Andrew Cornish v ISS Integrated Services

[2017] FWC 1455

[2017] FWC 1455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Cornish
v
ISS Integrated Services
(U2016/14801)

COMMISSIONER PLATT ADELAIDE, 14 MARCH 2017

Application for relief from unfair dismissal – alleged breach of procedures – breach not established – no valid reason for dismissal – harsh, unjust or unreasonable – compensation ordered.

Overview

[1] On 12 December 2016, Mr Cornish lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer ISS Integrated Services (ISS) on 23 November 2016.

[2] The matter was arbitrated on 1 March 2017. Ms Welfare of Doman Lawyers was granted permission under s.596(2) of the Act to represent Mr Cornish and Mr Moore represented ISS.

[3] Mr Cornish provided a witness statement¹ and gave evidence on his own behalf.

[4] ISS provided witness statements and led evidence from:

• Mr Myles Backshall – Truck Driver for Nuriootpa Traders;


• Ms Tanya Madden – Site Manager at the Orora site; and


• Mr Darren Boswell – Warehouse Manager.

[5] There was no dispute that Mr Cornish was protected from unfair dismissal at the relevant time.

[6] Mr Cornish was employed as a warehouse forklift driver by ISS, a labour hire company that provides employees to perform work at the Orora glass manufacturing facility in Gawler, South Australia. Mr Cornish’s duties included loading and unloading trucks using a forklift in a warehouse. Mr Cornish’s dismissal arose from three alleged procedural breaches:

• On 25 October 2016, he failed to obtain the keys from truck driver Mr Backshall and failed to provide the driver with a hit not device prior to loading the truck.


• On 26 October 2016, he failed to obtain the keys from truck driver Mr Backshall and failed to provide the driver with a hit not device prior to loading the truck.


• On 27 October 2016, using a mobile phone whilst driving a forklift.

[7] The position of Mr Cornish is summarised as follows:

• On 25 and 26 October 2016, he believes he acted in accordance with the procedure by obtaining the truck keys from Mr Backshall and providing him with a hit not device prior to loading the truck.


• On 27 October 2016, he was using the microphone of a UHF radio which was attached to the forklift and not a mobile phone.


• He was made aware of the alleged breaches one month after the event, on 18 November 2016, and was only provided with 24 hours to respond to the three alleged incidents and was therefore not afforded procedural fairness.


• He requested the CCTV footage and the witness statement of Mr Backshall prior to the meeting but was denied access.


• He has an excellent safety record and has not been issued with any warnings in his six years’ service with ISS.


• The dismissal was harsh, unjust and unreasonable.

[8] The position of ISS is summarised as follows:

• Due to previous incidents and serious permanent injury to a forklift driver, ISS and Orora take safety extremely seriously. Therefore, there is a zero tolerance for non-compliance with the requirement to obtain the keys from a truck driver in exchange for a hit not device prior to loading.


• The three alleged breaches were witnessed by contractor truck driver Mr Backshall, who made contemporaneous notes of the incidents but did not report them until 18 November 2016.


• ISS management became aware of the three alleged breaches on 21 November 2016. On the same day Ms Madden, Site Manager, met with Mr Cornish and provided the details of the three allegations to him. Mr Cornish was stood down with pay pending a meeting on 22 November 2016.


• Mr Cornish was provided with 24 hours to consider and respond to the allegations, which was reasonable in the circumstances.


• On 22 November 2016, Mr Cornish attended the meeting with a support person and provided a written response to the allegations. He conceded that the incidents may have occurred and provided a number of explanations as to why this may have happened. He also apologised for his actions. Mr Cornish did not seek to view the footage at this meeting.


• ISS concluded that on the balance of probabilities, the allegations were substantiated and there were no mitigating factors that would make the termination unreasonable.


• On 23 November 2016, Mr Cornish was advised that his employment was terminated effective immediately.


• In the past, ISS and Orora have terminated employees for failing to comply with the safety requirement that Mr Cornish was also terminated for.


• ISS concede that the CCTV footage of the 25 October 2016 incident does not show sufficient detail to confirm the allegation. However, Mr Backshall’s evidence corroborates the interaction on 25 October 2016.


