| FWC 3126
|FAIR WORK COMMISSION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Heidi Cannon
Poultry Harvesting Pty Ltd
MELBOURNE, 6 MAY 2015
Application for relief from unfair dismissal.
 Heidi Cannon was dismissed from employment with Poultry Harvesting Pty Ltd (Poultry Harvesting) on 5 November 2014. After her dismissal she commenced an application for unfair dismissal remedy under the Fair Work Act 2009 (the Act).
 The application was initially made against “Geminian Investments Pty Ltd”, trading as “FOGGEM”, however the parties agreed that the proper Respondent should be Poultry Harvesting Pty Ltd, with the Applicant seeking an amendment to the application to that effect at the start of the hearing of the matter, and the representative for Poultry Harvesting Pty Ltd indicating their consent.
 Section 396 of the Act requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any initial matter required determination. In relation to the elements within s.396, I make the following findings;
In this regard, I note that Ms Cannon’s employment with Poultry Harvesting and its predecessor was as a chicken harvester/machine operator working to gather for slaughter live chickens at various locations on the Mornington Peninsula, South East of Melbourne. She had been employed in these duties for some years, since 2008. Her original employment was with a predecessor employer, FOGGEM Pty Ltd (FOGGEM). Owing to the liquidation of that entity, Ms Cannon’s employment moved to Poultry Harvesting Pty Ltd (Poultry Harvesting) and the parties agree that she was employed by that entity after 21 October 2014. The parties also agree that a transfer of employment occurred between the two entities. Accordingly, Ms Cannon has worked the minimum employment period referred to within s.383 of the Act, with service with FOGGEM being counted as service with Poultry Harvesting.
 An issue that requires determination is when Ms Cannon was dismissed. There appear to be three alternative times within the same day, Wednesday, 5 November 2014 when the dismissal may have occurred. For the reasons set out within this decision, I find that she was dismissed at the earliest of the times submitted, being at or around 3:00 AM in the course of a phone call with her supervisor, Mr Matteo Geminian.
 Ms Cannon was dismissed by Poultry Harvesting on 5 November 2014 because Mr Geminian believed that she had arrived at work intoxicated which was in breach of his and the company’s expectations. Later on the same day, he refused to reconsider his decision to dismiss Ms Cannon because not only did he believe that she had arrived at work intoxicated but that she had also lied to him about her fitness for work.
 For the reasons set out below, I find that at the time of dismissal, and even at the latest of the three available times for the time of dismissal, Poultry Harvesting did not have a valid reason for Ms Cannon’s dismissal. I also find, after consideration of the other criteria within s.387, that Ms Cannon was unfairly dismissed; that an order for reinstatement is not appropriate in all the circumstances; and that an order for compensation is appropriate.
 The parties described Ms Cannon’s work as involving moving a large piece of machinery with an attached conveyor belt through a large shed for the purpose of loading chickens onto trays. Mostly the chickens would be gathered onto the conveyor belt and thereby to the trays, but some would not be gathered in that way. As a result the activity required two or more employees at a time, including one operating the machinery and another walking alongside it either to entice chickens on the conveyor belt or to pick them up and deposit them onto the belt. Other work associated with the activity included dealing with birds who died in the process, referred to as “smothers”. After being loaded onto trays, the chickens would be put into trucks for delivery to various wholesalers and retailers.
 In addition to this background, the parties described that the chickens were being grown and harvested for the La Ionica brand, owned by Turi Foods Pty Ltd (Turi Foods). These chickens were owned by Turi Foods, who would contract firstly with the chicken farmer to raise the chickens; secondly with Poultry Harvesting to gather the chickens for transportation; and thirdly with a transportation contractor.
