness and that the discussion frustrated Mr Campas causing him to lose his temper. This is clear from both Mr Campas’ and Mr Hall’s evidence.

[43] At the subsequent meeting on 12 February 2010, Mr Campas apologised to Ms Deng. Whilst this apology was accepted, there was no acquiescence that a final warning was warranted. I have concluded that Ms Deng indicated that she would change her daughter’s out of our school care arrangements within a week but Mr Campas gave her two weeks to effect this change. The evidence of Mr Campas and Mr Hall is clear in this respect and is not contradicted by that of Ms Hollis.

[44] It is possible, but not likely, that Ms Deng requested additional leniency for her lateness in terms of months. Had she done so I am inclined to the opinion that this would have been so outside of Mr Campas’ authority that it would have been rejected at the outset.

[45] It is more likely in my opinion that Ms Deng seized on the advice given to her by Mr Campas to get the out of school hours care matter resolved and relied on this as the determinant of the duration of the leniency. In this respect I have concluded that she was either mistaken or, simply continued to be late on the basis that she had told Mr Campas about her child care situation.

[46] Given my earlier conclusion that the 13 February 2009 warning related to absenteeism and should not be read as dealing with punctuality or lateness, I have concluded that the final warning given to Ms Deng on 8 February 2010 was issued in a manner which was not consistent with the disciplinary policy. This policy specifies the detailed disciplinary procedures to be followed in the form of an escalating series of actions. Whilst under the policy there is no absolute requirement that earlier warning be issued before a final warning, the importance of such a final warning relating to punctuality must be inconsistent with the objective of fair treatment set out in the introduction to this policy.

[47] Ms Deng asserts that in early May 2010 she arranged a meeting with Mr Campas and Mr Fox and sought to move to the injector work area because work in that area commenced at 9.00 am. Mr Campas and Mr Fox deny that this meeting occurred. I am inclined to the view that there was no formal meeting but do not discount the possibility that Ms Deng may have informally asked either or both of these managers about work in another area.

[48] I have addressed various other disputed issues of fact in the course of considering the factors set out in section 387. This section states:

Valid Reason

[49] I have adopted the concept of a valid reason which was set out by North J in the following terms in Selvechandron v Petersen Plastics Ltd 1:

[50] The issue in this situation goes to whether Ms Deng’s repeated lateness for work provided a valid reason for the termination of her employment. I am unable to conclude that this was the case for the reasons I have set out below.

[51] Firstly, the evidence before me establishes some doubt as to the accuracy of the Inghams’ time recording system. Not only do I accept the evidence of Ms Hollis with respect to concerns over the accuracy of the time clock system, the evidence of the Inghams supervisory staff did not explain the different time references in the two different sets of time record data which were put to me relative to Ms Deng. I have concluded that Ms Deng was commonly 1 to 3 minutes late but that the number of occasions when this occurred may have been significantly less than the 30 odd occasions from the February 2010 warning to 1 June 2010 which were recorded by the primary time recording system and introduce a substantial degree of doubt about the exactness of the allegations made against Ms Deng.

[52] Further, the evidence before me did not establish specific adverse consequences for Inghams arising from this lateness. I have noted that Ms Deng substantially made up for this late time of her own volition. I have also noted that she, along with three other employees, started work after the general shift commencement time. Adverse consequences to Inghams may have existed but, in the context of the evidence of Ms Hollis, Ms Deng and Mr Hall, I am unable to conclude that Ms Deng’s lateness caused Inghams any substantial operational difficulty. In this respect I am not satisfied that the evidence of Mr Campas establishes such adverse consequences in reality.

[53] To the extent that the evidence in this respect is contradictory, I prefer the straightforward evidence of Ms Hollis who worked in that area that the nature of the work done in the Tray Pack work area meant that Ms Deng’s periodic lateness of a few minutes duration had a minimal effect on overall production.

[54] The evidence of Mr Campas is also important in a second respect. Having identified Ms Deng’s lateness as an issue that she had two weeks from 8 February 2010 to resolve, her continuing pattern of lateness was then effectively condoned until late May 2010 during a very busy period. This is inconsistent with the subsequent decision to summarily terminate Ms Deng’s employment, on the basis that she did not comply with the February 2010 final warning.

[55] I have considered the extent to which the reason for Ms Deng’s lateness related to her family responsibilities and hence, the extent to which the decision to terminate her employment was contrary to the general protections enshrined in Part 3-1 of the Act, that it represented a form of direct or indirect discrimination, or that it was contrary to the principles underpinning section 65 of the Act. Whilst the determination of a valid reason does not require that I make a finding with respect to the allegations of discrimination, in the event that the termination of Ms Deng’s employment appeared to represent actions prohibited by the Act it would be difficult to conclude that there was a valid reason for the termination.