• The CCTV footage for 26 October 2016 confirms that Mr Cornish commenced loading before obtaining the truck driver’s keys in exchange for the hit not device.


• The CCTV footage of 27 October 2016 confirms that Mr Cornish was using a mobile phone whilst operating a forklift.


• The three breaches are regarded as serious misconduct that could have caused serious and imminent risk to health and safety and are a valid reason for Mr Cornish’s dismissal.


• ISS is a large employer with dedicated human resource management specialists and its size and existence of dedicated human resource management specialists would be unlikely to negatively impact on the procedures followed.


• The dismissal was not disproportionate to the conduct of Mr Cornish, nor was it harsh, unjust or unreasonable.

The Witness Evidence

[9] Mr Cornish’s evidence is as follows:

• He commenced employment with ISS on 12 August 2013 at the Orora site. Mr Cornish had worked on the site for other labour hire providers prior to his employment with ISS.


• During his employment with ISS he was never issued with a warning, he did however receive two verbal counselling sessions. The first was in relation to punctuality and the second for failing to wear ear plugs.²


• During his employment he was a member of the safety committee, but was not a safety representative. He has not undertaken any safety training other than to read and sign off on the SOPs.3 In a typical day he would load 8-10 trucks.4
• He does not recall the exact events of 25, 26 or 27 October 2016 as they were ordinary days and nothing unusual happened,5 and therefore he relied on the CCTV footage provided by ISS.
• He does not dispute that he was the forklift operator in the CCTV footage on 25, 26 and 27 October 2016.
• On 25 October 2016, he picked up a pallet and then whilst out of the view of the camera, he believes that he exchanged the hit not device for the truck driver’s keys prior to loading the pallets onto the truck.6 On this occasion, he cannot identify or recall who the driver was in the CCTV footage.
• On 26 October 2016, the CCTV footage shows that he is reversing the forklift whilst carrying pallets, the trucks curtains are already open which he says indicates that Mr Backshall has already left the cabin once,7 he then proceeds to load the truck. The CCTV footage does not capture the events that occurred prior to him reversing the forklift with the pallets which is when he believes he would have exchanged the truck driver’s keys for the hit not device. There is some exchange between him and the truck driver at the end of the footage where the truck driver exits the cabin, however he does not recall what was said.
• On 27 October 2016, the CCTV footage shows him with his right hand holding an item near the right hand side of his face. He would not use a mobile phone whilst driving and therefore he believes that the item must be a UHF radio, which is mounted to the right hand side of the forklift and which employees are permitted to use whilst operating a forklift. There is no curly cord visible in the CCTV footage as the radio is mounted up high, almost on the roof of the forklift, and the footage is obscured by Mr Cornish’s head.8
• On 21 November 2016, he received a telephone call from the day shift team leader, who advised that he needed to attend a meeting with Ms Madden. Mr Cornish attended the meeting where Ms Madden was accompanied by Mr Boswell. Ms Madden read out the allegations and as Mr Cornish tried to reply she advised that they did not want him to respond, that he was to go away and come back within 24 hours with a response and further that he was being laid off with pay.


• On the night of 21 November 2016, Mr Cornish wrote a response. He returned the next day, provided a copy of the response to management and read it out loud. He had Rob Singleton attend as a support person. At the conclusion of the meeting, Mr Cornish was advised that the investigation would be finalised shortly.


• On 23 November 2016, he received a telephone call from Ms Madden who asked him to attend a meeting. At the meeting, Ms Madden and Mr Boswell informed him that they had decided to terminate his employment effective immediately.


