FWA 1633
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Rusiate Varani
Independent Advocacy in the Tropics Incorporated T/A Independent Advocacy Townsville
SENIOR DEPUTY PRESIDENT RICHARDS
BRISBANE, 22 MARCH 2011
Summary: termination of employment – disability advocate – non-government organisation – breach of court protocols - complaint by a lawyer - whether a valid reason - compensation at high end - breach of service contract with funding authorities - consideration of contingencies - schedule of payments
 On 30 November 2010 Mr Rusiate Varani (“the Applicant”) lodged an application for a remedy in relation to his alleged unfair dismissal under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant's former employer was Independent Advocacy in the Tropics T\A Independent Advocacy Townsville (“the Respondent”).
 The Applicant’s employment was terminated at the initiative of the Respondent on 17 November 2010.
 There is no contest that the application for a remedy is jurisdictionally competent.
 It appears that the Respondent is a non-profit organisation funded by Disabilities Services Queensland and the Commonwealth Department of Families, Community Services and Indigenous Affairs to provide advocacy services for people with a disability in the Townsville area. It is said that the Respondent’s objectives are to :
 The Applicant, in essence, was employed (on 16 March 2009) as an Advocate, and as such his duties were to speak and act on behalf of clients in a range of situations. The position was at that time classified at Level 5 of the Social and Community Services (Queensland) Award 2001. The Applicant holds a Bachelor of Laws degree from James Cook University.
Prior Performance and Conduct Issues
 The Respondent, for its part, set out earlier difficulties it had experienced with the Applicant in relation to the performance of his duties. There were a range of these, including as follows:
 These matters were addressed in a meeting conducted on 17 May 2010. The meeting records indicate a detailed examination of the Applicant's performance and the articulation of a corrective course in respect of each issue 1.
 The Applicant was performance managed in relation to the improvement of his advocacy skills; the recording of his advocacy activities; and the tracking of concerns during boarding house visits, with a review conducted in June 2010 2.
 A further meeting occurred on 16 September 2010 in which issues relating to the personal use of his mobile phone (with his invoice being unreasonably high compared to other employees); the failure to provide receipts for the attendance at a conference; and the Applicant's apparent failure to obtain an Australian driver’s licence within (what became) a four month period, as he had previously agreed to do 3.
 The Applicant did not indicate that he agreed with the above allegations, though he did not challenge them in any substance.
 Indeed, in relation to the non-provision of receipts for expenses, the Applicant indicated he simply disagreed with his employer and felt the cash paid in advance was his to spend as he preferred and that he was under no obligation to provide any receipts or evidence of expenditure. Ms Coombes gave evidence that this was counter to the policy of his employer.
 Further, while the Applicant was requested to provide a statutory declaration in relation to his expenses, in lieu of his receipts, he simply refused to do so because he believed the cash paid in advance was akin to an entitlement (which was not the Respondent's policy). The Applicant's disposition in respect of the Respondent's policy and direction was as follows:
All right. Then the issue of travel allowances. You attended a conference at Marcoola Beach. Correct?---Yes.
And Alison was following up on the receipts for your expenditure?---Yes. I - yes, yes.
And it finished up – said:
Rusi is to provide myself with a statutory declaration stating the amount that was spent, and where.
Now, did you provide that statutory declaration?---No, no.
You didn’t. Now, this is - - -?---No. What was bothering me, sorry, is that when you - an allowance to go out to do a workshop or something, has to be calculated prior to your going. You cannot be given a blank cheque and then come back and then try and figure out every - that is what I was not happy about. I told, I think, one or two of the advocates in the office, “This is not - it’s not good.”
But you were given $325 cash, were you not?---I cannot remember the amount, exact amount, I took. Yeah, that - - -
Well, if I said to you the total amount was $425 - - -?---$425. Right.
And you provided no receipts for that?---Mm.
You don’t think that unusual, that your employer wouldn’t ask you to acquit for the money that you’ve been given?---They should, but the thing again is you are entitled to allowances, right, and what I believe is when your allowance is given to you, this is your entitlement 4.
