Brendan Cassar v All Traffic Management Services Pty Ltd T/A All Traffic Management Services Pty Ltd

[2015] FWC 5123

[2015] FWC 5123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Cassar
v
All Traffic Management Services Pty Ltd T/A All Traffic Management Services Pty Ltd
(U2015/2670)

COMMISSIONER JOHNS BRISBANE, 31 JULY 2015

Application for relief from unfair dismissal.

Introduction

[1] On 29 January 2015, Brendan Cassar (Applicant) made an application pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by Mollica Consultants Pty Ltd (trading as All Traffic Management Services) (Employer/Respondent).

[2] On 10 February 2015, the Employer filed a response to the unfair dismissal application.

[3] On 24 February 2015, the unfair dismissal application was listed for conciliation before a Fair Work Commission (FWC/Commission) Conciliator, but remained unresolved at the end of the conciliation.

[4] Consequently the matter was listed for hearing.

Permission to be represented

[5] Neither party sought permission to be represented.

Conference or Hearing

[6] On 3 July 2015, the Commission sought submissions from the parties about whether it should conduct either a conference, as per s.398 of the FW Act, or a hearing under s.399 of the FW Act in relation to the matter.

[7] Taking into account differences in the circumstances and requests of the parties regarding the conduct of the matter, and considering whether a hearing would be the most effective and efficient way to resolve to the matter, the Commission, as presently constituted, decided to conduct a conference because both parties were unrepresented and unfamiliar with the processes for conducting a hearing before the Commission.

[8] At the determinative conference, the Applicant represented himself (via telephone) and gave evidence on his own behalf.

[9] At the conference, the Respondent was represented by Ms Ruby Lesha who gave evidence on her own behalf and also called a further two witnesses as follows:

Marlese Primmer - Operations Manager

Paul Roffey - Traffic Contoller

Background

[10] The following matters were either agreed between the parties or not otherwise contested:

a) The Applicant commenced employment with the Respondent on 7 November 2013. 1

b) The Applicant was employed as a Team Leader Traffic Controller. 2

c) The Applicant earned $25.01 per hour. In the last 12 months of his employment, he earned $1,022.09 per week. 3

d) The Applicant’s employment was terminated on 8 January 2015. 4

e) On or about 23 January 2015, the Applicant commenced new employment with Storm Traffic Management. 5 He is now earning the same hourly rate as he did with the Respondent.6

[11] The Applicant submitted he was unfairly dismissed and seeks an Order that he be compensated for the economic loss he incurred between the loss of his job with the Respondent (8 January 2015) and the commencement of his new job with Storm Traffic Management (23 January 2015) (i.e. two weeks and one day).

Protection from Unfair Dismissal

[12] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[13] Section 382 of the FW Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(c)

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[14] There is no dispute, and the Commission is satisfied, the Applicant has completed the minimum employment period. It was conceded by the Respondent that the Applicant’s employment is covered by the Building and Construction General On-site Award 2010. 7In any case, the Applicant earned less than the high income threshold. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.

[15] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[16] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Was the Applicant dismissed?

[17] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. The Respondent conceded that it dismissed the Applicant. 8

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[18] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code). The Respondent is not a Small Business for the purposes of the Code. It employs around 40 persons. 9

Was the dismissal a genuine redundancy?

[19] The Applicant was not terminated by reason of redundancy. 10

Harsh, unjust or unreasonable

[20] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:

“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.”

[21] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

.... It may be that the termination is harsh but not unjust or 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.

[22] The Commission is under a duty to consider each of these criteria in reaching its conclusion. 11

[23] The Applicant submitted the dismissal was harsh, unjust or unreasonable because the events leading to his dismissal were motivated by his view of the Respondent’s failure to address an incident in which his motorbike had been tampered with while being parked on the Respondent’s premises. 12

[24] The Applicant made a complaint to a superior about the aforementioned tampering but was told by the same that the incident “could not have happened” and that he was “not going to go through 12 hours of footage to find out”. The Applicant became distressed both by the apparent lack of interest in his complaint from management and the fact the footage was not going to be provided to the police. 13 The Applicant then attempted to contact a colleague, Paul Roffey, who the Applicant was “fairly certain” was responsible for the tampering, through various phone calls and a text message on 7 January 2015. The Applicant was terminated on 8 January following a complaint from Mr Roffey.14

[25] The Respondent submitted the dismissal was not harsh, unjust or unreasonable because it was triggered by the Applicant’s “bullying and harassment” of Mr Roffey and the Applicant’s subsequent failure to follow procedures relating to lodging concerns 15 regarding tampering to his motorbike.

