WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MICHAEL DANIEL VAN HEEK, APPLICANT v. A WHISTLE AND CO. PTY LTD T/A ELECTRODRY CARPET DRY CLEANING, RESPONDENT CORAM COMMISSIONER J F GREGOR DATE THURSDAY, 13 JUNE 2002 FILE NO. APPLICATION 639 OF 2001 CITATION NO. 2002 WAIRC 05736 _________________________________________________________________________________________________________ Result Dismissed Representation Applicant Mr R. Warner (of Counsel) appeared on behalf of the applicant Respondent Mr J. Davies (of Counsel) appeared on behalf of the respondent _________________________________________________________________________________________________________ Reasons for Decision 1 Michael Daniel Van Heek (the applicant) has applied to the Commission for orders pursuant to s.29 of the Industrial Relations Act, 1979 following what he claims was an unfair termination of his employment by A Whistle and Co Pty Ltd t/as Electrodry Carpet Dry Cleaning (the respondent) on or about 27 March 2001. 2 According to the applicant he was employed for a period of about 1½ years commencing on 7 October 1999. He was engaged as a carpet cleaning technician, apparently under the terms of the State Contracting Cleaners Award. 3 In addition to the contractual entitlements prescribed in that Award the applicant claims that he became entitled to a holiday to the value of $4,000.00. There is controversy between the parties about the applicant’s entitlement to the holiday. He says the entitlement was established in November 1999 when he was told by the respondent’s National Manager, Mr Rich Nash, that there was going to be a competition amongst employees in Western Australia. The employee with the best combined sales and performance would win $4,000.00, there would also be a national competition where the winner would accompany a National Manager to the United Kingdom, the value of the national prize was $10,000.00. 4 In October 2000 the applicant was told by the State Manager, Mr Gary Burgess, that although the competition had not been finalised that the applicant would be the winner. 5 The applicant also says that he had a dispute with the respondent about his entitlement to annual leave and as a result of that dispute he was dismissed. When he had raised the matter with Mr Burgess he was told that if he did not like the situation he could leave. 6 Prior to this he at his request had received a reference from the respondent to assist him in obtaining other work (see Exhibit W1). The applicant’s evidence is he was trying to find work as he had decided that it was time to move on. The dispute between him and Mr Burgess continued to develop which resulted in some sanctions being applied against the applicant such as removing his access to company transport. During this period the applicant had continued to apply for other work. 7 In December 2000 there was a staff Christmas party at which the $4,000.00 bonus was discussed. This took place in a restaurant where all staff members who were then employed were present including the State and National Manager. It is the applicant’s contention that he spoke with the National Manager, Mr Nash, and asked him why he was not getting the holiday prize. He alleges that Mr Nash had replied along the lines that he was not getting it because he had been making enquiries with Wageline about his entitlements. According to the applicant he debated the matter of holiday pay with Mr Nash and was eventually told that he would get paid two weeks holiday pay as long as he did not tell other employees. 8 A week or so later the applicant raised the question of holiday pay with Mr Burgess who would not give him an answer. About this time he applied for work with Delucko Brothers. In searching for work he took some time off, unpaid, for interviews. He found out later he did not get that job, he told Mr Burgess that he had been unsuccessful but a few days later he says he was dismissed. 9 The applicant says the circumstances of the dismissal were that he was called in to the office by Mr Burgess and told his services were going to be terminated and that Mr Nash should have done it while he was in Perth. The applicant claims that he asked Mr Burgess why he was being dismissed and he was told to the effect that he had been looking for other work, there was no other reason offered. 10 The termination letter is incorporated hereunder— “Wednesday, March 21, 2001 TERMINATION OF EMPLOYMENT MICHAEL VAN HEEK Effective as of Monday 19th of March 2001. It is unfortunate that we have to give you two weeks notice of termination of employment. Reason’s(sic) being as you have informed Mr. Gary Burgess that you are seeking other employment because you were not happy with your terms of employment with Electrodry Carpet Dry-cleaning. We feel that we have treated you fairly in this matter as Mr. Gary Burgess has at you (sic) request allowed you time off to attend interviews with the type employment that you desire i.e. Real Estate (sic). If you are in need of further time of (sic) during the two week termination period please advise Mr Burgess and we will do our best to accommodate you in this matter. Signed on behalf of Rich Nash Gary Burgess” (Exhibit W2) 1314 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 11 During his evidence the applicant speculated that he may have been dismissed because he would not enter into a subcontract arrangement. He had been given drafts of an arrangement that the respondent wanted to enter into with him as a subcontractor but he never signed prior to his dismissal. 