This Is an Application for Reinstatement by Mr Adrian James Neil Brown, Under S

[Extract from Queensland Government Industrial Gazette, dated 23 March, 2007, Vol. 184, No. 12, pages 183-190]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 74 - application for reinstatement

Adrian Brown AND National Security Providers Australia Pty Ltd trading as Queensland Security Providers (TD/2005/436)

COMMISSIONER ASBURY 15 March 2007

DECISION 1. Overview

This is an application for reinstatement by Mr Adrian James Neil Brown, under s. 72 of the Industrial Relations Act 1999 (the Act). The respondent in this matter is National Security Providers Australia Pty Ltd trading as Queensland Security Providers (QSP).

Evidence was given by Mr Brown on his own behalf. Evidence was given for QSP by its Manager, Mr James Douglas Tee, who also conducted the case for QSP. Mr Brown was represented by Mr James O'Donnell.

QSP is involved in the business of providing security services, particularly at licensed venues, events and functions. The evidence about the actual period of Mr Brown's employment was sketchy and had to be gleaned from documents. Mr Brown said in his statement (Exhibit A1) that he commenced employment with QSP some time in 2000 and worked as a security guard "on and off" until May 2004. Pay records appended to Mr Tee's witness statement (Annexure C to Exhibit R1) indicate that Mr Brown was first paid by QSP for the week ending 2 July 2000.

The pay records also indicate that there were several periods during which Mr Brown was not paid by QSP. There was a period between the week ending 12 August 2001 and the week ending 26 March 2002 during which the records do not indicate any payment being made to Mr Brown. There is another such period between 19 November 2002 and 24 June 2003 and a further period between 16 September 2003 and 20 June 2004.

Mr Brown and QSP entered into an Australian Workplace Agreement (AWA) in October 2002. Mr Brown said that he had little choice about whether or not he wanted to sign the AWA. A copy of an AWA executed by Mr Brown on 13 October 2002, and Mr Tee on 18 October 2002, was in evidence as Annexure A to Exhibit R1 (statement of Mr Tee). An approval notice issued by the Office of the Employment Advocate on 15 November 2002 was also in evidence. Clause 2 of the AWA states that it commenced on 18 October 2002 and had a nominal expiry date of three years from that date.

2. Evidence of Mr Brown

Mr Brown said in his evidence in chief that in July 2004, he was approached by the then Townsville Manager, Mr Sinclair, about replacing Mr Sinclair as Townsville Manager. The circumstances in which Mr Sinclair left are irrelevant, notwithstanding that a considerable amount of time was devoted in the hearing to exploring them. Mr Brown accepted this role. Thereafter, Mr Brown spoke to Mr Tee who told him that he would be paid a salary for the work he did and that the amount of the salary would not change regardless of the hours worked. Mr Tee told Mr Brown that a contract would be drawn up for him to sign in the near future. There was no written contract of employment in evidence.

In this role Mr Brown's duties involved making decisions on behalf of QSP; rostering; preparing quotations; arranging and attending meetings between police, liquor licensing and venue owners; and dealing with complaints about guards. Mr Brown had also been responsible for hiring new staff and for deciding whether staff who had done the wrong thing would be given hours. Mr Brown was required to be available on the telephone 24 hours a day, seven days a week. In particular, Mr Brown spent a considerable amount of time calling staff to cover spots in rosters where other staff had been unable to work or had not presented for work. Mr Brown maintained that he had not been given the title "Assistant to Operations" by Mr Tee, until approximately two months after commencing in the role. Regardless of title, Mr Brown maintained that his role was that of a manager. Mr Brown also disputed that Mr Tee had told him that the hours he was required to work would be 40 per week, and contended that he worked well in excess of 40 hours per week.