• Ms Madden took into account a number of factors. In relation to the one on one conducted on 28 June 2016, Mr Cornish explained that he was using a personal mobile phone outside of break times.⁹ In relation to the one on one conducted 31 March 2016 he contends that it was not in relation to a safety breach it was in relation to the procedure he undertakes when loading a truck and Ms Madden had misunderstood.¹⁰ In relation to using a mobile phone in his personal time whilst driving to work, he explained that he did not recall doing so but recalls Mr Boswell jokingly saying to him once at work “what are you going to do with the $400 you just saved by not getting pulled over by the Police talking on a mobile phone?”¹¹


• The complaints concerning Mr Cornish’s procedural breaches were made by the same person, Mr Backshall.
• Mr Cornish held the view that generally he got along with all the truck drivers, however being in a role where he would organise the loading he would sometimes instruct drivers that they could not be pre-loaded which would make the drivers a bit upset.12 In the afternoon, Mr Backshall would often ask to be pre-loaded for the next day which Mr Cornish would decline if he knew there were other trucks that still needed to be loaded for that day. This treatment of declining to pre-load applied to all truck drivers and not just Mr Backshall.13
• Mr Cornish contended that Mr Backshall’s complaints about him were motivated by retribution.

[10] Mr Backshall’s evidence is as follows:

• Mr Cornish was allocated to load his truck at Bay 5 on 25 October 2016 at 15:55pm. On this day, Mr Backshall exited his cabin and began pulling the curtains on the left hand side of the truck back whilst Mr Cornish commenced loading the truck. After Mr Conrish had loaded one pallet on to the truck, Mr Backshall then noticed his keys were still hanging on his pocket and that he had not been given a hit not device. He gained Mr Cornish’s attention and made him take the keys and provide a hit not device. He then proceeded to make a note of the incident in his logbook.


• On 26 October 2016 at 14:25pm, Mr Cornish was allocated to load his truck at Bay 4. He waited in the cabin whilst Mr Cornish proceeded to load the truck. He exited the cabin and after Mr Cornish had loaded one pallet onto his truck, he realised he had his keys on/in his right pocket.¹⁴ He gained Mr Cornish’s attention and said “do you want the keys” to which Mr Cornish replied “oh shit yes”. This occurred after the CCTV footage had ended and therefore the exchange of the keys for the hit not device was not captured. He made a note of the incident in his logbook.


• On 27 October 2016, Mr Backshall’s vehicle was outside of the breezeway door to the right.15 Whilst walking back from the office, Mr Backshall saw Mr Cornish reach for his mobile phone, make a call/ “press send” and then place the mobile phone to his ear; Mr Backshall was approximately five metres away when he witnessed these events.16 He then saw Mr Cornish drive the forklift through the Northern breezeway with the mobile phone to his ear. He made a note of this in his logbook.
• Mr Backshall submitted a photocopied extract of his logbook with his statement. The extract recorded the three incidents on 25, 26 and 27 October 2016.


• He reported the incidents to Mr Boswell on 18 November 2016. The reporting of the incidents came about after Mr Backshall had a conversation, on or around 11 November 2016,¹⁷ with the Safety Representative about another incident; during the conversation he made a comment that it would not be the first time that Mr Cornish had breached safety.


• He did not report the incidents earlier as he was concerned about the repercussions and did not want to be labelled a “dobber”.


• He would often receive attitude from Mr Cornish when requesting a pre-load that was not scheduled for the day when the warehouse was quiet and no trucks were in the breezeway. He made the requests in order to get ready for the next day.


• Mr Backshall produced the original logbook¹⁸ at the hearing, the original page of the logbook contained additional information that was not recorded on the extract attached to Mr Backshall’s statement. Mr Backshall explained that this information referred to incidents with Mr Cornish in September 2016.¹⁹ Mr Backshall stated he was approached by Mr Cornish about speaking to a driver in another bay within the warehouse.²⁰ Prior to this incident he described the relationship as amicable, after this incident he felt that Mr Cornish had it in for him.²¹ On the same day, he noted in the back of his logbook “14:45 or 18:45 preload attitude not on the sheet stock out in 4-5 Rob said no problems”.²² Mr Backshall stated this was the first interaction that he chose to record, he cannot recall who but he reported this the next day to whoever was at the desk in the office.²³


• The record in the logbook which was not contained in the extract was dated 11 October 2016 and read “Tuesday 11-10-16 14:54 And[y] Took Hit Not from & And[y] advised keys were in door going to toilet failed to collect keys started unload.” Mr Backshall stated he spoke to Mr Boswell about this allegation and it was determined that there was a “breakdown in communications” whereas the other three incidents were on successive days, and the complaint would not be pursued.24
• Mr Backshall stated he had witnessed other safety breaches that Mr Cornish has committed but did not record them; he only began recording them after the event when he was spoken to about speaking to a driver in another bay.25
• He has previously witnessed many other safety breaches but has never reported them.26

[11] Mr Boswell’s evidence is as follows:

• The Warehouse Safety Representative advised him that Mr Backshall had some serious safety breaches documented in relation to one of the team members.


