Andrea Greenland v Bacchus Marsh Coaches Pty Ltd T/A Bacchus Marsh Coaches

[2013] FWC 7716

[2013] FWC 7716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrea Greenland
v
Bacchus Marsh Coaches Pty Ltd T/A Bacchus Marsh Coaches
(U2013/8524)

COMMISSIONER WILSON MELBOURNE, 4 OCTOBER 2013

Application for relief from unfair dismissal.

[1] Ms Greenland was dismissed from her position as a bus driver with Bacchus Marsh Coaches (BMC) on 28 March 2013.

[2] At the time she was dismissed, she had worked for BMC for about seven years, since either March or April 2006. She described her employment status as permanent casual. Her duties in recent years had been to drive the BMC “orange” route school bus for students who attended Bacchus Marsh Grammar School. The duties involved driving each morning from a point near Werribee to Bacchus Marsh, picking up students and taking them to school. In the afternoon, she took the same route in reverse. The route in each direction is about 51km and the bus she drove carried about 55 students 1. The students Ms Greenland drove each day cover the full range of school-age children. Ms Greenland worked five days a week and drove the route each day in the morning and afternoon. On each occasion, Ms Greenland would start and finish her duties at the BMC depot.

[3] Ms Greenland was classified as a casual employee. As a result, it is necessary to first determine whether she is a person protected from unfair dismissal 2. This arises because of the provisions of s.384(2) of the Fair Work Act 2009 (the Act) which provide that a person’s period of service as a casual employee may not count toward their “period of employment” as follows;

384 (1) ...

384(2) However;

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis;

(b) ...

[4] Ms Greenland’s evidence records she was employed on a regular and systematic basis and that she had a reasonable expectation of continuing employment on a regular and systematic basis 3. BMC did not lead evidence or make submissions that the contrary was the case.

[5] I therefore find that Ms Greenland is a person protected from unfair dismissal.

[6] In the hearing, the employer confined its arguments to Ms Greenland having been dismissed for serious misconduct, and without determining at this point whether this amounts to a valid reason for the dismissal, the evidence as lead in the hearing is mostly consistent with a case surrounding issues of misconduct. That is, the evidence did not focus on the past employment history.

[7] Evidence in this matter was given by the following people;

• Ms Andrea Greenland, the Applicant;



• Mr James LaFranchi, bus driver, Bacchus Marsh Coaches;



• Mr Kevin Richardson, Deputy Principal, Bacchus Marsh Grammar School;



• Mr Mark McKenzie, Assistant General Manager, Bacchus Marsh Coaches;



• Mr David Nickels, General Manager, Bacchus Marsh Coaches.

[8] On Friday 25 February 2013, Ms Greenland left the Bacchus Marsh Grammar School to take students home at about 3.30pm 4. After about 15 minutes, or about 10 - 12 km into the journey5 on the Bacchus Marsh Geelong Road, students on the bus reported to Ms Greenland that one student, S2, was not on the bus, even though her sisters, S1 and S3 were. S1 is about 11 years of age6. S2 had missed the bus. Some students (it is not clear who) asked Ms Greenland to return to the school and pick up S2. Ms Greenland refused because she was substantially into the route and was on a road on which she could not do a U-turn7. Her evidence was that she asked the students to call S2 and let her know another bus would pick her up8.

[9] On Monday, 25 February 2013 events took place involving Ms Greenland and the student S1. For convenience, I refer to these events as the “Greenland/S1 interaction”.

[10] What occurred in this interaction was not seen by any of the other witnesses. There are two possible times about when the events occurred, firstly at the school, before the buses departed for their run; or secondly, after the buses had departed and well into their afternoon run and perhaps when S1 got off the bus. If the interaction took place at the school, Mr LaFranchi might have been in a position where he could have seen what occurred, if it had; but his evidence is that he did not see anything of note.

[11] The only direct evidence available on what happened between Ms Greenland and S1 is from Ms Greenland. While Mr Richardson gave evidence about his interviews with students who were (or might have been) present during the event, Mr Richardson was not present during what is alleged to have occurred.