4 November 2010 Email Complaint from Ross Lawyers
 It appears that on 4 November 2010 the Respondent received an email from Ross Lawyers, complaining of “interference” in a matter involving one of their clients (a Mr J) whom they were representing in the Federal Magistrate’s Court at the time.
 As background, the Applicant was at that time providing advocacy services to an individual Ms S, who was separated from her former partner, Mr J. Their two children routinely stayed at Ms S’s residence on weekends and at Mr J’s residence on weekdays. The Applicant claimed, as part of his advocacy role, that he rendered assistance to Ms S and her solicitor in relation to the Court proceedings regarding their separation and their children: this would be a matter about which he and his employer would fall into dispute.
 The email of 4 November 2010 from Ross Lawyers made the following accusations:
 Upon receiving this complaint by email the Respondent stood the Applicant down on 5 November 2010.
 The Respondent informed the Applicant in writing that his actions as alleged may have brought its services into “disrepute” and that the Applicant's actions were “quite contrary to organisational policy and procedure.” The correspondence that was directed to the Applicant included a copy of the email complaint 5.
 The Respondent requested (by way of the correspondence dated 5 November 2010) a response in writing to the allegations to be provided by 10 November 2010 – some five days later. The Respondent made clear that the direction to provide a response in writing to the allegation was in effect “show cause” correspondence and that the Applicant might seek “independent advice” (which presumably means advice independent of the Respondent). The Respondent stated in the correspondence that if it found the complaint by Ross Lawyers to be substantiated it “may” terminate his services.
 The Applicant, for his part, challenged the allegations. In his written response (dated 11 November 2010) the Applicant contended as follows (in summary) 6.
 The Respondent was “from the very beginning [...] aware that one of the issues to be advocated for was [the] client[‘s] desire to be reunited with or to be afforded a reasonable voice as to who she wants her children to be with at any given time”.
 He had never held himself out to be a “carer” of the client or the client’s children.
 There had been a previous Family Court matter in late 2009 but that had concluded. The matter on foot before the Court was a new matter.
 In the previous matter Mr J had not been represented.
 The new matter arose from a new Order issued earlier in 2010, which arose from a breach of the prior Order. The Applicant stated that he had been “instrumental, in the presence of [the] client’s solicitor, in negotiating an interim order which was favourable to [the] client.” The Applicant contended at this time that he had “advocated for what my client wanted and I believe it is part of my work as her advocate.”
 In contacting Mr J directly the Applicant stated that he was responding to the client’s request. The request was to seek the consent of Mr J to allow the children to attend a Christmas party for four hours.
 The Applicant stated that he made inquiries of the client as to whether she had sought the assistance of her solicitor. The client stated that the solicitor had informed her that “it is going to be hard” and she had not taken the matter further with him.
 The Applicant thereafter with the consent of the client, he claims, contacted Mr J. He contacted him directly as he believed that he was still unrepresented and that the Court Order was interim and as such was amenable to variation by agreement between the parties.
 The Applicant stated that “[h]ad I known that [Mr J] had, by then, retained the services of a solicitor I would not have called him and I emphasise this point very strongly that I would not have personally contacted him.”
 He acted on the basis that he “felt obligated to act according to [his] client’s wishes as a reasonable and passionate advocate.”
 On 16 November 2010, with the Respondent having considered his response, the Applicant was dismissed from his employment in writing (“the termination correspondence”). The reasons were that “it is more probable than not that you did act in breach of the legal protocols applying when a person is legally represented and particularly so when a court is involved.” 7
 The termination correspondence also stated that the Applicant's “actions also had the capacity to bring [its services] into disrepute”.
 In his submissions, the Applicant contended that the Respondent did not train its employees (including himself) in dealing with clients so far as court procedures and protocols are concerned, and that the allegations made against him were baseless, reasonably explicable, excusable and exaggerated. The claims were baseless because he had never held himself out to be a “carer” of the client or the client’s children; reasonably explicable because he did not know the Applicant was legally represented; and exaggerated because there had been no impact upon the reputation of the Respondent.
