PR952325 PR952325 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Altug Ozmal and Hawker de Havilland Aerospace Pty Ltd (U2004/3344) DEPUTY PRESIDENT HAMILTON MELBOURNE, 7 OCTOBER 2004 Termination of employment - alleged misconduct - incident with an arbor - internal investigation - lack of satisfactory evidence about incident - Commission cannot be satisfied of valid reason - reinstatement refused in circumstances, compensation awarded DECISION [1] This decision concerns an application made pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) by Mr.Altug Ozmal (the Applicant) in respect of the termination of his employment from Hawker de Havilland Aerospace Pty Ltd (the Respondent). Mr.Ozmal alleges that the termination of his employment was harsh, unjust or unreasonable and seeks reinstatement with the Respondent. [2] Mr.Ozmal commenced employment at ASTA Components in early 1990, a business which was acquired by Boeing Limited in 1996 and has been part of Boeing Australia Limited from that time. In late 2003, the various businesses making up the company were merged to become a single entity named Hawker de Havilland Aerospace Pty Ltd, the Respondent. The Respondent recognises Mr.Ozmal's service with the prior entities from 1990. At the time of the termination of his employment, Mr.Ozmal was employed as an Aerospace Tradesperson - Machinist . [3] The following witnesses gave evidence before me in this matter: Mr.A.Ozmal, the Applicant; Mr.J.Sherwood, AMWU Shop Steward; Mr.V.Jose, AMWU Organiser; Mr.B.Agius, former Senior Cell Member and NC Machinist Profiler Cell of the Respondent; Ms.D.Stocker, former Human Resources Facilitator of the Respondent; Mr.J.Dean, Manufacturing Manager of the Respondent; Mr.A.Crouch, General Manager Operations of the Respondent; and Mr.R.Husband, People Systems Manager of the Respondent. The Evidence About Events Leading to Termination of Employment [4] I have had regard to all the evidence led and submissions put. The following is a summary of that evidence and the submissions. [5] On 2 April 2004 Mr.Richard Husband, People Systems Manager, sent the applicant a letter terminating his employment. The letter said that his employment was terminated for unacceptable conduct and breach of the company's policies, particularly the `Equal Employment Opportunity Policy' (EEO policy) 1 . It said that Mr.Ozmal's conduct had been investigated and that allegations of breach and unacceptable behaviour had been substantiated. [6] The allegedly unacceptable conduct occurred on 4 March 2004. On that day Mr.Ozmal dropped or, on one version, slammed a large metal tool (an `arbor' ) onto a desk in front of Mr.Grech, another employee with whom he had a history of poor relations. Then an altercation of some kind occurred between the two, in which another employee, Mr.Agius, also then became involved. [7] The EEO policy provides that employees are not to harass, vilify or bully other employees, and states that failure to comply with the policy may result in disciplinary action 2 . Similar provision is made in the `Ethical Business Conduct Guidelines' 3 , and other policies. These requirements were regularly reinforced with employees through the distribution of a newsletter entitled `In-Form' 4 , which Mr.Ozmal agreed he regularly received . [8] Ms.Stocker, the Human Resources Facilitator, and Mr.Dean, Manufacturing Manager, conducted an investigation of the 4 March 2004 incident. [9] A formal report on the incident was forwarded to Mr.Husband 5 . The report included summaries of interviews conducted with Messrs.Grech, Agius, Ozmal and Camilleri. On the facts the report noted the limitations of the evidence, and concluded that: `The investigation leads [us to] believe that on the balance of probability confrontational statements were probably made by both parties equivalent to provocation and inappropriate behaviour. However, actual events, discussions and threats cannot be substantiated by the investigation leads ....' [10] The report concluded with a series of recommendations, the most recommended option being: `Escalate Warnings for both employees and remove one or both employees from the Profiler Cell.' [11] Mr.Husband accepted this recommendation. The result was that Mr.Ozmal was dismissed, because he already had a final warning on his file. [12] Mr.Ozmal has provided sworn evidence about what happened, and we also have available a record of what he told the respondent's investigators 6 . Mr.Agius also provided sworn evidence in respect of the events. The other employee directly involved, Mr.Grech, was not called by either party, for what appear to be good reasons. He has been made redundant by Hawker de Havilland and has initiated an unfair dismissal proceeding against the respondent which is still unresolved 7 . Nor was I asked to draw any inferences about the respondent's failure to call