• On 18 November 2016, Mr Boswell approached Mr Backshall and advised of the conversation he had with the Warehouse Safety Representative and that he had an obligation to follow up on it.


• Mr Backshall stated that he had observed some safety breaches involving a mobile plant and the truck loading/unloading process and that he had not reported them earlier as he was concerned about repercussions.


• Mr Backshall had dates and times on the back of his folder. Mr Backshall detailed the individual breaches, stating that Mr Cornish had commenced the loading of the truck before requesting or taking possession of the truck keys and that he had seen Mr Cornish drive through 2-3 loading bays in the breezeway on a mobile phone.


• He took a written statement from Mr Backshall which he asked him to sign.


• On 21 November 2016, Daniel Kirtlan, Warehouse Team Leader, and Mr Boswell viewed the CCTV footage for the dates and times that Mr Backshall had indicated.


• Ms Boswell contended that the CCTV footage indicated that on two occasions, Mr Cornish had not followed the requirements. It also showed Mr Cornish driving down the main breezeway whilst talking on a mobile phone. He acknowledges that the forklift is fitted with a two way radio with an extension microphone which would be held to the front of the mouth and which has a speaker fitted to the forklift near the operator’s ear to enable them to hear the message.


• Upon reviewing the footage, he advised Ms Madden that a formal investigation would be required.


• Ms Madden advised that they would need to speak to Mr Cornish prior to him attending his shift, present the three allegations to him and suspend him on full pay.


• Throughout the investigation, Mr Boswell acted as a witness for Ms Madden.

[12] Ms Madden’s evidence is as follows;

• On 21 November 2016, Mr Boswell provided her with a copy of a statement from contractor truck driver Mr Backshall.


• At or around 1:00pm on 21 November 2016, Ms Madden met with Mr Cornish prior to him commencing his shift. She advised him of the three allegations, that there was CCTV footage and a witness statement as supporting evidence and that he would be suspended on full pay pending the outcome of the investigation. She advised that a meeting was scheduled for 3:00pm 22 November 2016 to allow him to respond to the allegations and that he was entitled to bring a support person. She told him that if any or all of the allegations were substantiated the outcome of the investigation may, subject to his responses, include disciplinary actions up to and including termination of employment, that the issues must remain confidential and that he must not interfere directly or indirectly with the investigation as this could result in disciplinary action and, in serious cases, termination of employment.


• On 22 November 2016, Mr Cornish advised Ms Madden that he wanted Mr Singleton to attend as his support person, she arranged for Mr Singleton to be released from his duties.


• At 3:00pm on 22 November 2016, the response meeting was held. Mr Cornish read his response out and provided a copy in writing. He advised that he had no specific recollection of any of the three incidents but conceded that the incidents on 25 and 26 October 2016 could be likely if the driver did not initiate the process by handing the keys over. In relation to the 27 October 2016 incident, Mr Cornish conceded that there were other occasions where he had used his phone whilst driving the forklift.


• In considering the appropriate outcome, Ms Madden took into account the following considerations:

(a) Mr Cornish’s role as Safety Representative

(b) the one on one conducted on 28 June 2016 regarding mobile phone use

(c) the one on one conducted on 31 March 2016 reminding Mr Cornish of the hit not system, driver keys etc.

