Adam Haliman v Marnikol Fisheries Pty Ltd
[2012] FWA 6935
•15 AUGUST 2012
[2012] FWA 6935 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Adam Haliman
v
Marnikol Fisheries Pty Ltd
(U2012/6423)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 15 AUGUST 2012 |
Termination of employment - remedy.
[1] Adam Haliman (the applicant) was dismissed by Marnikol Fisheries Pty Ltd (the employer or the respondent) on 13 March 2012. On 29 June 2012 I handed down a decision on the applicant’s application for an unfair dismissal remedy (the unfair dismissal decision), concluding that his dismissal was harsh, unjust and unreasonable. 1 I decided that there was insufficient information on which to determine the appropriate remedy, and the parties subsequently filed written submissions on this issue in accordance with Directions issued to the parties on 10 July 2012.
[2] The grounds on which I determined that the dismissal was harsh, unjust and unreasonable are set out in the decision and will not be detailed here. However, the following paragraphs are particularly relevant to the decision at first instance and the approach to the issue of remedy:
“[28] I am satisfied that it was the respondent’s view that the applicant’s attitude in the phone conversation on 8 March was sufficiently serious to justify the action it took at the time the decision was taken, although this was not its initial view. The respondent did not immediately dismiss the applicant on learning about the conversation, but instead sent a text to him that referred only to working the weekend. It is not clear what caused the respondent to change its mind. However it did so without conducting a reasonable, or any, investigation into the incident. Had it done so, it would have become apparent to the respondent that the applicant had a sound reason for refusing to work the weekend.
[41] It is relevant andI have taken into account that the applicant contributed to his downfall by adopting a belligerent an inappropriate attitude when requested to work. While he must bear some responsibility in this regard I have also taken into account the applicant’s employment history. He had 6 years service in his latest period of employment with the respondent but had been engaged on previous occasions extending back 13 years. There is no evidence of any performance concerns or concerns over the applicant’s conduct prior to the events that precipitated his dismissal.
[42] Taking all matters into account I find that the dismissal of the applicant was disproportionate to his conduct and that he was denied procedural fairness. I determine that the dismissal was harsh, unjust and unreasonable. The applicant’s contribution to the fate that befell him is a matter that will be taken into account in determining an appropriate remedy.”
[3] The statutory provisions concerning remedies for unfair dismissal are set out in Division 4 of Part 3-2 of the Fair Work Act 2009 (the Act), as follows:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
The parties’ submissions
[4] Both partiessubmitted that reinstatement is not appropriate. Each referred to various matters which have soured the relationship between the parties and would interfere with the re-establishment of a productive working relationship.
[5] The applicant submitted that he has received no income since dismissal, and estimates that he would have earned approximately $11,000 (nett) between the date of dismissal and the unfair dismissal decision on 29 June 2012. He stated that his partner suffered anaemia for approximately three months after the birth of their daughter in mid-March 2012 and that he has spent much of his time caring for both of them. More recently, he has registered an expression of interest for two jobs on a mining project in Western Australia and has applied for a job with a drilling company.
[6] The applicant submitted that any discount of the compensation for his contribution to the dismissal should be minimal in view of the financial hardship and stress he has suffered since dismissal. He argued that the respondent’s failings that led to the dismissal should be recognised in the level of compensation awarded.
[7] Mr Daryl Evans, for the respondent, submitted that the applicant was a highly skilled tuna cutter and had experience in other aspects of farming and harvesting tuna. Mr Evans said his own experience of employees with similar skills and knowledge is that employment can be obtained quickly. As such he submitted that the applicant would have readily secured employment in the tuna farming sector had he sought it.
[8] It was the employer’s submission that the applicant had taken a decision to spend time with his family rather than seek employment, and that the employer should not be expected to fund the applicant’s lifestyle choice.
[9] Mr Evans estimated the applicant’s earnings between the date of dismissal and the decision in June 2012 as approximately $12,500 - $13,000, however he stated that this amount should be discounted on the basis that there would have a been a period of leave after the birth of his daughter. Any compensation should also be discounted for the applicant’s contributory conduct, which also included his failure to respond to an SMS sent by Mr Evans prior to his dismissal.
[10] In relation to the impact of an order for compensation on the viability of the employer’s business, Mr Evans submitted that it was problematic to assess the impact of a one-off amount. He referred to a Government decision to significantly reduce the tuna quota in 2009 and also to reductions in tuna production (18%) and price (8%) in 2012 compared to 2011.
[11] In reply, the applicant stated that he is unable to butcher fish anymore due to RSI pain in his right shoulder arising from his employment with the employer. He stated that this work is now too physically demanding, and as a consequence is seeking work outside the industry.
[12] In relation to his own conduct the applicant stated that the SMS sent by Mr Evans prior to the dismissal did not seek or require a response from the applicant, since the message was that Mr Evan’s would contact him on the weekend. As such this was not a matter relevant to his conduct.
[13] The applicant submitted that the employer is a multimillion dollar company which could easily afford any compensation awarded by the Tribunal.
Consideration
[14] I am satisfied that the deterioration in the relationship between the parties, which is evident in their respective submissions on remedy and which was also evident in the substantive hearing of the application, is such that reinstatement is not an appropriate remedy. Having regard to my findings on the manner of the applicant’s dismissal, I consider that this is a case where compensation should be awarded, subject to the requirements of the Act.
[15] The criteria for assessing the amount of compensation that should be awarded are set out in ss.392(2) and (3) of the Act. The following matters are relevant:
○ There is no evidence before the Tribunal to indicate that that the respondent’s financial position is precarious or that it is a factor which would reduce the compensation otherwise awarded to the applicant or require payment by installments.
○ The applicant’s length of service of six years is not insubstantial. It is also relevant that the applicant had been employed for several periods over thirteen years with an unblemished record until the single event that led to his dismissal.
○ Had the applicant not been dismissed, it is likely that his earnings would have been significantly reduced as a result of the birth of his child and the need to take care of his partner in the months following the birth. I consider that absent the dismissal, the applicant would have been off work and not in receipt of wages until the end of June 2012.
○ As at the date of the applicant’s written submissions on 18 July 2012 he had not undertaken any paid employment or received any social security benefits, but was at this time seeking alternative employment. I am satisfied that his family circumstances prevented the applicant from taking up alternative employment before June 2012, but from this time he was taking steps to mitigate his loss.
○ The amount of compensation that I would have otherwise awarded will be discounted because of the applicant’s conduct in the incident leading to the dismissal.
Conclusion
[16] Having regard to all of the above, I consider that an amount equal to five weeks wages is an appropriate award of compensation. In deciding on this amount I have excluded the period between the date of dismissal and 30 June 2012 when the applicant would not have received wages due to his family circumstances and the need for him to remain at home. The amount of five weeks wages also reflects a discount of approximately 15% for the applicant’s contributory conduct.
[17] Based on the time and wages records supplied by the applicant, 2 I estimate that he would have worked an average of 40 hours per week in the months of July and August. It is agreed that the applicant earned $20 per hour.3 I have therefore determined that the respondent should pay the applicant $4,000, gross.
[18] In addition, I have determined that the respondent will pay an amount equal to 9% of the compensation amount (i.e. $360) for lost superannuation, which is to be paid into the applicant’s superannuation account.
[19] An order giving effect to my decision on compensation is issued with this decision.
DEPUTY PRESIDENT
Written submissions:
Applicant:
18 July and 1 August 2012
Respondent:
24 July 2012
1 Haliman v Marnikol Fisheries Pty Ltd, [2012] FWA 5450.
2 Ex A2.
3 PN 230-1.
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