FWA 3407
Download Word Document
The attached document replaces the document previously issued with the above code on 8 June 2011.
The document has been edited to correct the date from 31 May 2011 to 8 June 2011.
Associated to Senior Deputy President Richards
Dated 9 June 2011
 FWA 3407
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Patricia Bender
Raplow Pty Ltd
SENIOR DEPUTY PRESIDENT RICHARDS
BRISBANE, 8 JUNE 2011
Summary: whether resignation – repudiation – misinterpretation of employer’s correspondence - clarification rejected - deferred payment in lieu of notice - extension of time - whether dismissal harsh, unjust or unreasonable – prior resignation affects length of projected service – subsequent earnings not deducted - reasons - contributory misconduct - context reduces deduction.
 On 31 December 2010 Ms Patricia Bender (“the Applicant”) lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). The Respondent was Raplow Pty Ltd, the Managing Director of which is Mr Robert Jones. The Respondent is based in Gympie, where it performs contracted mail delivery services to Australia Post.
 Between what I understand to be 1 July 2008 and 3 December 2010, the Applicant performed mail delivery and mail sorting duties for the Respondent.
 The Applicant contends that up until August 2010 the working relationship between herself and Mr Jones had been sound.
 In August 2010, the Applicant claims, however, that the working relationship “deteriorated”.
 The actual reasons for the deterioration in the working relationship seemed to concern issues of trust arising from various day-to-day interactions. The Applicant put it this way in her evidence-in-chief:
Were there reasons for that?---Just due to, you know, honesty issues we’d had between us, not necessarily, you know - just a general deterioration.
Can you just give me a list of the sorts of factors that were in your mind that caused you to take that action?---Mr Jones was treating me differently to before and I just had noticed in the few weeks prior that some of the things he was saying to me were not necessarily true and had been embellished to make him look better than possibly he could have. An example of one thing was that one day he told me that he was encouraging somebody he knew - they were doing a write-up as volunteer work and that would appear in the Country Life magazine. Later on when I saw a similar article it was in the Gympie Life magazine and they’re totally different, you know, things. You know, the Country Life is a Queensland-wide magazine. The Gympie Life is a little Gympie rural newspaper. I heard him on one occasion with a co-worker say that he had to put the amount of GST on his invoice to Mr Jones because Mr Jones, and I’ll quote his words, he said that his accountant needs to know how much GST is on an invoice, and I find it very hard to believe an accountant would need to know how much GST is on an invoice.
Was there a series of issues of that kind?---Yes 1.
 The Applicant claimed that the working relationship had deteriorated to such a degree that she “gave Mr Jones notice of [her] intention to leave” 2. In fact, Ms Jones revealed in her evidence-in-chief that she had formally resigned and given four weeks notice.
You rang him on a Saturday morning. What did you say?---I can’t remember the exact words, your Honour, but I do remember saying that I was giving a month’s notice of my intention to leave 3.
 Mr Jones’ evidence was that this occurred in September 2010. It appears that at that time Mr Jones did not wish to lose the Applicant as an employee and requested that she stay on 4. The Applicant agreed to do so, conditional upon their relationship improving5.
 The relationship did not improve.
 The Applicant seems to have fallen into dispute with Mr Jones about the payment due for work performed on 11 October 2010. This issue concerned whether the Applicant should have been paid for 9.5 hours work instead of 9 hours work. The Applicant appears to have corresponded with Mr Jones about these and some other concerns. Mr Jones’ reply is couched in civil terms, addresses the issues, and includes an apology as well 6.
 For Mr Jones’ part, he was of the view that while the Applicant's duties did not take 4 hours a day to complete, she would be paid for four hours a day in accordance with the minimum hours requirements of the applicable award. The Applicant was also said to have been paid $3.47 per hour more than the relevant award and was permitted “to take the van home” 7.