12 After his dismissal the applicant says he asked the respondent if he could leave straight away and not serve out his notice. Because of his family responsibilities he needed to find work as soon as possible. The respondent through Mr Burgess declined to release him immediately but agreed that he could work for the first week of the two week notice period and have the second week off to look for work. 13 After the applicant had left the employ of the respondent he made attempts to obtain work by sending out resumes to likely employers and checking on the Centrelink job search system as well as searching on the Internet. He was able to obtain some work, the details of which he gave to the Commission. 14 Also in his evidence the applicant told the Commission that his work standards had not diminished as the respondent had alleged, if there were deficiencies they were because the respondent failed to supply the correct equipment and if the work was faulty, that was because the wrong chemicals were being used. He believed that all of the respondent’s technicians were receiving similar complaints. 15 As for the allegation that he informed the respondent that he was looking for alternate employment, that was correct, but he says his conduct was a response to the respondent failing to deal with his questions concerning his entitlements in a proper manner. He admitted too that he wanted to get into an industry that paid more money. As for his entitlement to the prize he says that there were two competitions, one National and the other State. He knew he was nominated for the National competition but did not receive that prize, but he was certain that he was entitled to the $4,000.00 for the State competition because he had been told by Mr Burgess that he had won the prize. 16 In cross examination Mr Davies, of Counsel, who appeared for the respondent questioned the applicant about his entitlement to the prize for the so called State competition. The applicant denied that he asked for the reference which had been given to him in November 2000 for the purpose of a housing loan. 17 The applicant admitted that the respondent received complaints about the standard of his work during the first 12 months of his employment and Mr Davies took him to a number of those complaints in his cross examination. It is not necessary to summarise those for the purposes of these Reasons for Decision. The applicant claimed that even though he was unhappy at work his quality did not drop off, he always tried to do his best. 18 The applicant was cross examined about complaints that he had used offensive language to Mrs Tracy Burgess who works in the office as an Administrator. He denied that the issue was raised with him by Mr Burgess, but he opined that the environment was very blokey and commensurate language was used. He admitted that he did use foul language but he did not remember addressing the language to Mrs Burgess. If Mr Burgess had raised the question of the use of that language he did not do it to him individually. According to the applicant Mr Burgess would have warned everybody. There were other instances involving foul language when Mrs Burgess allocated the applicant a series of jobs in the Mandurah area. He admitted he did not like doing the Mandurah run and he may have complained. 19 The preceding is a sufficient summary of the applicant’s evidence for the purpose of these Reasons for Decision. To support his contentions he called evidence from Mrs Cleo Rose Laughton who is his sister-in-law. Mrs Laughton attended the Christmas function run by the respondent at the North Bridge restaurant in company with her husband Mr Tim Laughton. She remembered the applicant asking Mr Nash work related questions about holiday pay and a competition. She claimed that when the conversation started the rest of the table fell silent. The conversation revolved around the applicant asking questions of Mr Nash about holiday pay and why it was not paid. 20 Mrs Laughton says she had a distinct memory of the applicant asking Mr Nash whether he had won the competition and she says he was told he had. She understood the competition to be based on sales and general performance as a technician, she claims the applicant was told that he had won it but that it had been cancelled. Mrs Laughton claimed that Mr Nash had told the applicant he had not won the competition because of his enquiries about his annual leave. Mrs Laughton thought the prize was to the value of $4,000.00 with Mr Nash to go along with the winner. She had heard about the competition in vague terms mainly in conversations between her husband and the applicant. In cross examination Mrs Laughton said that the only competition she knew about was one involving a $4,000.00 holiday and she did not remember anything specifically about a State based competition. 