Cameron Larchin v Marnikol Fisheries Pty Ltd

[2014] FWC 3805

[2014] FWC 3805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Cameron Larchin
v
Marnikol Fisheries Pty Ltd
(U2014/4046)

COMMISSIONER HAMPTON ADELAIDE, 14 JULY 2014

Application for relief from unfair dismissal - dismissal based upon capacity of employee to perform the job - nature of workplace and history of applicant considered - genuine concerns about suitability of applicant - workers compensation claim made - whether relevant to decision - whether valid reason for dismissal - whether applicant afforded an opportunity to respond to allegations prior to dismissal - genuine opportunity not provided - lack of procedural fairness - on balance dismissal harsh and unreasonable - remedy - reinstatement not sought - compensation determined.

1. Background and Case Outline

[1] Mr Cameron Larchin has made an application under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The dismissal from his employment with Marnikol Fisheries Pty Ltd (Marnikol) took place during the course of a telephone conversation with Marnikol’s General Manager, Mr Evans, on 16 December 2013 and became effective on 6 January 2014.

[2] Marnikol conducts a tuna farming enterprise in Port Lincoln, South Australia and Mr Larchin worked as a deckhand from mid October 2011.

[3] In the immediate lead up to the applicant’s dismissal, Mr Larchin had sustained a foot injury on board a vessel. This followed an earlier incident in February 2013 when Mr Larchin severely twisted his knee when transferring from a dive boat to the main vessel and this led to an absence on workers compensation of some nine months.

[4] There is a dispute about the precise form of the discussion on 16 December 2013, however it is evident that Mr Larchin was informed, in effect, that he was no longer employed and that this was stated to be as a result of concerns about his suitability to perform the deckhand duties.

[5] The subsequent letter confirming the dismissal stated the reasons for that decision in the following terms:

“....as per my phone call, it is management’s view that your employment performance and record with is indicates a lack of the physical, co-ordination or maritime qualities required to maintain safe working practices in the tuna farming industry, which presents an on-going risk or injury to yourself or possibly co-workers.” 1

[6] Mr Larchin, who was represented with permission by Mr Quinn, contends that he received little if any formal training on key aspects of the job and despite this, there was no indication that he was unsuitable as a deckhand or that his employer even considered that to be the case prior to the actual dismissal.

[7] Mr Larchin also contends that he was not at fault in the case of either injury and that the dismissal occurred in the context of a decision not to treat the December 2013 injury as an “in-house” claim rather than a workers’ compensation matter. In any event, he contends that there was no valid reason for the dismissal, he was not notified of the reason for dismissal, and not warned about or given an opportunity to respond to the alleged concerns of his employer.

[8] Mr Larchin also points to the fact that he was absent as a result of a workplace injury at the time of his dismissal and relies upon other factors including the impact of the termination upon him given the nature of his work and the close knit local fishing industry.

[9] Mr Larchin is seeking compensation, ostensibly for the lost wages between his final workers compensation payment and the time that he found alternative employment. He is also seeking consideration of the stress and anxiety caused by his dismissal. 2

[10] Marnikol, which was represented by its General Manager, Mr Evans, contends that the dismissal was not unfair because Mr Larchin represented an ongoing risk to himself and others as a result of his incapacity to perform the job as a deckhand.

[11] Marnikol further contends that concerns about Mr Larchin were held by the skippers of the boats in its fleet and that it would have been a dereliction of duty of care to him and his co-workers not to “remove the offer of employment.” 3

[12] Marnikol also contends that it had raised concerns about Mr Larchin’s capacity and safety with him on a number of occasions and that an opportunity to respond to its concerns was provided during the course of the conversation on 16 December 2013. It further suggests that as Mr Larchin did not contest the concerns at that time, or subsequently raise them with the employer after the dismissal, the decision to end the relationship was fair and reasonable.