 In return Mr Jones expected that the Applicant (indeed he assumed she had contracted with him to this end) would not be paid for the first half hour of any overtime she worked, should such a requirement arise. Mr Jones was of the view that the Applicant was paid for thirty hours a year which she did not work 8. The exchanges between the Applicant and Mr Jones appear to have had some variants as well.
 A further issue relating to the adequacy of the Applicant's pay appears to have emerged in November 2010 along with an issue concerning the safety of the vehicle the Applicant was required to utilise to effect postal deliveries 9 . In respect of the safety of the vehicle, Mr Jones claimed it was roadworthy at all times and that the Applicant had previously driven the vehicle without complaint10.
 The parties appear in December 2010 to have again fallen into dispute about payments and the roadworthiness of the delivery vehicle. The Applicant at this time wrote to Mr Jones directly.
 On 1 December 2010, Mr Jones strongly rejected an allegation seemingly made by the Applicant that he had been “ripping [her] off” and countered with an implied claim that she had made misleading statements about her hours.
 While addressing what he believed to be the appropriate payment, he also requested an apology from the Applicant. His written response, drafted that same day, included the following words, reproduced verbatim:
Please find enclosed cheque for wages earned for November of $1500-00 obviosly this is not the correct amount, however due to your typing error memory loss or what ever ten the days when you worked three or less hours, having said that you always said you where as quick as me.
Stealing is a sackable offence your invoice would suggest you arte trying to steal from me.
You ACCUSED me of ripping you off.
The two days you where sick , two junk mails 9 hours / the other 8/!/4 hours where is the rip off, if you have a problem huge day e,c.t. you knew I would have paid you.
YOUR HONESTY putting in for hours not worked how stupid do you think I am I know you have not worked the hours put infor,
WHEN YOU COME UP WITH THE CORRECT AMOUNT YOU WILL BE PAID ACCORDONLY.
However your appoligise for your accusations of me trying to rip you off over your wages need to be forthcoming...
wIf you can not admit you are wrong about out me then it is obvious you do not want to work for me any more, fine end of storey good bye .
Finish Friday all holiday pay will be paid due to you as at the 19th of December sorry it had to end this way, but it was your choice , please return current vehicle to 651 Wilson pocket road Gympie. (sic) 11
 The Applicant read this correspondence on Thursday, 2 December 2010 in Mr Jones’ presence. While the Applicant and Mr Jones had an exchange about the method of calculating the Applicant's wages, their respective unflattering personal views of one another, the Applicant’s punctuality and the safety of the vehicle being used to deliver the mail, the subject of the Applicant's employment status was not discussed until the following day 12. At that time (3 December 2010) the Applicant sought clarification as to which Friday she was intended to conclude working for the Respondent. Mr Jones was alleged to have answered that the Applicant could finish working on “whatever Friday you want.”13
 The Applicant claimed that at that time she declared she would not drive the Corolla sedan referred to above to complete her duties as it was un-roadworthy or unsafe. Further, she claimed that upon stating this, Mr Jones said he did not require her if she could not complete her substantive duties. The Applicant claimed that because of this statement, she left work early that day.
 Mr Jones’ version of events is that he posed the question to the Applicant that she could resign her employment if she wished. Upon the Applicant enquiring as to when she could do this, Mr Jones stated “right now” 14. When the Applicant asked when she would be paid, Mr Jones said “20 December 2010”. The Applicant was then said to have replied “I will see you on 20 December 2010” and left the workplace15.
 Putting aside the two competing constructions above, the Applicant appears, on her version of events, to have then left work and indicated she would return to collect her pay on 20 December 2010 in accordance with Mr Jones’ correspondence of 1 December 2010.
 Having left work, the Applicant contacted the Fair Work Ombudsman, who informed the Applicant that as she “did not get immediate dismissal” and the Respondent had not paid out all her wages at the time, she was required to work out her notice period (that being the period up until and including 17 December 2010) 16.