21 Mr Timothy James Laughton also gave evidence, Mr Laughton is an employee of the respondent, he was also present at the Christmas function, he remembered a conversation between the applicant and Mr Nash in relation to the prize. Mr Laughton heard that the applicant was not going to get it because of his enquiries about underpayment of annual leave. Mr Laughton says there were two competitions one was National to the value of $10,000.00 and the other was $4,000.00. Each of these were redeemable by flying for a holiday somewhere with either the State or National Manager or for $2,000.00 the winner could go with his partner or friend. 22 The final witness on behalf of the applicant was Mrs Katie Beth Van Heek who is the wife of the applicant. She says at the dinner held in North Bridge there was a discussion about a State competition. The discussion was between her husband and Mr Nash. She claims everyone else made a contribution but the discussion was mainly between them. The applicant was upset and asked Mr Nash if he had won the State competition and if it had been withdrawn. She says that Mr Nash had told him that because of allegations made by the applicant he would forego the prize. Mrs Van Heek says there was only discussion of one competition but she knew of another one which was not discussed then. She claims that Mr Burgess said the State competition had been “squashed” and the applicant’s name had been put up for the National competition but he had “not won that”. Mrs Van Heek did not have much detail about the competition. She also gave some evidence about her experience in working for the respondent for three or four weeks. During that time she had received complaints from customers about the standard of work by technicians. 23 Evidence was taken on behalf of the respondent from Mr Gary Burgess, he recalled employing the applicant and remembered a sales incentive scheme. It was to be based upon the combined assessment of sales, work quality and keeping the van and equipment in good condition. It was to be judged in late October 2000. The State Manager from each Branch would pick a candidate and put forward the name to the National Manager, Mr Rick Nash, who would then choose a National winner. The prize was to be $2,000.00 if the winner undertook travel on their own or $4,000.00 with Mr Nash. Ultimately the prize was won by Mr Peter Billings from an Eastern States branch. The applicant had been nominated as the candidate from Western Australia, he was unsuccessful in the National prize, he was not entitled to a prize as a State nominee. There was no State sales scheme, nor was there any announcement of a prize of $10,000.00. The announcement of the winner was made late November or in December 2000. 24 Mr Burgess said in 1999 there were changes in the terms of remuneration introduced by the respondent. During that time an employment manual was introduced. It contained a base wage and sales commission was raised from 25% to 28%. The new 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1315 salary structure incorporated payments for annual leave, this was done by paying the leave out of the increased commission. Employees were paid above the Award rates, but apart from the absorbed annual leave all other Award entitlements for sick leave and public holidays were paid (see Exhibit D1 – Terms of Remuneration). 25 Mr Burgess says in November 2000 the applicant approached him for a two references, one to be used as support for a mortgage the other for work purposes. The applicant told Mr Burgess he needed the latter because he was looking for alternative employment. Mr Burgess swears that the reference was drafted by Mrs Van Heek. 26 Mr Burgess also gave evidence about the system for dealing with complaints and examples relating to the work of the applicant. The applicant also used foul language to Mr Nash, however Mr Burgess decided not to take any action on that issue. Mr Burgess also discussed the prize night at North Bridge restaurant, one employee was given a television set, however Mr Burgess did not hear the conversation between Mr Nash and the applicant. 27 According to Mr Burgess around about this time the applicant’s quality of work changed radically, for the first twelve months he had not received very many complaints, at least none out of the ordinary, then from November 2000 the respondent started to receive a growing number of complaints from clients. There was also complaints about the applicant from other technicians, as a result a meeting was called by the applicant, apparently to clear the air. At this time Mr Burgess already knew about the obscene language used by the applicant to Mrs Burgess, this was compounded when he used further foul language when he refused to go back and do a job. Mr Burgess says he confronted the applicant on both of the issues on separate occasions, he told him that it was unacceptable to speak to Mrs Burgess the way he did and gave him a first and final warning over his conduct. He warned him again after the second incident and told him that was his ‘absolute last’ warning. 