Celestine Okiya v Berry Street Victoria Inc T/A Berry Street Victoria Inc

[2017] FWC 4761

[2017] FWC 4761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Celestine Okiya
v
Berry Street Victoria Inc T/A Berry Street Victoria Inc
(U2017/5740)

COMMISSIONER MCKINNON MELBOURNE, 12 SEPTEMBER 2017

Application for an unfair dismissal remedy - valid reason – procedural fairness – dismissal harsh - compensation awarded.

[1] Berry Street Victoria Inc (Berry Street) operates homes for vulnerable children under contract with the Department of Health and Human Services. Mr Celestine Okiya was employed by Berry Street from 1 January 2012 as a casual Residential Care Worker.

[2] On 9 May 2017, Berry Street made the decision to terminate Mr Okiya’s employment after a number of allegations relating to his conduct were investigated and found proven. The dismissal was communicated to him in a letter sent on 12 May 2017. Receipt of the letter was confirmed by Berry Street on 22 May 2017, and it considered the dismissal effective as of that date.

[3] On 30 May 2017, Mr Okiya applied to the Fair Work Commission (Commission) for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act) because he says that the decision to terminate his employment was a disproportionate response to the conduct alleged.

[4] On 13 June 2017, Berry Street filed its response, contesting the application.

[5] The matter was conciliated on 19 June 2017 and was not settled. Directions were issued for the filing of materials by Mr Okiya on 25 July 2017 and Berry Street on 15 August 2017.

[6] On 29 August 2017, Mr Okiya sought and was granted permission to be represented by a lawyer under section 596 of the Act. I sought the views of the parties about the process for dealing with the matter. Taking those views into account, I determined that a determinative conference would be the most effective and efficient way to resolve the matter. The matter was heard by way of determinative conference on 31 August 2017 in Melbourne.

[7] At the hearing, Mr Okiya was represented by Hymans Solicitors and gave evidence on his own behalf. Berry Street was self-represented and called 5 witnesses: Jill Waite (Senior Internal Consultant – Human Resources), Annette Jackson (Director, Gippsland), Markesha Draper (Residential Care Worker), Amie Denman (Residential Care Worker and Diane Shaw (Former Residential Care Worker).

Unfair dismissal and eligibility

[8] Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:

• they have completed at least the minimum employment period; and



• they are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

[9] There was no dispute that Mr Okiya’s period of employment with Berry Street was longer than the minimum employment period and that he was employed under Berry Street Victoria Enterprise Agreement 2014-17, which applied to him in relation to his employment.

[10] I find that Mr Okiya was a person protected from unfair dismissal under the Act.

[11] Under the Act, a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed;

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

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

(d) the dismissal was not a case of genuine redundancy. 1

[12] There is no dispute that Mr Okiya was dismissed from his employment. 2

[13] At the time of dismissal, Berry Street employed approximately 1080 employees. 3 I am satisfied that the dismissal could not have been consistent with the Small Business Fair Dismissal Code4, because Berry Street was not a small business employer at the time the dismissal occurred.5

[14] No issue of redundancy arose and I am satisfied that the dismissal was not a case of genuine redundancy.

[15] I now turn to consider whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

[16] The phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 6 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.”

[17] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account each of the criteria in section 387 of the Act. Each of these criteria are considered in turn below.

Was there a valid reason for the dismissal related to Mr Okiya’s capacity or conduct, including its effect on the safety and welfare of employees?

[18] There were three reasons given to Mr Okiya for his dismissal:

1. not role modelling appropriate adult behaviour, and possibly reinforcing negative stereotypes;

2. not reading a child’s (client’s) file, amounting to a failure of duty of care; and

3. not demonstrating the capacity to modify behaviour.

[19] The dismissal relates to alleged conduct during shifts at one of Berry Street’s units on 12 February 2017, 12 March 2017 and 13 March 2017.

[20] The incidents followed an earlier incident on 28 January 2017, which Mr Okiya said was relevant to the proceedings, but Berry Street disputed.

The events of 28 January 2017

[21] On or around 28 January 2017, there was an incident at work involving medication left in a cup (or stuck to it). It appears that Mr Okiya had been on shift when the incident occurred.

[22] Ms Shaw was the one who found the medication and said that some of the clients were ‘heightened’ during her shift, which I took to mean in a state of agitation. She inferred a link between medication not being taken and more agitated client behaviour.