[13] Marnikol also relies upon what it described as being its limited access to professional industrial/human resource management expertise and its impact upon how the workers compensation matter and the applicant’s dismissal were handled. 4

[14] There is no dispute that the nature of Mr Larchin’s service was such that he was protected from unfair dismissal. 5

2. Observations on the evidence

[15] Mr Larchin provided a comprehensive witness statement and gave evidence.

[16] Marnikol provided witness statements and led evidence from the following employees:

● Mr Daryl Evans - General Manager;
● Mr Glen Davis - Skipper;
● Mr Brett Wheeler - Farm Manager;
● Mr Tony Lebron - Skipper; and
● Ms Karen Scott - Administration Manager.

[17] Marnikol also provided a witness statement from Mr Mark Holland, its Freezer Manager, and this was admitted by consent without him being required for cross-examination.

[18] I have found that each of the witnesses were generally reliable and gave evidence to the best of their recollection. In the case of Mr Larchin and Mr Evans, I consider that they had a tendency to put a gloss on some events and tended to be subjective about the events in which they were involved.

[19] I found Mr Lebron and Ms Scott to be impressive witnesses.

3. The circumstances of Mr Larchin’s employment and the facts surrounding his dismissal

[20] It is appropriate to deal with some of the factual disputes and broader context before dealing with the substantive statutory considerations. I have resolved the various factual conflicts having regard to my observations above and the probability and consistency of the evidence.

[21] Mr Larchin is a qualified plumber and although he had worked elsewhere in the maritime industry, he was not an experienced deckhand when he joined Marnikol in October 2011. Mr Larchin was engaged on the basis of a probationary period of three months and this passed without apparent incident and his ongoing employment was apparently confirmed.

[22] Although Mr Larchin’s employment was described as being casual, I find that there was regular and systematic employment; albeit that the actual hours fluctuated depending upon the seasonal requirements of the tuna farming business. These ranged from an average up to 38 hours per week during the maintenance season, between 40 to 60 hours during the feeding season, and even higher weekly hours were worked at times during the harvest season.

[23] Mr Larchin did not receive any formal training from Marnikol about his role as deckhand, however I find that he was inducted and given informal training and guidance by the skippers of the boats upon which he worked.

[24] Mr Larchin’s work involved predominately shore-based work during the maintenance season and water-based work for the remainder of the year. This latter work involved working from and moving between the moorings, the main boats, the dive boats and the floating pens in which the tuna are raised and harvested.

[25] On 16 February 2013, Mr Larchin was injured during the course of moving between a dive boat and a larger vessel. There was no specific training provided to him about that movement, and although it was not common for him to do so, I find that it was in the nature of duties that would be expected for a deckhand in this industry. 6 The injury, caused by the movement of the vessels upon the sea swell, was one that could be anticipated in the circumstances.

[26] As a result, Mr Larchin sustained a significant knee injury and was unfit for work until he resumed full pre-injury duties on 16 November 2013. This absence was treated as a workers compensation claim and he was provided with compensation benefits and professional medical and rehabilitation services including a comprehensive work site assessment.

[27] During the course of his employment, Mr Larchin was reminded on a few occasions to be careful in his work and at some point in the early stages, the nature of his assignment was changed by Mr Evans due to his lack of experience. The basis for that change was not explained to Mr Larchin and none of the other discussions about the need for care in his work would be considered to be warnings, formal instructions or disciplinary action of any kind.

[28] There was some evidence that Mr Larchin had a tendency to get into situations on the boats whereby he would regularly “yelp” due to hurting himself to some degree. Based upon the evidence before the Commission, this was his reaction to the normal bumps associated with working on relatively small vessels at sea rather than an indication that he was actually being hurt to any degree. I will return to this aspect as part of my later consideration.