 The Respondent, for its part, contended that it had to maintain the confidence of legal service providers in order to give effect to its objectives and assist the disabled.
 The Respondent principally contends that that Ms S had indicated that her own solicitor had a view about the prospects of negotiating an increase in contact time, and that the Applicant should have advocated Ms S’s circumstances to that solicitor. Instead, the Applicant took it upon himself that he would circumvent Ms S’s solicitor and negotiate an outcome directly with Mr J.
 The Respondent claimed that the Applicant had no role to play in negotiating changes to custody arrangements and that it was beyond his expertise and the scope of his position. This was demonstrated by the fact that by his actions the Applicant had placed his own client at risk of contravening an Order of the Family Court.
 The Respondent also contends that the Applicant should have been aware of the limited scope of his position. One reason for so claiming was that a standard brochure accessible to all employees and clients indicated what advocates do, and what they do not do. In respect of the latter, the brochure made clear that advocacy services do not extend to:
 The Respondent contended that the Applicant, in interceding in the Family Court Order applying to Mr J and Ms S and seeking to negotiate a relaxation of that Order, was acting to provide legal advice and mediation services in contravention of his job function 8.
 The Respondent also contended that the Applicant was bound by the General Code and Guiding Principles (“the Code”) to “conduct [himself] in an ethical and professional manner [...] on the understanding that [he] was representing Independent Advocacy Townsville at all times whilst working.” 9 Further, the Respondent contended that the Code alerted employees that their conduct would be viewed as a “serious disciplinary matter” if they brought the Agency’s reputation into “disrepute or question”10.
 Ms Wallace of Ross Lawyers gave evidence in these proceedings that the Applicant should have been aware that he was acting outside the scope of his role as he had previously come into conflict with her over this very same issue. Ms Wallace’s evidence was as follows (in summary).
 Ms Wallace recounted that her client, Mr J, had indicated that the Applicant had communicated to him that he was a carer for Ms S and that the custodial arrangements for him were to be altered for the purposes of allowing the children to attend a Christmas Party. This would mean that Mr J would not have access to the children over the weekend, as stipulated in the Court Order 11.
 Ms Wallace stated that she shortly thereafter negotiated amended custodial arrangements with Ms S’s solicitor, which enabled Mr J to have access to the children for the bulk of the weekend but for the hours at which the children attended the party 12.
 Ms Wallace contended that Mr J was distressed and confused by the Applicant's conduct 13.
 Ms Wallace was of the view that the Applicant – had Mr J not contacted her – would have caused Ms S to have been in breach of the Family Court Order, as her client would have had to forego the prescribed contact hours with the children 14.
 Ms Wallace went on to say that:
“It is my recollection that Mr Varani and I had a telephone discussion in relation to the same parties at an earlier stage in the Court proceedings. This would have been between September 2009 and March 2010. Mr Varani had contacted me to seek an increase in time for [Ms S] to spend with the children. At this time, the children were living with [Mr J] and spending time with [Ms S] .
I advised Mr Varani that any increase in time with the children was a legal matter and should be discussed through [Ms S’s] lawyer and that I was not prepared to discuss the matter with him. Mr Varani refused to accept this and I advised that as he was Ms S’s advocate it was not appropriate to negotiate with him. I can recall that the discussion became quite heated as Mr Rusi did not accept my position. I terminated the call as no progress was being made and I was not prepared to continue the any further. 15”
 The Applicant contended that he had no recall of any such conversation, at least in the terms in which it was described by Ms Wallace.
 The relevant legislative provisions arise under s.387 of the FW Act reads as follows:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
Section 387(a): whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
 The Applicant claimed that had he known that Mr J was legally represented that he would have referred the issue of varying the Interim Order to his (Mr J’s) solicitor:
THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Muir, can I just take you back to that previous question.
Mr Varani, you say that if you had known [Mr J] was represented by a legal practitioner, you wouldn't - you would have contacted the legal practitioner about these matters?---I wouldn't have contacted [Mr J] himself.
Now, why is that the case? You must know something about the protocols?---No, because then I know that - had I known that he was still being represented, I would have just called the solicitor.