[23] The inference was that Mr Okiya had somehow been responsible for the untaken medication. Mr Okiya said he checked to make sure the “cups were clear”. There was an exchange between Mr Okiya and Ms Shaw. Mr Okiya felt Ms Shaw was targeting him unfairly, while Ms Shaw said Mr Okiya became defensive when she raised the issue but that she didn’t blame him.

[24] Mr Okiya reported the exchange to his Supervisor, Ms Michelle Richardson, because he felt the incident had been reported inaccurately by Ms Shaw. Mr Okiya said nothing was done about it and as a result he felt he would be targeted again.

[25] I accept the evidence of the parties in relation to this incident. I find that Ms Shaw did not blame Mr Okiya directly for the incident with the medication, but that Mr Okiya interpreted it that way.

The events of 12 February 2017

[26] On 12 February 2017, Mr Okiya said he arrived at shift at approximately 2:30pm, knocked on the kitchen door twice, and Ms Draper, who was in the kitchen, did not respond.

[27] Ms Draper said the door was already open and there was no need for her to assist.

[28] After he entered the kitchen, Mr Okiya said he went straight to the office for handover with Ms Shaw. He said Ms Shaw was aggressive and upset and started attacking him about a number of issues including a suggestion that she had not cleaned client rooms.

[29] Ms Shaw explained that at the time, she was “offended at being called lazy” as she had cleaned the client’s rooms, and they had been messed up again by the clients.

[30] It is common ground that Mr Okiya then called Ms Draper into the office. According to Mr Okiya, Ms Draper attacked him verbally, and he kept quiet. According to Ms Draper, Mr Okiya was aggressive and standing over her. According to Ms Shaw, Mr Okiya was being very loud – he didn’t yell, but he did raise his voice.

[31] At some point in the conversation, Mr Okiya is said to have called Ms Draper racist, saying she “didn’t like black people”. He is then said to have called Ms Shaw “a white racist woman”. The exchange continued back and forth for a short time until Ms Draper and Ms Shaw called “On Call” for assistance. Each was asked what they wanted to happen. Ms Draper said she wanted to go to another unit and this was arranged with another Residential Care Worker, David, sent over to the unit in her place.

[32] Ms Draper said she was hurt, shocked, angry and offended by the remarks about her being racist. Ms Shaw said she also found the comments deeply offensive and that the whole incident had come as a shock, because until then she had a good rapport with Mr Okiya. Likewise, until 12 February 2017, Ms Draper said she her relationship with Mr Okiya had been very good.

[33] Ms Draper recorded her concerns about the incident in an email to Berry Street management that evening at 5:17pm. 7

[34] The matter was subsequently investigated. According to Ms Waite, Mr Okiya “could not recall” what was said, but would not really discuss it. According to Ms Jackson, Mr Okiya said if he had called his co-workers racist, this would not have been a concern. In evidence on 31 August 2017, Mr Okiya said that “to his knowledge”, he did not call Ms Draper and Ms Shaw racist.

[35] I accept the evidence of Ms Draper and Ms Shaw in relation to the incident on 12 February 2017. I also accept Mr Okiya’s evidence about Ms Shaw’s demeanour when he entered the office for handover.

[36] I do not accept that Mr Okiya’s memory of the conversation was anything less than clear. During the conference on 31 August 2017, he was able to give a word for word recount of the rest of the exchange on 12 February 2017, and the only parts he could not remember were those under investigation. In my view, he had a reason not to recall the particular exchange, because it disadvantaged his position in the investigation and later, in the Commission.

[37] In my view, it is unlikely that Ms Draper and Ms Shaw would have gone to the lengths of calling “On Call” and in Ms Draper’s case, asking to be removed to another unit immediately, if the exchange had not occurred. As noted above, both Ms Shaw and Ms Draper each said they had a good working relationship with Mr Okiya until 12 February 2017.

[38] On balance, I find that Mr Okiya called Ms Draper and Ms Shaw “racist” in the heat of the moment, because he felt he was being ‘attacked’ by both of them. I accept that this was hurtful to both Ms Draper and Ms Shaw, and that there has been no apology or indication of remorse relating to the incident since that time.

The events of 12 March 2017

[39] The evidence went into some detail about Mr Okiya’s shift on 12 March 2017 and on any assessment, it was not an easy one. It was busy. Mr Okiya and Ms Denman were not working well together. Clients were verbally abusing staff and spitting. Threats were made to flatten car tyres and burn cars down. One client ran his finger across his neck toward a staff member in a menacing way. A trampoline was vandalised. Clients kept leaving the unit without supervision. One client invaded the office, where he was not allowed to be, and would not leave.