 The work of Ms Cannon, and associated employees, would commence each night at or around midnight, and on her evidence the work would continue to until about 7:00 AM. The location of the work, and possibly its duration, would change according to Turi Foods instructions. Ms Cannon also reported, and Mr Geminian did not contradict this evidence, that there were occasions when trucks did not arrive on time, in which case she and other employees might sleep for a period in a vehicle until the truck arrived. Ms Cannon said the following about this practice;
“When a grower has slept in we would bring (sic) Matteo or if we can’t get a hold of Matteo, Dale Black, and they would contact the grower to open the gates or set the machine up, set the shed up, which is the drink room feeders, they’ve got to be lifted. Often we wait for trucks and we fall asleep and normally each other wakes each other up. It’s just - depending on what crew you’re on and who you’re with that night.” 2
 Tuesday, 4 November 2014 was Melbourne Cup Day and in the course of the day, before going to work, Ms Cannon drank some alcohol. On her evidence she drank about three or four glasses of wine, between about midday and 9:30 PM. 3 Ms Cannon’s belief was that this left her not in a position to drive to work,4 explaining her belief in this way;
“Would you not say that you would’ve been capable of driving a motor vehicle at that point in time?---No, not really, because I didn’t really eat a lot that day because I was busy doing other things as well, I do know that alcohol can stay on your breath and you don’t have to be intoxicated for alcohol to show up on a breathalyser. It can be in your breath.” 5
 In relation to the possibility that not being in a position to drive might be synonymous with not being able to work, Ms Cannon’s answered the following to a question from me;
“Now, the question I’ve got for you is how can you be in a situation where you could not drive because of intoxication but you could work?---Because I didn’t want to take the risk of having a breathalyser because I would have had it on my breath still which could make me over .05. So I - probably a better way to explain it, you could go through a booze bus at 8 o’clock in the morning, or a random breath test and be able to drive but you will have a high breath in count of alcohol on my breath so I didn’t want to take that chance.
But you were prepared to take the chance of the employer taking the view that you were intoxicated?---Because I wasn’t intoxicated.” 6
 It is contested whether Ms Cannon knew she would work later that night.
 The parties have agreed the following relevant facts about the events of 4 and 5 November 2014;
“4. On 4 November 2014, some time in the afternoon, Matteo Geminian of the Respondent sent a text message to the Applicant that she was required to work on the following day.
5. The Applicant did not return the text message until the evening of the 4 November 2014.
6. The Applicant was driven to a farm at Ripplebrook by fellow worker "Jock".
7. The Applicant commenced her work at Ripplebrook at approximately 12.30 a.m. on 5 November 2014.
8. The Applicant was asleep (the duration of which is contested) in a truck owned by Yarra Valley Fork lifting Company after she loaded the first truck with chickens.
9. The Applicant received a missed call from Mr Geminian sometime around 3.00 a.m. on 5 November 2014.
10. The Applicant telephoned Mr Geminian in relation to his missed call and a discussion occurred.
11. Mr Geminian subsequently attended the farm at Ripplebrook approximately 45 minutes later on 5 November 2015.” 7
 Mr Geminian’s evidence is that he went to the farm because he had been telephoned by one of Ms Cannon’s co-workers who had reported that he needed another person to attend for the crew because Ms Cannon was “useless”, that is, apparently intoxicated. 8 He arrived at the site at about 3:45 AM. His witness statement provides the following;
“23. I arrived at the farm about 45 minutes later. At the site, I was greeted by Gavin Watkins, the farmer at the site. I said to Gavin words to the effect "how's it going". Gavin said "not very good'. I said "Why?'' . He said words to the effect "Heidi wasn't in the shed doing what was she was suppose to do, so 50-60 birds got run over or smothered."
24. I then went to the shed that the Applicant was in. Heidi looked at me and said "what's the problem?" I said words to the effect "don't you know why I'm here?" I was told that you are useless". She said "by who?". I said "by Kryton". She said "that's not true". We then walked to the machine where Kryton was. She said to him "did you call Matteo?". Kryton said "Yes- you were sleeping in the truck".
25. It was at this point that I noticed that the Applicant smelt like alcohol. I asked the Applicant "have you been drinking?". She said "No". I said "You sure?" she said "yes". I was fairly certain that she was affected by alcohol which explained why she had been sleeping in the truck when she should have been working. I told her that her conduct would be a reason to fire her but, at end of this conversation, I told that I would call her the next day to discuss the future of her employment with the company. I then started to drive away.
26. About half an hour later I got a call from her. She said that she had driven with the truck and whether she should work at the next farm. She saw that Michael was already there. I told her to finish for the night.” 9
 In contrast, Ms Cannon’s evidence about the contact with Mr Geminian that night includes that he dismissed her in the course of the telephone conversation shortly after 3:00 AM and before he attended site and that he did so again or, at least reiterated what he had done previously, once he was at the site. 10 Mr Geminian consistently denied that he had dismissed Ms Cannon over the phone prior to arriving at the farm. However, while he initially said that he did not “sack her that night”11, he later conceded that he had dismissed her at the farm, giving the following evidence;
“Yes, but you informed Ms Cannon that it did not matter, her job was terminated anyway?---Yes. That was after I ask her three time again about the drinking, yes.
At the farm?---Yes, at the farm.
Yes. So her employment was terminated at the farm?---At that stage, yes. Then, before I leave, I say to her – because she start to cry, she say “No, not my fault” and I say “Listen, I’m going to be too angry now. I have a think about it and I ring you tomorrow.”