him. [13] In his witness statement 8 , Mr.Ozmal said that when he was walking past the desk at which Mr.Grech, another employee, was sitting, a tool he was carrying slipped and he `accidentally dropped them on the bench' , near Mr.Grech. The tool was a heavy metal object known as an `arbor' , which held a drill bit. The Bench was said to be quite small, about the size to accommodate an opened copy of the Herald Sun newspaper. [14] Mr.Ozmal claimed that what then occurred was as follows: Mr.Grech said that he was not scared of Mr.Ozmal and that Mr.Ozmal was scared of him; Mr.Ozmal replied that he thought Mr.Grech had `lost it' ; Mr.Grech then asked whether Mr.Ozmal `had liked the sabotaged grinder that I borrowed to use at home' ; Mr.Grech then said that he had seen Mr.Ozmal and his family at a shopping centre, then got up and walked away with a grin on his face; Mr.Ozmal `pursued him' demanding that he repeat what he had just said so that others could witness the discussion; after approximately ten minutes Mr.Grech reminded Mr.Ozmal that he had two warnings already; another employee, Mr.Agius, then placed himself between Mr.Ozmal and Mr.Grech saying `just let it go' ; Mr.Ozmal `tapped Brad [Mr.Agius] on the shoulder and said to him `I know he is your mate but listen to what's happening or just piss off; Mr.Grech then said he was calling security and did so after Mr.Ozmal gave him the number to ring. [15] Mr.Ozmal's evidence before me was similar to the statement he provided to the Respondent's investigators 9 . However, there appears to be a number of problems with Mr.Ozmal's evidence. [16] In relation to the grinder, Mr.Ozmal said that he had borrowed a grinder to take home with full permission of the employer, he discovered that it was not working. Mr.Ozmal reported the problem to Mr.Dean, Manufacturing Manager, in an email dated 2 March 2004 10 , and headed `Tool Sabotage!!!!!!!'. Mr.Ozmal said that he suspected at the time that the tool was sabotaged. In his oral evidence, he denied that he suspected that the sabotage had been by Mr.Grech 11 . When asked then whom he suspected he said `No-one'. With all due respect to Mr.Ozmal I found this evidence less than convincing in the context of all the evidence, including that of the longstanding poor relationship between Mr.Ozmal and Mr.Grech. [17] Mr.Ozmal also said that 12 he did not intend to give Mr.Grech a ` serve' in an email 13 he sent on 5 June 2003 in response to an email from a Mr.Camelleri. Mr.Camelleri's email records a report he had received from Mr.Grech about a problem with the incorrect installation of certain bolts, and contains Mr.Camelleri's suggestions for avoiding the problem. However, Mr.Ozmal's email is clearly very critical of Mr.Grech, comparing him to his one year old child, suggesting he has problems with machining, describes his description of the problem as ` a joke' , and generally deals with Mr.Grech's comments in a contemptuous and derogatory manner. In colloquial parlance, clearly Mr.Ozmal was giving and intended to give Mr.Grech `a serve'. In re-examination he seemed to admit this, and gave evidence that in the email he made it clear to Mr.Grech ` what [he] thought of him' 14 . [18] He also claimed that he did not consider Mr.Grech a `poor performer' at work 15 , refused to admit that he did not consider Mr.Grech's work up to scratch, or that he was not working correctly or well. This evidence seems inconsistent with the same email of 5 June 2003 which casts doubt on Mr.Grech's ability to perform his work or make judgements about it. [19] Mr.Ozmal had to be pressed and refused to answer for a time questions identifying which aspects of the email supported his claim that he was expressing his `frustration and concerns regarding David [Grech] and also lack of attention from Supervisors and Management' 16 . [20] Mr.Ozmal claimed in re-examination that he did not deliberately send the email to his fellow cell members, and had intended to send it only to Mr.Grech 17 . However, this seems to be contradicted by the fact that the recipients of the email are listed and are different to those in the original email that Mr.Ozmal was responding to. The original email went to a group of employees including a Mr.Michael Hazell. Mr.Ozmal's email in response went to the same group excluding it appears Mr.Hazell. In other words, the fact that the email was sent to the cell members does not seem to be the mechanical result of his email being a ` reply all ' to an email that went to all cell members as claimed by Mr.Ozmal. It seems to be the result of a deliberate decision by Mr.Ozmal to send the email to his cell members, contrary to what he claimed in giving sworn evidence. [21] Similarly, Mr.Ozmal claimed that the fact that certain words in the email were in capital letters was simply keyboard error, and that this was not deliberate on his part 18 . However, the