[12] For her part, Ms Greenland’s evidence is that she and S1 had an interaction, but not an unduly negative one, at the Bacchus Marsh Grammar School on 25 February when Ms Greenland was waiting for students to board the afternoon bus. Ms Greenland’s evidence on the Greenland/S1 interaction included the following;

• There was an interaction in the afternoon when the children were lining up to get on the bus. At the time she was talking with Mr LaFranchi;



• They were standing a few metres apart. Ms Greenland’s bus was double parked along-side Mr LaFranchi’s. To access Ms Greenland’s bus, students had to pass between the front and rear ends of two buses parked one in front of the other;



• S1 did not speak to Ms Greenland after she said hello to her, so she took a step forward and said to S1 “What's the matter? There's no need to be rude and disrespectful”;  9

S1 turned around and said Ms Greenland was the rude one, after which Ms Greenland stepped back and resumed talking to Mr LaFranchi and saying “hi” to the other children;  10

There were only verbal exchanges and eye-contact with S1; 11

She denies grabbing S1’s school bag or its shoulder strap. She denies making her turn around; and she denies blocking her in some way from getting on the vehicle 12

She denies lunging toward the student or getting in her pathway. 13

[13] Mr LaFranchi’s evidence on these points broadly corroborates Ms Greenland’s;

• He was on the footpath talking with Ms Greenland; they were about 3m away from her bus 14;

Nothing unusual occurred while they were waiting 15;

He saw Ms Greenland speak to a girl; she said something like “I spoke to you”; Ms Greenland took a couple of steps forward; while he wondered where she was going there was nothing in the interaction that caused him concern; 16

When Ms Greenland spoke to the girl, she had a normal tone of voice 17. He did not see Ms Greenland touch the girl18.

[14] Ms Greenland’s evidence is that she then proceeded to drive the route without event. There is no other direct evidence on what occurred on the bus journey after it left the school.

[15] With one possible exception, it was not put to the Applicant in cross-examination that the Greenland/S1 interaction did not occur at the school, before the buses departed for their run; but instead occurred after the buses had departed and well into their afternoon run. The possible exception is the difference in wording employed in the following, in which a question is posed about the student getting OFF the bus:

MR LAMBERT: On 25 March, is it your evidence that the student [S1] got off the bus and just brushed you?---Yes.

And also that you wanted some response from her. She was still not talking to you?---I just wanted to know why she didn't speak to me all day. That's all I wanted to know.

And is it the case that she just continued to walk straight past?---Yes. 19

[16] If this was an endeavour to put to the Applicant a set of facts contrary to those she asserted, it was insufficient for me to be satisfied the Respondent had discharged its obligation to put to the Applicant its contrary case.

[17] Mr Richardson is the Deputy Principal, Bacchus Marsh Grammar School. He gave his evidence by telephone at relatively short notice, and he did not have a copy of his statement with him, for which I make allowances.

[18] In his evidence Mr Richardson said he had commenced interviews of students because a complaint had been brought into the school about there being an incident between the student and the bus driver. He said the parents provided the school with a written account between the student and bus driver 20.

[19] A copy of the parents’ written account was not provided to the Commission.

[20] Mr Richardson undertook inquiries into the complaints. He interviewed students who might have seen or heard what had happened. The students were in the year 6 and 7 age range 21. He used a small group methodology, which involved interviewing students in pairs or small groups at the initial time of the incident in March and then again a few days before the Fair Work Commission hearing. While he took a set of notes after each set of interviews, he did not, in preparing for the second set of interviews, go back to his first set of notes22, which in any event he no longer had, having been passed onto the Principal’s office.

[21] His evidence includes the following;

“... Look, the information that was relayed to me by the students was that the student was getting off the bus and that the bus driver was in the habit of saying goodbye to the students, that this particular student, [S1], did not want to say goodbye or did not want to speak to the driver, went to walk away, but the bus driver approached and got [S1]’s attention – and this is where it’s a little bit different – either by grabbing her by the arm or by the shoulder strap of her bag and getting her attention, asking her why she didn’t want to speak with her and [S1] didn’t say anything and just walked away. 23

[22] Mr Richardson was asked in cross-examination about the time and place of the Greenland/S1 interaction and maintained the incident occurred when S1 was getting off the bus close to her home at the end of the school day on 25 March 24. He was not aware of any incident between the two within the school grounds during the day of 25 March at the time students were getting on the bus to go home 25.