[29] On 9 December 2013, Mr Larchin was injured on board a vessel during the course of painting the deck. He was working with another employee when a heavy Plasma Cutter was being shifted. There is a dispute about the precise circumstances leading to the movement of the cutter, however it is sufficient for me to find that it was being shifted by another employee and Mr Larchin was either in the vicinity or assisting with the movement. In any event, Mr Larchin did not consider that the cutter should be moved at that time and was injured when it fell towards him and landed on his foot.

[30] I will return to the evidence about the implications of these events, and the views of some of the skippers about the suitability of Mr Larchin, as part of my later consideration.

[31] Mr Larchin was subsequently diagnosed with a fracture in his foot and advised Marnikol that he was unfit for work and supplied a workers’ compensation medical certificate. The certificate indicated that he would be unfit until 6 January 2014.

[32] There is a dispute about the circumstances leading to the decision to treat the December injury and subsequent absence “in-house”, which I infer meant that it was not being reported to the relevant WorkCover authority and all wage and medical payments would be made directly by the employer. This may well raise important questions for the parties in terms of their obligations under the relevant legislation, however for present purposes, it is sufficient to indicate that both Mr Larchin and Marnikol were initially content to deal with the injury in that way. In the case of Mr Larchin, that position was dependent upon confirmation from Mr Evans that he would be paid; and in the case of Ms Scott, the arrangement required Mr Evans’ support. In both cases, Mr Evans did confirm the arrangement.

[33] In light of the second injury to Mr Larchin, Mr Evans consulted some of his skippers and formed the view that Mr Larchin was not suited to being a deckhand in the tuna farming industry.

[34] On 16 December 2013, Mr Larchin contacted Mr Evans by phone. This took place in the context of Mr Larchin seeking clarification about the “in-house” treatment of the December injury and Mr Evans wanting to discuss that issue and the applicant’s employment more generally.

[35] In the course of the conversation on 16 December 2013, Mr Evans confirmed to Mr Larchin that the proposed “in-house” arrangements for the injury would be acceptable and that he would be paid until his clearance date of 6 January 2014. Mr Evans also then, in effect, raised concerns about the capacity for Mr Larchin to safely perform the work and indicated that he had spoken to the skippers about these concerns. There is a dispute about whether Mr Larchin immediately raised any objections about those concerns. On balance, I find that Mr Larchin, did not protest until he was informed that he would not be offered more work, which occurred immediately after Mr Evans raised the apparent safety concerns in the conversation.

[36] After being informed about his dismissal, Mr Larchin did protest about the latest injury not being his fault and shortly thereafter, ended the phone call.

[37] A letter dated 16 December 2013, confirming the discussion from Mr Evan’s perspective, was subsequently sent to Mr Larchin.

[38] Marnikol paid Mr Larchin until 6 January 2014, and in light of the December 2013 injury being reported (after his dismissal) to WorkCover SA by Mr Larchin, he received compensation benefits until his eventual medical clearance on 21 January 2014. I note that there is no medical certificate before the Commission expressly covering the period between 6 January and 21 January 2014.

4. Was Mr Larchin’s dismissal unfair within the meaning of the Act?

[39] Section 385 of the Act provides as follows:

“385 What is an unfair dismissal

(1) 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.”

[40] Although Mr Evans in his evidence speculated about the nature of Mr Larchin’s employment as a casual, I do not understand that Marnikol suggests that Mr Larchin has not been dismissed. The employer did not raise that issue with the Commission, and in any event, it was clear to me that the effect of the conversation on 16 December 2013 was to dismiss Mr Larchin from employment. The employer does not contend that it is a small business within the meaning of the Act or that the concept of a genuine redundancy is relevant here.

[41] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[42] The Act relevantly provides 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.”

[43] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality.

[44] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Larchin’s capacity or conduct (including its effect on the safety and welfare of other employees)

[45] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 7

[46] Although referenced in written submissions, the concept that Mr Larchin had been dismissed directly because of his injuries and subsequent claims was not pursued by him during the course of the hearing of this matter. This of course would not be a valid basis for any dismissal and would be contrary to the Act. 8

[47] There is no doubt that capacity and conduct reasons associated with the safety and welfare of employees are capable of forming valid reasons for present purposes.