words in capitals are not random as would be expected of words accidentally capitalised, but are the sorts of words which might be deliberately emphasised: ` NOT piss farting around all day', `That is when YOU fuck up', and describing conduct of Mr.Grech as ` AMAZING'. Again, Mr.Ozmal's evidence does not seem to be satisfactory. [22] There is, in summary, an accumulation of problems with Mr.Ozmal's evidence on the email and other issues. [23] In comparison, Mr.Agius said in his witness statement that 19 : on 4 March 2004 when he arrived to clock on, he saw Mr.Ozmal leaning with his chin on his hands which were on a broom handle staring through the window of the door; at approximately 6 am he came out of the change room and saw Mr.Ozmal holding the tool in his right arm, saw his `hand drop down onto David's [Grech] desk in front of David. It made a loud banging sound. Altug slammed the arbor into the desk. I did not see Altug carrying anything else. I did not see anything else fall onto the desk or fall to the ground.'; he saw Mr.Ozmal and Mr.Grech exchange words, and when Mr.Grech moved towards Mr.Agius, Mr.Ozmal followed him; he heard Mr.Ozmal say `Come on, Dave, Come On' with an angry look on his face, talking in a threatening way; Mr.Agius said that Mr.Grech moved behind him so that he was between Mr.Ozmal and Mr.Grech, and said something like `Stop being dickheads, go your separate ways, you're gonna lose your jobs'; Mr.Ozmal then jammed his finger into Mr.Agius's chest and said something like `this is all your fault' , and when asked not to touch him Mr.Ozmal said `Fuck off or hang around and listen, you'd better be careful mate' , and when asked what he was talking about said something like `you'll find out' or ` you'll wait and see' , which Mr.Agius interpreted as threatening; Mr.Grech kept saying `leave me alone' , and Mr.Agius thought that there was going to be a fight. Mr.Grech went into the change room, and then called security. [24] It can be seen that there is a distinct difference in the evidence. On Mr.Agius's evidence it appears that Mr.Ozmal was the aggressor in the conversation with Mr.Grech, apparently inviting some sort of fight or similar response from Mr.Grech, jamming his finger into Mr.Agius's chest and threatening Mr.Agius when he attempted to stop the behaviour. On Mr.Ozmal's evidence Mr.Grech was `pursued' by Mr.Ozmal because of what he said about the grinder and the implicit threat to his family, and no threats were made by Mr.Ozmal to Mr.Agius, nor did Mr.Ozmal touch Mr.Agius with a pointed finger, rather he claims that he simply tapped Mr.Agius on the shoulder. [25] I had the opportunity to observe the evidence being given. It may be that Mr.Ozmal endeavoured to be truthful with the Commission, but the issues he was discussing were clearly difficult issues for him. My observations of the evidence and the accumulation of problems with Mr.Ozmal's evidence, leads me to conclude that there must be doubts about some or much of his evidence. [26] However, Mr.Agius was also personally involved in the dispute between Mr.Grech and Mr.Ozmal. In the words of Mr.Ozmal, Mr.Agius was one of Mr.Grech's `best work mates' 20 , and no attempt was made to challenge that evidence, which is consistent with much of the surrounding evidence. Mr.Agius was for example a witness to an incident which was the subject of an earlier complaint by Mr.Ozmal against Mr.Grech, but did not recall Mr.Grech saying the words complained of by Mr.Ozmal 21 . He rejected, in other words, Mr.Ozmal's account of events in favour of the account given by Mr.Grech. The respondent itself concluded that Mr.Agius was not a reliable witness given his personal involvement in a continuing dispute between Mr.Grech and Mr.Ozmal, and said in the report of the 4 March 2004 arbor incident: `While Brad Agius has acted as witness to parts of David's [Grech's] statement and made allegations against Altug directly, the investigation leads do not believe Brad's [Agius's] relationship with David [Grech]and previous involvement in the ongoing dispute between the two make him an independent witness.' 22 [27] Mr.Agius also seems to have been physically too distant from some of the events, including the arbor incident, to provide reliable evidence. There must be doubts about some or much of his evidence. [28] The two witnesses to the 4 March 2004 incident whose evidence I have, Mr.Ozmal and Mr.Agius, have given evidence which I have reservations about. I have decided that it would be unsafe to accept either versions of events. I am left in the position of being unable to determine what happened, because of the lack of satisfactory evidence. [29] I am then left with Mr.Ozmal's own account of events, and whether on its own, even if I accepted it, it discloses a valid reason for termination. I have decided that it does not. I have paid careful regard to the respondent's submission that for example: `at the very least you have Mr.Ozmal chasing down Grech, trying to push past Agius to get to him, in a very angry way, to get back at him and give him a serve and that is inappropriate.' 