(d) the Standard Operating Procedure for WH – Truck Loading/Unloading signed by Mr Cornish on 21 August 2015

(e) the Standard Operating Procedure for WH – Truck Loading/Unloading signed by Mr Cornish on 26 May 2015

(f) the Privately Owned Cameras, Mobile Phones and Other Imaging Devices Policy and Procedure signed on 28 June 2013 and again on 12 August 2013

(g) the fact that Mr Cornish was seen by Mr Boswell driving his personal vehicle whilst using a mobile phone

(h) the counselling on 10 November 2015 for breaching the Organisational/Policy Procedure for late attendance and performance concerns with not having allocated tasks completed

(i) the counselling on 19 February 2014 for breaching Organisational Policy/Procedure for failing to wear correct PPE whist ton the forklift.

• On 23 November 2016, Mr Cornish attended a meeting and was advised by Ms Madden that the on the balance of probabilities they were satisfied that he committed multiple breaches of the Organisational Policy/Procedure and as a result his employment was being terminated.


• In relation to the 26 October 2016 incident, Ms Madden acknowledges that the CCTV footage stops short of an interaction between Mr Cornish and Mr Backshall. She requested a longer version of the video footage from Orora, however they indicated that it could not be provided.


• A statement from the second truck driver in the 25 October 2016 CCTV footage was not sought.

• In relation to the 27 October 2017 incident, Ms Madden stated that the mobile phone handset was owned by ISS and on the Telstra network. She advised the handset could not be found and she was unable to secure phone usage records.

Findings of Fact

[13] The company has procedures in place which required forklift drivers to obtain the truck drivers keys and provide a vest and ‘hit not’ device whilst loading/unloading in the loading bay. There is no dispute in relation to the application of this procedure to Mr Cornish or his understanding of the requirements. There is no dispute that Mr Cornish was not permitted to talk or use a mobile phone whilst operating the forklift.

[14] Mr Cornish gave his evidence in a forthright manner and made concessions where appropriate, for example whilst it was unlikely, it was possible that he had not exchanged the truck keys for the hit not device.

[15] Mr Backshall was not so forthcoming. In his first undated signed written statement with the subject: Safety Breaches,²⁷ Mr Backshall writes as a disinterested observer.

[16] In his witness statement provided at the hearing,²⁸ Mr Backshall understates his discontent towards Mr Cornish and submits a copy of his logbook which is an incomplete copy of his record.

[17] Mr Backshall did not reveal that he had a discussion with Mr Boswell about a safety breach which allegedly occurred on 11 October 2016 but was never raised with Mr Cornish as it appears that Mr Backshall and Mr Boswell agreed this was a ‘communications error’.

[18] Mr Backshall did not raise the procedural deficiencies with Mr Cornish at the time; this is surprising considering his commitment to safety.

[19] Mr Backshall is clearly not a disinterested observer and appears to have distorted his statement and logbook record to suit his ends in his personal grievance with Mr Cornish.

[20] Mr Backshall was not a credible witness and, absent independent corroboration, I prefer the evidence of Mr Cornish where it conflicts with Mr Backshall.

[21] ISS accept that the CCTV footage does not corroborate the alleged breaches on 25 and 26 October 2016.

[22] The CCTV footage on the 27 October 2016 does show Mr Cornish’s hand being placed to the right side of his face, palm forward, whilst he is driving the forklift, however it is not possible from the CCTV vision to identify if Mr Cornish is using a mobile phone, UHF radio microphone or some other device.

[23] I do not accept Mr Madden’s testimony that a mobile phone can been seen in the CCTV footage. It appears to me that the investigators have interpreted the CCTV footage in light of the contents of Mr Backshall’s statement.

[24] It is unfortunate that ISS could not obtain the Telstra usage records for the mobile phone owned by ISS, as that information could have corroborated the allegation concerning the use of the mobile phone. It could also be that the records did not corroborate Mr Backshall’s statement. It is also unfortunate that statements for other potential witnesses were not obtained.

[25] Whilst Mr Cornish made some concessions to the possibility of him breaching the forklift procedures in his written response, I do not consider these statements as admissions that he engaged in the alleged conduct. It appears that Mr Cornish’s responses sought to appease ISS as a result of his employment being placed in jeopardy.