28 The meeting between the applicant and the other employees was unsuccessful for him, a number of them voiced complaints about him, telling him that they were sick and tired of his whingeing. Mr Burgess also took the opportunity to tell the applicant if he spoke to his wife like he had in the past he would be dismissed on the spot. Subsequently there were other problems with the applicant which led Mr Burgess to comment that perhaps he had ‘lost the plot’ and did not care about his job anymore. 29 Mr Burgess remembered that the applicant had told him that he was not happy that annual leave had been taken away and he wanted it to be reinstated. Mr Burgess told him that was out of his hands, but he made telephone numbers of the National Directors available to the applicant to follow up with them if he so desired. As far as Mr Burgess was concerned the applicant was continuing to look for other employment. He was asking for time off and Mr Burgess concluded that he was leaving soon. Although there was no time frame it was agreed that he was leaving. Mr Burgess took this as a resignation which he accepted, because that was the understanding it was okay with Mr Burgess for the applicant to be out looking for work with other employers. Mr Burgess contacted Mr Nash and let him know that the applicant intended to leave, he was instructed to contact Wageline and check the position, which he did. 30 Later there were other incidents involving poor performance by the applicant which resulted in clients refusing to pay, as far as Mr Burgess was concerned the applicant was not working properly and it was clear he did not care about the job. The result of one incident was a loss to the respondent of a substantial client. 31 In February 2000 the applicant had asked for another reference. The respondent concluded it would soon need to replace him so it placed a recruitment advertisement. This was necessary because it takes about four weeks to train a new technician. It was done in the expectation that the applicant would be leaving and the respondent did not know whether it would get any notice from him. 32 Incidents involving the applicant writing obscene language on the notice board and having difficulties with jobs continued. His conduct with clients was unacceptable so on 19th March 2001 the respondent concluded that the applicant was costing them too much money, it had lost a valuable client, so he was given notice of termination. 33 Evidence was taken from Mr Richard Nash who is the National Manager of the respondent. He recalled a visit to Perth in December 2000 when the applicant addressed him with foul language he instructed Mr Burgess to deal with it. Mr Nash could not remember discussions about prizes on the night of the Christmas party at the North Bridge restaurant, but he said the terms of the competition were that each State would nominate a candidate based on sales, cleanliness of truck and equipment work skills and that Western Australia had nominated the applicant. At the time of the function no award of the prize had been made. There was later and it was won by Mr Peter Billing of Victoria. The award was made after the function in Perth, it was announced at a staff Christmas party in Victoria. 34 Mr Nash related how the prize was decided. It consisted of getting a feed back from clients, checking work sheets and records, the prize was a $4,000.00 trip to be taken either with the State Manager or Mr Burgess to the value of $4,000.00. If the candidate chose to go on his own the value would be $2,000.00. Mr Nash denied that he had ever said to the applicant that he had not won the prize because of his complaints about his annual leave. He cannot recall exactly what happened at the dinner because he regarded it as a social event, there was a lot of joking and good humour and plenty of alcohol was consumed. Mr Nash said the applicant had been drinking considerably although he did not monitor it, he himself had been drinking over a period of twelve hours. 35 Mr Nash told the Commission that the applicant announced in January that he would be leaving the respondent, he was trying to find work elsewhere in real estate. Mr Nash knew nothing of any State competitions, there was only ever one prize. There was a television set given away at a Christmas function that was awarded by Mr Burgess in his capacity as State Manager but it had nothing to do with the National office. 