23 [30] Mr.Ozmal claimed that Mr.Grech had in effect told him that he was responsible for sabotaging the angle grinder that Mr.Ozmal had taken home, and had also made a statement which probably amounted to, and was easily interpreted as, a threat to Mr.Ozmal's family. A man with a history of hostility to Mr.Ozmal allegedly said to him: `your wife looked quite nice the other day when I saw her down at the shopping centre' 24 , or, in the version of Mr.Ozmal's account recorded by the respondent's investigators, `I saw you down the plaza. I know what your wife and family looks like so watch out.' 25 Mr.Ozmal denied in examination in chief that Mr.Grech said `so watch out' , and said that the investigators report did not accurately record his evidence on those words, although the rest of the report was `reasonably correct' 26 . [31] In those circumstances, while it was unwise for Mr.Ozmal to react by pursuing Mr.Grech and asking him to repeat what he had said in front of witnesses, it is also understandable given the extent of the provocation that had occurred. Nor is the evidence about Mr.Ozmal's pursuit of Mr.Grech sufficient to warrant dismissal. Mr.Ozmal denied jamming his finger into Mr.Agius's chest when Mr.Agius came between Mr.Ozmal and Mr.Grech and denied making certain statements 27 , and again I am unable to reject that version of events and accept that of Mr.Agius. On Mr.Ozmal's version of events he is essentially a victim of threatening and inappropriate statements by Mr.Grech, statements which would properly lead to the disciplining of Mr.Grech but not Mr.Ozmal, but in fact have led to Mr.Ozmal's dismissal. Nor did Mr.Ozmal on his version of events do more than make statements, apart from patting a shoulder. [32] Mr.Ozmal was not cross examined on the issue of the alleged threat to Mr.Ozmal's family by Mr.Grech. The only evidence I have on the issue is the unchallenged evidence of Mr.Ozmal. However, I have already expressed my reservations about Mr.Ozmal's evidence. I am left in the position, as the employer was, of being uncertain whether Mr.Ozmal alone made threats, Mr.Grech alone made threats, or whether both made threats. I therefore respectfully am not able to accept the respondent's arguments on this issue. [33] I also note that the investigator's report seems to be contradictory, at one point coming to the same conclusions I have and at another coming to a different conclusion. The report states that neither Mr.Ozmal nor Mr.Grech's version of events is corroborated by an independent witness. It points out that Mr.Agius is not an independent witness because of his friendship with Grech and involvement in the continuing dispute. It states that `a conclusive indictment of guilt cannot be attributed to either party ', ie. that one or other might be innocent of misconduct. It nevertheless concludes that `on the balance of probability confrontational statements were probably made by both parties equivalent to provocation and inappropriate behaviour'. It recommends as the preferred option escalating the existing warnings, ie. disciplinary action. The termination letter builds on that by stating that `the investigation undertaken substantiated these allegations' , the allegations being breach of company policies and unacceptable behaviour. [34] In fact the report seems to be an unsatisfactory basis for termination of Mr.Ozmal's employment. The report came to the conclusion that confrontational statements were probably made by both sides sufficient to warrant disciplinary action against both Mr.Grech and Mr.Ozmal, and also concluded that it is not possible to substantiate actual events, discussions and threats. The report may conceivably, although this is not clear, have differentiated between its contradictory conclusions on the basis of different standards of proof, ie. that it could not come to a concluded view on the basis of the criminal standard of proof but could on the basis of the balance of probabilities, the civil standard. If that is the case I respectfully disagree on the basis of the evidence before me. I am unable to come to a conclusion as to what happened on the balance of probabilities because of my real doubts about both Mr.Ozmal's and Mr.Agius's evidence. [35] Much of the respondent's attempts at resolution of the dispute between Mr.Grech and Mr.Ozmal, and investigation of the incidents that occurred, are good examples of how management should approach these issues. Clearly there was a continuing problem between Mr.Grech and Mr.Ozmal, and this new incident required investigation, and the respondent endeavoured in good faith to carry out an investigation. Even