In February 2005, Mr Tee told Mr Brown that to cut costs, he would have to work night shifts as a guard. Mr Brown did this but was not happy and stopped working these night shifts. Mr Tee then offered Mr Brown a bonus, on the basis that if Mr Brown worked additional hours as a guard, he would be paid for some, but not all, of those hours. An arrangement was also entered into under which Mr Brown's wife worked for QSP and her wages were paid into 2

Mr Brown's bank account. Mr Brown said that this was instigated by Mr Tee who said that it would save time and paperwork. Under this arrangement either Mr Brown or his wife were available to conduct QSP business by telephone at all times. In July 2005, Mr Brown went on a holiday for a one week period, and was paid by QSP for that time. The pay records tendered by Mr Tee indicate that in each week in July 2005 Mr Brown was paid between $659.00 and $820.00 nett.

At some stage, Mr Brown commenced working approximately twenty hours per week as a tow truck driver for another company. He did this to earn some extra money which he needed at the time. Mr Brown also took up the sport of motocross, but disputed that his sporting activities had taken him away from Townsville for weekends. At most, Mr Brown had been absent from Townsville for one weekend while working for QSP. The majority of Mr Brown's motocross activities had taken place on Sundays. During that time, Mrs Brown had the telephone and had been available to deal with any issues which might arise. There had been no issue raised with Mr Brown about his involvement in motocross or that he had not been devoting sufficient time to his work for QSP.

QSP lost work in Townsville and Mr Brown was told by Mr Tee that the Townsville Branch would be closing and he would be out of a job. When Mr Brown asked whether there was any way to avoid closing the branch, Mr Tee said that if Mr Brown was engaged as a subcontractor and accepted a reduced wage of $300.00 to $400.00 per week, the Branch would continue. Mr Brown would also be required to provide his own equipment and telephone. When work picked up in Townsville, Mr Brown's wage would be increased. Mr Brown said that he would accept the offer if he was paid all of his entitlements for working full-time on a salary for the previous twelve months, including annual leave and notice payments.

Mr Tee advised Mr Brown that he was a casual employee under the terms of the AWA, and did not have any entitlements. Mr Brown maintained that he had ceased to be a casual employee when he became Townsville Manager, and that in any event, the AWA had ceased to operate during the period when he was not employed by QSP. After negotiations between Mr Brown and Mr Tee failed to resolve this matter, Mr Brown ceased to work for QSP. Mr Brown did not agree at any stage that he would work under a subcontract arrangement. Mr Tee subsequently wrote to Townsville clients of QSP advising that the company would be closing its operations in Townsville. Mr Brown also spoke to all Townsville clients about the closure. Mr Brown received two weeks' pay on termination of his employment, but said that this represented payment for time worked by him in the period he was having discussions with Mr Tee about the possible subcontract arrangement. Mr Brown was not offered alternative employment at any other location where QSP conducted its operations.

After ceasing employment with QSP, Mr Brown started his own security business. He did not take over the venues that QSP previously had in Townsville. For the first nine months of operating that business, Mr Brown had no income, and only commenced receiving a wage from the business after twelve months. Mr Brown did receive benefits from Centrelink for "a couple of months" totalling $300.00 per fortnight. This money was used to pay someone else to work.

Under cross-examination, Mr Brown disagreed with the proposition that there had been no compulsion for him to sign the AWA. Mr Brown said that the AWA was brought to him after he started working for QSP and he was told to sign it and that if he did not he would not have a job. Mr Brown said that he did not receive any paperwork from the Office of the Employment Advocate to indicate that the AWA had been approved. Mr Brown also maintained that he was not an employee of QSP during the period after he resigned his employment, but agreed that it was common for casual employees to "remain on the books" of QSP during periods when they did not perform work for the Company.

Mr Brown agreed that Mr Tee had told him that he could perform all required work in 40 hours each week, but said that this was not in fact the case, and that 90% of the time he worked additional hours to complete the tasks required. Mr Brown also agreed that he reported to Mr McLennan with respect to operational duties and problems that Mr Brown could not handle. Mr McLennan had given Mr Brown clear operational procedures to follow. Mr McLennan had provided Mr Brown with suggestions to address the constant telephone calls he was receiving, but only after Mr Brown had complained about receiving telephone calls 24 hours per day, seven days per week. Mr Brown maintained that while clients could contact the Cairns Branch, 90% of them had contacted him directly when they had issues to discuss. Mr Brown denied that Mr McLennan had made 16 trips to Townsville to have discussions with him about operational procedures, and said that only four such discussions had taken place. Mr Brown agreed that he had telephone discussions with Mr Tee and Mr McLennan on a weekly basis about various operational procedures.