36 Mr Nash knew that the quality of the applicant’s work was deteriorating rapidly. Eventually he was told that the applicant in effect handed in his resignation. He thought this was sometime in late January. In March when Mr Burgess was in Perth the applicant again reiterated he would be leaving the respondent. When Mr Burgess eventually confirmed the applicant was leaving Mr Nash asked him to check the respondent’s obligations with Wageline. The respondent applied the guidelines which were given. As far as Mr Nash was concerned the respondent had every reason to bring the relationship to an end not the least being that the applicant had informed them on a number of occasions he was going to leave. His work quality thereafter deteriorated rapidly, there were numerous complaints from clients and the respondent could not allow that situation to continue. It needed four weeks lead time to train someone to replace him so it was inappropriate to allow the situation to develop to a stage where the applicant would just walk out. In all of the circumstances the respondent thought the best setting for the applicant would be to release him on two weeks notice and that is what occurred. 37 The Commission heard evidence from Mr Christopher William Easterbrook a senior technician employed by the respondent. Mr Easterbrook recalled that the applicant had told him in November 1999 that he was starting to look for other work. Mr Easterbrook’s memory of the National bonus scheme was that there was a sales competition for a couple of thousand dollars, the State Manager from each State would pick his best technician and put him up as a candidate. He knew that in year 2000 a technician from Melbourne won the prize, there was not a State prize just a nomination of the best technician, there was no prize for that. In November 2000 he became aware of increasing numbers of ‘redo’ jobs coming through and there were discussions at the respondent’s premises about this problem. The applicant had expressed unhappiness about some of these repeat jobs and complained about them. 1316 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 38 Mr Easterbrook said that in January 2000 he witnessed a conversation between Mrs Burgess and the applicant where the applicant had sworn at her using foul language. It might have been that the language was directed to the client but it was certainly said to Mrs Burgess, it was certainly unusual for that type of language to be used in the office. As a result Mr Easterbrook mentioned to Mr Burgess on the quiet that if it had happened to his wife he may well have thumped the applicant. 39 Mr Easterbrook said that in the beginning of 2001 the applicant asked for a meeting of the staff to have a discussion with them to see what their problems were with him. In effect the applicant invited people to air their grievances about him and that happened. The applicant was told that some of his work mates were sick of his whinging and that he was lazy. Mr Easterbrook later heard Mr Burgess tell the applicant that if he used foul language again to office staff he would be instantly dismissed. 40 There was an incident involving a notice board where the applicant had written a message in foul language which message gave offence to Mr Easterbrook so much so that he invited him to go out the back and ‘sort it out’. The applicant declined and later they had a discussion and resolved their differences. 41 The final witness on behalf of the respondent was Mrs Tracy Burgess, the wife of Mr Gary Burgess the State Manager. Mrs Burgess works in the business and related that the applicant had used foul and offensive language when she had raised issues with him about his work. As far as she was concerned his swearing was directed at her, there was no doubt about that at all. She knew about the National competition. It was won by a man from the Eastern States. 42 The Commission has heard evidence on behalf of the applicant from himself, his wife, his brother-in-law and sister-in-law. As for the applicant I have unease about the quality of the evidence that he gave the Commission. He appeared to me to adjust his evidence in Chief when subject to probing cross examination from Counsel from the respondent. I would not go so far as to say that he told untruths to the Commission but he certainly omitted a number of events which would have the effect of having the Commission conclude that his story is one that should be believed. If they were included one might find had reached a different conclusion. 43 The evidence of his wife Katie Van Heek supports that of the applicant but that is not surprising in the circumstances. She had worked with respondent, albeit for a short time but had been subject at all times to the applicant’s perceptions of how the respondent was treating him. The evidence of Mr and Mrs Laughton can be similarly categorised. This family view, if one can call it that, seems to pervade the evidence and I will comment more about that later on. 44 The Commission also heard evidence from Mr Gary Burgess there is no reason to disbelieve his version of events, the evidence of his wife Tracy does not suffer from the same difficulty that the evidence of the applicant does because her contentions have independent corroboration from Mr Easterbrook. His evidence was blunt and to the point but I have no doubt at all that he told the Commission exactly what he thought and believed had happened. The evidence of Mr Nash was straight forward, he was unable to help the Commission much concerning what was said at the Christmas party, mainly because he did not remember it, probably because of alcohol consumption. I only mention that because he did not try and give information to the Commission about matters about which he had no knowledge. 