You said you’d ring her tomorrow?---Yes, I said that. And she asked three times “You sure you going to ring me?” And I say “Yes, I’m going to ring you”.
She informed you that everyone was talking about the holiday rate of pay issue and the public holiday pay, didn’t she, at the farm?---No, she didn’t.
Yes. So what you’ve just said is that you made a decision at the farm to terminate Ms Cannon’s employment?---Yes.
Yes. And you made that decision based on what?---On her smell alcohol and being intoxicated.” 12
 The evidence of both parties discloses that notwithstanding the dismissal in the early hours of 5 November 2014, and that such dismissal was because Mr Geminian formed the view that she was intoxicated because of the smell of her breath, Ms Cannon was not sent home or instructed to leave. Ms Cannon’s evidence is that she kept working and did not finish her shift until between about 7:00 AM and 8:00 AM. 13 Mr Geminian’s evidence on the subject is less direct, but allows the inference that Ms Cannon did, indeed, keep working. His evidence describes what happened after he had left the farm;
“... So I left. About 10 minutes after she ring me and she asked me what she got to do for the rest of the night. They were about to leave the farm, they had another two trucks to do to another farm, Nar Nar Goon, and she ring me, “What they going to do?” I said, “Listen, you’ve got to go to the farm anyway because you’ll be dropping the truck.” You know, “You’re not going to walk home.” But then I did already organise Michael and Angela, the two workers, to go on the other farm and wait there for the boys to come back to finish the work, because she wasn’t able to do the work. Then I went home, I went to bed. ...” 14
 There is no evidence before me that Mr Geminian instructed Ms Cannon not to work, or instructed anyone to not let her work. Ms Cannon’s evidence is that she did work, and I find her evidence on that point to be credible and capable of acceptance.
 On the afternoon of 5 November 2014 Ms Cannon called Mr Geminian by telephone. The purpose of the call was for her to ask for her job back. 15 The further context of the phone call was that prior to leaving the farm, Mr Geminian and Ms Cannon had discussed having a phone call later that day, with Mr Geminian putting the purpose as being an opportunity for him to reflect on the dismissal at the farm;
“Yes, but you just told me before that you terminated her employment at the farm?---Yes, I did. Before I left I said to her – she started to say “No, sorry, have a think about it”. I said “Listen, my anger now, I have a think about and I’ll ring you tomorrow”. That’s what happened.” 16
 However, prior to having a telephone discussion with Ms Cannon, Mr Geminian received a phone call from Mr Dale Black who relayed information to Mr Geminian that had been given to him by Ms Cannon’s partner. The essence of that information was that Ms Cannon’s partner had expressed the view to Mr Black that Ms Cannon had been intoxicated the previous day and was not able to drive. While Mr Black gave evidence in the matter, Ms Cannon’s partner did not. In any event, acting upon this information from Mr Black, Mr Geminian affirmed his view about Ms Cannon, and in particular that she had lied to him the previous night about not having been drinking. As a result, in the course of the telephone call at about 2:30 PM Mr Geminian refused to change his mind and re-engage Ms Cannon. 17
 The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009, which is as follows;
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.
 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission (FWC) must take into account the legislative factors set out above.
(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)
 Because Ms Cannon was dismissed for misconduct, the Commission must first consider whether, on the balance of probabilities, the alleged misconduct actually occurred. 18 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.19 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.20
 Poultry Harvesting argue that it had a valid reason for Ms Cannon’s dismissal because she arrived for work intoxicated; that this was conduct that could cause serious and imminent risk to the health and safety of the person; or conduct which could have caused risks to Poultry Harvesting’s business; and that she had neglected her duty during working hours by being passed out in a truck. 21
 While Ms Cannon agrees that she had been drinking prior to attending for work on 5 November 2014, her evidence is that she had a limited number of glasses of wine over the period from about midday on 4 November 2014, and none after 9:30 PM. It was not put to her that she was lying in that regard or that there was other directly corroborative evidence which might establish that she had been drinking to an amount greater than she says. Poultry Harvesting submitted that Ms Cannon was aware she would be required to work that night, and that receiving a text message from Mr Geminian about working that night would not have been a surprise to her. Ms Cannon’s evidence on the subject of whether she knew she had to work on 5 November 2014 was that she had been told late in the previous week by Mr Geminian that she would have the following Monday and Tuesday nights off. 22
 Evidence was given, through the hearsay relayed by Mr Black, that Ms Cannon’s partner had held concerns about her capacity to drive to work that night. Ms Cannon concedes that she did not drive to work out of her concern that she might be stopped for breath analysis however she did not agree that she was unable or unfit to work.
 Mr Geminian says that when he arrived at the premises he smelt alcohol on her breath; however his evidence is not that he observed Ms Cannon to be in an unfit state to work.