the best management systems at times do not perform as expected, and unfortunately this present matter seems to be one of those cases. The Warning on File - Relevant to Likely Future Employment with Respondent [36] On one view it is not necessary to deal with the earlier incident which led to a warning being placed on Mr.Ozmal's file. However, it is relevant to the issue of how long he would have continued in employment if he had not been terminated because of the incident of 4 March 2004, if I find that the termination was harsh, unjust and unreasonable, and then turn to deal with the issue of remedy. It also may be relevant in what it demonstrates if anything about Mr.Ozmal's attitudes to the respondent's established policies. [37] On 3 July 2003 Ms.Stocker and Mr.Crouch issued what was described as a `Final Written Warning' to Mr.Ozmal for breach of the EEO policy 28 . The warning was to remain on Mr.Ozmal's file `indefinitely '. It was initiated following a complaint from Mr.Grech about the email sent by Mr.Ozmal on 5 June 2003 to his fellow cell members. The email complained of was, as previously discussed, a response by Mr.Ozmal to an email from Mr.Camelleri. In his email Mr.Camelleri reported an operational problem with bolts that Mr.Grech had reported to him. [38] Mr.Ozmal's response was contemptuous and derogatory about Mr.Grech's comments, and used language such as `fucked' repeatedly. It is true that some strong language is used in the workplace there and elsewhere, but the employer had policies on the issue, had reinforced those policies, and the language was used in a formal written communication by Mr.Ozmal in response to a technical issue raised in his work cell. Mr.Ozmal seems to imply in his email that Mr.Grech's comments are either without substance or are an attempt to cover up his own mistakes, or are the product of ignorance about the job, or some combination of the above, and are overall very antagonistic to Mr.Grech. With all due respect I do not think it is appropriate to describe Mr.Grech's behaviour as similar to the behaviour of Mr.Ozmal's one year old child, as the email seems to do. [39] Overall both the language and the content of the email are in my view inconsistent with the employer's policies and justified a warning. I have already found that Mr.Ozmal deliberately sent the email to other members of his work cell. [40] It is, as the AMWU submitted, true that the warning was placed on file indefinitely. A permanent warning seems to me to be an excessive response, but a warning for a year or two years might have been appropriate. However, even if it had been placed on file for twelve months from 3 July 2003 when it was issued, it would still have been in place at the time of the March 2004 incident. Any disproportionate period is in other words of no present relevance. [41] The AMWU also submitted that the dispute settlement procedure in the Agreement provides that where a matter is `raised' with the employer by the union the status quo must be maintained until the procedures in the dispute settlement procedure are completed 29 . As the warning had been challenged by the AMWU at the meeting held on 24 June 2003 to discuss the complaint arising from Mr.Ozmal's email to his work cell, the disputes procedure was never completed, and therefore the warning could not be activated and lead to Mr.Ozmal's termination. [42] However, Mr.Sherwood, the AMWU site delegate, said in his witness statement that he indicated at this meeting that the union would challenge the final written warning, not that he did challenge it at that meeting: `I informed the Company that the final written warning was too harsh and that we would appeal the decision and take the matter higher. I spoke to the then HR Manager about the issue but never formally lodged an appeal due to other issues arising and Altug [Mr.Ozmal] being on night shift being hard to catch up with.' 30 [43] This evidence was confirmed in examination in chief 31 , when Mr.Sherwood agreed with a statement of Ms.Stocker, that Mr.Sherwood and Mr.Ozmal said at the meeting that they were not happy with the warning `and would challenge the warning'. Ms.Stocker then said in her statement that ` No such appeal or challenge was subsequently made.' 32 I find that the AMWU intended to activate the disputes procedure but never did so. Decision on Harsh, Unjust or Unreasonable Claim [44] Section 170CG(3) provides: `(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and (da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (e) any other matters that the Commission considers relevant.' Valid Reason for Termination [45] I find that the evidence does not sustain a conclusion that there was a valid reason for the termination of Mr.Ozmal's employment. There must be satisfactory evidence establishing a valid reason, and I cannot simply make assumptions about what