[26] The conduct said to constitute bullying and harassment involved up to 21 phone calls being made to Mr Roffey’s mobile phone by the Applicant between 6:10pm in the evening of 7 January 2015 and 2:10am in the morning of 8 January. 16 None of these calls were answered by Mr Roffey.17 The Applicant sent a text message to Mr Roffey at 10:11pm on 7 January accusing him of tampering with his motorbike’s brakes and leaving a post-it note annotated with the term “shit-talker”18 on the vehicle whilst it had been parked on the Respondent’s premises during a work day (January 2015 incident).19 Mr Roffey submitted he had cause to feel threatened by the Applicant as he “strikes me as a dangerous character” who was “unsafe” on job sites, “hoons around in his car” and has alleged (and altogether denied20) connections to undesirable motorcycle gangs.21 The Commission merely records these matters as the evidence given by Mr Roffey about his perceptions of the Applicant and makes no finding about the truth of the matters.

[27] In relation to the January 2015 incident, the Applicant accepts he rang Mr Roffey “a fair few times”, though there were less than 21 calls and none of these were at 2:00am. 22 The purpose of those calls was to “ask [Mr Roffey] if he knew anything about my bike” as the Applicant thought Mr Roffey “bragged to people…that he was a motorbike mechanic and he was the one that let the liquid out of the brakes…”.23 The Applicant also acknowledges he sent the text message accusing Mr Roffey of wrongdoing24 and suggests he did so to indicate that, having formed the view Mr Roffey had tampered with his motorbike25, he was going to report the matter to the police.26 He submitted his conduct during the January 2015 incident was “silly” but rejected characterisation of the text message as “menacing”.27

[28] Further contributing to the decision to terminate the Applicant’s employment, the Respondent submitted the Applicant did not comply with the requirements of established company procedure 28 and the terms of his employment contract29 in reporting the tampering with his motorbike, affecting the investigation that was to follow; he was required to complete an HR report and to have a discussion with his Operations Manager.30 The Applicant had instead spoken directly to the owner of the Respondent, Mr Sal Mollica, who then reported the incident to the equivalent of the Respondent’s HR Manager, Ms Lesha,31 who subsequently investigated the incident32 and found that Mr Roffey had not placed the note on the Applicant’s motorbike.33

[29] In conducting the investigation, Ms Lesha encountered people within the company who “did not want to work with [the Applicant]” on account of his engaging in “threatening” behaviour. 34

[30] The Applicant subsequently participated in a telephone conversation with Ms Lesha on 8 January 2015 to discuss the January 2015 Incident and other misconduct. Ms Lesha submitted the Applicant’s “manner and the tone” during that conversation left her feeling “very disturbed”, particularly when the Applicant said he would deal with the situation “in his own way”. The Applicant categorically denies he made any such insinuation. 35 Ms Lesha felt “very unsafe” during the conversation to the extent she advised the Applicant that the police would be called if he was to enter the Respondent’s premises.36

[31] During that phone call, Ms Lesha terminated the Applicant’s employment (Termination Call). The dismissal took immediate effect. 37

[32] The Applicant conceded he did not follow established procedure or the requirements of his employment contract in reporting complaints at work but submitted he felt his actions were reasonable in the circumstances considering the Operations Manager was “not there [on site]”, he had reported to the next in charge and that he felt the Respondent was not taking his complaints seriously. 38

[33] I will now consider each of the criteria at s.387 of the FW Act separately.

