WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MARCUS PARASCO KOTSOGLO, APPLICANT v. DALE ALCOCK HOMES PTY LTD, RESPONDENT CORAM COMMISSIONER J H SMITH DELIVERED WEDNESDAY, 29 AUGUST 2001 FILE NO. APPLICATION 1955 OF 2000 CITATION NO. 2003 WAIRC 10018 _________________________________________________________________________________________________________ Result Applicant harshly, oppressively and unfairly dismissed. Compensation assessed at $19,418. Representation Applicant Mr A L Drake-Brockman (of counsel) Respondent Mr A J Prentice (of counsel) _________________________________________________________________________________________________________ Reasons for Decision 1 Marcus Parasco Kotsoglo (“the Applicant”) made an application under s.7G and s.29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) claiming that he was harshly, oppressively or unfairly dismissed by Dale Alcock Homes Pty Ltd (“the Respondent”) on 24 November 2000. Background 2 The Applicant is a qualified carpenter, a registered builder and a qualified municipal building surveyor. Prior to commencing his position with the Respondent he worked at the City of Swan as a building surveyor for about six years. The Applicant first commenced employment with the Respondent as a Sales Estimator on 25 May 1998. At that time the Respondent had a Development Solutions Department that provided services for the re-development of existing lots from single residential to group dwellings. The Respondent also had a separate Estimating Department that dealt with the development of single dwellings. 3 When the Applicant was first engaged as a Sales Estimator he was paid an annual salary of $39,000. In January 1999 his salary was increased to $41,000 per annum. In August 1999 he was offered the position of Development Solutions Manager. He accepted that position and entered into a workplace agreement setting out the terms and conditions of his appointment on 17 August 1999. The workplace agreement was registered by the Commissioner of Workplace Agreements under the Workplace Agreements Act 1993. Pursuant to s.7G of the Act, the workplace agreement provided for referral of the claim by the Applicant that he has been harshly, oppressively or unfairly dismissed to be dealt with by the Commission, as if it were an industrial matter referred to it under s.29(1)(b)(i) of the Act. 4 At the time the Applicant entered into the workplace agreement his salary was agreed at $43,000 per annum with superannuation fixed at 7% of base salary, together with a fully maintained company motor vehicle. On 10 April 2000 the Respondent increased the Applicant’s salary from $43,000 per annum to $45,000 per annum. 5 The Applicant testified that his role as Development Solutions Manager was to supervise the Contracts Manager, a Sales Estimator and two Sales Consultants. The position specification for the Applicant’s position stated the scope of his duties as follows— “• The administration of tender documents prior to contracts. • Liaise with client, sales staff contractors, suppliers. • The administration of contract documents and finalise finance, local authority and water authority approvals. • The administration of any additional information prior to work commencing on site. • To confirm final account totals. • To monitor staff performance and quality of document preparation in all departments relative to DADS contracts.” 6 The position specification also specified that the Applicant was to report to the Managing Director and Construction Manager. Further, pursuant to the position specification the Applicant was required to directly supervise administration assistants of the department and indirectly supervise estimators, drafting and pre-site administrators. The Applicant testified that it was also a major part of his duties to deal with local authorities in respect of town planning and building licence issues, to manage job flow through the pre-construction stage of the contract and to check jobs at the stage of final account. 7 In April 2000 the Applicant met with Mr Colin Willis, the Building Manager, and Mr Chris Riley, the Estimating Manager for Dale Alcock Homes Estimating Department and Mr Franzl Shannon, the Assistant Estimating Manager. The Applicant suggested, and the other managers agreed, that the Development Solutions department should be amalgamated with the Estimating department, as the roles of the two departments were fundamentally similar in that both departments provided cost estimates, planning advice and dealt with building licence issues. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 4107 8 A few months later the two departments were amalgamated. The Applicant testified that his role did not substantially change but expanded into dealing with local government issues for single dwellings including building licence matters and town planning application issues. Events that led to termination of the Applicant’s employment 9 In a memorandum from the Applicant to Mr Willis, dated 8 August 2000, the Applicant detailed the changed roles for himself and Mr Shannon in the amalgamated department. It is apparent from that document that the Applicant took over responsibility for managing all local government issues. 