You would have done that for what reason? Why wouldn't you have - let me put it this way: if you had known that he was represented legally, would you have had the conversation with [Mr J] ?---Sorry?
If you had known [Mr J] was represented legally, would you have had the conversation with [Mr J]?---No.
Why not?---I know that if something to do with court matters and people are being represented, then the best thing to do is to - for the solicitor to - to get in touch with the representative of the other person.
The legal representative of the other person?---Yes.
So you say that these are court-related matters - - -?---Yes.
- - - and if solicitors are involved, they should be talking amongst themselves - - -?---Yes.
- - - about those court matters?---Yes.
So you understand that dealing with the solicitors in relation to court matters is an important protocol?---Yes 16.
 The Applicant said this because he understood that legal confusion might arise if such arrangements were entered into outside the knowledge of the relevant legal representatives. He also conceded that the Respondent’s reputation might be damaged if it was the cause of any such confusion, particularly as it had to maintain cooperative relationships with the legal fraternity to give effect to its advocacy role:
SENIOR DEPUTY PRESIDENT: Does IAT routinely liaise with legal representatives?---Yeah, every now and then.
And what might be the consequences of not recognising them and dealing with them in court processes? What might be the effect for IAT?---Could be seen that they are not capable or IAT is not - will not be held in high esteem […] 17.
 In defence of his actions (in not dealing with Mr J’s legal representative - Ms Wallace), the Applicant merely claimed that he had no knowledge that Mr J was represented and had acted innocently in his client’s interests.
 However, the evidence from the Applicant's own file notes, tendered by the Respondent in these proceedings after they were requested by the Applicant do not support this. His file notes demonstrate that on 30 August 2010 some two months prior to the email complaint from Ms Wallace, the Applicant had direct knowledge that Mr J was represented by Ross Lawyers 18.
 The Applicant explained this away in closing submissions as a mistake, perhaps resulting from having been rushed in recording his file notes. He said that this must be the case because he had no recollection of having had any knowledge of Mr J’s representative status.
 This was not a submission that was particularly persuasive.
 Nor was the Applicant's evidence about his recollection of the conversation at all persuasive:
THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Muir, to interrupt.
Mr Varani, it just appears to me what Ms Wallace is suggesting in that statement - and we’ll come to what her evidence is in detail later, but it’s an incident that you’d be unlikely to forget where a solicitor hung up the phone mid-conversation. You say you have no recollection of this?---No. I can remember that we spoke, but not about this matter.
So can you remember the phone being hung up abruptly?---I have a vivid recollection of it.
If you have a vivid recollection of it, what was the reason that the conversation was interrupted so abruptly?---Your Honour, I have no idea at all as to what happened that day, what happened during that phone call.
You recall the telephone call being interrupted abruptly?---I recall that I have spoken with the solicitor.
Ms Wallace?---Ms Wallace; but I can’t recall what happened during that conversation. Like, if someone - - -
Let me just stop you there. You do recall how the conversation ended?---No. I can’t even recall how it ended.
My original question to you was, do you recall the telephone conversation abruptly ending?---No, your Honour.
So you don’t recall - - -?---I can’t recall if it was abruptly - if it abruptly end, but - I can recall that I spoke with her probably once or twice or three times, but I just can’t recall this, that we ended the conversation because of some disagreement or - - -
And you don’t recall Ms Wallace hanging up the phone abruptly?---No, I can’t.
And you can’t recall having a tense - - -?---Sorry?
You cannot recall having a tense telephone conversation with Ms Wallace where you were in disagreement?---No. I can’t remember that. I think probably she was tense on some matter but I can’t remember that it was a heated disagreement or anything like that.
And you say you have no recollection of talking about [Ms S] or [Mr J]?
---As I say, your Honour, up to today, I cannot recollect what was discussed, if anything at all, on that day that she is claiming to - - - 19
 Though the Applicant’s evidence was equivocal, he eventually came to maintain that he had no recall of a prior conversation in which he and Ms Wallace had what might be described as a tense exchange over whether she would negotiate with the Applicant or his client’s legal representative (and which culminated in Ms Wallace hanging up on him). It was an exchange, which if it occurred, ought to have given the Applicant cause to act deftly in the future when dealing with Mr J and Ms Wallace regarding the propriety of his intervening in custodial issues involving the Court.