 While the submissions of Poultry Harvesting refer to Ms Cannon’s “neglect of duty during working hours by being passed out in the truck”, 23 no evidence was drawn on Ms Cannon being passed out. Instead the evidence was drawn around her being asleep in the truck, with which she agrees. Ms Cannon’s contention in this respect is that it happens often because trucks do not arrive on time and that employees will wake each other up.24 No contradictory evidence was provided by Mr Geminian or anyone on behalf Poultry Harvesting that that was not the case.
 Despite having been dismissed in the early hours of 5 November 2014 by Mr Geminian because he smelt alcohol on her breath, the evidence is that Ms Cannon was not directed to leave or to cease work and that she likely continued to work, for potentially another three or four hours. The evidence is inconclusive about precisely what occurred; Ms Cannon’s evidence is that she finished her shift between 7:00 AM or 8:00 AM, 25 whereas the Respondent argues that Ms Cannon was permitted to stay with a co-worker who was the person taking her home. The Respondent also concedes that it is unaware of whether Ms Cannon subsequently performed work and is not in a position to say that she did not perform work.26
 This is despite Ms Cannon having been dismissed by Mr Geminian because she was in a state which the Respondent submits could have “caused serious and imminent risk to the health and safety of a person” or amounted to “conduct that caused serious and imminent risk to the reputation, viability or profitability of Poultry Harvesting’s business”. 27
 In the course of submissions and evidence the Respondent put to the Commission a drug and alcohol policy which had been promulgated by Turi Foods and which was said to be not only applicable to the farm at which Ms Cannon was working, but also said to be known to her and part of her conditions of employment. 28 It was said by Mr Geminian that Turi Foods had a “zero tolerance” policy to the use of drugs and alcohol in the workplace and that it was “well known amongst the staff of Poultry Harvest that there is a Zero Tolerance to drug and alcohol”.29 Ms Cannon denied knowledge of the policy.30 While Mr Geminian agrees that the policy tendered in his evidence was not one that she signed, she likely would have signed something similar, “so she’d be aware of not drinking. Everyone know to be aware of not drinking”.31 Mr Black gave evidence that he saw Ms Cannon sign such a policy, acknowledging that she would be bound by it, albeit that what he saw was prior to Poultry Harvesting becoming her employer.32 The document said to have been signed by Ms Cannon was not tendered in evidence.
 On the balance of probabilities, it is possible to form the view that, like many workplaces, those attended by Poultry Harvesting employees in the course of their employment require workers not to be intoxicated and that employees including Ms Cannon would be bound by the obligation. Such would be a normal and reasonable policy at a workplace using machinery. However the evidence does not permit a finding that Ms Cannon was bound to a “zero tolerance” policy.
 The documents tabled within Mr Geminian’s evidence, are firstly the Turi Foods Drug and Alcohol Policy, 33 and what appears to be a generic Turi Foods Drug and Alcohol Policy poster.34
 The Policy provides in part;
“The use of alcohol and other drugs (prescribed or illegal) at or before work may pose a safety risk to employees, consumers and the wider community. In order to comply with the requirements of the company's safety policy and the Occupational Health and Safety Act, the following rules apply to the use of alcohol and other drugs:
Employees, contractors and visitors are not permitted to enter or remain on any Turi Foods site if they are under the influence of any drug or substance which may impair their capacity to work or behave in a safe manner; or if they are in possession of any such drug or substance.
All employees are required to advise their supervisor or other manager if they become aware that any person on the site may be under the influence of alcohol or any other drug.
To remove any doubt regarding intoxication or drug use the company will require the person to undergo drug or alcohol testing. Any employee who refuses a drug and alcohol test will be stood down immediately without pay until the test has been completed and is in the company's possession.
 The poster provides the following written warning process, again in part;
“1. A person who is affected by drugs or alcohol will not be allowed to work until that person can work in a safe manner.
2. The decision on �a person's ability to work in a safe manner will be made by the representatives of the Safety Committee, or by a body of workplace associates available at the time.
3. There will be no payment of lost time to a person unable to work in a safe manner.
4. �A worker identified as being unable to work as in Clause 1 above, shall be given a written warning and advised of the availability of treatment/counselling. The cost being shared by employer/employee. Three such warnings shall constitute grounds for dismissal. If the worker refuses help he/she may be dismissed the next time he/she is assessed as affected to the extent of not being allowed to work.