Valid reason - s.387(a)

[34] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 39 The reasons should be “sound, defensible and well founded”40 and should not be “capricious, fanciful, spiteful or prejudiced.”41

[35] Having heard and considered all the evidence in this matter, the Commission, as presently constituted, makes the following findings. The Applicant:

(a) made false accusations against a co-worker;

(b) breached company policy and the terms of his employment contract by not reporting his complaint through the appropriate channels; and

(c) engaged in what can only be described as highly inappropriate conduct by repeatedly calling Mr Roffey after work hours and through the night of 7 January 2015 and sending a menacing text message accusing him of wrongdoing.

[36] The Commission, as presently constituted, is satisfied that this conduct was harassment and finds that, given all the circumstances of this case, the Respondent had a valid reason to terminate the Applicant’s employment.

Notification of the valid reason - s.387(b)

[37] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 42 in explicit terms43 and in plain and clear terms.44 In Crozier v Palazzo Corporation Pty Ltd,45 a Full Bench of the Australian Industrial Relations Commission dealing with similar a provision of the Workplace Relations Act 1996 (Cth) stated the following:

[38] “[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 46

The first and only notification of the Applicant’s termination was during the Termination Call. That is to say the Applicant was not notified of the valid reason before the decision was made. Ms Lesha’s mind was made up when she called the Applicant to dismiss him.

[39] The Commission, as presently constituted, finds the Applicant was notified of the reason for the dismissal, but only after the decision to terminate had already been made.

Opportunity to respond - s.387(c)

[40] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 47

[41] The Applicant submitted the Termination Call did not offer any opportunity for response and was nothing more than a rebuke of the manner by which the Applicant reported the complaint and Ms Lesha “pretty much said don’t contract [the Respondent]…I’m no longer welcome there.” 48

[42] Ms Lesha submitted she had intended to give a warning and provide an opportunity for the Applicant to respond 49 but it was the Applicant’s suggestion that he would “take care of it himself” which prompted the termination during the Termination Call.50 Accordingly, Ms Lesha submitted the termination itself took place at the end of the Termination Call, not at the beginning.51

[43] During the hearing, the Applicant disclosed that he had secretly recorded the telephone call between him and Ms Lesha. He invited the Commission to listen to the recording. Ms Lesha consented to that course of action. 52

[44] During the Termination Call, the following occurred in chronological order:

● Within seconds of commencing the call, Ms Lesha announced she had some “disturbing news…in regards to [the Applicant] bullying and harassing Mr Roffey.” 53 She referred to “16 phone calls” and the text message.54

● The Applicant explained the tampering and message left on his motorbike. 55 He voiced a desire to have the CCTV examined or a report made to the police.56

● Ms Lesha announced the Applicant had done “the wrong thing” 57 because Mr Roffey “has done nothing to your bike.” She reiterated that the Applicant’s actions amounted to bullying and harassment.”58

● Ms Lesha responded somewhat sarcastically to the Applicant’s justifications for suspecting Mr Roffey in saying “So Sal’s also a mechanic, so does that mean Sal actually took out the brake fluid out of your bike?” 59

● Shortly after, Ms Lesha said: “You are to leave Paul Roffey alone, and your services are no longer required in this company under the bullying and harassment policy that we have in place.” 60 At this point, a few minutes into the Termination Call, Ms Lesha terminated the Applicant’s employment.

● When the Applicant indicated similar tampering had occurred before, Ms Lesha requested he provide her the date of the incident, adding “not that it makes any difference now, but I’d like to follow that part up.” 61

● Contrary to what Ms Lesha alleged during her evidence before the Commission, at no point during the Termination Call was the Applicant given an opportunity to formally respond.

● At no point during the Termination Call did the Applicant say he would deal with the situation “in his own way” or that he would “take care of it himself”.

[45] Having heard the Termination Call, it is apparent that the evidence provided by Ms Lesha in-person on this point during the hearing was manifestly untrue. Most of her evidence about the Termination Call was either a gross failure to recollect what actually happened or a recent invention.