 It appears that upon resuming her duties the next working day (Monday, 6 December 2010) Mr Jones inquired why the Applicant was at work when he believed her to have resigned her employment on the previous Friday (3 December 2010). The Applicant for her part contended that she had been dismissed at the Respondent’s initiative. It seems the Applicant and Mr Jones repeated these claims to one another for some time 17. The conversation then shifted to underpayment issues from November 2010.
 The Applicant continued to present for work for the next 10 days. Mr Jones assigned no duties to the Applicant, re-affirmed his interpretation that she had resigned on 3 December 2010, and part paid her (with the balance outstanding) what he believed to be her outstanding entitlements by cheque. The Applicant refused to accept that she had resigned and disputed the accuracy of her holiday entitlement as calculated by Mr Jones.
 The relationship between the parties had become, it is alleged by the Applicant, more acrimonious by this point with Mr Jones swearing at the Applicant and indicating to her in correspondence dated 8 December 2010 that he had taken out a “restraining order” 18 .
 In this same correspondence Mr Jones indicated that he had warned the Applicant in the past that should she resign again (as she had as indicated above) he would not accept her back into the workplace. His current actions were in fulfilment of that undertaking 19.
 The Applicant continued to attend for duty in subsequent days and claims that on each occasion she encountered Mr Jones he ignored her. On 16 December 2010, the second last day of the Applicant working, it appears the Applicant and Mr Jones did begin to converse once again. The Applicant informed Mr Jones that she was prepared to work until the end of her notice period. Mr Jones offered her work for the following day but the Applicant indicated that she was not available in the prescribed hours 20.
 The Applicant nonetheless presented for work the following day, and apart from sitting in the smoko room, appears to have carried out some limited duties redirecting mail 21.
 On Monday 20 December 2010 the Applicant returned the Respondent's vehicle and all the relevant clothing and other items. On her own evidence, the Applicant thereafter commenced training with another mail contractor at the same site 22. The Applicant appears to have persisted with her efforts to resolve underpayment issues with Mr Jones, and eventually sought the direct assistance of the Fair Work Ombudsman23.
 The Respondent contends, in documentation created on 25 December 2010 under Mr Jones’ signature, that the Applicant refused to perform her duties and went home on 3 December 2010.
 The Respondent's documentation suggests the Applicant returned to work on 6 December 2010 but refused to perform any duties. This accords with the Applicant's evidence.
 Thereafter, it appears (so the Respondent's materials suggest) that the Applicant opted to go home stating that she would return on 17 December 2010. The Applicant, it is said, returned to work on 7 December 2010 and asked what duties she should perform 24.
TERMINATION AT THE EMPLOYER’S INITIATIVE
 As is evident from the above, an issue of jurisdiction arises, and that concerns whether or not the cessation of the employment relationship arose at the initiative of the employer or as a result of the resignation of the Applicant. The Act relevantly states as follows in this regard:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or [...]
 It appears to me first of all that, on the balance of probability, the Applicant left work early on Friday, 3 December 2010 because she had drawn the inference that the correspondence of 1 December 2010 had caused her dismissal, in the context of Mr Jones’ further utterances. I reach this conclusion (albeit it not without some anxiety) because it appears to me that the steps the Applicant then took to seek advice from the Fair Work Ombudsman about the correspondence of 1 December 2010 is consistent with this construction.
 If this were not the case, there would appear to me to be some disjunction in the Applicant merely having left work early because she was not required that day and her subsequent action in seeking advice about the “dismissal” correspondence. Indeed, the Applicant's own evidence was that she told Mr Jones on the Friday that “I will come back on the 20th to get my pay.” 25
 This appears to me to accord with the evidence of Mr Jones, which I accept, about what was actually said by the Applicant on the morning of Friday 3 December 2010:
Yes, as best as your recollection - - -?---It was basically stated that she wouldn’t drive the Corolla and basically I just turned around and said, “Well, you know, I’ve got no other vehicle and I’ve got to load the parcels. I’m going,” and she said - and then somewhere in that conversation came the, “Define the Friday,” and I’m not exactly sure which order it was in, and I said, “If you want to you can go this Friday,” and she said, “Okay, I will. When will I get paid?” and I said, “I get paid on the 20th. I will have all your severance pay ready then.” That’s where the conversation with the pay came in. As to which order that was in, it’s too long ago to remember that.