occurred: Australian Meat Holdings Pty Ltd v. McLauchlan 33 . Whether Employee Notified of that Reason/Whether Employee Given Opportunity to Respond to Capacity or Conduct Issues [46] As there was no valid reason for termination, Mr.Ozmal could not be and was not notified of a valid reason for termination. He was however given an opportunity to respond to the allegations of misconduct made against him on three occasions. [47] As previously discussed, Ms.Stocker, the Human Resources Facilitator, and Mr.Dean, Manufacturing Manager, conducted an investigation of the 4 March 2004 incident with the arbor. A formal report on the incident was forwarded to Mr.Husband 34 . The report concluded with a series of recommendations, the most recommended option being: `Escalate Warnings for both employees and remove one or both employees from the Profiler Cell.' [48] Mr.Husband accepted this recommendation. The result was that Mr.Ozmal was dismissed, because he already had a final warning on his file. I have already concluded that the report's most recommended option is not supported on the evidence before me. Nor do I think that the evidence before the investigators supported their conclusions, because of the problems with the evidence identified in the report. [49] As the AMWU pointed out, Mr.Ozmal was not given a copy of the report in order to respond to it. He did however have the report's conclusions put to him or his representatives on 30 March and 2 April 2004, and had an opportunity to put his case directly on 5 March and 2 April. In my view this satisfies natural justice. I do not accept that the issuing of the report on 5 March meant that the result was predetermined, and that Mr.Richard Husband, the decision maker, had made up his mind. I accept Mr.Husband's evidence that he did not make up his mind to accept the report's recommendations until the meetings on 30 March and 2 April had been completed 35 . Mr.Husband said in evidence, and I accept this evidence, that at the meetings on 30 March and 2 April he took Mr.Ozmal's representatives, and on 2 April Mr.Ozmal himself, through the conclusions of the report 36 . In substance Mr.Ozmal was afforded the opportunity to respond to allegations of misconduct made against him. [50] Wilcox CJ in Nicolson v Heaven & Earth Gallery Pty Ltd 37 said, although in respect of now repealed legislation: "The paragraph [then s.170DC(a)] does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as "natural justice" or, more recently," procedural fairness". The relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case ... The principle is, I believe, well understood in the community. It represents part of what Australian call "a fair go". In the context of s 170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself "against the allegations made"; that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk. ... For s 170DC(a) to be satisfied, it would have been necessary for the respondent to determine what aspects of Mr Nicolson's conduct or performance were such as to justify possible dismissal and put those matters squarely to him, under circumstances where he had a fair opportunity to defend himself." 38 [51] Mr.Ozmal attended a number of meetings where discussions in respect of the alleged incident of 4 March 2004, took place. The Respondent concedes that Mr.Ozmal was not provided with the internal report produced by Ms.Stocker and Mr.Crouch about the incident. However, Mr.Ozmal was informed of the allegations, was given an opportunity to respond to those allegations, and was taken through the report's conclusions. The respondent was not under an obligation to actually provide a copy of an internal report to Mr.Ozmal, as long as the substance of a right to put a case and respond to allegations was met, and it was. Whether Employee Had Been Warned About Unsatisfactory Performance Size of Business/Absence of Human Resource Management Specialists [52] Mr.Ozmal had been warned about his behaviour. The respondent is a large well resourced employer, and issues of size and absence of human resource specialists are not relevant to mitigate any failures in procedure. Any Other Matters [53] I have had regard to all the evidence and submissions in this case. Conclusion on Harsh, Unjust or Unreasonable Claim [54] I find that Mr.Ozmal was not afforded a `fair go all round' in the termination of his employment, and that his termination was harsh, unjust or unreasonable. Decision on Remedy [55] Section 170CH provides: `170CH Remedies on arbitration (1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable. (2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including: (a) the effect of the order on the viability of the employer's undertaking, establishment or service; and (b) the length of the employee's service with the employer; and (c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and (d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and (e) any other matter that the Commission considers relevant; that the remedy ordered is appropriate. (3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by: (a) reappointing the employee to the position in which the employee was employed immediately before the termination. (b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. (4) If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make: (a) any order that the Commission thinks appropriate to maintain the continuity of the employee's employment; and (b) subject to subsection (5)-any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination. (5) If, as a result of an application under section 170CP, a court has awarded an amount of damages for a failure to give notice of a termination as required by section 170CM, any amount ordered to be paid by the Commission under paragraph (4)(b) in respect of the termination is to be reduced accordingly. (6) If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement. (7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including: (a) the effect of the order on the viability of the employer's undertaking, establishment or service; and (b) the length of the employee's service with the employer; and (c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and (d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and (e) any other matter that the Commission considers relevant. [56] I have firstly decided that an order of reinstatement would not be appropriate, for reasons including my assessment of Mr.Ozmal's evidence and workplace behaviour, including an appropriate warning given to him about an earlier incident, Mr.Husband's evidence 39 , Mr.Dean's evidence 40 , and that of Mr.Agius 41 . Nor, with all due respect, did I think that Mr.Ozmal showed an adequate awareness about the inappropriate nature of his June 2003 email when giving evidence before me, which showed a continuing problem in his attitude to workplace policies. 42 [57] Secondly, in my view the payment to Mr.Ozmal of an amount in lieu of reinstatement would be appropriate. The approach to be adopted to calculating such amounts was discussed by a Full Bench of this Commission in Sprigg v. Paul's Licensed Festival Supermarket 43 which commented that: `For the reasons given by Ross VP in Shorten it is desirable that a consistent and predictable technique for determining an amount to be ordered in lieu of reinstatement should emerge in Commission practice.' 44 [58] Such a consistent technique emerged from Sprigg , and has generally been applied by the Commission, with lost remuneration an important but not exclusive element: `Steps 1 to 4 set out as part of principle 5 in Shorten in our view continue to be appropriate and relatively necessary steps in the estimation and appropriate assessment of remuneration lost. Remuneration lost is a necessary element in determining an amount to be ordered in lieu of reinstatement. Any amount provisionally arrived at by application of these steps is subject to whatever offsetting weight is given to other circumstances, including those that need now to be taken into account under paragraphs 170CH(7)(a),(b) and (e).' 45 [59] This is a conclusion that the amount arrived at by calculating lost remuneration would appropriately be reduced in some circumstances by `whatever offsetting weight is given to other circumstances' such as short service, effect on viability, or other matters, factors required to be taken into account by s.170CH(7)(a),(b) and (c). Principle 5 in Shorten 46 was in the following terms: `Lost remuneration is a fundamental element in assessing compensation though it is not the only matter that may be considered: Kup-Geir v. Open Family (Australia) Inc.' 47 [60] It is of course also the case that the Commission applies the statutory tests in the Act and that the Sprigg guidelines ' are not a substitute for the words of the Act' 48 : Smith v. Moore Paragon Australia Ltd . [61] The first step in Sprigg is to estimate the remuneration the employee would have received or would have been likely to have received, if the termination of employment did not take place. The second step is to deduct moneys earned or to be earned up to the date of the anticipated period of employment, and to have regard to the applicant's attempt to mitigate his loss. Mr.Ozmal did mitigate his loss, he looked for work, and gained a lesser paying job which started approximately four weeks after his termination 49 , the deficiency in wages being about $150-170 a week. The third step is to discount the amount of compensation for contingencies (see Slijka v. J.W.Sanders Pty Ltd 50 , Sprigg 51 , and Ellawalla v. Australian Postal Corporation 52 ). No deduction is made when the date of hearing is after the notional date of continuing employment, given that contingencies are then known. The