[23] The school plainly had a complaint it needed to deal with. The balance of probabilities suggest that S1 had some reasons to be offended by Ms Greenland and reported those to her parents, who in turn complained to the school. However, the balance of probabilities also suggest S1’s reasons were likely insubstantial reasons. In the absence of direct evidence on the subject, other than from Ms Greenland and Mr LaFranchi; these reasons may have developed;

• out of the interaction in the school grounds prior to getting on the afternoon bus;



• out of an interaction between Ms Greenland and S1 on the bus;



• out of their interaction when S1 got off the bus near her home; or



• out of any combination of the above.

[24] Ms Greenland’s evidence is that she was asked about what had occurred on the afternoon bus route that same evening, when she was about to leave the depot and go home. She was asked to go to the Bacchus Marsh Coaches’ office and speak with Mr McKenzie and Mr Anthony Edwards, the company’s Operations Manager.

[25] Mr McKenzie’s evidence was initially that he received a complaint from Andrew Neal, the school’s Principal at about 5.30pm after the driver had gone home 26 and that he contacted the Applicant about the complaint on the afternoon of 25 March27; that he subsequently met with her, and that a letter with her side of the case arrived on his desk the next morning28.

[26] This version of events differs markedly from Mr McKenzie’s written statement, in which he said that he spoke to Ms Greenland “for her version of events the following morning” 29 (emphasis added). In cross-examination Mr McKenzie conceded he could not recall precisely when he had rung or spoken with the Applicant and that he was “having some doubts of the order of events”30.

[27] To accept Mr McKenzie’s evidence as set out in his witness statement and cross-examination would require dispensing with the recollection difficulties he obviously had. It would also require finding that he came to work on Tuesday 26 March in order to set up a meeting with the Applicant, only to find she had left on his desk a pre-emptive explanatory letter without him having asked for it or told Ms Greenland there were allegations she needed to answer. If that was the sequencing, it is likely he and BMC would have recollected the pre-emptive delivery of a defence and would have remarked on it as both curious and a sign that Ms Greenland knew she was in trouble in advance. In forming my view about Mr McKenzie’s evidence, I also take into account the phraseology of parts of Ms Greenland’s explanatory letter. It starts “I have had an allegation made against me in the form of putting my hand on her”; it says she is shocked at the parents decision to call the police and refers to events having happened “this morning” and “in the afternoon”. This phrasing is consistent with a letter written on Monday after information was put to her by Mr McKenzie.

[28] Having seen and listened to each of Ms Greenland and Mr McKenzie give their evidence, I prefer Ms Greenland’s evidence. Her evidence was clear, direct and consistent and given without embellishment. Mr McKenzie’s evidence was unclear and contradictory and he was initially unwilling to admit that he could not remember important events or things said. As a result, I am unable to accept Mr McKenzie’s evidence where it is in conflict with Ms Greenland’s.

[29] I am also unable to accept Mr Richardson’s evidence insofar as it is presented as creating a valid reason for the employer to consider dismissal. Mr Richardson was not present at any significant event. He based his evidence on interviews with students who informed him in separate sets of meetings some months apart. The methodology employed by the school to investigate the parent’s complaint about Ms Greenland was seriously flawed. It allowed a group narrative of the complaints to be developed over several meetings, held at two sets of time some months apart. The meetings had the potential, at the least, to be tainted by social norms within the group. Even after making allowances for what might be a desire on the part of the school or parents to keep students away from the intrusive nature of a formal investigation or giving evidence to the Commission, there was no means by which the Applicant could either have known in detail of what was said about her, or through which she could test what was said.

[30] The school’s investigation was also defective since it did not prepare a written report, let alone one that reported the competing views (including those of Ms Greenland, the person complained about) and with the facts and opinions objectively weighted.