[46] The Commission, as presently constituted, is satisfied that, on any reasonable interpretation of the transcript of the Termination Call, far from demonstrating intent to simply warn the Applicant about his conduct and allow him to respond to the employer’s concerns, Ms Lesha had made up her mind to terminate the employment relationship and articulated as much very early in the conversation. 62

[47] The Commission, as presently constituted, finds the Applicant was not given an opportunity to respond to the reason for the dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[48] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[49] In the present matter the Applicant did not seek a support person and therefore this element of s.387 is not relevant and is a neutral consideration.

Warnings regarding unsatisfactory performance - s.387(e)

[50] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 63

[51] In the present matter, the Applicant’s employment was not terminated for unsatisfactory performance. It was dismissal for misconduct. Therefore this element of s.387 is not relevant.

Impact of the size of the Respondent on procedures followed - s.387(f)

[52] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in actioning the dismissal.

[53] The Commission, as presently constituted, finds the size of the employer’s enterprise did adversely impact on the procedures followed in effecting the dismissal.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[54] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in actioning the dismissal.

[55] Ms Lesha is both the Administration Manager and has carriage of an HR function. Notwithstanding the fact she submitted she developed the not unsubstantial HR policies and procedures for the Respondent, she has no formal certification in HR and all her experience has been “on the job”. 64

[56] Having heard the Termination Call, Ms Lesha’s handling of this dismissal can best be described as “heavy handed”. At worst, she was entirely belligerent in her dealings with the Applicant. Even a cursory reading of the Termination Call’s transcript demonstrates her lack of HR skill. It is recommended that Ms Lesha engage in some professional development training to ensure the procedural mistakes she engaged in are not repeated in the future as, in this instance, it is her lack of HR skill which, in no small part, has rendered this dismissal unfair.

[57] The Commission, as presently constituted, finds the absence of any such dedicated HR management or expertise adversely impacted the procedures followed by the Respondent in effecting the dismissal.

Other relevant matters - s.387(h)

[58] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[59] Though there do not appear to have been consistent performance issues with the Applicant warranting formal management action through warnings or any other mechanism, it is clear there were long-standing issues in the relationship between the Applicant and colleagues manifesting in genuine fears for their safety. It seems these issues were allowed to let slide by the Respondent at the times they arose but it became apparent over the course of these proceedings that those issues infected the decision to terminate the Applicant.

[60] I refer in particular to the history of conflict between the Applicant and Mr Roffey. In his statement, 65 Mr Roffey alleges he had been subjected to consistent harassment from the Applicant “since I stated work with [the Respondent].”66 Mr Roffey submitted that the harassment commenced shortly after he commenced employment at the Respondent and around the time the pair were assigned to a job at Brunswick in early 2014 (Brunswick job).67 The harassment involved the Applicant chiding Mr Roffey for getting him in trouble with Respondent’s Operations Manager68 and it continued when the pair would work together thereafter,69 such as at a job in Kew within six to eight months of the Brunswick job.70 The trend in behaviour culminated in the January 2015 incident.

[61] The Applicant submitted that he had been “annoyed” 71 with Mr Roffey after the Brunswick job and that the aforementioned chiding had taken place, but denied any such behaviour was continuous.72

[62] The Commission, as presently constituted, is minded to conclude that the decision to terminate was not proportionate to the conduct the Respondent submitted precipitated the dismissal.

[63] Having considered each of the matters specified in s.387 of the FW Act, the Commission, as presently constituted, is satisfied the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, the Commission finds the Applicant’s dismissal was unfair.

Remedy

[64] Section 390 of the FW Act sets out the circumstances in which the Commission may make an order for reinstatement or compensation:

“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.”

[65] I have already dealt with the issues at s.390(1)(a)–(b) above. The Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the FW Act and the Applicant was dismissed unfairly. Accordingly, the Commission is required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if the Commission is satisfied such an order is appropriate in all the circumstances.

Reinstatement

[66] The Applicant seeks compensation as the primary remedy. The Applicant submitted that he does not seek to be reinstated. 73 Regardless of the remedy sought by the Applicant, s.390 of the FW Act requires the Commission to first determine whether reinstatement is appropriate before it may consider an order for compensation.