[40] The following day, Ms Draper and Ms Denman made separate allegations about Mr Okiya’s conduct via email to management. 8 In summary, the allegations were that he:

• told “Client H” he would call “On Call” and have him moved;



• yelled in front of a client and “berated staff”;



• spent much of his shift in the office; and



• was “rude and condescending” toward Ms Denman.

[41] I note that the emails were sent 2 minutes apart – one at 8.08pm and one at 8.10pm on 13 March 2017. In each case, the sender ends by indicating that they are not “comfortable working with” Mr Okiya. The coincidence in timing is striking, and should have been considered as part of Berry Street’s investigation.

The threat to call “On Call”

[42] The first allegation was made by Ms Draper, and involved a potential threat to a client in care. According to Ms Draper, “Client H” had been “heightened” for the whole shift. Some time before 9.00pm, she heard Mr Okiya tell him:

“If your behaviour doesn’t improve, I will notify On Call and they can have you moved”. 9

[43] She reported the comment in an email to Ms Waite the following day at 8.10pm. 10

[44] Mr Okiya denied making the comment, and said what he actually said was “If this behaviour continues, I will call On Call.” This was because Berry Street’s system is to ring “On Call” if things are out of control.

[45] Somewhat incongruously during the conference on 31 August 2017, Mr Okiya also said “it didn’t happen”, and that if he had said this, no one would have been able to hear him, because Ms Denman was in the office at the time.

[46] There is a dispute about the timing of this incident. Ms Draper said it was before 9:00pm, because her shift ended at that time. Mr Okiya said it was later, around 10.00pm. Importantly, if the comment was made after 9.00pm, Ms Draper could not have heard it.

[47] The evidence of Mr Okiya is unsatisfactory on this issue. On the one hand, he said it did not happen, and yet on the other hand, he gave the comment some context. As with the events of 12 February 2017, Mr Okiya had a reason for denying what he said, and for seeking to explain it away. It placed his ongoing employment at risk.

[48] The allegation was serious because as Ms Jackson explained, a threat of removal from one care situation to another, to a child who has moved frequently from home to home, can cause physical and emotional harm to the child. Ms Jackson is a social worker with 33 years’ experience dealing with children who have experienced abuse and neglect and I have no reason to doubt her evidence on this point.

[49] On balance, I find that Mr Okiya told Client H that he could have him moved if his behaviour did not improve. I accept that it may have occurred in difficult circumstances, in a situation where clients were acting “out of control”. However, it amounted to a threat and it was a serious error of judgement that was inconsistent with Mr Okiya’s duty of care to Client H.

Yelling in front of client H

[50] Ms Draper and Ms Denman both alleged that Mr Okiya yelled in front of a client and “berated staff” during the shift on 12 March 2017. The allegation relates to an incident at approximately 6:49pm, when Client H came into the office through the unlocked backdoor.

[51] Mr Okiya was in the office already and Ms Denman saw what had happened and ran in to assist. She said sorry, as she thought she may have left the door open. Immediately, she said Mr Okiya started “berating me, yelling that the doors should be locked, why weren’t they locked, there needs to be two people on the floor at all times”.

[52] Ms Draper then realised what was happening and came to assist. She and Ms Denman tried to reason with client H to get him out of the office. Ms Denman said Mr Okiya continued to yell at her in front of both Ms Draper and Client H.

[53] Mr Okiya denied that he yelled in front of Client H. He said he has been with Berry Street for more than 5 years, and has never yelled. If he yelled, he said, he “wouldn’t be there”.

[54] The communication book records Mr Okiya’s version of events. 11 It says Mr Okiya “notified staff that back door and front door should not be left open to avoid kids getting into the office”. It also says Mr Okiya “informed staff that kids should not be left alone by themselves staff need to be out with kids while others are in the kitchen”.

[55] Ms Denman reported the incident in her email to management the following evening at 8.08pm. 12

[56] Berry Street said the allegation that Mr Okiya had yelled at staff in front of Client H was serious because it has an obligation to act in the best interests of the child, and according to Ms Jackson, Client H has experienced a history involving violence and aggression toward women, which can trigger responses including self-harm and anxiety.

[57] I find that Mr Okiya yelled at Ms Denman in front of Ms Draper and Client H. It is likely that he did so in frustration, because it had been a tough shift, the rules had not been followed and he felt other staff were not where they should be. Nevertheless, it was an overreaction in the circumstances and had the potential to adversely affect the safety and welfare both of Client H and Mr Okiya’s fellow workers.