 I accept that it is not said that this exact policy is the one that applies to Ms Cannon’s employment. The documents plainly do not set out a “zero-tolerance” approach to the use of drug and alcohol in the workplace, and instead set out what might be regarded as a “managed” time and counselling based approach aimed at correcting aberrant behaviour. Regardless of their application to Ms Cannon’s employment, what is set out in the documents was not followed by Poultry Harvesting in relation to the condition it says Ms Cannon was in. She was not stood down or removed from the workplace; she was not tested; and she was not warned or counselled.
 At best the policy documents had an uncertain status to these proceedings, with the respondent submitting that, notwithstanding its inclusion of the documents within its material, it did not argue that the documents had the status of a workplace policy or a term of employment. 37 Instead the documents contributed to employees’ general knowledge that drugs and alcohol are not permitted on the farms.38
 Even if this is the case, it is far from clear whether the general knowledge so imparted communicated that alcohol must not be used on a farm, or whether alcohol may not be consumed for some defined period prior to the commencement of work. This lack of clarity means there is also uncertainty about the standard of behaviour to which the Applicant was being held to account.
 Consideration of these matters leads me to find that Poultry Harvesting did not have a valid reason for Ms Cannon’s dismissal at any of the three points at which she may have been dismissed on 5 November 2014.
 The three points at which she may have been dismissed were;
● shortly after 3:00 AM, with Ms Cannon’s evidence being that Mr Geminian dismissed her at about that time over the telephone;
● at some point around 3:45 AM, with Mr Geminian’s evidence being that he did so when he had attended at the farm, albeit with an invitation to have a further discussion later that day; and
● finally, in the course of a telephone conversation between the two at around 2:30 PM on 5 November 2014.
 Consideration of the totality of the evidence given in the matter leads me to the view that Mr Geminian expressed views of dismissal in each of the three occasions. To the extent that there is an inconsistency between the evidence of Ms Cannon and Mr Geminian on these matters, I prefer Ms Cannon’s evidence.
 I have formed my views about the credibility of Ms Cannon’s evidence on this subject after taking into account the sequencing that she relates and its similarities to an earlier set of events in August 2014. Both Ms Cannon and Mr Geminian gave evidence about a dismissal of Ms Cannon at that time, which also included allegations about alcohol in the workplace. The dismissal on that occasion, which was retracted and not acted upon, appeared to go through a similar process of an initial dismissal by Mr Geminian followed by a retraction at a later point after he had reconsidered the situation and after further discussion with Ms Cannon.
 I have taken into account that this earlier dismissal and retraction also involved an allegation of the use of alcohol by Ms Cannon. A can of alcoholic beverage had been found in a poultry shed and the allegation was made by Mr Geminian to a number of staff, including Ms Cannon, that it was Ms Cannon who had brought the can into the premises. She had been dismissed without investigation of any significance and without opportunity to respond to the allegation. The dismissal was subsequently withdrawn after Ms Cannon pleaded for the return of her job.
 This previous event has links to Ms Cannon’s termination on 5 November 2014 in three possible respects;
● Firstly, the events on 5 November 2014 might have been seen by Mr Geminian as a repetition by Ms Cannon of earlier behaviour that caused him concern;
● Secondly, that it points to a repetition of behaviour on the part of Mr Geminian of reacting to a circumstance and then taking a different view after further consideration;
● Thirdly, that there would be little doubt that Ms Cannon knew after what happened in August 2014 that the use of alcohol in the workplace was not permitted.
 Having taken these linkages into account, I prefer Ms Cannon’s evidence about what was said to her by Mr Geminian at each of the three possible dismissal points to which I have referred. The product of this analysis is that it is likely he did say to Ms Cannon over the phone at around 3:00 AM that she was dismissed. Irrespective, he agrees he said to her that she was dismissed when at the farm at around 3:45 AM.
 In respect of whether or not there was a valid reason on the part of Poultry Harvesting to dismiss Ms Cannon, I find that;
● At the first two points, namely the phone call around 3:00 AM, and the discussion at the farm at around 3:45 AM, Poultry Harvesting did not have sufficient knowledge about Ms Cannon’s condition to have reasonably formed the view that she was intoxicated at work, and took no steps to objectively assess her condition. While Mr Geminian held a belief that Ms Cannon had alcohol on her breath, he took no steps other than to ask her whether she had been drinking and did not prevent her from working any further that shift.
I prefer Ms Cannon’s evidence in relation to whether she told Mr Geminian at the farm that she had been drinking prior to coming to work. I do so because her response that she had more plausibly explains why she the discussion at the farm at around 3:45AM included Mr Geminian dismissing her.