The Applicant submitted that reinstatement would be inappropriate because he considers his treatment by the Respondent over a considerable period of time and in respect of numerous incidents at work to have been unprofessional and inconsiderate. In any event, he is content with the role he is currently engaged in at his new employer. 74

[67] The Respondent submitted reinstatement would be inappropriate because it argues the Applicant’s behaviour, particularly in respect of his “bullying and harassment” of Mr. Roffey, had been inconsistent with its expectation that all employees “should feel they are working in a safe environment.” 75

[68] In Regional Express Holdings Ltd T/A Rex Airlines, 76 a Full Bench of Fair Work Australia considered what factors may be taken into account when considering if reinstatement is inappropriate under s.390(3)(a) of the FW Act:

“[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there is a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust.” 77

[69] The Commission, as presently constituted accepts the evidence and submissions of the parties in relation the inappropriateness of reinstatement. The working relationship is devoid of any remaining trust and confidence. The Commission, as presently constituted, is satisfied that an order for reinstatement would be inappropriate in this instance.

Compensation

[70] Section 390(3)(b) provides the Commission may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

[71] The Applicant submitted that an order for compensation is appropriate in all the circumstances of this case in order to cover the economic imposte of being unemployed for a period of time following termination and damage to his motorbike. He seeks $1000.00 for each week for a period of four weeks totalling $4000.00. 78

[72] The Respondent submitted that the equivalent of one week’s pay would be appropriate. 79

[73] Given the circumstances of the termination, particularly the Respondent’s handling of the termination, the Commission, as presently constituted, finds an order for compensation is appropriate.

[74] Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

“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.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(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.”

[75] The method for calculating compensation under s.392 of the FW Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge 80 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket81 and Ellawala v Australian Postal Corporation82. I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[76] I will now consider each of the criteria in s.392 of the FW Act.

Remuneration that would have been received: s.392(2)(c)

[77] At termination, the Applicant’s remuneration with the Respondent was $1,022.09 per week.

[78] I should now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had he not been dismissed.

[79] Taking into account the history of conflict between the parties, I believe that the employment relationship would not have lasted long past 8 January 2015. The misuse of company property, 83 seemingly uncovered during Ms Lesha’s investigation into the Applicant’s complaint,84 would likely have been another factor added to the list of conduct issues that would have justified and expedited the Applicant’s termination.

[80] I have already noted that manner by which the Respondent handled the termination was seriously deficient. I believe that, had the Respondent engaged in a proper procedure involving bona fide consultations with the Applicant and provision of time for him to respond to those concerns, a termination of the employment relationship could have been finalised within two weeks.

[81] But for his dismissal, the Commission, as presently constituted, finds the Applicant would have remained employed for two weeks. The amount the Applicant would have received is therefore $2,044.18.

Remuneration earned: s.392(2)(e)

[82] The Commission, as presently constituted, finds the Applicant did not earn any remuneration for employment or other work during the two week period after his dismissal. Two weeks and one day after the termination of his employment the Applicant commenced new employment 85 on the same hourly rate.86 The Commission, as presently constituted, finds no economic loss accrued from this point.

Income likely to be earned: s.392(2)(f)

[83] Noting that the Applicant commenced employment two weeks and one day after the termination of his employment on the same hourly rate of pay that he received while working with the Respondent, this is not a relevant consideration in the present matter.

Other matters: s.392(2)(g)

[84] The Commission, as presently constituted, finds it is not appropriate in the circumstances that a contingency should be applied.

Viability: s.392(2)(a)

[85] The Respondent did not indicate that, in the event the Commission were to make an order for compensation to the Applicant, there were any issues concerning the continuing viability of the Respondent. 87

Length of service: section (s.392(2)(b))

[86] The Commission, as presently constituted, finds that the Applicant’s period of service with the Respondent, being one year and two months, should not affect the amount of compensation to be ordered.

Mitigating efforts: s.392(2)(b)

[87] The Commission, as presently constituted, finds that the Applicant has made efforts to mitigate the loss he suffered as a result of the dismissal.

Misconduct: s.392(3)

[88] Earlier in this decision, the Commission, as presently constituted found that misconduct of the Applicant had contributed to his dismissal. Section 392(3) requires the amount of compensation that would have been ordered under s.392(1) be reduced by an appropriate amount on account of the misconduct.