10 In August 2000 Mr Willis made a decision to unilaterally withdraw from the Applicant the provision of a company car. Mr Willis said that the Applicant was provided with a motor vehicle to enable him (the Applicant) to attend on-site meetings with clients. Mr Willis testified that the Applicant became totally engrossed in local government matters and was not meeting clients, so the purpose in providing the car was not being met. He decided to withdraw the car and to increase the Applicant’s annual salary from $45,000 to $50,000 per annum. 11 When cross-examined Mr Willis said that he saw the removal of the car as a demotion but he did not inform the Applicant that he was taking the car away as a disciplinary measure. Mr Willis conceded that the withdrawal of the car reduced the Applicant’s total remuneration, as the value of the private use of a motor vehicle could be estimated in money as somewhere between $13,000 to $15,000 per annum. Mr Willis testified that the Applicant was provided with a new workplace agreement containing changes to reflect the new salary without the provision of a motor vehicle, and that after considering the matter the Applicant came back and spoke to him and informed him (Mr Willis) that he was not happy with the arrangement, but he would accept it. 12 The Applicant testified that he spoke to Mr Willis about the removal of the motor vehicle. He said that no reason was given to him as to why the motor vehicle was being removed but however, he assumed there was no need for a vehicle in his position. After about six weeks the Applicant returned the vehicle, and his annual salary was increased by the Respondent to $50,000 per annum. Whilst the Respondent argues that the Applicant accepted the terms of the new agreement by his conduct, the Applicant did not sign the new workplace agreement. Consequently, at law, the registered workplace agreement remained in force. 13 On 24 November 2000, Mr Willis called the Applicant into his office. He initially discussed the amalgamation of the two departments. He then advised the Applicant that the building industry was starting to slow down and that there was not a lot of work for the Estimating Department. The Applicant testified that Mr Willis then informed him that his employment was being terminated as of that day and handed him a letter of termination. The letter of termination stated— “Dear Marcus It is with regret that I have to terminate your employment with our company. The decision is based on the following two issues. The first being the downturn in the industry. We currently have two people dealing with the Councils and town planning departments but with the reduced volume of work it now only requires one person to carry out this function. The second issue relates to the performance of your duties. Unfortunately they have not reached the required level and we have had several discussions regarding this and have even restructured the New Homes and Development Solutions departments. From these discussions and changes we have not reached the level of performance required. The main areas of concern are the processing of jobs through the system, and having a good understanding of the status. Another area is the confidence of the sales people and associate managers which is not to the desired level. This decision takes effect from today and I would like to offer you, on top of the two weeks notice required, an extra four weeks redundancy pay. I appreciate your efforts in tackling this challenging position and wish you well in your future endeavours. Yours sincerely (signed) C Willis” 14 Mr Willis said he called the Applicant into his office, had a chat about how business was quiet and that there were too many people employed by the Respondent. He said that he informed him (the Applicant) that there were two people carrying out similar roles, with similar skills, and that he had had to make a hard decision, and that his decision was that the Applicant had to go. He said he had the termination letter in his hand and that the Applicant snatched it from his hand and told him that it “stunk”. He said the Applicant stated it was not fair and asked whether he (Mr Willis) knew about unfair dismissal. He said he told the Applicant that it was his choice whether he wanted to leave now or stay and work through the period of notice and take time off to look for other work. He said that the Applicant informed him “No, I am out of here”. He said after the Applicant said this he left the premises. 