[26] Whilst Mr Boswell contends he saw Mr Cornish driving his personal vehicle on a road on 16 November 2016 this conduct was not put to Mr Cornish for comment, did not have any connection with work and in any event does not mean that he was driving the forklift using a mobile phone.

[27] I find that the evidence presented does not establish that Mr Cornish breached ISS’s truck loading procedures on 25 and 26 October 2016 or that Mr Cornish was using a mobile phone whilst driving a forklift on 27 October 2016.

Was the dismissal harsh unjust or unreasonable?

[28] Pursuant to s.387 of the Act, 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.”

Valid reason - s.387(a)

[29] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd²⁹which requires the reason for termination to be “sound, defensible or well founded.”

[30] In light of my findings of fact, ISS did not have a valid reason to dismiss Mr Cornish.

Notification of valid reason - s.387(b)

[31] Mr Cornish was notified of the reasons for the dismissal.

Opportunity to respond - s.387(c)

[32] Mr Cornish was notified of the allegations on 21 November 2016 and given 24 hours to respond.

[33] Whilst ISS was not obliged to show Mr Cornish the CCTV footage or provide a copy of Mr Backshall’s statement, in light of the delay between the alleged breach and the investigation (which I accept was not of ISS’s making) and the fact it related to conduct which is commonplace in the working day, ISS’s failure to show Mr Cornish the CCTV footage impeded his capacity to respond to the allegations.

Any unreasonable refusal by the employer to allow Mr Cornish to have a support person present to assist at any discussions relating to dismissal - s.387(d)

[34] Mr Cornish was accompanied by a support person, whilst I note that the support person was prevented from advocating on behalf of Mr Cornish, that is not the role of a support person and I do not draw any adverse inference from it.

Warnings relative to unsatisfactory performance - s.387(e)

[35] Mr Cornish was counselled for not wearing ear protection whilst driving a forklift on 19 February 2014 and was also counselled on 10 November 2015 for lateness and work performance.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[36] ISS is a large employer with dedicated human resource management specialists.

Other matters considered relevant - s.387(h)

[37] Whilst ISS contend that Mr Cornish’s termination was consistent with other similar cases, the evidence before me is that an employee was previously dismissed as a result of disabling a hit not device on a forklift. This is a much more serious breach and I do not regard it as a precedent for the conduct Mr Cornish was accused of.

Conclusion

[38] The Explanatory Memorandum to the Act³⁰ explains the approach of the Commission in considering the elements of section 387:

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”

[39] In Byrne and Frew v Australian Airlines Pty Ltd,³¹ the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[40] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Cornish’s employment was harsh, unjust or unreasonable.

Remedy

[41] The relevant provisions of Division 4 of Part 3-2 of the Act state:

“Division 4—Remedies for unfair dismissal

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.

…

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.”

[42] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.

[43] Mr Cornish did not seek reinstatement and I am satisfied that it is not appropriate in this case.

[44] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.

[45] I now turn to whether compensation in lieu of reinstatement is appropriate.

[46] A Full Bench in McCulloch v Calvary Health Care Adelaide³² confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licensed Festival Supermarket³³ remains appropriate.

[47] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the Act,³⁴ it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer - s.392(a)

[48] There was no submission that any order of compensation would impact the viability of ISS.

The length of Mr Cornish’s service with the employer - s.392(b)

[49] Mr Cornish was employed by ISS for three years and three months. Whilst he was employed by previous labour providers at the same workplace, there is no submission that the service was continuous.

The remuneration Mr Cornish would have received, or would have been likely to receive, if he had not been dismissed - s.392(c)

[50] Mr Cornish did not indicate any desire to leave the employ of ISS.

[51] There is no evidence that Mr Cornish is not in good health.

[52] Mr Cornish was counselled for not wearing ear protection whilst driving a forklift on 19 February 2014 and also for lateness and work performance on 10 November 2015. In June 2016 he was reminded, in a performance review, to limit personal calls on the mobile phone.

[53] There is no indication that any other event could have impacted on Mr Cornish’s continued employment.

[54] In the circumstances, I believe it is reasonable to assess compensation in this matter on the basis that Mr Cornish would have continued to work for a period of six months (including notice) had he not been dismissed.