Do you believe you had dismissed - what led you to form the view that the applicant had resigned her employment?---Because she said she’ll see me on the 20th. She said, “Right, I’ll go.” That’s - I mean, when I ask a person the question if you can go this Friday, if they say, “Well, okay, I’ll go. I’ll see you on the 20th,” well, to me that’s saying, “I’ve resigned.” 26
 Having so concluded, did the Applicant resign her employment or was she dismissed at the initiative of her employer?
 It appears to me that the Applicant and the Respondent were in contest in respect of a number of issues prior to 3 December 2010, and that led Mr Jones to write to the Applicant in terms which included the following concluding words:
If you can not admit you are wrong about out me then it is obvious you do not want to work for me any more, fine end of storey good bye .
Finish Friday all holiday pay will be paid due to you as at the 19th of December sorry it had to end this way, but it was your choice , please return current vehicle to 651 Wilson pocket road Gympie. (sic) 27
 The first paragraph is suggestive of a decision being in the hands of the Applicant to resign her employment if that was her wish. If read in isolation, the second paragraph might be taken to be construed as an indication that the Respondent no-longer wished the Applicant to continue to work for him (though the paragraph does suggest the decision not to continue working for the Respondent would be the Applicant's choice). An inference of this kind is more likely to be drawn when the paragraph is referenced to the earlier allegation of “stealing”.
 Read together (as a continuous paragraph), however, the correspondence might reasonably suggest that the Respondent indicated that the Applicant could resign if she wished to, and if she did so, she could finish on Friday and be paid until 19 December 2010 (and pick up her pay on 20 December 2010).
 This construction of the correspondence conforms to the Respondent's evidence. That is, having put the question of her continuing employment squarely before her, the Applicant left work and did not return that day. The Respondent construed the Applicant’s conduct as being an indication that she had resigned her employment and was no longer willing to perform services under the contract of employment. Additionally, having warned the Applicant previously that a further resignation would not be permitted to be rescinded, the Respondent accepted the resignation as irrevocable.
 The circumstances, however, become more complicated when the Applicant returned to work on the following working day (Monday 6 December 2010), and requested to perform duties based on the assumption that she had been terminated at the Respondent's initiative and was required to serve out a notice period (up until Friday 17 December 2010). According to the Applicant the exchange on Monday, 6 December 2010 went as follows:
When I went back to the desk to get the “registered print out”, Mr Jones asked me “What are you doing here?” I replied, “Doing parcels”. He told me not to do anything as I had quit on Friday. I denied this and told him, he had sacked me. He denied it and told me I had quit. We repeated this a couple of times. I told him if he didn’t want me to come to fill out the form I had given him. He said he would not fill out the anything I gave him as I had quit.” 28
 As I have explained immediately above, Mr Jones viewed the Applicant's contention as being a means by which she was seeking to withdraw her resignation (for the second time).
 I do not think this factual matrix yields to the view that the Applicant resigned her employment. This is because upon being informed of the Applicant's construction of the intent of the correspondence of 1 December 2010, Mr Jones reasonably should have recognised that the Applicant's conduct could not be construed to have been a considered resignation, or any form of repudiation at all. It was conduct premised on an arguably mistaken reading of her employer’s intention (by way of the correspondence of 1 December 2010). Arguably, the Applicant's interpretation of the intent of the correspondence of 1 December 2010 was informed by the history of conflict between herself and Mr Jones.
 I must therefore conclude that on the factual matrix, as I have established it to be, the Applicant did not repudiate her contract of employment such that she demonstrated in some manner an intention not be bound to her contract of employment. Lest it be misunderstood, in the statutory as opposed to the contractual context, I am not of the view that the factual matrix supports a finding that the Applicant resigned her employment or intended to do so (at this juncture at least).