Time spent in the office

[58] Ms Draper and Ms Denman alleged that Mr Okiya spent ‘much of his shift’ on 12 March 2017 in the office.

[59] Evidence was led from Ms Denman, Ms Draper and the communication book records.

[60] According to Ms Jackson and Ms Waite, Berry Street has a “one staff minimum” policy. A 4 bed unit like the one Mr Okiya worked in would usually have two staff, although on occasions there may be only one. According to Ms Waite, Berry Street looks to maximise opportunities for additional staff where it can, subject to funding.

[61] On 12 March 2017, there were at least 3 employees on shift: Mr Okiya, Ms Draper and Ms Denman. The evidence establishes that both Ms Draper and Ms Denman knew where to find Mr Okiya if they needed him. There is no evidence that while he was in the office, he was asked to come out by either Ms Draper or Ms Denman, or that he refused to do so.

[62] The evidence does not establish whether or not Mr Okiya spent “much of his shift” in the office and I make no finding about it. However, I observe that there were enough staff on duty at the time to enable Berry Street to meet its obligations to the Department. In my view, it was not a matter that warranted further action other than perhaps to remind all staff of their obligations to work cooperatively together while on duty.

“Rude and condescending” conduct

[63] Ms Denman alleged that Mr Okiya was “rude and condescending” to her during the shift on 12 March 2017.

[64] She said she had not worked much with Mr Okiya alone beforehand, but that on that day Mr Okiya was rude to her on “several occasions” and “speaking down” to her. She gave a number of examples, including being told to “sit down”, to “not go near” a client, “to get inside”, and to “chop the vegetables”. She said he embarrassed her in front of the clients by saying “you are letting them get to you” after she jokingly said to him “I’m struggling today”. She felt his behaviour was chauvinistic and that it affected her confidence and made her feel angry, upset and intimidated.

[65] Mr Okiya denied the allegations and said he was not rude, he was just trying to explain how things worked. Ms Denman was new to the unit, and he was telling her the rules written on the door. He agreed that he told her to go to the office. He denied giving orders, and said the two worked cooperatively together in the afternoon.

[66] Mr Okiya noted that Ms Denman was upset during the shift and he thought it may have been because of the comments he had written in the communication book about Client H coming into the office (see paragraph 53 above).

[67] Ms Denman reported her concerns in the email to management the following evening. 13 It is clear from that email, as well as the communication book, that Ms Denman also had a difficult time during her shift that day.

[68] Ms Denman’s email is a contemporaneous record of her recollection of the events of 12 March 2017. It goes to some lengths to detail complaints about Mr Okiya’s conduct during the shift. I accept the evidence of Ms Denman that she and Mr Okiya did not work well together during the shift on 12 March 2017.

[69] I find that Mr Okiya was direct in his language with Ms Denman during the shift, and that while he was most likely focused on his own responsibilities and following the rules, his abrasive manner was inappropriate and likely to cause offense.

Not reading client files

[70] In the course of its investigation into the allegations, Berry Street became aware that Mr Okiya had not read Client H’s file before working with him. Mr Okiya agreed that he had not read the file and gave an explanation.

[71] Ms Jackson and Ms Waite gave evidence about the expectation on staff to read client files, because they contain the key information for managing client behaviour and are important tools for keeping both staff and clients safe.

[72] I accept the evidence of Mr Okiya, Ms Waite and Ms Jackson on this issue. There is no evidence that Mr Okiya made any attempt to obtain Client H’s history, either directly from the file or by asking other staff about it.

[73] It was an important part of Mr Okiya’s responsibility to ensure that he understood the particular circumstances and needs of each client so that he could provide appropriate care. I find that Mr Okiya did not read, or attempt to read, Client H’s file before working with him, even though he knew it was an important requirement of his role.

The events of 13 March 2017

[74] On 13 March 2017, Ms Draper complained that Mr Okiya had not done any handover with her, and that he “completely ignored me in front of young people and staff”.

[75] Having considered the evidence on this issue, I find that by this time the relationship between Ms Draper and Mr Okiya was strained, communication between them was limited, and each had their own reasons why.

[76] That leads me to conclude that a proper handover was not done on 13 March 2017. In my view, however, this was attributable to both Mr Okiya and Ms Draper and was not of itself a reason to dismiss Mr Okiya.

Was there a valid reason?