● In relation to the third occasion, the conversation between the two at around 2:30 PM, Mr Geminian relied upon his belief that Ms Cannon had lied to him in the course of their conversations at the farm, for the reason that Mr Black had related information to him about Ms Cannon’s physical state, in turn relayed to Mr Black by Ms Cannon’s partner. However, Mr Geminian took no steps to either verify or investigate these allegations. The evidence in relation to what was said by Ms Cannon to Mr Geminian in response to his question about whether she had been drinking is that she answered truthfully.
(b) whether the person was notified of that reason
 I am satisfied that in this case Ms Cannon was told by Mr Geminian of the reason for her dismissal, with that reason being that she was, in his view, intoxicated at work.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
 Ms Cannon was not provided with an opportunity to respond to the allegation made against her that she was intoxicated at work. While it could be argued that the opportunity to make such response was available to her in the course of the telephone conversation she had with Mr Geminian on 5 November 2014 at about 2:30 PM, the evidence does not disclose that the discourse between the two actually rose to that point. The conversation, even on Mr Geminian’s version, consisted mainly of him asking a single question about what he had been told by Mr Black; with her agreeing that she had had drunk wine; but then him dismissing her as a result without any real engagement with what her views may be.
 Strictly speaking, however, I note that in relation to the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal, such consideration by the Commission is consequential to a finding there is a valid reason for dismissal, which I have not found. 39
(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;
 Ms Cannon was not afforded with an opportunity to have a support person at either of the three possible points of termination referred to above.
(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
 Ms Cannon’s dismissal was for misconduct, comprised of attending for and being at work while intoxicated. The evidence shows that she had been drinking before coming to work; that Mr Geminian smelt alcohol on her breath, but had insufficient evidence that would allow him to form the view she was intoxicated to the point of being unable, or unsafe, to work. The evidence is also that Mr Geminian took no steps to remove Ms Cannon from the workplace or to stop her from working the remainder of her shift. Thus Mr Geminian’s view of Ms Cannon’s intoxication was erroneous, although his view that she had consumed alcohol before presenting for work was correct.
 I accept that there was a general requirement that employees not be intoxicated while at work, however the company’s policies in this regard are far from clear. While Mr Geminian endeavoured to say in his evidence that the policy meant that employees should not consume alcohol in the hours before they started work, 40 a consideration of the totality of the evidence does not support that view. There is no evidence that would suggest Ms Cannon was aware that in no circumstances could she attend for work if she had drunk alcohol in a defined time period before the start of work. Mr Black’s views about the consumption of alcohol prior to working appeared twofold; on the one hand, it is not consistent with the Turi Foods policy,41 but on the other it would not prevent a person who was not affected by alcohol from working.42
 While the evidence supports a finding on the balance of probabilities that Ms Cannon was aware that consumption of alcohol at work was not permitted, or that presenting for work in an intoxicated state would not be permitted, I am not able to find that Ms Cannon had been warned or was aware that consuming alcohol to any level prior to presenting for work was not permissible.
(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
 I am satisfied that although Poultry Harvesting is not a “small business” within the meaning of s.23 of the Act, it is nonetheless a relatively small employer with between 20 and 22 employees 43
 I am satisfied as a result that the size of the employer’s enterprise appears to have impacted upon the decision to terminate Ms Cannon’s employment, and the way in which it was implemented. There appears to be no consultation between Mr Geminian with any person about Ms Cannon prior to saying to her, at any of the three termination points, that she was dismissed.
 Altogether the procedures of the company would reflect those of a micro business in that they appear to be ad hoc and without sophistication, and that Poultry Harvesting relies upon policies developed and promulgated by Turi Foods for its own purposes without real consideration as to whether they are appropriate or whether they require modification in any respect.
 I am also satisfied that the circumstance of Poultry Harvesting having taken over the business previously operated by a liquidated entity, FOGGEM Pty Ltd, only in October 2014, perhaps only a fortnight prior to Ms Cannon’s dismissal, may have had an impact on not only the procedures followed by Mr Geminian in dismissing Ms Cannon but also the access he had to certain employment records including those which might verify Ms Cannon’s acknowledgement of an applicable drug and alcohol policy with the prior entity.
(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;
 For the same reasons I am satisfied that the absence of dedicated human resource management specialists or expertise in Poultry Harvesting is likely to have impacted on the procedures followed by Mr Geminian in dismissing Ms Cannon.
(h) any other matters that the FWC considers relevant.
 I do not find any other matters that are relevant and which require being taken into account.
 The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows;
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection
(1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
(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), the FWC 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 the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC 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.
(5) The amount ordered by the FWC 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.
 Pursuant to subsection 390(3) an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”
 Ms Cannon’s application to the Fair Work Commission seeks compensation in lieu of reinstatement in the event of a finding of unfair dismissal, and she did not press for reinstatement in the course of the hearing. The Respondent’s material dealt only with the prospect of compensation. An injury she sustained after employment ended, and which is referred to later, may well preclude her reinstatement in any event.