 I say this even though I can recognise the context within which Mr Jones (armed with his knowledge of the Applicant's prior resignation, only some two months earlier) approached his construction of the Applicant’s conduct. The crucial circumstances that Mr Jones failed to consider was that the Applicant returned to work the next working day and indicated to him that she had construed his conduct (by way of the correspondence as cited) as constituting a dismissal and, in effect, that she therefore intended to work out her notice period.
 Mr Jones’ evidence was candid in this respect:
Yes. Did you reconsider your view on the Monday when the applicant reappeared?---No, because I’d made up my mind by then that I was going to advertise for somebody new and I’d also made up my mind that I couldn’t work with her anymore.
The applicant brought to your attention that she was of the belief that she didn’t resign. Did she tell you that?---She did.
Did you have any discussion about that at all, about why she was of that belief?
---Well, it was a bit ridiculous, really. She said she didn’t and I said she did.
So it went back and forth in the manner that the applicant mentioned?---Yes, and there was no outcome to it, really, although on the Monday she did say whether she resigned or whether I sacked her that she had to work the two hours - sorry, the two weeks 29.
 The fact that the Applicant clearly stated the very next working day following her departure from the workplace that she had interpreted the correspondence of 1 December 2010 as being a dismissal (which Mr Jones had not intended), should have given cause for Mr Jones to reconsider the totality of the circumstances in which the parties found themselves and the reality that a misunderstanding of some magnitude had taken place. No such reconsideration followed. Mr Jones, as his evidence revealed above, had closed his mind to reconstructing the reality of the circumstances.
 Having so concluded, it follows that the dismissal took effect on 6 December 2010 when Mr Jones, apprised of the Applicant's interpretation of his correspondence, refused to review the Applicant's conduct and treated her as if she had (again) resigned her employment. From that time, Mr Jones declined to direct the Applicant to perform any duties and ignored her, at least up until 17 December 2011 when he assigned her some minor mail sorting duties (about which I will say more below).
 On this construction then, Mr Jones, having dismissed the Applicant on 6 December 2010 and by further ignoring her presence in the workplace and not assigning any duties to her after that time (with the one exception noted above), must be taken to have dismissed the Applicant on the basis of payment in lieu of notice (with the payment being deferred until 20 December 2010).
 I very much doubt that the fact Mr Jones assigned the Applicant some minor mail sorting duties on the last day of her attendance at work (which was 17 December 2010) leads in any way to a conclusion that the dismissal took effect on that day. The Applicant's contract of employment was compromised fatally by Mr Jones’ conduct on 6 December 2011, as set out above. If anything, when the Applicant conducted duties at the direction of Mr Jones on Friday, 17 December 2011, she arguably did so pursuant to a new contract of employment (based presumably on the conditions existing in the prior contract), or else the duties performed on that single (final) day were performed as a day’s notice (with the other nine days being paid in lieu of notice).
EXTENSION OF TIME
 In light of this finding, another issue arises which goes to the competence of the application. That is, was the application made in a time frame consistent with the requirements of s.394(2) of the Act.
 It appears to me that I must determine whether the application that is before me is within jurisdiction in relation to the requirements of s.394(2) of the Act. This is because 396 of the Act reads as follows:
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
 The question of compliance with s.396 of the Act arises because the dismissal (as I have found it to be) took effect on Monday 6 December 2010.
 The application now before me is made some 11 days beyond the time period envisaged under s.394(2) of the Act, which reads as follows:
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
 The application under s.394 of the Act was not made until 31 December 2010. This is 11 days after the date on which the application should have been made in compliance with s.394(2)(a) of the Act.
 It appears to me, however, that even if I accepted that the Applicant was dismissed at the initiative of the employer on 6 December 2010, the circumstances which caused the delay in making the application are exceptional circumstances. It appears that s.394(3)(c), s.394(3)(d), and s.394(3)(f) of the Act are of essentially neutral effect on the discretionary consideration as to whether to allow the application in another period.