Mr Brown also said that he had no choice about working six hours per week on street patrol shifts to offset the loss to contracts in Townsville and had only agreed to do this because he felt obligated to help the company out. In relation to his truck driving work, Mr Brown said that he had never been absent overnight and had always been in Townsville to perform his work for QSP when required. Mr Brown maintained that he had not agreed to the subcontract arrangement, and had told Mr Tee that he would discuss it with his wife.

3. Evidence of Mr Tee 3

Mr Tee's evidence in chief was that he had become aware in September 2004 that the previous supervisor of Townsville operations, Mr Sinclair, was not returning from a trip to Brisbane, and that Mr Brown had effectively been "holding the fort" and would like an opportunity to take over that role. Mr Tee agreed to this and went to Townsville one month later to formally meet Mr Brown. Mr Tee found Mr Brown to be a positive person and had confidence that he would carry out the duties required of him. Mr Tee told Mr Brown that the completion of all duties would require around forty hours per week, sometimes more and sometimes less. These hours could be used as Mr Brown saw fit, and he could use the opportunity to his advantage whilst achieving the needs of the business. In mid-2004, Mr Brown took a weekend off for his anniversary and Mr Tee sent a gift of $500.00 to assist in fostering a good relationship.

Mr Brown's position was described by Mr Tee as supervisory with the title "Assistant to Operations". This title had been included on Mr Brown's pay packet and specific operating procedures had been implemented to ensure that the role was understood. These procedures which were Appendix B to Mr Tee's witness statement (Exhibit R1) included the following in relation to duties: inviting prospective employees to interview; interviewing new employees and clients; ongoing venue maintenance; ongoing employee maintenance and duties to be performed at the end of each week relating to matters such as rosters, time sheets and employee deductions. All management decisions were made by the Operations Manager, Mr McLennan, or Mr Tee, and this also occurred in relation to administration, with complaints from clients being referred to Mr Tee.

Supervisors were to be contactable by telephone during clients' operational periods, and were to control times for contacting guards outside hours to ensure that guards had sufficient sleep. Outside these times, callers could also contact the Cairns Branch if they were unable to contact the Townsville Branch. When QSP lost a major contract in Townsville in December 2004, Mr Brown agreed to do some crowd controller shifts on the basis that those shifts would be unpaid, to help offset losses. Some six hours per week were to be worked on this basis, and this work was done on street patrol to enable Mr Brown to do his usual duties at the same time, including supervising other crowd controllers and liaising with police and clients. Mr Brown had not indicated that he was unhappy with this situation. There was also an arrangement whereby if Mr Brown was able to work the additional hours required to supplement losses, any further hours he worked would be paid in addition to his wage.

In early 2005, Mr Brown commenced a second job as a tow truck operator working a substantial number of hours per week. Mr Brown's wife Emily then started working in the administrative side of the Townsville operations. Mr Brown told Mr Tee that this enabled him to undertake other income making activity. While Mr Tee was not happy with this arrangement he "persevered" with it. Mr Brown also took up motor bike racing on weekends which meant that both Mr and Mrs Brown were away from Townsville. Mr Tee told Mr Brown that he was not focussing on QSP business as required, because of these other activities. In March 2005, QSP lost another major contract in Townsville. Mr Tee spoke to Mr Brown about how the viability of the Townsville operation was becoming extremely strained.