 I am satisfied in all circumstances that it would be inappropriate to reinstate Ms Cannon and that instead I should give consideration to an order for the payment of compensation
(a) the effect of the order on the viability of the employer’s enterprise
 The evidence about Poultry Harvesting includes that Ms Cannon was employed by FOGGEM until 21 October 2014, and that after that date she was employed by Poultry Harvesting Pty Ltd. The evidence also includes that Poultry Harvesting employs only a small number of employees, between 20 and 22. There was no evidence presented to the effect that an order for compensation for Ms Cannon would affect the viability of Poultry Harvesting.
 Notwithstanding the submissions, there is nothing before me which would indicate that an order of compensation in and of itself would negatively affect the viability of the employer’s enterprise.
(b) the length of the person’s service with the employer
 Ms Cannon’s employment with Poultry Harvesting was for a very short period of about two weeks only, from 21 October 2014 until 5 November 2014. She had been employed by the company that preceded Poultry Harvesting, FOGGEM, from an indeterminate point in 2008 until 21 October 2014. There is an acceptance on the part of the Respondent, Poultry Harvesting, that there was a transfer of employment between the two entities. That allows a finding not only that the minimum employment period had been completed in Ms Cannon’s case, but also that the length of service to be considered for this criterion is the whole period of her employment with the two companies, namely a period of about six years, between 2008 and November 2014.
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
 In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters;
 The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
". . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law."
 Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.” 44 (endnotes omitted)
 Ms Cannon was unfortunate enough to suffer an injury shortly before Christmas 2014 which led to her hand being broken and requiring surgery with a pin and plate being inserted. 45 The injury was sustained undertaking work at her partner’s parents farm and she remained injured at the time of the hearing. Ms Cannon’s evidence in the course of cross-examination is that notwithstanding the injury she is able to undertaking chicken harvesting work, although she would not be able to undertake the duties requiring her to operate machinery;
“Ms Cannon, you said that you’d injured your hand. Mr Geminian will give evidence that having one hand broken would mean that you couldn’t fulfil your duties, or the equivalent duties that you previously performed with (indistinct) and poultry harvesting, can you explain why you believe that your injury would still have given you capacity to work? Because I’d be on the floor. I wouldn’t be able to operate the machine, but I wouldn’t have to because everyone just chooses what to - I’d go on the floor, you only need a headlamp, which is on your - you don’t need to hold the torch, it’s just a headlamp, and you just have to walk along beside the machine and just make sure that there’s no smothers or runovers that are on the machine. You just need a pair of legs and one working arm.” 46
 Mr Geminian rejects that proposition, even if it were limited to working on the floor and not operating machinery;
“The applicant has given evidence that she could have performed her work with you with a broken hand, do you have a view on that? Is that accurate?---I don’t real - she probably could have done some but no, she won’t be 100 per - she couldn’t operate machine.
So she couldn’t operate the machine?---No, she couldn’t operate the machine. You need two hands to close the crates. And on the floor, when they’re on the floor sometimes they - she could have done it, but most of the time it’s a bit difficult to clean the birds, you’ve got to pick them up and bring them to the back because they’re not (indistinct) she wouldn’t be able to do it.
You can’t pick up one of the birds with one hand?---Yes, but if you’ve got too many it will take you too long. You won’t be able to keep up with the machine.
If she had been working with you and she had broken her hand, would you have been able to offer her - would you have offered her casual work?---No, not while she - not while she had broken hand.” 47
 After taking into account the evidence in this matter I consider that Ms Cannon’s anticipated period of employment would have continued only until shortly before Christmas 2014, and that it would have been unlikely that she would have continued employment after sustaining the injury she has described to the Commission. While Ms Cannon is of the view that she is able to perform the work, or at least that part of the work which does not require operating machinery, it is likely that Mr Geminian, as the decision maker, would have taken a different view and that Ms Cannon’s employment would have ended at the time she sustained the injury, which she reports as being five days prior to Christmas, that is about 20 December 2014. 48
 I therefore find that Ms Cannon’s anticipated period of employment was a period of six weeks from 5 November 2014.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
 Ms Cannon’s evidence is that she has looked for work since being dismissed by Poultry Harvesting, although the extent of that search has not been provided in detail in the evidence to the Commission, with the exception of Ms Cannon disclosing that she had been employed for a period of three to four weeks vaccinating chickens prior to her injury. 49
(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
 Ms Cannon’s evidence is that her employment vaccinating chickens earned her about $500 per week in gross payments. 50 In the absence of more precise evidence, I will make an allowance of 3.5 weeks at $500 per week as the earnings Ms Cannon had in the period between the date of her dismissal and the making of the order for compensation, that is an amount of $1750, plus 9.5% in superannuation contributions which would been due to her as well.