[89] The Respondent submitted that, if I found that misconduct contributed to the dismissal, I should reduce the amount payable by 50%. 88 The Applicant submitted that, if I found that his misconduct contributed to the dismissal, I should reduce the amount payable to him by 100%.89

[90] In all the circumstances of the present matter and having regard to the fact that the misconduct, while totally inappropriate, was at the lower end of the scale, the Commission, as presently constituted, has decided to reduce the amount payable by 50% (i.e. to $1,022.09).

Shock, Distress: s.392(4)

[91] The Commission, as presently constituted, notes that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[92] The Commission must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[93] The amount of compensation the Commission will order is $1,022.09. This amount does not exceed the compensation cap.

Payment by instalments: s.393

[94] The Respondent indicated that, in the event the Commission was to make an order for compensation, the amount could be paid in the next pay cycle. 90 Accordingly, the full amount of compensation must be paid in one lump sum in the pay cycle immediately following issue of this decision.

Conclusion

[95] The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and a remedy of compensation is appropriate.

[96] An order for the payment of $1,022.09 will be issued with this decision.

COMMISSIONER

Appearances:

B. Cassar on his own behalf.

R, Lesha for the Respondent.

Hearing Details:

2015.

Sydney.

9 July.

Final Submissions:

2015.

Final submission from the Applicant: 10 July.

 1 R1 at Q1a.

 2   PN45-51.

 3 R1 at Q2a and 2b.

 4 R1 at Q3b.

 5   PN63-68.

 6   PN69-70.

 7   PN80

 8   PN81-82.

 9   PN83-89.

 10   PN89-91.

 11   Sayer v Melsteel[2011] FWAFB 7498.

 12 F2 at Q3.2.

 13   PN96.

 14 F2 at Q3.2

 15 R1 at Q3d.

 16   PN108-127.

 17   PN104-108.

 18   PN400-403.

 19 R6.

 20   PN261.

 21   PN265.

 22   PN266-271.

 23   PN276-280.

 24   PN284.

 25   PN301-304.

 26   PN306.

 27   PN326-327.

 28   A6.

 29   A7

 30   PN340 and R5.

 31   PN350-355.

 32   PN365.

 33   PN409.

 34   PN413.

 35   PN649.

 36 R5.

 37   PN425-427 and PN518.

 38   PNPN481-486.

 39   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 40   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 41   Id.

 42   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 43   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 44   Previsic v Australian Quarantine Inspection Services Print Q3730.

 45 (2000) 98 IR 137.

 46   Ibid at 151.

 47   RMIT v Asher (2010) 194 IR 1, 14-15.

 48   PN522.

 49   PN545-553.

 50   PN580.

 51   PN528.

 52   PN790.

 53   Termination Call transcript PN3-5.

 54   Termination Call transcript PN7.

 55   Termination Call transcript PN22.

 56   Termination Call transcript PN17-18.

 57   Termination Call transcript PN27.

 58   Termination Call transcript PN29.

 59   Termination Call transcript PN47.

 60   Termination Call transcript PN55.

 61   Termination Call transcript PN65.

 62   Termination Call transcript PN55.

 63   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

 64   PN622-637,

 65 R4.

 66   PN128.

 67   PN141-145 and PN211-214.

 68   PN161-166..

 69   PN164.

 70   PN219-236.

 71   PN177-178.

 72   PN169-180.

 73   PN75-78.

 74   A1 at Q7b and 7d..

 75 R1 at Q6a and PN659.

 76   [2010] FWAFB 8753.

 77 Ibid at [26].

 78   A1.

 79 R1 at Q6b and R2.

 80   [2013] FWCFB 431.

 81 (1998) 88 IR 21.

 82   Print S5109.

 83   Termination Call transcript PN71-93.

 84   Termination Call transcript PN71-73

 85   PN721-731

 86   PN69-70.

 87   PN667.

 88   PN758.

 89   PN777-780.

 90   PN784-786.

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<Price code C; PR569876>