 Section 394(3)(e) of the Act is sufficiently agitated before me to allow me to conclude at this juncture (given that no issues of jurisdiction were raised at any point prior to my consideration of the submissions and evidence) that the application arguably has merit, and that this must weigh in favour of allowing the (late) application.
 There is nothing in the factual matrix that demonstrates the Applicant acted under s.394(3)(b) of the Act other than by making this application. This is explicable in the context of the reason for the delay, which I will now consider below.
 I also add that there is no evidence before me that allows me to conclude that there might be any reasonably-based prejudice accruing to the Respondent in the event the application was allowed. The Respondent was provided with an opportunity to put on evidence in relation to this matter at the time of the hearing.
 In relation to the requirements of s.394(3)(a) of the Act, the Applicant’s conduct after 6 December 2010 was based on the advice given by the Fair Work Ombudsman. According to the Applicant, the Fair Work Ombudsman informed her that as the dismissal had not been “immediate”, she was still required to attend to her normal duties in the workplace. The Applicant herself appeared to have believed otherwise at first, but demurred to the advice of the Fair Work Ombudsman.
 This is the principal reason why her application was not made either on 3 December 2010 or on 6 December 2010, but left to a time after 20 December 2010, which was the date the Applicant was led to believe was the point at which her notice period ended and her dismissal took effect. As it was, the application was lodged 11 days after 20 December 2010 (which the Fair Work Ombudsman appears to have believed was the last day of the notice period), but 25 days after the dismissal took effect, which was on 6 December 2010.
 I think it is reasonable that a person who acts on the advice of the Fair Work Ombudsman, or any other related body formed in part for the purpose of providing assistance to the public, should not be held liable for that advice where it causes conflict with statutory requirements.
 In all, in so far as the Applicant's employment came to an end on 6 December 2010 at the initiative of the Respondent, the application nonetheless must be allowed in another time period (for purposes of s.394(2)(b) of the Act) because the circumstances for the delay in making the application in accordance with s.394(2)(a) of the Act constitute exceptional circumstances.
WAS THE DISMISSAL HARSH, UNJUST OR UNREASONABLE?
 The relevant legislative provisions in these regards arise under s.387 of the FW Act, which reads as follows:
387 Criteria for considering harshness etc.
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)
 It appears to me that on the basis of the factual matrix disclosed above, there was no valid reason for the dismissal of the Applicant. This is because the Applicant did not seek at this time to repudiate her contract of employment. The Respondent (through Mr Jones) misunderstood the Applicant's motivation, and but for this misunderstanding on his (Mr Jones’) part, the Applicant would have continued to remain in the Respondent's employment.
 I make this final finding not only on the evidence discussed above, but on the evidence of Mr Jones that he had no intention of dismissing the Applicant at the time, particularly in the context of the busiest period for mail delivery being imminent 30.
Section 387(b): whether the person was notified of that reason
 Given the above circumstances, this consideration is not relevant.
Section 387(c): whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
 Given the above circumstances this consideration is not relevant.
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
 Given the above circumstances this consideration is not relevant.
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 had been discussions between the parties about performance issues. That is, Mr Jones had brought to the Applicant's attention his concerns about the slow pace of the delivery of mail, and appears to have attributed this to the Applicant talking socially en route. However this matter was not developed in Mr Jones’ evidence and does not appear to have been directly or indirectly influential on his decision making (as it was).
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, as defined under the Act. But the circumstances of the dismissal are not circumstances that warrant any causal relationship with the size of the employer’s enterprise.
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
 Nothing was put to me about the manner in which the absence of human resource management specialists impacted on the procedures followed in effecting the dismissal. It might reasonably be inferred that had the Respondent had access to such resources Mr Jones would not have written to the Applicant in the imprecise terms that he did, or dismissed the Applicant’s claims that the correspondence of 1 December 2010 had brought about her dismissal. But in the factual matrix relevant to this application, none of these issues are “procedures followed in effecting the dismissal”.
