WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES TERRY PATRICK CRANSWICK APPLICANT -v- BURSWOOD RESORT (MANAGEMENT) LIMITED RESPONDENT CORAM COMMISSIONER J L HARRISON DATE OF ORDER WEDNESDAY, 10 MARCH 2004 FILE NO/S APPLICATION 1299 OF 2002, APPLICATION 1094 OF 2003 CITATION NO. 2004 WAIRC 10860 Result Application alleging unfair dismissal upheld and order issued for compensation in lieu of reinstatement. Application for contractual benefit allowed. Order WHEREAS on 19 December 2003 the Commission issued Reasons for Decision in this matter and the parties were required to confer within seven days of the date of the decision to agree on the amount to be paid to the applicant in light of the reasons for decision; and WHEREAS as no agreement was reached between the parties as to the amount to be paid to the applicant the Commission set the matter down for hearing on 23 February 2004 to hear from the parties in relation to the amount to be paid to the applicant; and WHEREAS on 23 February 2004 the applicant’s representative advised the Commission that he was unable to attend the Commission on that day due to illness and the hearing was vacated and the parties were directed to provide submissions in writing by the close of business 24 February 2004 and any submissions in reply by 25 February 2004; and WHEREAS on 25 February 2004 the respondent’s representative provided submissions as to the amount to be paid to the applicant and requested leave to reopen its case to make additional submissions in relation to the amount to be paid to the applicant taking into account the duty on the applicant to mitigate his loss; and WHEREAS no submissions were received from the applicant; and WHEREAS on 2 March 2004 a Minute or Proposed Order issued; and WHEREAS on 4 March 2004 the respondent requested a Speaking to the Minute of Proposed Order; and WHEREAS on 9 March 2004 the Commission conducted a Speaking to the Minutes of Proposed Order; and WHEREAS on 9 March 2004 the applicant’s representative advised the Commission by facsimile that he was not able to attend the hearing on that date and the Commission was of the view the hearing should go ahead as no adjournment was sought by the applicant and the Commission did not believe that it was appropriate in the circumstances to delay this matter any further; and WHEREAS the respondent argued that the Commission should deal with the request it made on 25 February 2004 to reopen its case to hear submissions about mitigation in relation to the applicant’s claim for a denied contractual benefit given this request was made prior to the minute of proposed order issuing; and WHEREAS the applicant argued in its facsimile to the Commission dated 9 March 2004 that there was no basis for leave to be granted for the respondent to reopen its case at a speaking to the minutes; and WHEREAS after hearing from the respondent on the issue of reopening this matter the Commission formed the view that there was the opportunity during the hearing of this matter for the issue of mitigation and its impact on any amount to be awarded to the applicant to be canvassed and as there was no compelling reason given by the respondent to convince the Commission that this application should be reopened to hear further form the parties on this issue the Commission refused the respondent’s application to reopen its case; and WHEREAS the respondent confirmed that the correct payment for superannuation in relation to the compensation component of the proposed order was $430.78 and requested an amendment to reflect that appropriate tax was to be paid on the amounts ordered; and WHEREAS the Commission was of the view that point two in the minute of proposed order should be amended to reflect the change in superannuation and that references to the appropriate taxation being paid would also be added; and HAVING HEARD Mr A Randles (of counsel) on behalf of the applicant and Mr D Jones (as agent) on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby: 1 DECLARES THAT the dismissal of Terry Patrick Cranswick by the respondent was unfair and that reinstatement is impracticable. 2 ORDERS the respondent to pay Terry Patrick Cranswick compensation in the sum of $6,815.48 gross less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 within seven (7) days of the date of this order. 3 DECLARES that the respondent denied Terry Patrick Cranswick a benefit under his contract of employment. 898 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 4 ORDERS the respondent pay Terry Patrick Cranswick $29,166.60 gross less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 within seven (7) days of the date of this order. (Sgd.) J L HARRISON, [L.S.] Commissioner. 2003 WAIRC 08839