 Should I accept Ms Wallace’s evidence about her recollection of the conversation against the Applicant's denial?
 The Applicant's file notes demonstrate that he had made a notation of a conversation with Ms Wallace on 2 December 2010 in which Ms Wallace had “hung up in anger”. That conversation, according to the Applicant's notes, concerned Ms S’s request for additional time with her children and Ms Wallace’s concern about the propriety of his approach to her. Ms Wallace recalled without hesitation that the issue of propriety concerned her request to negotiate access issues only with Ms S’s legal representative, not the Applicant.
 I accept Ms Wallace’s evidence about the conversation that occurred. And given that conversation, the Applicant should have acted with greater sensitivity when next he approached Ms Wallace about a Family Court matter.
 It appears to me to be reasonable to find that the Applicant had not acted with sufficient care in his dealings with legal representatives over access issues which were the subject of a Court Order. They involve very considerable sensitivities and if not dealt with professionally can create risks. From his own evidence it is apparent that the Applicant understood this.
 It is no excuse that, as the Applicant claims, he was never trained in any such protocols and sensitivities. The Applicant's own evidence admitted to his awareness of the need to defer to the parties’ legal representatives in access matters which are subject to Court Orders. Perhaps this was because of his own legal training.
 Further to this, if the Applicant claimed that he did not know Mr J was legally represented (which his own notes show to be unsoundly based), he most clearly did know that his client was legally represented. But knowing this, and knowing (by his own admission) that there are protocols to observe in dealing with court matters where lawyers are engaged, he did not defer to his own client’s legal representative either. That is, instead of dealing with the custodial issue through Ms J’s legal representative in such matters, the Applicant took it upon himself to negotiate the change in access hours.
 But if the Applicant had knowledge all along that Mr J was legally represented, and that he must defer to such legal representatives, and that consequences may follow from intervening in custodial arrangements where Family Court Orders are in play, why did he not act differently to the way in which he did?
 This question goes directly to the Applicant's motivation.
 I do not believe that the Applicant acted maliciously in intervening directly in re-arranging the custodial arrangements between Ms S and Mr J. There is nothing revealed in the evidence concerning the Applicant's conduct that demonstrates he was seeking to subvert a custodial outcome, undermine a legal representative or gain some personal benefit. No such claims were alleged or suggested at any stage over the course of the proceedings.
 Some other motive was afoot; but there is no evidence that leads me to proffer a conclusion in this respect. It may be that the Applicant believed he could achieve an outcome quickly and without undue process; it may be that he was a “passionate advocate” as he described himself and could not define professional distances; or it may be that he believed he was equally qualified or capable of dealing with family law matters as an admitted solicitor acting under instruction. There may be some other motivation altogether. All I do know, as a matter of evidence, was that the Applicant was driven along by a motivation that caused him to neglect sensitivities he ordinarily would have recognised (given his direct knowledge and his past experience with Ms Wallace), and to act on information he knew to exist (to work through his client’s legal representative and Mr J’s legal representative).
 That all said, does this conduct, which I have found to be proven, provide a valid reason for the dismissal of the Applicant?
 Just because the conduct about which the employer has complained is proven does not mean a valid reason for the termination is established as a consequence. I need to consider the actual context in which the conduct manifested itself, and properly characterise the conduct before making a finding in this regard.
 I have already considered the Applicant's motivation above. I have not found the Applicant to have been maliciously motivated.
 Next I will consider the impact of the conduct. I very much doubt that there was a genuine threat to the Respondent’s reputation as a result of the Applicant’s conduct. One solicitor, Ms Wallace, complained about a protocol breach. Another solicitor, perhaps less sensitive to proprieties, might have rejected the Applicant’s approach, but taken the matter no further. This is especially so as the issue in question was quickly resolved by the two legal representatives within a very constrained time frame.