[31] The complaint to the school by the parent is the basis on which the Principal, Mr Neal, initially contacted Mr McKenzie and made a complaint. Mr Richardson’s interview of students was the basis on which the company decided it needed to dismiss Ms Greenland. He passed his findings to Mr Neal, who rang BMC and told them what Mr Richardson had found. The company’s General Manager, Mr David Nickels’ evidence on this is;

“Andrew Neal, verbally on the phone, went through the findings, he also basically told me that the investigation was absolutely conclusive and at that, being the principal, I made the decision to advise Mark McKenzie to terminate Ms Greenland.” 31

[32] Unfortunately, the evidence in relation to Mr Richardson’s “findings” is anything but conclusive. The evidence does not sufficiently describe the alleged actions or words of Ms Greenland; it does not place the allegations according either to time or location; and it does not indicate who might have been present at the time.

[33] Notwithstanding the difficulties in the evidence, there were two significant meetings between Ms Greenland and her employer after the Greenland/S1 interaction.

[34] The first took place on the afternoon of Monday 25 March and was between Ms Greenland, Mr McKenzie and Mr Edwards. The meeting discussed the complaint made by the school to BMC. The details of the complaint were related by Ms Greenland as follows;

“And what occurred from that point?---I was asked if anything happened today on my bus and I said, "No," and then Mark told me that there had been a very serious allegation made towards me. He said that I'd touched a girl on the arm. The school had - - -

What words did he use?---He said that there was a very serious allegation made towards me and that - - -

What exactly did he say you did?---When I asked what that was - because I sort of - I was a bit unbelieving of it and so I asked. He said, "Well, a girl said that you touched her on the arm," and her father has rung the school - - -

The word was "touched"?---"Touched a girl on the arm."” 32

[35] Ms Greenland denied there had been a problem and assumed it had related to the events of the afternoon before the bus left the school, involving S1 and said that Mr LaFranchi might be a witness. The meeting was inconclusive, however Ms Greenland was obviously concerned enough about the allegation to provide a letter of defence to Mr McKenzie the next day, Tuesday 26 March.

[36] Mr McKenzie approached Mr LaFranchi about his recollection either on the Tuesday or the Wednesday 33 at nearly 9.00am after the morning bus run had finished and he was about to go home34. Mr LaFranchi’s recollection about the approach is this;

“Well, he sort of said, "What happened" - he said, "What happened up the grammar last night?" I said, "Nothing." He said, you know, "What happened with Ang?" I said, "I don't know. I was just talking to her." I told him what I just said here, that she was talking and then she went and spoke to the girl who didn't return her hello.” 35

[37] Mr LaFranchi had not seen or heard anything of note and said as much. When asked whether Mr McKenzie had asked whether the girl was grabbed or manhandled or touched, his evidence was the following;

“No, I don't think he - no, he didn't say anything about that. He just sort of said, "What happened?" I thought it was a funny question because, as far as I was concerned, nothing happened, so what is he questioning me for?” 36

[38] There was a second meeting between Ms Greenland and her employer on Thursday 28 March. After finishing her morning bus route, Ms Greenland was asked to go to the office, which she did, and she met again with Mr McKenzie and Mr Edwards. She was not unduly alarmed to be asked to another meeting, and did not bring a support person with her, or ask for one to be present. Ms Greenland’s evidence about the meeting is the following;

• She was asked to come to a meeting after going home after the morning run. She wasn’t alarmed about the meeting; she thought it might be about uniforms which had recently been changed over 37.

After she arrived at about 10am Mr McKenzie and Mr Edwards met with her.

At the start of the meeting she was told her employment was no longer required and she had a letter slid across the desk to her in an envelope 38.

The letter confirmed her dismissal. It was signed jointly by Mr Nickels, Mr McKenzie and Mr Edwards 39.

She was told that any slight or incidents having to do with Bacchus Marsh Grammar, being their biggest contract, won't be tolerated 40.

She asked what was meant by the first line of the letter which read “In light of new information in relation to an incident that occurred on Monday, 25 March” and she was told it was private information 41.

The two managers may have elaborated on what they meant about privacy, but she cannot remember 42.

LEGISLATION

[39] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[40] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the legislative factors set out earlier.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[41] There was not a valid reason for Ms Greenland’s dismissal.

[42] I accept there was a complaint to the school from a parent of one or more of the children on Ms Greenland’s bus and that the complaint arose from the parent’s perception either of things they had seen when their child exited the bus on the afternoon of 25 March, or that their child told them about what had happened at the school waiting to get on the bus, or subsequently. I accept the school was concerned about this and requested action by BMC. The school’s inquiries do not amount to an investigation and BMC did not undertake its own investigation.