45 Taken on a whole the evidence of the applicant suffers in comparison to that presented on behalf of the respondent and where there are conflicts I find they should be resolved in favour of the respondent. 46 It is for the applicant to establish the dismissal was unfair on the test contained in Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385. Essentially the test is whether there has been a fair go all round, that is, has the right of the employer to terminate the employee been exercised harshly or oppressively and unfairly as to amount to abuse of the right. The Commission is required to weigh all of the matters in the balance, a dismissal will not be found to be bad if one element in its determination is missing Shire of Esperance v Mouritz (1991) 71 WAIG 891. 47 I carefully considered the evidence in this matter and have reached the following conclusions. The respondent runs a business cleaning carpets in both commercial and domestic settings, it trains its own operators to attend homes or offices to clean carpets and upholstery. The operatives are supplied with equipment, cleaning fluids and training which allowed them to carry out the work, they do so from a van which contains all of their equipment. 48 The respondent advertises and canvasses for business by the telephone, quotes are given and the technicians are sent to the work. They are required to repeat the work if it is not done properly and certain penalties can apply in those circumstances such as loss of commission (see Exhibit D1). 49 It is open to find that the applicant worked satisfactorily for some twelve months after he joined the respondent but thereafter the quality of his performance began to deteriorate. He became dissatisfied with the way the respondent ran its business. It appears that when he was first employed there was a verbal arrangement between the parties as to the terms and conditions of employment. That arrangement was formalised on 18th April 2000 when the applicant signed terms of remuneration, those terms became the contract from then on. Whether they changed the circumstances of the employment arrangements substantially I am unable to conclude because I have no evidence about what they were before this time. 50 I accept the evidence of Mr Burgess that the arrangement caused an increase in commission and the intent of the document was that increase in commission was over an overaward payment which would swallow up annual holiday leave while payments for public holidays and sick leave would continue. I must say that on a reading of the [so called] contract that is not what it says on a plain interpretation of the words, however it is open to conclude that it was intended that annual leave would be paid as part of normal earnings. I make no comment as to the efficacy of that arrangement, however an arrangement it was. 51 It appears that along with becoming dissatisfied with his job the applicant also was worried about whether he was entitled to annual leave or not. He raised the issue with Mr Burgess and made external enquiries as to his entitlements. The question of annual leave and his entitlements though is just part a series of relationship difficulties that the parties were then having. Apart from the annual leave issue the applicant’s clear desire was to obtain better paid work somewhere else. He was not getting on with his work mates. He took the unusual step of convening a meeting to allow them to express any views about him. That they did and described him as whinging and lazy. Mr Easterbrook the senior technician had additional problems with him so much so that his conduct caused Mr Easterbrook to invite him outside to settle the issue in physical combat. That fortunately never took place but it is an indication of the uncomfortable surroundings in which the applicant then found himself. He was a person who was looking for other work, he was concerned about whether he was being paid properly, he was at odds with his fellow employees. 52 In addition to this the applicant’s work had clearly deteriorated. I find that he did use foul language in the presence of Mrs Burgess and on the balance of probabilities directed it to her. I find that his conduct in this respect was taken up with him by Mr Burgess who warned him about the consequences of a repeat and when he did repeat it he had received a final warning about his conduct. All in all the relationship between the parties was delicate and this led the respondent to decide that for the good of its business that it ought to exercise its right to bring the employment relationship to an end. It did so because of the lack of input the applicant was making to the business and because of the disruption that he was causing it. The respondent did not do it because it thought that it had some legal obligation to him concerning annual leave. I find that however misguided, the respondent thought that annual leave was being paid as part of an aggregate wage. As I mentioned earlier whether or not 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1317 that is a proper conclusion it is for a Court otherwise constituted to determine. However notwithstanding the legality of the arrangement the respondent thought it was operating correctly in absorbing the annual leave payment. 