Mrs Brown obtained a crowd control license and was able to work on the QSP roster to earn extra money. Mr Brown had ceased doing the street patrols and Mr Tee requested that he resume the previous arrangement of working six hours per week in this capacity. It was also put to Mr Brown that these additional hours could be done by Mrs Brown. Mr Brown was also provided with income from undertaking training for persons wishing to obtain a security license, and was paid an amount for each person trained. It appeared that Mr Brown was taking on more truck driving throughout Queensland and at some stages Mr Brown was in Cairns three to four times a week. Mr Brown would stop in at the QSP office when he was in Cairns, but both Mr and Mrs Brown were not always contactable.

Mr Tee pointed out that it appeared that Mr Brown was unable to sufficiently look after the Townsville operations due to lack of time. In mid 2005 Mr Tee gave Mr and Mrs Brown a $600.00 gift voucher when their baby was born, in order to maintain a good relationship. In July 2005 Mr and Mrs Brown arranged to take a week off in Victoria, organising a person to physically supervise the Townsville operations and running those operations remotely while they were away. Mr Tee discussed a number of issues with Mr and Mrs Brown by telephone during this period, which Mr Tee said was not a holiday.

According to Mr Tee, for the last three months of his employment, Mr Brown was not able to sufficiently manage and supervise the Townsville operations. There were ongoing complaints from clients. On 13 November 2005, QSP lost another Townsville contract. Mr Tee had lengthy discussions with Mr Brown about the possibility of losing this contract and the necessity of maintaining it, prior to that date. Mr Tee had also successfully headed off the loss of the contract on two earlier occasions during November 2005. Mr Tee told Mr Brown that it was no longer viable to keep the Townsville operations going. There were a number of discussions, instigated by Mr Brown about whether there was any basis upon which Mr Tee could maintain the Townsville operation. Mr Tee told Mr Brown that the only way he could continue the Townsville operations was on a sub contract basis, with Mr Brown covering all of the administration costs. On this basis, Mr Tee could afford $300.00 per week, with that amount varying on a weekly basis, in relation to the business carried out. Mr Brown said that it was worth keeping the Townsville operations going in the hope that it there would be an improvement. It was agreed that Mr Brown would work the week ending 20 November 2005 and that the new sub contract arrangement would commence on 21 November 2005. 4

On or about 27 November 2005, Mr Brown telephoned Mr Tee and queried him in relation to paid entitlements. Mr Tee told Mr Brown that as a casual employee under the AWA there were no entitlements. At some time between 28 and 30 November 2005, Mr Tee telephoned Mr Brown and offered to pay him an additional two and a-half weeks' pay before he commenced the subcontract arrangement. Mr Tee also requested that Mr Brown invoice him for the week commencing 21 November 2005. On 30 November 2005 Mr Tee paid Mr Brown one weeks' pay as part-payment of the two and a-half weeks he had previously offered. As Mr Tee had not received an invoice from Mr Brown in respect of the week ending 27 November 2005, and being uncertain in relation to Mr Brown's intentions, he decided to close the Townsville operations. Mr Brown was advised accordingly. Mr Tee also advised Townsville clients who advised that they had received no contact from Mr Brown in the last week. On 7 December 2005, Mr Tee paid Mr Brown a further weeks pay. On receiving Mr Brown's application for reinstatement, Mr Tee made no further payments to Mr Brown. Mr Tee subsequently visited Mr and Mrs Brown and was shown their new security operations, including cars, safes, computer and guard dog. Mr Tee collected items belonging to QSP.

Under cross-examination Mr Tee maintained that in the period from 16 September 2003 to 20 June 2004, Mr Brown was an employee of QSP, on the basis that he was a casual who was "on the books". This was despite the fact that Mr Brown performed no work for QSP in that time. Mr Tee said that some employees went away for up to three years and stayed "on the books". If these employees were definitely not coming back they would be written off the books and terminated, and a letter to that effect was forwarded to them. In this regard, QSP was a "glorified labour hire company". Mr Tee had not received any information about Mr Brown resigning.