 The Respondent’s relationship with the regional legal fraternity, realistically, was not brought into question, nor was its reputation tarnished or its business objectives undermined in any critical way. The Respondent had stated in the letter of termination that the Applicant's conduct only had had a “capacity” to bring IAT’s reputation into disrepute. The letter, quite rightly in my view, did not suggest that the organisation’s standing had been damaged as such.
 Indeed, I suspect the whole matter could have been dealt with by briefing the Applicant on the Respondent's expectations in relation to Court matters, making clear what the scope of his functions were, and having him or a representative of the Agency apologise to Ms Wallace, if that was thought necessary, to restore the confidence of “the legal community”.
 I add that no damage was caused by the Applicant’s conduct to the Respondent's client. Her interests were unaffected, though there could have been some potential risk (for example, if Mr J had not made his position clear and Ms S had not provided the access stipulated in the Interim Order). Indeed, I have no direct evidence about the extent of Mr J’s “angst”, which is said to have arisen from the Applicant's intervention. Perhaps some other less extreme abstract noun was more applicable to his reaction, I do not know. In the end, no actual damage was shown to be done by the Applicant's conduct at an evidentiary level.
 Certainly, issues of trust and reliability arose in respect of the relationship between the Applicant as an employee and the Respondent as an employer: the Applicant's inability to respond to the obvious nuances in his role and to learn from experience was no doubt perplexing for his employer. Clearly, the Applicant did not conduct himself with a high degree of professionalism in the incident discussed above, and one is left wondering about his inherent suitability for the role in which he had found himself, in which advocates must deftly work with legal representatives.
 But I do think it is necessary to keep a reasonable perspective on the incident, noting my comments above regarding the Applicant's motivation and the actual damage done to the Respondent's reputation, and other means by which the Applicant's’ conduct might have been corrected.
 At the time in question, therefore, I do not consider that the Applicant’s conduct as it was made out to be (and which gave the reason for dismissal) to have been of such moment or consequence (despite Ms Wallace’s email complaint) to establish a valid reason for his dismissal from the Applicant's employment. As discussed above, it is a matter, on its own, that could have been addressed by means short of dismissal.
Section 387(b:) whether the person was notified of that reason
 The Applicant was given written notice of the reasons the Respondent was considering terminating his employment.
Section 387(c): whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
 The Applicant was given an opportunity to provide a written response to the reasons for his possible dismissal. He had a reasonable opportunity within which to do so and he availed himself of that opportunity.
Section 387(d): any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
 No issue arose in the evidence in these proceedings in respect of this matter.
Section 387(e): if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
 There were a number of performance issues to which reference was made in the evidence. They were not relied upon for the purposes of the dismissal proper, but they formed part of the wider factual matrix which enables me to characterise the totality of the Applicant's relationship with his employer, and vice versa.
 The Applicant was fully informed of the Respondent's concerns with his performance. He was being performance managed at a detailed level, which is surprising for such a small employer (see below).
Section 387(f): the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
 The Respondent is a small business which employed a maximum of three persons at the time the Applicant’s employment was terminated 20.
 Notwithstanding this, the Respondent afforded the Applicant an appropriate measure of procedural fairness in the manner in which it determined its position in respect of the email complaint of 4 November 2010. As set out above it stood the Applicant down, set out the nature of the concerns it had about his conduct, and provided him with an opportunity to put his response to these concerns in writing for its consideration before such time as it confirmed its course of action (which ultimately was to dismiss the Applicant).
Section 387(g): the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
 As I have commented above, despite not having any dedicated human resource specialists, the absence of those resources do not appear to have affected the procedures the Respondent applied in effecting the dismissal of the Applicant.
Section 387(h): any other matters that FWA considers relevant.
 The Applicant was not a long term employee. Duration of service is not a relevant consideration, regardless of what weighting such a concern might ultimately have been given in the circumstances.
 The Applicant’s relationship with his employer had been subject to some prior difficulties. I have detailed those above in my discussion of the evidence. They suggest to me that the employment relationship was troubled and its longevity was in serious doubt. But these are not matters that are of weight in relation to whether the dismissal, for the reasons it was effected, was harsh, unjust or unreasonable.
