Anthony Davey v Jr Bulk Liquid Transport T/A Blu Logistics Solutions

[2014] FWC 9307

[2014] FWC 9307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Davey
v
JR Bulk Liquid Transport T/A BLU Logistics Solutions
(U2014/7673)

DEPUTY PRESIDENT BOOTH SYDNEY, 18 DECEMBER 2014

Application for relief from unfair dismissal - quantum of compensation

[1] On 29 October 2014 I made a decision 1 in relation to an unfair dismissal application by Anthony Davey in relation to the termination of his employment by JR Bulk Liquid Transport. I decided that he was unfairly dismissed and awarded him compensation equal to 4 weeks pay.

[2] Mr Davey and JR Bulk Liquid Transport have been unable to agree on the quantum of 4 weeks pay. This decision determines the amount that is to be paid to Mr Davey by JR Bulk Liquid Transport in satisfaction of my Decision.

[3] JR Bulk Liquid Transport submits that 4 weeks pay is 152 hours at Mr Davey’s ordinary time hourly rate of $27 per hour being $4,101.00 gross. Mr Davey submits that the quantum of 4 weeks pay should be calculated by reference to the average weekly rate of pay earned during his employment with JR Bulk Liquid Transport. He submits that this methodology yields an amount of $ 6,549.24 gross.

[4] Mr Davey earned gross payments of $57,555 from 11 October 2012 to 30 June 2013 and $77,523 from 1 July 2013 to 12 June 2014 (50 weeks).

[5] JR Bulk Liquid Transport contend that the amount they must pay should be based on the hourly rate for a 38 hour week because the Road Transport and Distribution award 2010 provides that the ordinary hours of work are an average of 38 per week worked as either 38 hours over a 7 day work cycle or 76 hours over a 14 day work cycle.

[6] Mr Davey submits that 38 hours was not the standard working week at JR Bulk Liquid Transport. He says he worked longer hours. This is confirmed by JR Bulk Liquid Transport. He says the JR Bulk Liquid Transport Enterprise Agreement 2010 provides for a 50 hour working week.

[7] This agreement, 2 approved on 1 April 2011 by Asbury C (now Asbury DP) contains Clause 4 Engagement and Termination. This clause provides relevantly:

“4.1 Employees shall be engaged on one of the following bases:

(a) a full-time employee - engaged on a weekly basis to work an average of 50 ordinary hours per week”
...

[8] Clause 3 relevantly provides:

“3. Relationship to Parent Award provides;

This agreement shall operate in conjunction with the following awards:

*Road Transport and Distribution Award 2010
*Road Transport (Long Distance Operations) Award 2010

Where there is any inconsistency between this Agreement and the terms of the Award, the terms of this agreement shall prevail.

No term of this Agreement shall be less favourable than the National Employment Standards. (‘the NES’)”

[9] I conclude that the provisions of the agreement in relation to the working week prevail over the award. The National Employment Standards provide maximum weekly hours of 38 per week and the agreement cannot displace the NES, so it may be that any hours worked in excess of 38 at JR Bulk Liquid Transport were overtime hours. I note however, that the JR Bulk Liquid Transport Agreement does not contain a provision for overtime payments.

[10] However, the amount of compensation owing to Mr Davey will not be found in this tangle of provisions. In coming to a conclusion about the amount of money JR Bulk Liquid Transport must pay Mr Davey I refer to paragraph 32 of my Decision. I must begin with the amount of remuneration I estimate Mr Davey would have received, or would have been likely to receive, if he had not been dismissed. 3

[11] I estimated that Mr Davey would have remained in employment for one year beyond the date of his dismissal. I think the most reliable estimate of the amount he would have been likely to earn over this period can be calculated by taking his earnings as disclosed in his 2014 PAYG Payment Summary and projecting them over a 52 week period. This yields an amount of $80,623.92. From this amount I must deduct actual and anticipated earnings from his new job for the period 18 August 2014 to 12 May 2015. Mr Davey has supplied me with a pay slip that reveals weekly earnings of $1,280. Multiplying this by 38 weeks as the number of weeks from 18 August 2014 to 12 May 2015 yields a figure of $48,640. Deducting this from $80,623.92 yields the amount of $31,983.92. From this amount I must deduct the amount Mr Davey was paid in lieu of notice of $ 2,052 that appears on his Centrelink Employment Separation Certificate. This yields an amount of $ 29,931.92. I discounted this figure by 2/3 due to Mr Davey’s conduct. This results in an amount of $9,977.31. This is the amount JR Bulk Liquid Transport must pay to Mr Davey.

[12] I Order the total amount of $9,977.31 be paid to Mr Davey by 24 December 2014 in compensation for his unfair dismissal.

DEPUTY PRESIDENT

Final written submissions:

15 December 2014.

 1   2014 FWC 7597.

 2   2011 FWAA 2016.

 3 Section 392(2)(c) Fair Work Act 2009.

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