[43] BMC did not have a sound, defensible or well founded reason for the dismissal 43.

(b) whether the person was notified of that reason

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[44] Ms Greenland was notified of the reason held by the company, but that reason does not amount to proper notification.

[45] Ms Greenland demonstrably responded to the allegations made to her, before the company made a decision to dismiss her. She responded in the form of a written explanation provided to Mr McKenzie on 26 March 44. The response set out her defence to what she thought were the allegations being made of her.

[46] Ms Greenland’s response was provided before a conversation between Mr Nickels and Mr Neal, arising out of which Mr Nickels formed the view that Ms Greenland should be dismissed. There is no evidence that he took her response into account. There is also no evidence that in the dismissal meeting on 28 March that Ms Greenland was asked to provide a response to the final allegations. The company’s letter of termination to Ms Greenland prefaces her dismissal by saying “[i]n light of new information in relation to an incident that occurred on Monday 25th March 2013 ...”, yet there is no evidence the “new information” was ever put to Ms Greenland; in fact, it was withheld from her, for reasons of privacy 45. In his evidence, Mr Nickels was unclear whether there actually was new information46.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

[47] Ms Greenland’s evidence is that she was not unduly alarmed to be asked to another meeting on 28 March, and did not bring a support person with her, or ask for one to be present. There is no evidence either that she was offered an opportunity to have a support person present during the meeting.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

[48] The company dismissed Ms Greenland because of the events that occurred on Monday 25 March and it did not, in the hearing, rely upon the aggregation of those events together with the Applicant’s history of employment as the reason for dismissal 47. As a result, the conduct of the prior employment history is not material to the considerations in this matter

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[49] BMC has about 80 to 90 employees. 48 While the evidence is that BMC is not a small business employer, within the meaning of the Act, BMC does not have a human resource manager employed within the company.

[50] The size of the employer’s enterprise may have impacted upon the decision to terminate Ms Greenland’s employment.

[51] BMC failed to investigate properly, or at all, the allegations its client made about Ms Greenland. When it acted upon the school’s complaint it did not put the allegations fairly or cogently to Ms Greenland.

[52] It is probable that BMC’s lack of access to human resource management expertise both led to errors in how it acted and then allowed the compounding of those errors through mistakes in what it took into account; what it put to Ms Greenland or took into account from her response; and ultimately in how it decided to act in relation to her employment.

(h) any other matters that the FWC considers relevant.

[53] I do not consider there to be any other relevant matters that require being taken into account.

[54] As a result of the foregoing analysis, I find there was not a valid reason for Ms Greenland’s dismissal and that accordingly it was a dismissal that was, in all the circumstances, harsh, unjust and unreasonable.

[55] It was unfair, since the grounds for Ms Greenland’s dismissal were not fairly made out after a meaningful investigation and were insufficiently put to her for response. The company’s decision to dismiss was unjust and unreasonable since it did not take into account its lack of evidence, or the need for procedural fairness to Ms Greenland. The decision to dismiss was also unreasonable since it was a disproportionate response to the circumstances.

REMEDY

[56] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows;

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC 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) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC 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 the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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 the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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), the FWC 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), the FWC 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 the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC 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 the FWC 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 the FWC 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.

[57] Pursuant to subsection 390(3) an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[58] Ms Greenland’s submission is that she wants her job back. It was one she liked and enjoyed and it provided economic support for her. She was distressed at losing her job and could not understand why she had been dismissed. She still has not had put to her precisely what she did that caused her to lose her job.

[59] However, the evidence shows that neither the employer or its client, the Bacchus Marsh Grammar School, know the precise events themselves.

[60] In considering the possibility of reinstatement, I have weighed Ms Greenland’s situation and her lack of knowledge of those events together with the business needs of Bacchus Marsh Coaches and as a result, am satisfied that reinstatement of Ms Greenland is inappropriate.

[61] I am concerned an order for reinstatement of Ms Greenland would have an unduly negative effect on Bacchus Marsh Coaches. Mr Nickels’ evidence is that the company is trading in a difficult environment.