 There are no other concerns that warrant my attention.
 For the reasons given above, I find the Applicant's dismissal was harsh, unjust or unreasonable.
 The Applicant in this matter seeks to be reinstated. Be that as it may, it would be inappropriate to consider reinstating an employee who has demonstrated (amongst other issues) a disposition not to accept a reasonable and lawful direction by his employer to provide documented receipts for working expenses. Reinstatement in such circumstances would not be conducive to a cooperative and harmonious employment relationship (noting that the Respondent is a small employer with only three employees).
 For that reason I will consider the role of compensation in this matter.
 Section 392 of the Act reads as follows
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Section 392(2)(a): the effect of the order on the viability of the employer’s enterprise
 It was a matter of evidence in these proceedings that the Respondent has no access to funds outside of its operational budget (which meets the costs of lease payments, utilities, vehicles etc) which is funded by government sources. An order for compensation at the higher end will affect the Respondent's viability in so far as any liabilities will mean a reduction in its services and may be likely to breach the Respondent’s service contract with its government funding authorities (by causing it to operate in a deficit for the financial year).
 It is for circumstances such as this that s.393 of the Act may be applicable, which I will come to in due course.
Section 392(2)(b): the length of the person’s service with the employer
 I have previously noted the Applicant's employment history with the employer at the time of the dismissal. It was for a period of some 20 months. It is not a lengthy period of time but as a matter of judgement it does not incline me in the circumstances to reduce any order for compensation that I might make.
Section 392(2)(c): the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
 This matter requires some unavoidable measure of speculative judgment on the part of the Member concerned. As best as I can base such a judgment on the evidence before me, I do not consider that the Applicant would have remained in the employment with the Respondent for a particularly long period. There are reasons for this.
 I have found that the Applicant exhibited an insensitivity to the nuances relating to his role as an Advocate. He claimed to be aware of those nuances, appreciating the sensitivities of working through legal representatives in Family Court matters. But when faced with an actual situation, he did not detect those nuances or carefully consider the legal milieu and the sensitivities of the various stakeholders.
 The Applicant did not appear to learn from experience either, as the above evidence demonstrates.
 I add to this that the Applicant after a short period of employment was already being performance managed at a rather detailed level (in relation to issues such as time management).
 Further, on his own evidence, the Applicant demonstrated an unwillingness to abide by a reasonable and lawful direction of his employer to provide a statutory declaration to prove his expenses were legitimately claimed. The Respondent did not rely upon this issue as a basis for the dismissal. But the Applicant's refusal to accept his employer’s policy, in particularly stark terms, augurs very poorly for the longevity of the employment relationship.
 In my view, the cumulative effect of the issues on foot at the time of the Applicant's dismissal demonstrate that the Applicant would not have remained an employee for any lengthy period of time. My considered view is that the Applicant would have remained an employee for only a short period of time, perhaps no more than 8 weeks.
Section 392(2)(d): the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
 The Applicant claimed he earned no income since his dismissal over four months ago. He gave no reasons for not mitigating his losses. But I will make no deduction for this. This is because I have forecast that the operative period of loss is a short period of eight weeks. In my view the period relevant to mitigation must be the period within which the Applicant was forecast to be employed but for the dismissal (as determined for purposes of s.393(2)(c) of the Act). I take this approach because it mirrors the approach that applies in relation to deductions for income earned at s.392(2)(e) of the Act.
 I would not have expected to discern necessarily in the evidence any substantive steps towards re-employment in that time, particularly where the Applicant is a foreign national, which may give rise to some uncertainties for prospective employers.
Section 392(2)(e): the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
 This is not a relevant consideration, given the Applicant's situation as set out earlier (that is, he has earned no income whatsoever).
Section 392(2)(f): the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation
 This is not a relevant consideration, given the Applicant's situation as set out earlier. The Applicant has earned no income and continues to have no source of income.
Section 392(2)(g): any other matter that FWA considers relevant
 I have had regard to the need to reduce the remuneration to take into account any contingencies. But I have decided to make no deductions in this regard. This is because the Applicant has been taken to have likely to have worked for a relatively short period of time into the future. I do not think I should make a judgment about the prospect of contingencies arising in such a short period of time (that would cause me to reduce the order for compensation).