Section 387(h): any other matters that FWA considers relevant.
 There are no other relevant circumstances to which I need to give consideration.
 The relationship between the Applicant and the Respondent was under stress at the time Mr Jones wrote his correspondence of 1 December 2010, which the Applicant read in his presence on 2 December 2010. What followed was a misunderstanding founded in that very context.
 Notwithstanding this, Mr Jones bears responsibility ultimately for presuming the Applicant had repudiated her employment (by resignation) when, after sufficient demonstration within a short period of time, it was made clear (in an objective sense) that she had not done so, and reasonably could not be taken to have done so.
 There being no other relevant matters within the factual matrix, I must therefore find that the Applicant was dismissed in a manner that was harsh, unjust or unreasonable.
 The Applicant does not seek to be reinstated and is employed with another mail contractor, as well as in other capacities. It follows that reinstatement in such circumstances would not be conducive to a cooperative or productive employment relationship (noting that the Respondent is a small employer) and, in any event, would in all likelihood serve no practical end.
 In any event, it is evident from the demeanour of the parties at the hearing (and as also revealed in both parties’ evidence) that a harmonious outcome would be an unlikely result from an order of reinstatement.
 For these reasons 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
 No submission was put in relation to this consideration. Section 392(2)(a) of the Act is predicated on the terms of the order being known at the time of the consideration of its impact.
Section 392(2)(b): the length of the person’s service with the employer
 The Applicant was not employed for a long period; only some 18 months.
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 employment with the Respondent for a particularly long period at all. There are reasons for this.
 Firstly, the Applicant and the Respondent had been in dispute for some time. The exchanges between them had become particularly personalised. On 2 December 2010 the Applicant ‘s evidence suggests that:
Mr Jones told me “I’m sick of your sh.t” to which I replied “Feelings mutual there.” 31
 The Applicant's further evidence demonstrated that the working relationship had soured in the months prior to December 2010. This is evidenced in the Applicant’s particularly minor perceptions of dishonesty and competence on the part of Mr Jones, which are set out at paragraph 5 above. These issues were minor in nature, but indicative of the extent to which the relationship was exposed to stress arising from the most minor of transgressions.
 Secondly, the Applicant had already resigned her employment in late 2010 (only a short time before the above incidents), and only Mr Jones’ intercession had persuaded her to continue in employment. She remained in the Respondent's employment conditional on their relationship improving. Demonstrably, the relationship did not improve from that time on.
 For these reasons, I do not think that the Applicant would have remained in the Respondent's employment for more than two weeks, at the very most (though a strong case might be made for an even shorter period).
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, on her own evidence, commenced employment with another mail contractor the day following what she believed to be her final day of notice.
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
 I have detailed records of the Applicant's earnings since the time of her effective dismissal. These records do not satisfy me that in the period of anticipated employment - two weeks after her effective dismissal - that the Applicant had any earnings or remuneration. I have not deemed any social security related transfers as remuneration as it was not earned remuneration in the sense contemplated by s.392(2)(d) of the Act.
 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 been 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, known period of time (that would cause me to reduce the order for compensation).
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
 The order must be given effect two weeks after the date on which it is issued. This does not mean that I should take into account two week’s further earnings. This is because it is open to the Respondent to make payment within a shorter time. Consequently, I will make no deduction for the purposes of s.392(2)(f) of the Act.
Section 392(2)(g): any other matter that FWA considers relevant
 There are no other matters arising from the factual matrix that I consider to be relevant.
 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.
 In the current circumstances, the Respondent’s dismissal of the Applicant was not directly intended. Rather, it flowed from Mr Jones’ (mistaken) presumption about the circumstances he faced as an employer (which I have considered above). Arguably, if the Applicant had not left work prior to the ordinary finishing time upon receiving the correspondence of 1 December 2010, the employer would not have reached the decision he had about her intentions (which were subsequently clarified in the following days). That is, absent the self-initiated absence by the Applicant on Friday, 3 December 2010, Mr Jones would never have presumed the Applicant had resigned or abandoned her employment, and the basis for this application would not have been made out as the factual matrix would have been altogether different.