[62] The Bacchus Marsh Grammar School contract is important to BMC and he does not wish to compromise the retention of the school contract, particularly given that another private school client of his company, Mowbray College, had closed its operations in 2012. He related the contractual amount lost to the company as a result of the closure of the College, as well as the debt his company had to write off 49. These are very considerable amounts for a business employing between 80 and 90 employees, many of whom would be casually engaged, like the Applicant. I take this into account along with Mr Nickels’ evidence that as a result, the company is in “a rebuilding process and maintaining current clientele and trying to pick up new clients to build the business back up to survival mode”.50

[63] While Mr Nickels gave this evidence, the company did not provide its profit and loss statements or other evidence about the company’s financial position to the Fair Work Commission.

[64] I also take into account that retention of the Bacchus Marsh Grammar School contract is a primary concern for Mr Nickels and that the company submits if reinstatement were to be ordered, then it should not be to a route that involved the school 51.

[65] I consider it inappropriate to make an order for reinstatement as a result of the effect that reinstatement to a Bacchus Marsh Grammar School route would likely have on BMC’s relationship with the school, together with the potential financial impact reinstatement if it were to be elsewhere in the business. However, I am satisfied there should be an order for compensation, and I now turn to that issue.

(a) the effect of the order on the viability of the employer’s enterprise

[66] I have referred above to issues associated with the company’s viability.

[67] I find that an order for compensation will, insofar as the company is concerned, be a less disruptive order than reinstatement and one that will least affect the viability of the employer’s enterprise.

[68] Since there is nothing before me that would indicate an order for compensation, even at the statutory maximum, would affect BMC’s viability, I find the order of compensation I propose will not affect the viability of the employer’s enterprise.

(b) the length of the person’s service with the employer

[69] Ms Greenland’s evidence is that she commenced employment with BMC during March 2006. BMC submitted that she commenced on 1 April 2006 52. The significance of the precise commencement date is the pro rata long service leave accrual threshold, and the dispute was not resolved during the hearing.

[70] In any event, Ms Greenland’s counsel submitted that she had been driving buses for 13 years, seven of which were with BMC 53. Irrespective of whether her period of service is sufficient to qualify for pro rata long service leave, Ms Greenland’s length of employment was significant and I take it into account in determining an amount of compensation.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[71] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters;

[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

". . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law."

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. ...”  54 (endnotes omitted).

[72] A proper response to the complaint made by Bacchus Marsh Grammar would have been for BMC to itself objectively investigate what had occurred on 25 March.

[73] Within the constraints imposed by the school, and no doubt the students’ parents, it is unlikely an objective investigation by the employer would have produced sufficient grounds for dismissal of an employee, even if they had an imperfect employment history with the employer. Although the allegations would most likely continue to be too diffuse to have crystallised to a sufficient standard to form a valid reason for dismissal, they may have been sufficient to warrant the provision of a warning with consequential counselling, provision of remedial training, and the requirement for objective behavioural and other performance improvement

[74] In considering all the material before me, I am of the view that had BMC implemented appropriate procedures that Ms Greenland’s employment would have continued not indefinitely with BMC, but for a period of between three and five months.

[75] After taking into account the length of her service with BMC, I find the remuneration that Ms Greenland would have received, or would have been likely to receive, if she had not been dismissed is 17 weeks wages.

The Applicant’s counsel submitted the evidence shows Ms Greenland’s weekly wage rate at the time of dismissal as $693 55, which I accept as consistent with her earnings as shown in her most recent PAYG Payment Summary56 and will use as the basis for calculation of compensation.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[76] Ms Greenland’s evidence is that at the time of the hearing she had made about 9 or 10 job applications 57 and that, in her opinion, she was now potentially unemployable and that her prospects for employment are affected after explaining to prospective employers her reasons for leaving BMC 58.

[77] I am satisfied that Ms Greenland has endeavoured to mitigate her loss as a result of her termination.

(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

[78] There is no evidence that Ms Greenland received remuneration from other employment or work between the time of the dismissal and the date of the hearing. While there is evidence she sought and received Centrelink payments, these are not taken into account in relation to assessment of this criterion 59.

(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

[79] There is no evidence before me in relation to this criterion and accordingly, I make no adjustment as a result.