[55] There was some risk that Mr Cornish may have been subject to further performance management if his work performance had deteriorated or he continued to use the work mobile phone for personal calls.

[56] Mr Cornish has been without work for 15 weeks, I discount the remaining 11 weeks by 25% to reflect the fact that Mr Cornish may have been dismissed or alternatively resigned from his employment.

The efforts of Mr Cornish to mitigate the loss suffered by him because of the dismissal - s.392(d)

[57] At the time of the hearing, Mr Cornish was seeking to secure alternative employment. He had made approximately 20 applications for work but was concerned that the absence of a positive reference was impeding his job search. No discount to the compensation awarded arises from this.

Remuneration earned by Mr Cornish during the period between the dismissal and the making of the order for compensation and the amount of any income likely to be earned by Mr Cornish during the period between the making of the order for compensation and the actual compensation - ss.392(e) and (f)

[58] Mr Cornish had not secured paid work and has applied for unemployment benefits, he has not received any other benefits.³⁵ No discount to the compensation awarded arises from this.

Any other matter that the FWC considers relevant and the remaining statutory parameters - s.392(g)

[59] No discount arises as a result of any misconduct by Mr Cornish.

[60] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[61] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or half the high income threshold immediately before the dismissal.³⁶ The amount of compensation awarded is less than this limit.

[62] Taxation is to be paid on the amount determined.

[63] I believe that the compensation detailed below is appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.³⁷

[64] I award compensation in the amount of $29,164.57, which represents the amount Mr Cornish would have been paid if he worked for a period of 23.25 weeks following the dismissal.

[65] An Order³⁸ reflecting this decision will be issued.

COMMISSIONER

Appearances:

M Welfare of Doman Lawyers on behalf of the applicant.

J Moore on behalf of the respondent.

Hearing details:

Adelaide.

March 1:

2017.

1 Exhibit A1

2 Audio Transcript of Proceedings, 10:27am 1 March 2017

3 Audio Transcript of Proceedings, 10:20am 1 March 2017

4 Audio Transcript of Proceedings, 11:33am 1 March 2017

5 Exhibit A1

6 Audio Transcript of Proceedings, 10:53am 1 March 2017

7 Audio Transcript of Proceedings, 11:01am 1 March 2017

8 Audio Transcript of Proceedings, 11:48am 1 March 2017

9 Audio Transcript of Proceedings, 11:15am 1 March 2017

10 Audio Transcript of Proceedings, 11:15am 1 March 2017

11 Audio Transcript of Proceedings, 11:20am 1 March 2017

12 Audio Transcript of Proceedings, 10:22am 1 March 2017

13 Audio Transcript of Proceedings, 10:24am 1 March 2017

14 Audio Transcript of Proceedings, 12:10-12:12pm 1 March 2017

15 Audio Transcript of Proceedings, 12:14pm 1 March 2017

16 Audio Transcript of Proceedings, 12:14:25pm 1 March 2017

17 Audio Transcript of Proceedings, 12:31pm 1 March 2017

18 Exhibit R2

19 Audio Transcript of Proceedings, 12:29pm 1 March 2017

20 Audio Transcript of Proceedings, 12:20-12:21pm 1 March 2017 and Exhibit R1 [8]

21 Audio Transcript of Proceedings, 12:20-12:21pm 1 March 2017

22 Exhibit R2

23 Audio Transcript of Proceedings, 12:24-12:26pm 1 March 2017

24 Audio Transcript of Proceedings, 12:26-12:28pm 1 March 2017

25 Audio Transcript of Proceedings, 12:27:20-12:28pm 1 March 2017

26 Audio Transcript of Proceedings, 12:18pm 1 March 2017

27 Exhibit R3, Annexure TM1

28 Exhibit R1

29 (1995) 62 IR 371 at 373

³⁰ Explanatory Memorandum to the Fair Work Bill 2008

31 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24

32 [2015] FWCFB 873

33 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431

34 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446

35 Audio Transcript of Proceedings, 11:22am 1 March 2017

36 Section 392(5) of the Act

37 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32]

38 PR590968

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