15 The Applicant said that on the day he was dismissed he went home and telephoned the owner and Managing Director of the company, Mr Dale Alcock, at about 6.00pm and asked him why he was being dismissed and he said that Mr Alcock informed him that he was being dismissed because there was a downturn in the building industry and there was a lack confidence with the sales consultants in relation to his performance. The Applicant gave uncontradicted evidence that he informed Mr Alcock that he had never been advised, either verbally or in writing, that his performance was lacking. He said that Mr Alcock informed him that he would take up this issue with Mr Willis on the following Monday. The Applicant then asked Mr Alcock if he would give him his job back, to which Mr Alcock replied “not at this time”. The Applicant testified that he responded by saying, “Dale, thanks a lot for your time, goodbye and don’t bother taking it up with Colin”. 16 The Applicant said he was shocked by the Respondent’s decision to terminate his employment as he thought he was performing well and that he was valued as an employee and that when he left Mr Willis’ office he was unable to say “goodbye” to his fellow employees. The Applicant testified that until Mr Willis spoke to him at the meeting where he was handed the termination letter he had not been informed that there was a loss of confidence in him (the Applicant), as Manager by the sales consultants in the department. 17 The Applicant said that the two sales consultants that he supervised and who sold projects for development sites, telephoned him on 26 November 2000. He said Mr William Lockett, a sales consultant, telephoned him and informed him that he had been happy with his (the Applicant’s) performance and that he had informed Mr Alcock of this fact. The Applicant also testified that the other sales consultant, Ms Elizabeth Fisher, telephoned him on the same day and informed him that she, too, was happy with his performance and that she was frustrated with management, as they should have consulted herself and Mr Lockett prior to making a decision. Ms Fisher did not give evidence in this matter. Mr Lockett, a leading industry sales person said, in cross- examination, that he did not recall speaking to Mr Alcock and advising him that he was more than satisfied with the 4108 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. Applicant’s performance. In relation to the Applicant’s performance he said generally the Applicant’s work was very good but that there were some isolated issues which were not handled well by the Applicant. When questioned further, Mr Lockett said that he had received a couple of complaints from clients which could be best described as the Applicant being inflexible in dealing with their (the clients’) development queries. As to whether there was a downturn in business in the second half of the year 2000, Mr Lockett testified that it was the quietest period he had experienced in twelve years of sales in the industry. 18 Mr Willis testified that the reason why the Applicant was made redundant was because there had been a drop in sales and starts by about 50% on average in the second half of the year 2000, when compared to the previous year. The drop in sales affected the viability of the Respondent’s business because they were selling and making less starts each month. In some months sales and starts were below break-even. Mr Willis said that between July 2000 and January 2001 eight people left the employment of the Respondent and were not replaced. He conceded, however, that six people who left were replaced. In July 2000 the Respondent employed about 87 persons but by the end of December 2000 they employed a total of 83 persons with a further loss of four employees in January 2001. 19 Mr Willis gave evidence that in the second half of the year 2000 he was constantly reviewing work levels of the company. He said at the beginning of the week that the Applicant was terminated he met with Dale Alcock and the Respondent’s Sales and Marketing Manager. He testified that in his opinion there would not be a “turnaround” in the building industry and that all areas and departments had to be reviewed to see if cuts could be made. Further, he said it was clear to him that the combined Estimating and Development Solutions Department had two managers who performed very similar roles, the Applicant and Mr Craig Stocks, the Drafting Manager. He said they both had similar skills, and when regard was had to the amount of work that was available, he was of the view that the department did not warrant having two managers. Mr Willis said that he assessed the performance of both Mr Stocks and the Applicant and came to the view that Mr Stocks’ performance and skills were better than those of the Applicant. In particular, it was his opinion that Mr Stocks was a better manager of people, better at dealing with conflict and processing of jobs. Accordingly, he determined that he would make the Applicant redundant. 20 Mr Dean O’Rourke, the Respondent’s Construction Manager, gave evidence that he went on holidays at the end of July 2000 for seven weeks. He said he went on leave at that time because the GST had caused a drop-off in work. He also said that three of the Respondent’s construction supervisors left in July 2000 and were not replaced. When asked about the standard of the Applicant’s work he testified that he had a good relationship with the Applicant but an issue had arisen in relation to a development contract, which had been prepared by the Applicant’s Department, where the time for completion was set at 150 days, which in Mr O’Rourke’s opinion was too short. 