Mr Tee was shown clause 17 of the AWA entered into with Mr Brown, which provides that an employee who does not contact QSP for three days is deemed to have abandoned employment. Mr Tee said that this provision did not apply in circumstances such as those of Mr Brown. Mr Tee was not aware of any contact between Mr Brown and QSP during periods when Mr Brown was not performing work for the Company. Mr Tee also said that he did not know whether or not Mr Brown had resigned. There had been no discussions with Mr Brown about the possibility of working in another location for QSP.

Mr Tee maintained that Mr Brown had agreed to give the subcontractor arrangement a go, on the basis of being paid $300.00 per week, because Mr Brown hoped that business in Townsville would improve. Mr Tee believed that Mr Brown had agreed that the subcontracting arrangement would commence on 20 November 2005, and had waited to receive an invoice from Mr Brown. When the invoice had not arrived, and Mr Brown requested his entitlements, Mr Tee made the decision to shut down the Townsville operation. Mr Tee agreed that he had not said at any time that Mr Brown's work performance was lacking. In relation to the reference to complaints about Mr Brown referred to in his witness statement, Mr Tee said that he had not included that reference to "have a go" at Mr Brown. Mr Tee also agreed that he had not put the proposition to Mr Brown that Mr Brown was not communicating sufficiently with clients or providing them with service. No customer complaints had been put to Mr Brown by Mr Tee. Mr Tee had expressed concern about Mr Brown's work performance to Mr McLennan.

There was no evidence, other than the wages record tendered by Mr Tee, of Mr Brown's earnings from his employment with QSP. In response to a question from the Commission, the parties agreed that Mr Brown's salary was $850.00 per week gross. The difference between that amount and the amounts shown on the wages record tendered by Mr Tee was said to be because some of the salary was paid to Mrs Brown. In response to a further question from the Commission, the parties agreed that QSP employs thirty casual employees, which Mr Tee said was equivalent to 20 full-time employees.

Submissions

Mr O'Donnell representing Mr Brown submitted that Mr Brown was a salaried employee and was not employed on a casual basis. Accordingly, the AWA did not apply to Mr Brown. Further, it was submitted that the AWA had ceased to operate in September 2003, when Mr Brown resigned his employment. Mr Brown had suffered financial loss as a result of the termination of his employment. Mr Brown's dismissal was harsh, unjust and unreasonable. This was said to be because Mr Brown was not offered alternative employment at another location. Further, it was contended that the failure to pay Mr Brown entitlements such as annual leave and notice on termination, made the dismissal unfair. Mr Brown sought an amount of eight to twelve weeks' wages as compensation for his unfair dismissal. It was also submitted that the Commission should make a finding that the AWA was not valid because of the resignation, or alternatively because it disadvantaged Mr Brown. This, it was contended, would enable Mr Brown to make an application for unpaid wages in respect of his annual leave and other entitlements.

At the outset of the submissions for the respondent, it was apparent that Mr Tee was under a misapprehension that the case conducted on behalf of Mr Brown was a claim for annual leave and other entitlements said to be owed to Mr Brown on the basis that he was not a casual employee. The Commission granted an adjournment to Mr Tee and offered him the opportunity to make his submissions in writing. The applicant's representative was also offered the opportunity to respond to those submissions in writing. 5

In his written submissions, Mr Tee said that an AWA remained in effect until it was terminated in writing. It was contended that Mr Brown had not resigned, and that the fact that he had not been required to complete new application forms on resuming work for QSP would have alerted Mr Brown to the fact that QSP may be operating under previously provided data. Mr Tee maintained that he had been unaware that the application before the Commission had been about unfair dismissal, and had believed that the issue before the Commission was the effect of the AWA. It was contended that if this had been understood, that Mr Tee would have answered some questions in the proceedings differently. Mr Tee attempted to put further evidence before the Commission in his submission.