 Section 392(3) of the Act reads as follows:
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
 The Applicant’s conduct contributed to the dismissal. He claimed to be aware of the sensitivities of dealing with legal fraternity in sensitive Family Court matters, but ultimately (as I have found above) had no regard to those sensitivities when facing practical situations. Thereafter the Applicant claimed he had not been trained in court protocols (though he was legally trained). While I have not found the Applicant's conduct in this regard to be of the magnitude that warranted the termination of his employment, I am satisfied that his conduct in this regard, and more widely still, contributed significantly to the decision to dismiss him.
 I will reduce the amount I might otherwise order by 4 weeks as a consequence. This is a significant proportion of the compensation he would otherwise have received, but the wider conduct itself evidenced in these proceedings was a significant factor making for the dismissal of the Applicant.
 Section 392(4) of the Act reads:
Shock, distress etc. Disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
 The order that I will make will not have regard to the matters proscribed in s.392(4) of the Act.
 Section 392(5) of the Act reads as follows:
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
 Section 393 of the Act reads in these regards as follows:
To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.
 The Respondent has made an application to pay by instalments, in circumstances where an order for compensation is made. It may be that the Respondent was concerned about circumstances where an order at the high end was to be made. This is not such an order. The order is that Respondent pay to the Applicant 4 week’s salary subject to taxation.
 I will require this compensation (4 week’s salary subject to taxation) to be paid within 14 calendar days from the publication of this decision and order, to the Applicant's usual account, subject to the following condition.
 In the event that the amount ordered to be paid creates a cash-flow difficulty for the Respondent, it has leave to provide a reasonable schedule of instalment payments to me within 7 calendar days of the publication of this decision and order. If such a schedule of payments is provided, and it is a reasonable schedule of payments (which I will indicate in writing to the parties if such a schedule is provided) it will take precedence over the above order at paragraph 112.
 An order to this effect will issue along with this decision.
SENIOR DEPUTY PRESIDENT
Mr R. Varani for Himself
Mr G. Muir for the Respondent
Townsville Supreme and District Court Complex.
March 14 and 15.
1 Annexures PS 9 and PS 10 to the Statement of Pamela Spelling dated 4 March 2011 and Annexures MC1 and MC 2 to the Statement of Marnie Elizabeth Coombes dated 7 March 2011.
2 Annexure PS11 to the Statement of Pamela Spelling dated 4 March 2011
3 Annexure PS 12 to the Statement of Pamela Spelling dated 4 March 2011
4 Transcript of proceedings dated 14 March 2011 at PNS 532-541
5 Annexure PS 5 to the Statement of Pamela Spelling dated 4 March 2011
6 Annexure PS 6 to the Statement of Pamela Spelling dated 4 March 2011
7 Annexure PS 8 to the Statement of Pamela Spelling dated 4 March 2011
8 Annexure PS 1 to the Statement of Pamela Spelling dated 4 March 2011.
9 Annexure PS 3 to the Statement of Pamela Spelling dated 4 March 2011.
10 Annexure PS 3 to the Statement of Pamela Spelling dated 4 March 2011.
11 Statement of Mary Patricia Wallace dated 7 March 2011 PNS 8-9.
12 Statement of Mary Patricia Wallace dated 7 March 2011 PN 10.
13 Statement of Mary Patricia Wallace dated 7 March 2011 PN 11.
14 Statement of Mary Patricia Wallace dated 7 March 2011 PN 11.
15 Statement of Mary Patricia Wallace dated 7 March 2011 PNS 14 - 15.
16 Transcript of proceedings dated 14 March 2011 at PNS 424 - 434
17 Transcript of proceedings dated 14 March 2011PNS 472 - 473
18 Exhibit R3 Diary entry dated 30 August 2010.
19 Transcript of proceedings dated 14 March 2011 PNS 311 - 323
20 Statement of Pamela Spelling dated 4 March 2011 PN 10
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