21 The Applicant was shown in cross-examination a job flow chart which showed that there had been a reduction in sales by the Respondent between July 2000 and November 2000. After looking at the chart the Applicant conceded that there had been a significant reduction in the amount of sales in that period, but testified that his department was very busy dealing with applications. However, he agreed that the drop in sales in that period could be an issue with the GST. It was also put to the Applicant that from July 2000 there were a number of employees who had been let go and were not replaced. The Applicant contended that although a number had left, there had been a number of new employees who were employed in that period of time. The Applicant denied that he had ever been made aware of any errors in his work, or that there was any dissatisfaction with clients, or that he had had any difficulties with any members of the staff. 22 At about the end of October 2000 the Assistant Estimating Manager, Mr Shannon, obtained a job with another building company and resigned his position in early November 2000. The Applicant testified that Mr Shannon was replaced by a new employee, who commenced work on the Monday after his (the Applicant’s) employment was terminated. Mr Willis and Mr Riley, however, testified that Mr Shannon was not replaced (as Assistant Manager) but a new employee was engaged in the department as an Estimator. 23 When cross-examined Mr Willis said that the Applicant was not dismissed because of poor performance “as a sole reason of termination”. Further, when cross-examined on the matter of Mr Shannon’s resignation, he stated that Mr Shannon resigned in early November. In addition when questioned as to when decisions were made by the Respondent that persons would have to be retrenched, Mr Willis gave evidence that the decision was made in June or July 2000 that three supervisors had to be let go. Further, in early November 2000 he met with Mr Alcock and Mr Mike Russell, Sales and Marketing Manager, and a decision was made at that time that further employees would have to be retrenched. When Mr Shannon resigned, a decision had to be made as to whether or not he should be replaced. Mr Willis then reviewed the Managers’ positions in the Estimating and Development Solutions Department. Whilst he made a decision that Mr Shannon would be replaced with an Estimator to carry out general costings at a base level and that Mr Shannon’s other responsibilities would be shared between Mr Riley and a couple of other senior people in the Department, Mr Willis took no steps in early November to consider whether the Department could function with one assistant manager or whether the Applicant should be offered a position as an Estimator. Mr Willis made the decision to employ an Estimator in the first part of November 2000 and did not consider the Applicant’s position until the week beginning 20 November 2000. His evidence was contradicted by the evidence given by Mr Riley, the Estimating Manager, who testified that he had discussions about the Applicant’s performance with Mr Alcock and Mr Willis in September or October 2000 and he first became aware that the Applicant’s employment was in jeopardy in mid to late November. Whilst Mr Riley gave evidence of issues relating to the Applicant’s performance, one issue arose when the Applicant was employed as an Estimator prior to his promotion to the position as Development Solutions Manager. Further, Mr Riley testified that he only had an opportunity to “see” the Applicant’s work when he was employed as an Estimator but not after he (the Applicant) became the Development Solutions Manager. 24 Although Mr Willis testified in the examination-in-chief that the only reason the Applicant’s employment was terminated was because of the downturn in the industry, the letter of termination and the employment separation certificate clearly state that one of the reasons for termination was because of poor performance. Mr Willis, however, conceded that he had never given the Applicant either any written or oral warning of poor performance. Further, it is quite clear from his evidence that the Applicant was not given any opportunity to make any submission to Mr Willis, or anyone else in the company, as to why he, rather than Mr Stocks, should be retained as a manager in the combined Estimating and Development Solutions Department. Events that occurred after the Applicant’s employment was terminated 25 Mr Willis testified that the Government announced a doubling of the home buyers’ grant in February 2001 and that this had an immediate effect by increasing sales. He also testified that Mr Craig Stocks resigned in early 2001 and he was replaced. The Respondent tendered an exhibit which was a copy of an advertisement published in the West Australian newspaper on 31 March 2001, for the position of Drafting Manager held by Mr Stocks. Notice of Termination 26 Mr Willis testified that he advised the Applicant at the meeting on 24 November 2000 that he (the Applicant) had the option of working through the two weeks’ notice period or leaving immediately. He said that he advised the Applicant that he could take time off during the notice period to look for other work. He said that the Applicant said, “No, I am out of here.” With that, the 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 4109 Applicant left the Respondent’s premises. The Applicant testified that he was not given any notice. He says he was advised that his employment was terminated on 24 November 2000. 