[48] The employer’s work health and safety obligations require it to provide, as far as is reasonably practical, a safe system of work. This includes the duty to eliminate or minimise risks 9 and to ensure that workers are not put at risk from work carried out as part of the conduct of the business or undertaking.10 Importantly, the duty extends to providing a safe system of work for all workers through the elimination or minimisation of risks arising from work, and operates on the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work, or from specified types of substances or plant, as is reasonably practicable.11 That is, in general terms, the health and safety duty operates on the basis that the primary focus is upon the reasonable elimination of risks from, or control of risks in, the workplace so that workers, with all of their individual proclivities and characteristics, are able to safely work.

[49] The capacity of an employee to safely perform work is an important consideration and not all employees would be suited to the nature of work performed by Mr Larchin. There may well be circumstances where the measures needed to ensure the safety of a particular employee in this industry are not reasonably practicable.

[50] The evidence suggests that most of the skippers and Mr Evans considered that Mr Larchin was, in effect, clumsy and not able to safely perform the duties of a deckhand. The examples of this unsuitability provided in the evidence were generalised and vague. This includes the suggestion that Mr Larchin should have been nimble enough to have moved out of the way of the falling plasma cutter. Little, if any, of the evidence went to the basis of the suggestion that Mr Larchin represented a risk to others in the workplace. Whilst I have taken into account the professional experience of the skippers, something more substantive in terms of the evidentiary basis for those concerns is required to demonstrate a valid reason for present purposes, particularly given the circumstances and the consequences.

[51] There is no suggestion that Mr Larchin’s injuries presented any on-going limitation upon his capacity to perform the work.

[52] I am satisfied that Marnikol had genuine concerns about the capacity of Mr Larchin to safely perform the work. However, on the basis of the material before the Commission I am not satisfied that, in the prevailing circumstances at that time, these provided a valid reason for the dismissal.

Section 387(b) – whether Mr Larchin was notified of the reasons for dismissal

[53] This consideration requires the Commission to assess whether the applicant concerned was relevantly advised of the reasons leading to the dismissal before that decision was taken. 12

[54] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and plain and clear terms.

[55] In this case, the notification of the reasons was undertaken in very general terms and as part of a conversation during which Mr Larchin was dismissed.

[56] Mr Larchin may have been notified but not in a manner that provided a genuine opportunity to respond. This also leads into the next consideration.

Section 387(c) – whether Mr Larchin was given an opportunity to respond to any reason related to his capacity or conduct

[57] In this case, the dismissal concerns Mr Larchin’s capacity to perform the job.

[58] Although there was notification of the reasons relied upon by Marnikol to some degree, I note that on either account of the termination discussion, Mr Larchin was not invited to make a response to the matter raised in the course of that conversation.

[59] I have already found that the earlier comments about the need for Mr Larchin to work safely did not amount to a warning, formal instructions or disciplinary action of any kind.

[60] In the circumstances, Mr Larchin was not afforded a genuine opportunity to respond to the reasons for dismissal related to his capacity. Given the particular nature of the concerns relied upon by Marnikol, the absence of a genuine opportunity to respond to the concerns prior to the dismissal and the absence of a warning (which I turn to shortly) are significant factors in this case.

[61] In dealing with this consideration I have also noted that Mr Evans suggested 13 that if Mr Larchin had contacted him after the dismissal to discuss the matter, this process would have provided an opportunity for a more detailed explanation to be given and may have led to a review of the dismissal decision. However, this opportunity would have occurred after the fact of the dismissal was advised to Mr Larchin.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Larchin a support person

[62] There was no request for a support person and accordingly, this consideration does not arise.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Larchin – whether he has been warned about that unsatisfactory performance before the dismissal.