fourth step is to take into account the impact of taxation. I leave this for determination by the parties. [62] The length of Mr.Ozmal's service with the employer was long, in the order of fourteen years. It is not short service which would warrant a reduction in compensation. On the issue of the remuneration that the employee would have received if he had not been terminated, I consider that he would have received no more than about nine weeks pay. In my view, having regard to the circumstances, it is unlikely that Mr.Ozmal would have been employed for very long after the incident of 4 March 2004. Mr.Ozmal already had a warning on his file issued on 3 July 2003 because of an incident of misconduct arising out of an email which he sent. I also have regard to my earlier finding that Mr.Ozmal still did not show an adequate awareness about the inappropriate nature of his June 2003 email when giving evidence before me, which shows that there is a continuing problem in his attitude to workplace policies 53 . There was also a continuing problem in the workplace between Mr.Ozmal and Mr.Grech and perhaps also with Mr.Agius. Overall, to use the colloquial term which the parties and Commission used during the proceedings, Mr.Ozmal was on `thin ice' 54 . Mr.Ozmal had long service and seems to have been in many respects a hard working and good employee, but problems in the workplace had unfortunately developed and come to a head. [63] I have decided to make an order for nine weeks' pay, the first four weeks being full pay and the five weeks following being the difference between his previous pay and the pay in his new job. The parties suggested, and I accept this suggestion, that they discuss and seek to reach agreement on an order implementing this decision. I direct that a draft order be lodged by the AMWU within four weeks. If no agreement is reached I will determine the issue on the basis of the material before me and any written submissions lodged by the parties by that time. BY THE COMMISSION: DEPUTY PRESIDENT Appearances: Mr.M.Addison of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union for the Applicant Mr.P.O'Grady of Counsel for the Respondent Hearing details: 2004. Melbourne. September 8, 9, 10. Printed by authority of the Commonwealth Government Printer <Price code C> 1 Exhibit H1, statement of Richard Husband, Attachment RH13. 2 Exhibit H1, statement of Richard Husband, Attachment RH1, p.3. 3 Exhibit H1, statement of Richard Husband, Attachment RH3, `Our Values' include treating everyone fairly and with trust and respect. 4 Exhibit H1, statement of Richard Husband, Attachment RH5. 5 Witness statement of John Dean, Exhibit H4, Attachment JD9. 6 Exhibit H1, statement of Richard Husband, Attachment RH10 7 Exhibit H4, witness statement of John Dean, paragraph 23. 8 Exhibit O1 9 Exhibit H1, statement of Richard Husband, Attachment R10, p.3. 10 Witness statement of John Dean, Exhibit H4, Attachment JD3. 11 PN790-797 12 PN761 13 Witness statement of John Dean, Exhibit H4, Attachment JD2. 14 PN1042 15 PN747-760 16 Witness statement of Ozmal, Exhibit O1; PN722-737 17 PN1038-1039 18 PN684; 689; 696; 701; 702. 19 Exhibit H5, statement of Bradley Agius, paragraphs 7-11 20 Exhibit O1, witness statement of Ozmal. 21 Witness statement of Donna Stocker, Attachment DS2, p.2 22 Investigator's report, Exhibit H4, witness statement of John Dean, Attachment JD9, p.3 23 PN2902 24 PN392, examination in chief of Mr.Ozmal. 25 Witness statement of Richard Husband, Exhibit H4, attachment RH10 p.3. 26 PN446-450 27 PN898-926 28 Witness statement of Mr.Husband, Exhibit H1, Attachment RH9. 29 Exhibit O4, Hawker De Havilland Aerospace Pty Limited (Port Melbourne) Certified Agreement , Part 3 - Avoidance of Industrial Disputes. 30 Exhibit O2. Three spelling mistakes have been corrected. The AMWU noted the mistakes but for the sake of expedition did not formally amend the statement, a procedure endorsed by the Commission. 31 PN1100-1103 32 Exhibit H3, statement of Donna Stocker, paragraph 6. 33 Print Q1624, Ross VP, Polites SDP, Hoffman C. 34 Witness statement of John Dean, Exhibit H4, Attachment JD9. 35 Evidence of Husband, PN2513 36 PN2517 37 (1994) 57 IR 50 38 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50, 60 per Wilcox CJ 39 PN2302-2305 40 Witness statement of Mr.Dean, Exhibit H4, paragraph 22. 41 Exhibit H5, witness statement of Agius, paragraph 14. 42 PN3016 43 Munro J, Duncan DP, Jones C, Print R0235, 24 December 1998, para. 6 44 Ibid, para. 31 45 Ibid, para. 35 46 Shorten and Others v Australian Meat Holdings (1996) 70 IR 360 47 Quoted in Sprigg at para. 26 48 Smith v. Moore Paragon Australia Ltd , (2004) 130 IR 446 at 459-460, per Lawler VP, Kaufman SDP, Mansfield C. 49 PN526 50 (1995) 67 IR 316 at 328 51 At para. 39 52 Ross VP, Williams SDP, Gay C, Print S5109, 17 April 2000, para. 36 - 44 53 PN3016 54 PN3016; PN2771-2784