27 Except as set out in paragraph 30 of these reasons in general I prefer the evidence given by the Applicant in relation to what was said at the meeting he had with Mr Willis on 24 November 2000, to the evidence given by Mr Willis. Mr Willis’ oral evidence is contradicted by the statement made to the Applicant in the letter of termination, which clearly states that the decision to terminate took effect from 24 November 2000. Further, there is an offer in the letter to pay the Applicant, on top of two weeks’ notice, an extra four weeks’ redundancy pay. 28 As counsel for the Applicant points out, where there is no condition in a contract of employment for payment in lieu of notice to be given, the employer is in breach of the contract if it does not give the employee requisite notice of termination (Sanders v Snell [1998] HCA 64 at [16]; (1998) 196 CLR 329 at 337 per Gleeson CJ, Gauldron, Kirby and Hayne JJ). It is common ground that the purported payment in lieu of notice and the four weeks’ redundancy pay was not immediately paid to the Applicant, although it was paid sometime after the Applicant’s employment was terminated. Accordingly, at law the Applicant was summarily terminated. Conclusion 29 The question to be determined by the Commission is whether the legal right of the Respondent to dismiss the Applicant has been exercised harshly or oppressively against the employee, so as to amount to an abuse of that right (Ronald David Miles, Norma Shirley Miles and Lee Gavin Miles and Rose & Crown Hiring Service trading as The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 at 386). 30 The Applicant contends that it is questionable whether the redundancy was genuine. Whilst the burden of proof lies on the Respondent to prove that the termination was justified, I do not accept the Applicant’s contention that the Respondent did not genuinely have a need to abolish a Manager’s position in the Estimating and Development Solutions Department. I accept that the Respondent’s sales figures show that its sales were 50% lower in July/December 2000 than for the same period in the previous financial year. I accept the evidence given by Mr Willis that in that period some monthly sales were at less than breakeven level. I also accept the evidence given by Mr Lockett that the period from July 2000 until December 2000 was the quietest period for sales that he had seen in twelve years in the industry. These findings do not, however, dispose of the Applicant’s case, as a process of redundancy, unfairly brought about, constitutes an unfair dismissal (WA Access Pty Ltd v Vaughan [2000] WAIRC 1179 at [66-69]; (2000) 81 WAIG 373 at 378 and cases cited therein). It is also well established that a termination for redundancy which is not accompanied by a reasonable redundancy payment is harsh, unjust and unreasonable (Rogers v Leighton Contractors Pty Ltd (1999) 79 WAIG 3551 at 3552 and cases cited therein). In order to establish that a termination of employment for redundancy is unfair on grounds that the selection of an employee was unfair, the employee in question must show that his or her selection was unfair in comparison to other workers (see AMWSU and OPDU v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733 per Brinsden J at 734 and Olney J at 738). Further if the selection process was such as to deny procedural fairness, the selection process may also be unfair. 31 In addition, a failure to comply with the mandatory requirements under s.41 of the Minimum Conditions of Employment Act 1993 is a factor to be taken into account in deciding whether a dismissal is unfair. (Gilmore v Cecil Bros. (1996) 76 WAIG 4434, per the President at 4445). Section 41 of the Minimum Conditions of Employment Act required that where an employer has decided to make an employee redundant, the employee is entitled to be informed by the employer as soon as reasonably practicable after the decision has been made and discuss the likely effects of the redundancy and measures that might be taken to avoid or minimise its effect. 