 The scale of any reduction must be considered in the relevant factual matrix. Accordingly, the Applicant's misconduct gives cause to reduce the amount that would be otherwise ordered, in this case, appropriately in my view, by 10% only. I measure this reduction at this nominal level because the misconduct itself resulted from the correspondence of 1 December 2010, which was open to misinterpretation, and was not lucidly explained to the Applicant by Mr Jones. In other circumstances, a greater reduction may have been applied.
 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 392(5) of the Act and s.392(6) of the Act are not applicable in the circumstances.
 What the circumstances as set out above indicate is that the Applicant should be paid an amount as compensation in lieu of reinstatement as follows:
Two weeks of the average weekly remuneration the Applicant received over the past 6 months (subject to ordinary taxation), less 10%, to be paid no later than 14 calendar days from the date of the order issued along with this decision.
 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 may indicate in writing to me within seven days of the date of the order that the financial circumstances of the enterprise are such that it is necessary to pay the amount required in instalments. The Respondent will also need to include a schedule of instalments, which will be approved only if it is reasonable. If such a schedule is pressed, I will communicate to the parties in writing whether I find it reasonable and whether it replaces the timetable anticipated in paragraph 99 above.
SENIOR DEPUTY PRESIDENT
Miss P. Bender for Herself
Mr R. Jones for the Respondent
Gympie District Court.
1 Transcript of proceedings dated 25 May 2011 at PNS39-41.
2 Statement of Patricia Bender dated 30 March 2011 at PN5.
3 Transcript of proceedings dated 25 May 2011 at PN38.
4 Statement of Patricia Bender dated 30 March 2011 at PN5 and Statement of Robert Jones, undated at PN5.
5 Transcript of proceedings dated 25 May 2011 at PN47.
6 Annexure 4 to the Statement of Patricia Bender dated 30 March 2011.
7 Statement of Robert Jones, undated at PN2.
8 Statement of Robert Jones, undated at PN 3.
9 Statement of Patricia Bender dated 30 March 2011 PNS 12-14 and Annexure 8 to the Statement of Patricia Bender dated 30 March 2011
10 Statement of Robert Jones, undated at PN 10 and Transcript of proceedings dated 25 May 2011 at PN 275.
11 Annexure 10 to the Statement of Patricia Bender dated 30 March 2011.
12 Statement of Patricia Bender dated 30 March 2011 at PNS 15-16.
13 Statement of Patricia Bender dated 30 March 2011at PN 18.
14 Statement of Robert Jones, undated at PN 11.
15 Statement of Robert Jones, undated at PN 11.
16 Statement of Patricia Bender dated 30 March 2011at PN19.
17 Statement of Robert Jones, undated at PN 12.
18 Annexure 15 to the Statement of Patricia Bender dated 30 March 2011.
19 Annexure 15 to the Statement of Patricia Bender dated 30 March 2011.
20 Statement of Patricia Bender dated 30 March 2011 at PN 30.
21 Statement of Patricia Bender dated 30 March 2011 at PN3.1
22 Statement of Patricia Bender dated 30 March 2011 at PNS 32 - 33.
23 Annexure 19 to the Statement of Patricia Bender dated 30 March 2011.
24 Annexure 20 to the Statement of Patricia Bender dated 30 March 2011
25 Statement of Patricia Bender dated 30 March 2011 at PN18.
26 Transcript of proceedings dated 25 May 2011 at PNS 171-172.
27 Annexure 10 to the Statement of Patricia Bender dated 30 March 2011.
28 Statement of Patricia Bender dated 30 March 2011 at PN 20.
29 Transcript of proceedings dated 25 May 2011 at PNS 176-179.
30 Statement of Robert Jones, undated at PN 16.
31 Statement of Patricia Bender dated 30 March 2011 at PN 16.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR510071>