[63] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 14 There were no relevant warnings given by Marnikol about unsatisfactory performance and Mr Larchin was not advised by his employer that his employment was at risk (on those grounds or otherwise).

[64] The performance matters relied upon by Manikol arise from those issues associated with his capacity to safely undertake the work. The procedural fairness aspects of those elements have been dealt with above and the absence of a proper warning is a relevant consideration.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[65] Marnikol is not a small business within the meaning of the Act but does not have significant HR management resources. However, Ms Scott has relevant skills and experience in the area.

[66] The circumstances of the business as they may have impacted upon the procedures adopted are a consideration but must be weighed in the context of the significant procedural unfairness that eventuated.

Section 387(h) - other matters considered to be relevant

[67] The impact of the dismissal upon Mr Larchin, given the nature and size of the aquaculture industry in Port Lincoln, is also a consideration in this matter.

Conclusion on nature of dismissal

[68] On balance, I consider that Mr Larchin’s dismissal was harsh and unreasonable.

[69] It was therefore unfair within the meaning of the Act.

5. Consideration of the remedy

[70] Mr Larchin seeks compensation as a remedy in this matter.

[71] Division 4 of Part 3-2 of the Act relevantly provides as follows:

“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. 15

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[72] The prerequisites of ss.390(1) and (2) have been met in this case.

[73] Section 390 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. In this case, Mr Larchin does not seek reinstatement and given all of the prevailing circumstances I accept that reinstatement would not be appropriate.

[74] As a result, I need to consider whether compensation is appropriate and if so, to what extent.

[75] Section 392(2) of the Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act, 16 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 Marnikol

[76] Nothing has been put to the Commission on this issue.

The length of Mr Larchin’s service with Marnikol

[77] The applicant was employed with the respondent for a period of just over two years. This is a relatively short period and I have taken this into account in determining the compensation, including when making an assessment of the remuneration that would likely have been received if not for the termination.

The remuneration Mr Larchin would have received, or would have been likely to receive, if he had not been dismissed

[78] This involves in part a consideration of the likely duration of Mr Larchin’s employment in the absence of what I have found to be an unfair dismissal.

[79] There were significant seasonal fluctuations in the hours worked however the work undertaken by Mr Larchin was regular and systematic. In normal circumstances, Mr Larchin would have been engaged to work in the build up to the peak feeding and harvesting seasons commencing in 2014.

[80] Mr Larchin is seeking 17 compensation based upon his “lost” wages for the period between his final payment after the dismissal and his new employment, which commenced in the week commencing 28 April 2014. A period of approximately 12 weeks. This is a constructive concession given that the new employment is on the basis of part-time work, involves significant travel, and is at a lower rate of remuneration than his entitlements with Marnikol.

[81] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of at least 12 weeks.

[82] The applicant was paid on average $685.54 per week (gross). 18

The efforts of Mr Larchin to mitigate the loss suffered by him because of the dismissal

[83] Mr Larchin made reasonable endeavours to secure further employment. This included responding to advertised positions, approaching Centrelink and engaging an employment agency.

[84] I note that Mr Evans contends that Mr Larchin did not subsequently approach him to discuss the dismissal and suggests that if he had done so, this may have led to some employment with the employer. Given the circumstances of the dismissal, I do not consider that this represents a failure to mitigate his losses.

[85] No discount to the amount of compensation is warranted based upon this consideration.

The amount of any remuneration earned by Mr Larchin from employment or other work during the period between the dismissal and the making of the order for compensation

The amount of any income reasonably likely to be so earned by Mr Larchin during the period between the making of the order for compensation and the actual compensation

[86] Mr Larchin was paid until 21 January 2014 and he is seeking compensation from that point until the time he began to work again. This closed period is reasonable in the circumstances and there was no other income in that period.