32 I am of the view that the manner in which the Applicant’s employment was terminated on grounds of redundancy was harsh, oppressive and unfair for the following reasons— (a) Although it was conceded on behalf of the Respondent that the Applicant was not dismissed for his poor performance, the letter of termination and the separation certificate make a clear statement that a substantial reason for the Applicant’s termination was “poor performance” when in fact that was not the case. In particular, it was submitted that the reason the Applicant’s employment was terminated was because there was significant downturn in the level of sales after the introduction of the GST and that the evidence clearly establishes that the Applicant was not dismissed for his work performance. Further, it was conceded his work performance did not warrant his dismissal and that during the currency of his employment his work performance was not an issue. As I understand the Respondent’s case, the performance of the Applicant was only raised as part of the selection process in determining whether the Applicant should be made redundant as opposed to the other Assistant Manager in the amalgamated department, Mr Stocks. Whilst the Respondent may have intended the issues of performance to be raised in this confined way, it was not done so. (b) The Respondent failed to accord the Applicant the procedural fairness in that he was given no opportunity to put his case as to why he should not be made redundant as opposed to Mr Stocks. Further, none of the performance issues were put to the Applicant prior to a decision being made to terminate his employment. (c) It is apparent from the evidence given by Mr Willis and Mr Riley that the Respondent had an opportunity to consider whether the Applicant’s position should be made redundant when Mr Shannon resigned. If this had occurred, the Respondent could have afforded the Applicant the opportunity to take up a position as Estimator, which he had previously held prior to his promotion to the position of Manager, Development Solutions. (d) The Respondent breached s.41 of the Minimum Conditions of Employment Act. There was no discussion with the Applicant about the likely effects redundancy would have upon him, and measures that may be taken to avoid or minimise its effect on the Applicant. 33 In the circumstances, I concluded that the unfair, harsh and oppressive manner in which the redundancy was effected resulted in unnecessary hurt and humiliation to the Applicant and damage to his reputation. In particular, I have reached this view because the statements made in the letter of termination and the separation certificate give a clear but false impression that a substantial reason for the Applicant’s termination was poor performance, when in fact this was not the case. Assessment of Compensation 34 It is clear from the evidence that reinstatement is impracticable. 35 The principles in assessing compensation in unfair dismissal cases are well known. The Chief Commissioner recently summarised those principles in Mark Murray Quartermaine v Anson Management Services Pty Ltd unreported [2001] WAIRC 3083 at [35]— “The principles which apply to assessing compensation have been set out in detail by the Honourable President in Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8. Without reciting those principles in detail, it is 4110 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. encumbent upon the Commission to make findings as to the loss and/or injury which the employee suffered by reason of the dismissal. There must be a causal link between the loss and/or injury claimed and the termination of employment. The employee is required to establish his/her loss (and suffering) on the balance of probabilities. The employee is to be placed in the same situation as he/she would have been had she/he not been unfairly dismissed. Subject to the statutory limit specified by s.23A(4) of the Industrial Relations Act (as amended) an applicant who has been found to have been unfairly dismissed is to be compensated to the fullest extent in respect of such loss or injury.” 36 The Applicant was asked in cross-examination whether he had approached any building companies for work after his employment was terminated, to which the Applicant replied that he had not as he had experienced a loss of confidence, in particular, he felt very jaded about how organisations like Dale Alcock Homes, being a reputable company, dealt with its employees. After the Applicant’s employment was terminated he obtained project management work for Jordini Enterprises, for which he earned $7,000 or $8,000. On 8 January 2001, he obtained part-time work as a building surveyor with his former employer, the City of Swan, for 48 hours per fortnight for a period of six months. He earned $12,292 whilst working in that position. The Applicant then obtained full-time employment with the City of Swan as a Building Surveyor – Development Services to commence on 4 July 2001. His letter of appointment for that position stated his salary will commence at $43,367 per annum. 37 The first issue that arises is whether the Applicant was paid a reasonable redundancy payment. 38 The nature of a redundancy payment is compensation to an employee for non-transferable credits such as sick leave and for the competitive disability to long-term employees arising from opportunities foregone in the continuous service of an employee (see Fryar v System Services Pty Ltd (1996) 137 ALR 321 applied in Black v Brimbank City Council (1998) 152 ALR 491 and Westen v Union des Assurances de Paris (1996) 88 IR 268). 