Issues for determination

The issues for determination in this case are whether Mr Brown was unfairly dismissed, and if so, the remedy for that unfair dismissal. Before these issues can be determined, it is necessary to find whether Mr Brown's employment at the time of his termination, was covered by an AWA. Even if Mr Brown's employment was not covered by an AWA it must be determined whether he was a casual employee. While failure to pay an entitlement on termination of employment may constitute unfair treatment of an employee by an employer, that issue is not determinative in this case. Further, the application in this case was not made under s. 278 of the Act, and any decision made by the Commission in these proceedings will not be binding in other proceedings which may be brought in relation to claims for annual leave and other entitlements.

Conclusions

There was no substantive argument about issues associated with the AWA by either party to these proceedings. There was little if any reference made to the terms of the Workplace Relations Act 1996 (Cth) as they were at the time the AWA came into effect. The evidence about this matter was also sketchy. On the evidence before me, an AWA was made between Mr Brown and QSP on 18 October 2002, when the AWA was signed on behalf of QSP by Mr Tee. At the time the AWA was made, Mr Brown was an existing employee of QSP. The AWA was approved by the Office of the Employment Advocate on 15 November 2002 and came into effect on 18 October 2002 as provided in clause 2 of the AWA and pursuant to s. 170VJ(2)(b) of the Workplace Relations Act 1996 (Cth). The nominal expiry date for the AWA was 18 October 2005.

Mr Brown's evidence was that he resigned his employment with QSP on or around 19 November 2002 and commenced employment again with QSP on 24 June 2003. Mr Tee said that he was unaware that Mr Brown had resigned at this point, but conceded that it was possible. Mr Tee was unable to point to any contact between Mr Brown and QSP during the period from 19 November 2002 until 24 June 2003. On balance, I accept Mr Brown's evidence that he resigned his employment on or around 19 November 2002. There was a further break in Mr Brown's employment with QSP from 16 September 2003 and 20 June 2004.

I accept that employees of QSP may work on an intermittent basis, accepting work when it is offered and they are available. I also accept that an AWA may be drafted to cover employees who work intermittently in for example, the labour hire industry, so that it remains in effect during periods where work is not being performed. However, there is nothing in the AWA between Mr Brown and QSP to indicate that it operated in this way. Further, the period between 19 November 2002 and 24 June 2003 is over six months in duration, suggesting that it is more than a break in a series of casual engagements.

In my view, Mr Brown's resignation on or around 19 November 2002 brought his employment with QSP to an end, and had the effect of terminating the AWA. The existence and continuing operation of an AWA is predicated on an employment relationship. An AWA can only be made between an employer and an employee, about matters pertaining to the relationship between the employer and the employee, with the proviso, not relevant in this case, that an AWA can be made before the commencement of employment (refer s. 170VF(2)).

However, there is no legislative provision to suggest that an AWA made before the commencement of employment, would continue to operate if no employment relationship was subsequently entered into. There is no provision suggesting that an AWA remains in effect after the employment relationship underpinning it has come to an end. While there are provisions dealing with successor employers making an AWA binding in certain circumstances, there is no provision keeping an AWA in effect when an employee resigns employment and then resumes with the same employer.

The provisions dealing with termination of an AWA by agreement provide that the AWA may be terminated by written agreement between the employer and the employee (refer s. 170 VM(1)); or after its nominal expiry date by the Australian Industrial Relations Commission (s. 170VM (2); or after its nominal expiry date in accordance with the terms of the AWA (s. 170VM(6)).

I do not accept the argument of Mr Tee for QSP, that these provisions stipulate the only way in which an AWA can cease to have effect. In my view, the termination provisions in s. 170MV of the Workplace Relations Act 1996 (Cth) apply to the termination of an AWA while an employment relationship continues. An AWA also ceases to have effect when an employment relationship with respect to which it is made, ceases. This is what occurred on or around 6

19 November 2002 when Mr Brown resigned his employment with QSP. There was no evidence of a new AWA being entered into in respect of the subsequent period of employment Mr Brown had with QSP from 24 June 2003 until the cessation of his employment in the week ending 27 November 2005.