[87] The consideration of income around the period of the order does not arise in this case given the closed basis upon which the assessment is being undertaken.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[88] I have taken into account the projected nature of the anticipated loss of remuneration (s.392(2)(c)) and there is no alternative income outside of the projected period of employment (s.392(2)(e)). In that light, I do not need to make a further allowance for contingencies in this matter. 19

[89] There is no demonstrated misconduct that would need to be taken into account as provided by s.392(3) of the Act. I note in that regard that there was some indication in Marnikol’s material that Mr Larchin had inappropriately undertaken some plumbing work during his first workers compensation absence. An issue about Mr Larchin apparently privately fishing from one of the boats also arose during the hearing. These matters were not relied upon as a basis for dismissal and were not put to Mr Larchin. In any event, I do not know the circumstances under which any such activity may have been performed, and in the case of the plumbing work, whether it would have been contrary to the rehabilitation and graduated return to work arrangements.

[90] 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. This element of Mr Larchin’s claim cannot be considered given the express terms of the Act.

[91] The nature of Mr Larchin’s employment, including that the extent of work varied on a seasonal basis, and that the tuna farming industry is itself a seasonal industry with fluctuations according to fish supply and demand, are also relevant considerations. I have taken these into account in forming my views about compensation, and in particular, in adopting the closed period for the assessment of compensation.

[92] The amount of compensation that I have determined is far less than the maximum prescribed by s.392(5) of the Act as applied in this matter. 20 The compensation amount confirmed below is also appropriate having regard to all of the circumstances of this matter.21

Conclusions on remedy

[93] After taking into account each of the relevant considerations, I find that compensation is appropriate in this matter. Further, I find that the compensation should be assessed having regard to the period of “lost” remuneration for the closed period and the other factors discussed above.

5. Conclusions and orders

[94] I find that the dismissal of Mr Larchin was unfair.

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

[96] I find that compensation to the value of $8,226.00 (less any required deduction of taxation) is appropriate and I have ordered 22 that it be paid by Marnikol within 21 days of this decision.

Appearances:

S Quinn with M Vezzosi from the Aboriginal Legal Rights Movement Inc, with permission, for Cameron Larchin.

D Evans, General Manager, for Marnikol Fisheries Pty Ltd.

Hearing details:

2014

Port Lincoln

June 6.

 1   Exhibit A1, Attachment F to the applicant’s statement - Letter confirming dismissal.

 2   Written submissions of the applicant at para 32.

 3   Written submission of the respondent at para 16.

 4   Written submission of the respondent at para 20.

 5   S.382 of the Act.

 6   The applicant contended that this activity was beyond his normal duties.

 7   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

 8   General Protections in Part 3-1 of the Act.

 9 S.17 of the Work Health and Safety Act 2012 (SA).

 10   Ibid at s.19.

 11   Ibid at s.3. See also the discussion of these concepts in Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166.

 12   See Trimatic Management Services Pty Ltd v Daniel Bowley[2013] FWCFB 5160.

 13   Mr Evans - during oral submissions.

 14   See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

 15   Note: the subsection 392(5) amount was indexed to $129,300 from 1 July 2013 - as was relevant given the timing of this application.

 16   Smith and Others v Moore Paragon Australia Ltd (2004) AIRC Print PR942856.

 17   Confirmed in closing submissions.

 18   Taken from workers compensation payments made to Mr Larchin which were based upon average weekly earnings.

 19   See the discussion of contingencies in Bowden v Ottrey Hones Cobram and Districts Retirement Villages Inc. T/A Ottrey Lodge[2013] FWCFB 431, 4 February 2013 per Acton SDP, Smith DP and Ryan C at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, 17 April 2000 per Ross VP, Williams SDP and Gay C and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, 31 October 2001 per Williams SDP, Acton SDP and Gay C.

 20   The maximum compensation limit in this case would be $64,650.

 21   Smith and Others v Moore Paragon Australia Ltd (2004) AIRC Print PR942856 at par [32].

 22   PR553001.

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<Price code C, PR551584>