53 Coupled with the applicant’s dissatisfaction about his lot in life with the respondent was his state of mind that he thought he had been deprived of a prize he had won denying him a bonus. The evidence about the bonus from the applicant’s point of view is not convincing, he thought that there was a State prize and a National prize with differing amounts of money. It is not surprising that his wife, his brother-in-law and sister-in-law and her husband might have a similar view because they clearly discussed their view of what the arrangement was in a family group, that does not mean that was the arrangement, in fact the evidence of Mr Laughton as to what consisted as the prize was equivocal to say the least. 54 The evidence that the Commission has before it concerning the form of the prize comes from Mr Burgess, Mr Nash and supported by Mr Easterbrook. It is clear that the respondent offered a prize for a technician on a National basis, each State Manager was to nominatean employee, there was no prize for the State nomination and a National prize winner was selected out of the State nominees. There was no prize to which the applicant was entitled that has been denied by any subterfuge, certainly not because he made a claim about annual leave. It is admitted by Mr Burgess and Mr Nash and supported by Mr Easterbrook that the applicant was the person then nominated as the West Australian nominee for the National prize but at the time of the party attended by Mr Nash the National prize winner had not been decided so it is difficult to understand how he could have said that the applicant was not the National prize winner. Mr Nash could well have said that the applicant did not win any prize merely for being nominated as the representative from Western Australia. However what actually was said at the Christmas function is very difficult to decide from the evidence, clearly the event was attended by a considerable intake of alcohol, only one witness Mrs Laughton said that there was any silence around the table; everyone else said the conversation was loud. Mr Nash had been drinking for twelve hours, it is clear that he did not remember much of what was said and it would not be surprising that the applicant having indulged in considerable alcoholic intake only remembers that part of the conversation which suits his contentions now. 55 The onus of proof is on the applicant to establish that there has been unfairness in this dismissal on the test to be applied. Even though some of the evidence might point to the respondent as being less than a model employer on balance there is not sufficient evidence to establish any of the contentions of the applicant. I find that the applicant had been dissatisfied with working for the respondent for some time, he had been looking for work, his dissatisfaction appears to be seated both in the need to earn more money and generally the type of work that he was doing. He clearly did not want to do some of the work anymore, his standards of work fell away, he became confused about his right to a bonus through a prize. This enhanced his dissatisfaction and he made that dissatisfaction well known to the respondent by his conduct and demeanour. 56 Eventually the respondent decided that if the applicant was going to leave it ought to ensure that a replacement was available and so it advertised for a new technician. It then gave the applicant notice to terminate and reached an accommodation with him concerning how that notice would be worked out. There are no connotations in this dismissal of gross misconduct but there are notions that here was a relationship which had run its course, that the applicant was decided in his mind that he needed to go and do something else. His conduct and performance at work where indicative of this and the respondent decided that in all of those circumstances it was in their best interests that they exercise their right to terminate the contract of employment. That is what happened. There has been no unfairness on the test to be applied. As for an entitlement to contractual benefit for a bonus I find that the applicant misunderstood the bonus arrangement it was a Nationally based bonus with a State nominee, he was the State nominee but he did not win the National prize and there was therefore no contractual entitlement due to him. This application will be determined by an Order of dismissal. _________ 2002 WAIRC 05735