[56] I am not satisfied that Ms Deng has established that Inghams discriminated against her, either directly or indirectly in a fashion which is contrary to the provisions of the Act. I have noted that Inghams reached a working hours arrangement with Ms Deng which recognised her family responsibilities. I am not satisfied that there is any evidence which indicates any direct or indirect discriminatory behaviour.

[57] Section 65 of the Act deals with requests for flexible working arrangements as one of the National Employment Standards. This section has application to parents or carers of children who are under school age or under 18 and have a disability. The evidence before me establishes that Ms Deng’s family situation cannot be so described. In this context I consider it would not be appropriate to apply this Standard to Ms Deng’s circumstances.

[58] On the evidence before me I am not satisfied that Inghams has established a satisfactory pattern of lateness, with consequent adverse effects so as to represent a valid reason for her dismissal. My conclusion with respect to the valid reason consideration ought not be taken out of context. There is absolutely no doubt that Inghams is entitled to require its employees to commence on time. However, in this instance I have concluded that the evidence of lateness, the extent of that lateness and its effect, have not been sufficiently made out. Were these issues to have been established I may well have concluded otherwise.

Notification of the reason

[59] Ms Deng was given verbal and written confirmation that the termination of her employment was because her punctuality had not improved. I am satisfied that this reflected the reason for the termination of employment.

Opportunity to respond

[60] Ms Deng was requested to attend the meeting with Mr Campas and Mr Fox on 1 June 2010. She had a union delegate accompany her. Ms Deng’s evidence is that shortly after the commencement of this meeting, she was told of the termination of her employment in very blunt words. The evidence of Mr Fox is that the final decision to terminate Ms Deng’s employment was only made during a break in the meeting when he and Mr Campas spoke with the Plant Manager, Mr Spackman who concluded that Ms Deng’s continued reliance on childcare arrangements as the reason for her lateness did not represent a satisfactory reason for her behaviour in the context of the warnings given to her.

[61] I have noted that Ms Deng did not call the union delegate who accompanied her to this meeting to give evidence. That evidence may have clarified the way in which the meeting was conducted. Equally, it was open to Inghams to call Mr Spackman to give evidence as the decision maker but this was not done.

[62] On the limited and somewhat contradictory evidence before me I have concluded that whilst Inghams may have made the ‘in principal decision’ to terminate Ms Deng’s employment prior to the meeting on 1 June 2010, this decision was only confirmed after Ms Deng was given an opportunity to explain the reason for her lateness. I do not consider that this opportunity was at all extensive and am not persuaded that it was provided on the basis that Ms Deng was properly informed of the potential for termination of her employment.

Support person

[63] Ms Deng was able to have a union delegate, Ms Walker, present at the termination of employment meeting on 1 June 2010.

Warnings about unsatisfactory performance

[64] The termination of employment advice provided to Ms Deng on 1 June 2010 referred to warnings given to her on 29 January 2009, 13 February 2009 and 8 February 2010.

[65] The 29 January 2009 warning represented a verbal warning given to Ms Deng by Mr Campas. As I have already concluded, this discussion related to attendance in the form of days off work rather than punctuality.

[66] The 13 February 2009 warning was a written warning issued pursuant to the disciplinary policy. Again, it referred to attendance in terms of days off work and to notification requirements associated with such absences. It did not refer to punctuality.

[67] The final warning on 8 February 2010 did refer to punctuality, but I have already noted, it is inconsistent with the hierarchy of disciplinary actions under the Inghams disciplinary policy which would indicate that, in fact, it should have been a first formal written warning, in so far as it was the first formal warning dealing with punctuality concerns.

Size of the employer

[68] I am satisfied that Inghams is a substantial employer and have noted the existence of comprehensive policies, including the disciplinary policy.

Access to Human Resource Management expertise

[69] Inghams is an employer of such size and significance that I would have expected the involvement of human resource management expertise. I cannot however, ascertain any such involvement in this particular case.

Other matters considered relevant

[70] Ms Deng asserts that, at the outset of the meeting on 1 June 2010, she was told that she was ‘sacked’. I am inclined to adopt the evidence of Mr Campas and Mr Fox to the effect that this phrase was not used and that, in the course of the meeting she was told that her employment was being terminated.