I am also of the view that the AWA did not cover the work performed by Mr Brown when he took over the responsibility for the Townsville operations from Mr Sinclair. In my view, Mr Brown was the Manager of QSP's Townsville operations regardless of his title, and was employed on a salaried basis. Further, Mr Brown was not a casual employee on 27 November 2005 when the Townsville operations of QSP were closed down and Mr Brown's employment was terminated. In any event, even if Mr Brown was a casual employee, he was not a short term casual employee and is entitled to bring an application alleging unfair dismissal under s. 72 of the Act.

Under s. 73 of the Industrial Relations Act 1999, a dismissal is unfair if it is harsh, unjust or unreasonable. In deciding whether a dismissal is unfair, the Commission must consider:

(a) whether the employee was notified of the reason for the dismissal; and (b) whether the dismissal related to the operational requirements of the employer or the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance, whether the employee had been warned about these matters or given an opportunity to respond to allegations about the conduct, capacity or performance; and (d) any other matters the Commission considers relevant.

In the present case, I am satisfied that Mr Brown was notified of the reason for his dismissal and that the difficulties for Mr Tee in keeping the Townsville operation viable were also discussed with Mr Brown on an ongoing basis. I am also satisfied that the dismissal related to the operational requirements of the employer and that those requirements were bona fide. Effectively, Mr Brown was redundant. However, it was not contended or established in the case conducted on behalf of Mr Brown, that Mr Brown had an entitlement to redundancy pay under the terms of an award. Even if such a submission had been made, there was no proper evidence before the Commission upon which a finding that Mr Brown had an entitlement to redundancy pay in accordance with the Termination Change and Redundancy Clause Statement of Policy (2003) 174 QGIG 908.

The application did not seek a minimum redundancy payment under s. 85B of the Act. Further, the application did not seek that the Commission make an order under s. 87 of the Act for the payment of a severance allowance and other separation benefits. While Mr Brown probably prepared his own application, perhaps without advice, he later had access to advice from an industrial advocate, who had ample opportunity to make the amendments to the application necessary to support such a claim. This did not occur. In light of the deficiencies in the application and the lack of evidence and proper submissions on this point I am not prepared to award Mr Brown an amount of redundancy pay.

However, I am of the view that fairness would require that Mr Brown was given reasonable notice of the termination of his employment, or paid an amount in lieu of such notice. On termination, Mr Brown was only paid for the time he had worked in the weeks preceding the cessation of his employment. In my view, this made Mr Brown's dismissal unfair. There was little evidence in relation to factors which are generally taken into account by the Commission in assessing compensation (see Barsha v Motor Finance Wizard (Sales Pty Ltd) (2002) 171 QGIG 139.

At the point his employment was terminated, Mr Brown was effectively managing QSP's Townsville operation, and had been fulfilling this role for over twelve months. There was no evidence of any formal complaint about Mr Brown's conduct, capacity or work performance. Mr Brown had a young family and commitments to meet. On the other hand Mr Brown had considerable notice about loss of contracts and the resulting difficulties in maintaining QSP's Townsville operations. There was no evidence that Mr Brown faced any difficulty in attempting to obtain alternative employment. Mr Brown did not look for alternative employment or increase the hours he was working as a tow truck driver. Rather Mr Brown concentrated on starting his own business. That the business did not make money for the first nine months of its operation is not entirely attributable to Mr Brown's dismissal. Further, there was evidence that Mr Brown had commenced to work for another employer during the time he was working for QSP, indicating that Mr Brown did not view his future with QSP as certain.

In all of the circumstances, I award Mr Brown compensation for his unfair dismissal in the amount of one months pay at the rate of $850.00 per week. The respondent, QSP is to pay to Mr Brown the amount of $3,400.00 within 21 days of the date of this decision. I order accordingly.

I. C. ASBURY, Commissioner. Appearances: Mr J. O'Donnell of James O'Donnell & Associates for Hearing Details: the applicant. 2006 8 November Mr J. D. Tee of Queensland Security Providers. 15 November (Written submissions from respondent) Released: 15 March 2007 29 November (No written submissions from 7 applicant's representative)

Government Printer, Queensland The State of Queensland 2007.