(g) any other matter that the FWC considers relevant.

[80] Other than the note I make in the following paragraph, I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

[81] Section 392(3) of the Act provides that if the Fair Work Commission is satisfied that misconduct contributed to the employer’s decision to dismiss, the Fair Work Commission must reduce the amount it would otherwise order. For the avoidance of doubt, I have not found that Ms Greenland committed any act of misconduct. While that is the basis of BMC’s dismissal of her, I have found the basis of dismissal is not made out; there is no valid reason for termination; and accordingly there is not a reduction to be made to the amount of compensation I order.

CONCLUSION AND ORDERS

[82] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[83] I find that reinstatement is not an appropriate remedy in this case.

[84] I find that compensation is appropriate.

[85] The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5) of the Act. 60

[86] In relation to the matter of contingencies, I find there are none that ought be taken into account in this matter.

[87] Having regard to the considerations established by s.392 of the Act, and the criteria established by the FWC and I find that compensation should comprise a payment by the respondent to the applicant calculated as follows:

Assessment of remuneration lost:	17 weeks projected lost income at the rate of $693 per week	$11,781.00
Employer superannuation contribution on above	9%	$1060.29
LESS:	Monies earned since dismissal	$0
LESS:	Contingencies	$0
TOTAL	$12,841.29

[88] The above amount does not exceed the compensation cap applying at the time of dismissal.

[89] The compensation payment of $12,841.29 will be taxed by the employer according to law, and is to be made within 14 days of this decision.

[90] An order to the above effect has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr J Hooper, of counsel, and Mr F Nikola, solicitor, for the Applicant.

Mr R Lambert, paid agent, and Mr D Nickels, for the Respondent.

Hearing details:

2013.

Melbourne:

August 16.

 1   Transcript, PN 175

 2   Fair Work Act, s.396(b)

 3   Transcript, PN 350 - 353

 4   Transcript, PN 188

 5   Transcript, PN 188 - 192

 6   Transcript, PN 19

 7   Transcript, PN 192

 8   Transcript, PN 190

 9   Transcript, PN 198

 10   Transcript, PN 198 - 200

 11   Transcript, PN 202 - 203

 12   Transcript, PN 453 - 458

 13   Transcript, PN 556

 14   Transcript, PN 610 - 611

 15   Transcript, PN 614

 16   Transcript, PN 615 - 618

 17   Transcript, PN 671; Witness statement of James LaFranchi, para 6

 18   Witness statement of James LaFranchi, para 9

 19   Transcript, PN 562-564; Student’s name redacted

 20   Transcript, PN 822

 21   Transcript, PN 825

 22   Transcript, PN 918

 23   Transcript, PN 834, student’s name redacted

 24   Transcript, PN 932

 25   Transcript, PN 940-942

 26   Transcript, PN 975 and 980 - 981

 27   Transcript, PN 973 and 980

 28   Transcript, PN 1002

 29   Witness statement of Mark McKenzie, Exhibit R1

 30   Transcript, PN 1045 - 1055

 31   Transcript, PN 1248

 32   Transcript, PN 217 - 220

 33   Transcript, PN 627 and 719

 34   Transcript, PN 720 - 721

 35   Transcript, PN 633

 36   Transcript, PN 638

 37   Transcript, PN 252 - 253

 38   Transcript, PN 266 - 267

 39   Exhibit A3

 40   Transcript, PN 278

 41   Transcript, PN 289

 42   Transcript, PN 297

 43   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, at 373

 44   Exhibit A2

 45   Transcript, PN 290

 46   Transcript, PN 1399 - 1401

 47   Transcript, PN 84 - 88

 48   Transcript, PN 159, 1463 and 1520

 49   Transcript, PN 1237

 50   Ibid

 51   Transcript, PN 1548

 52   Application for Unfair Dismissal, Form F3, Andrea Greenland

 53   Transcript, PN 1468

 54   Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

 55   Transcript, PN 1468

 56   Exhibit A4

 57   Transcript, PN 516

 58   Witness statement of Andrea Greenland, p.2

 59   Transcript, PN 336 – 341; Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 29.

 60   See Sprigg, at 32, and Ellawala v Australian Postal Corporation (2000) Print S5109, at [33].

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