[71] I have already noted that Inghams allowed Ms Deng to continue to be late on numerous occasions after the 8 February 2010 ‘final warning’. That behaviour is inconsistent with the final warning and must detract from the extent to which it can be relied upon.

[72] Mr Campas explained that this was because the plant was very busy with added production demands. However, this is inconsistent with Inghams’ stated concern that Ms Deng’s lateness affected productivity in that this lateness was ignored for over three and a half months.

[73] Notwithstanding that I have concluded that there was no valid reason for the termination of Ms Deng’s employment on the evidence put to me, I have considered the extent to which the summary nature of the dismissal could be regarded as a proportionate response to Ms Deng’s behaviour. Even if I had concluded that the termination of Ms Deng’s employment was for a valid reason, the summary nature of that dismissal was a disproportionate response. Ms Deng’s behaviour did not strike at the basis of the continuing employment relationship and did not provide Inghams with grounds upon which to summarily dismiss her.

Conclusion-Harsh, Unjust or Unreasonable

[74] Having considered the factors set out in section 387, I have concluded that the termination of Ms Deng’s employment was harsh in that it followed a three and a half month period after her purported final warning where her periodic lateness was ignored or condoned and was not acted upon until the dismissal occurred on a summary basis. Further Ms Deng’s behaviour has not been established to be of a character that it warranted termination of employment. It was unjust in terms of the conduct of the termination of employment meeting of 1 June 2010. Finally, it was unreasonable in so far as the termination was founded on a final warning which was itself inconsistent with Inghams’ disciplinary policy.

[75] As a consequence, I have concluded that Ms Deng was unfairly dismissed.

Remedy

Section 381 relevantly specifies the objects of this part of the Act in the following terms:

[76] Section 390 establishes that a remedy for unfair dismissal may be ordered if I am satisfied that Ms Deng was protected from unfair dismissal and was unfairly dismissed. I am satisfied relative to both requirements.

[77] Section 390(3) states:

[78] Accordingly, I have initially considered whether reinstatement is appropriate.

[79] Ms Deng seeks reinstatement. In doing so she has acknowledged the requirement that she attend for work on time and has advised that she intends to ask her only other relative in Australia to take her daughter to school to enable her to attend work by 7.00 am.

[80] Inghams is opposed to reinstatement. In doing so it relies on Ms Deng’s poor punctuality and attendance record and asserts that the necessary trust to sustain the employment relationship into the future has been destroyed.

[81] Section 391(1) sets out the alternatives with respect to reinstatement which may be considered.

[82] The evidence before me with respect to the work done by Ms Deng, the absence of identified work performance concerns other than attendance and punctuality issues, and the extent to which Ms Deng worked well with people such as Ms Hollis, supports reinstatement to the position she held immediately preceding the termination of her employment. Additionally, I am not persuaded that the employment relationship has so broken down that it cannot be recovered.

[83] Ms Deng’s punctuality and attendance record are factors that caution against reinstatement. However, I have approached the application of section 391(1) on the basis that Ms Deng must now be clearly on notice that a failure to comply with the Inghams punctuality requirements will subject her to formal disciplinary action, including possible repetition of the termination of employment decision. In these circumstances I consider it fair to give her a second chance to comply with these instructions and have accordingly concluded that reinstatement to the position held before the termination of her employment is appropriate.

[84] Subsection 391(2) provides that Fair Work Australia may make an order to maintain the continuity of Ms Deng’s employment. Given my conclusion that the termination of her employment was unfair, I consider that an order to maintain this continuity of employment and to regard the period since the termination of her employment as continuous service, is appropriate.

[85] Lastly, subsection 391(3) and (4) provide the capacity for the restoration of income lost since the termination of employment. I consider such an order to be appropriate in these circumstances. Ms Deng’s evidence was that she has worked on only a casual basis as a translator since the termination of her employment. The amount earned by her over that time was $5160 gross. I am satisfied that, given Ms Deng’s background and circumstances, this reflects a reasonable amount of remuneration which she could be expected to have earned since the termination of her employment. Accordingly, this amount should be deducted from the earnings that would otherwise apply over the period in question.

[86] An Order (PR504160) giving effect to this decision will be issued. In the event that the parties are unable to agree on the appropriate monetary amount reflecting this order, leave is reserved for the matter to be referred back to me.

SENIOR DEPUTY PRESIDENT

Appearances:

E Price of the National Union of Workers for the Applicant.

K Luke of counsel for the Respondent.

Hearing details:

2010.

Adelaide:

November 4, 5 and 9.

 1   (1995) 62 IR 371 at 373



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