(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
 At the time of the hearing Ms Cannon was unemployed and so no adjustment requires being made for this criterion.
(g) any other matter that the FWC considers relevant.
 I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.
 Section 392(3) requires that if the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the FWC must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
 Although Poultry Harvesting characterises Ms Cannon’s behaviour as misconduct, I am not satisfied, in all the circumstances, that it was such. Accordingly I do not discount the amount of compensation for this factor.
 After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.
 I find that reinstatement is not an appropriate remedy in this case.
 I find that compensation is appropriate.
 The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5). 51
 The evidence submitted on behalf of Ms Cannon includes that her average weekly wage in the period from 1 July 2013 to 30 June 2014 was $1453.46 per week, 52 and that her earnings in the period after June 2014 were consistent with that amount. Accordingly the amount of $1453 will be used as the basis of calculating the compensation to be paid, in addition to which will be paid 9.5% superannuation, which is the superannuation guarantee percentage applicable from 1 July 2014.
 In relation to the matter of contingencies, I find there are none that require being taken into account in this matter.
 Having regard to the criteria established by s.392 of the Act, and the considerations established by the FWC, I find that compensation should comprise a payment by the Respondent to the Applicant calculated as follows:
● My estimation of the amount Ms Cannon would have received or would have been likely to receive if her employment had not been terminated is $8,718 (calculated on the basis of $1,453 per week for six weeks). In addition to this amount will be a further payment of 9.5% payable as a superannuation contribution on Ms Cannon’s behalf;
● I deduct from the above amount sum of $1750 plus 9.5% in superannuation, being my estimation of the amount Ms Cannon earned vaccinating chickens prior to her injury;
● I make no deduction for contingencies or for misconduct;
● In respect of taxation, the order to be made will require the deduction of taxation according to law
 The result of the foregoing analysis requires a payment to Ms Cannon by Poultry Harvesting of $6,968, to be taxed according to law, plus 9.5% in superannuation. An order to that effect will be issued by the Commission requiring payment within 14 days of the date of this decision.
Mr M Comito (paid agent) and Ms H Cannon for the Applicant
Mr A Maher (paid agent), Mr M Geminian, and Mr D Black for the Respondent
19 and 20 March
1 Transcript, PN 945
2 Transcript, PN 370
3 Transcript, PN 60; 260 - 262
4 Transcript PN 59; 261 - 263
5 Transcript, PN 263
6 Transcript, PN 329 - 330
7 Document ASOF1 - paras 4 - 11
8 Witness Statement of Matteo Geminian, Exhibit R2, para 21
9 Ibid, paras 23 - 26
10 Witness Statement of Heidi Cannon, Exhibit A1, paras 15, 19
11 Transcript, PN 665
12 Transcript, PN 1063 -1069
13 Transcript, PN 56
14 Transcript, PN 556
15 Transcript, PN 272
16 Transcript, PN 1104
17 Transcript, PN 1137
18 Edwards v Giudice (1999) 94 FCR 561 ‒
19 Budd v Dampier Salt Ltd (2007) 166 IR 407, at ; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171
20 Streeter v Telstra Corp Ltd (2008) 170 IR 1
21 Respondent’s Submissions,Exhibit R3, para 12
22 Transcript, PN 316 - 318
24 Transcript, PN 370
25 Transcript, PN 56
26 Transcript, PN 1344 - 1346
27 Exhibit R3, para 12
28 Exhibit R2, attachments MG-1 and MG-2
29 Ibid, para 13
30 Transcript, PN 299 - 311
31 Transcript, PN 565
32 Transcript, PN 389 - 393
33 Exhibit R2, attachment MG-1
34 Exhibit R2, attachment MG-2
35 Exhibit R2, attachment MG-1
36 Exhibit R2, attachment MG-2
37 Transcript, PN 826
38 Transcript, PN 832
39 Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at .
40 Transcript, PN 1128
41 Transcript, PN 415
42 Transcript, PN 490
43 Transcript, PN 945
44 Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at  and .
45 Transcript, PN 76 - 78
46 Transcript, PN 312
47 Transcript, PN 580 - 583
48 Transcript, PN 77
49 Transcript, PN 74 and 1280
50 Transcript, PN 1280
51 See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 .
52 Applicant’s average wages particulars, Exhibit A3
Printed by authority of the Commonwealth Government Printer
<Price code C, PR567090>