39 In light of the fact that the Applicant is now aged 32 and was employed for a period of two and a half years by the Respondent, I am not satisfied that the payment of four weeks’ salary as a redundancy pay could be described as an adequate redundancy payment. However, it is not surprising that the Applicant has not sought employment with another building company, as any prospective building company would enquire of the Applicant or the Respondent why his (the Applicant’s) employment with the Respondent came to an end. A person in the Applicant’s position would then be faced with the humiliating prospect of having the letter of termination or separation certificate or their contents disclosed to a prospective employer. 40 The Applicant pointed out that he thought until his termination that he was a valued employee having received a number of pay increases during the currency of his employment, where in each instance none of these pay increases had been made at his request. He said he felt very upset and humiliated. The Applicant testified he felt he had put his heart and soul into the position and that, socially, he had promoted the company. The Applicant testified that he still felt humiliated and upset and had sought and obtained counselling from an occupational therapist in April 2001. 41 The authorities establish that a certain level of shock and distress on behalf of an employee is to be anticipated in any dismissal and there must be evidence that the dismissed employee has sustained damage of the kind claimed (Lynam v Lataga Pty Ltd [2001] WAIRC 2420 at [55-57]; (2001) 81 WAIG 986 at 989. Consequently, usually no award for injury is made. However, in this case the Respondent has acted in a way that is callously humiliating to the Applicant. I accept the Applicant’s evidence that he has suffered hurt, humiliation and stress and that he has sought counselling in dealing with the injury he has suffered as a result of being terminated. 42 Having regard to the evidence and the circumstances of this matter, in particular that the letter of termination and separation certificate, and the basis on which it was provided, will remain as a permanent record on the Applicant’s employment history, I have concluded that the Applicant should be awarded $6,000 as compensation for injury. Whilst an award of $6,000 may ordinarily be seen as a high amount, I am of the view that the circumstances of this case justify an award of this amount. 43 Further, I am satisfied that the Applicant has proved that his selection for redundancy was unfair, causing him to lose the opportunity of continuing to work for the Respondent, at least, as an Estimator. Further, he has lost the opportunity to remain in the building industry and to seek work at a commensurate salary to the position he held as Development Solutions Manager. In particular, he lost the opportunity in March 2001 to take up Mr Stocks’ position when Mr Stocks resigned. 44 I find that the Applicant lost the opportunity to work as an Estimator at a remuneration of at least $41,000 per annum from 24 November 2000 until the end of March 2001, when Mr Stocks’ position was advertised. His loss from 1 April 2001 is the loss of the opportunity to work in the Manager’s position with a remuneration of at least $50,000 per annum. This equates to a loss of $41,000 per annum for 18 weeks, which is a sum equal to $14,192, and $50,000 per annum for 13 weeks and two days, which is a sum equal to $12,885. These sums total $27,077. Since the Applicant’s employment was terminated until 4 July 2001, the Applicant earned approximately $20,292. From 4 July 2001 he will earn at least $43,367 per annum. Consequently, the Applicant’s loss until 4 July 2001 is $6,785. From that date his ongoing future loss is $6,633 per annum. 45 At the time the Applicant’s employment was terminated his remuneration was $50,000 per annum. However, his registered Workplace Agreement entitled him to a salary of $43,000 per annum with a fully maintained motor vehicle which the Respondent admits could be assessed at (at least) $13,000 per annum. Prior to his employment being terminated this amount was increased to $45,000 per annum with the motor vehicle and then to $50,000 per annum without the motor vehicle. Accordingly I assess the Applicant’s average remuneration at law to be $56,000 per annum. Pursuant to s.23A(4) of the Act the Commission may make an order not to exceed six months’ remuneration of the claimant. When regard is had to the Applicant’s age, qualifications and experience and his prospects for seeking improved remuneration, I have considered that the Applicant’s loss from the date of termination until 4 July 2002, when added to the amount awarded for injury will not exceed six months’ remuneration. Accordingly, I will order that the Respondent to pay the Applicant the sum of $19,418. _________ 2001 WAIRC 03688