[77] Taking all of the evidence into account, I find that Berry Street had a valid reason for dismissal in this case, including because of the effect of Mr Okiya’s conduct on the safety and welfare of employees and clients in care. The specific conduct that gave rise to a valid reason for dismissal was:

• calling Ms Draper and Ms Shaw racist;



• threatening to have Client H moved;



• yelling at Ms Denman in front of Ms Draper and Client H; and



• not reading, or attempting to read, Client H’s file.

Was Mr Okiya notified of that reason?

[78] On 9 May 2017, Berry Street prepared a letter to Mr Okiya confirming its decision to dismiss him and setting out the reasons for the decision, including its findings in relation to the allegations of conduct on 12 February 2017 and 12 March 2017.

[79] The letter was not posted until 12 May 2017.

[80] On 22 May 2017, Berry Street confirmed with Mr Okiya that he had received the letter dated 9 May 2017. I find that Mr Okiya was notified of the reasons for his dismissal set out above.

Was Mr Okiya given an opportunity to respond?

[81] On and after 14 March 2017, an investigation began into the allegations made against Mr Okiya. A letter of allegation was sent to him on 14 March 2017 outlining the nature of the concerns and seeking his response. 14

[82] On 21 March 2017 and 4 April 2017, meetings were held with Mr Okiya to discuss the allegations. 15 During the meetings, Mr Okiya had the opportunity to respond to each of the reasons that eventually resulted in his dismissal.

[83] I am satisfied that Mr Okiya was given an opportunity to respond.

Was there an unreasonable refusal to allow Mr Okiya to have a support person to assist him in discussions relating to the dismissal?

[84] The letter of 14 March 2017 confirmed that Mr Okiya could bring a support person to the meeting on 21 March 2017, “as long as that person was not likely to be involved in providing information in the course of” the investigation. 16

[85] I am satisfied that there was no unreasonable refusal to allow Mr Okiya to have a support person present to assist him in discussions leading up to the dismissal.

Unsatisfactory performance?

[86] Mr Okiya’s dismissal was not related to unsatisfactory performance and this criterion is a neutral consideration in this case.

The size of the employer’s business and its access to dedicated human resources management specialists or expertise

[87] At the time of the dismissal, Berry Street employed approximately 1080 employees. 17 It was, and still is, a large service provider to government. It had access to dedicated human resources management, including Ms Waite.

[88] As a large provider of government services, I am satisfied that Berry Street was expected to adopt and follow proper processes both during the investigation and in connection with the dismissal. 18

[89] The evidence confirms that Ms Waite managed the investigation, which she said followed Berry Street’s disciplinary process. 19 After gathering all relevant information, she formed the view that a number of the allegations against Mr Okiya were proven. She recommended to Ms Jackson that Mr Okiya not be offered any further shifts.

[90] Ms Jackson described herself as the ‘decision maker’ in relation to the dismissal. Ms Jackson considered and agreed with the recommendation of Ms Waite and took steps to ensure that Mr Okiya was advised of the position in writing at each step of the investigation.

[91] I find that in this case, the size of the business and the fact that it had dedicated human resources management had a positive impact on ensuring procedural fairness to Mr Okiya in connection with the dismissal.

Other relevant matters

[92] I consider it relevant that Mr Okiya had been employed with Berry Street for five years. He is a Sudanese refugee who came to Australia in 2002. Unsurprisingly, it has taken a number of years for him to find his feet including, to his credit, through tertiary study. It is not apparent that, apart from his employment with Berry Street, he has any significant work history in Australia to rely on in seeking future employment.

[93] It is also relevant that, despite his period of employment, as a casual employee, Mr Okiya had no entitlement to notice of termination and was not paid any wages after he was stood down on 14 March 2017 pending the investigation. This put him in a financially precarious situation where he was effectively employed, but unable to work or earn an income, for more than two months.

Conclusion

[94] Taking all of the evidence and submissions into account, and having considered each of the matters in section 387, I find that there was a valid reason for dismissal. However, in the circumstances, I am satisfied that the dismissal was harsh in its consequences for Mr Okiya’s personal and economic situation.

[95] It is therefore necessary to consider what, if any, remedy should be granted to Mr Okiya.

[96] Reinstatement is the primary remedy available under the Act. I am satisfied that reinstatement would be inappropriate in this case because there is a genuine loss of trust and confidence between the parties.

[97] In all the circumstances, I consider that compensation is appropriate.

Compensation

[98] Section 392(2) of the Act deals with how compensation is to be assessed in connection with an unfair dismissal. The established methodology is elaborated on in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc (Bowden). 20 I respectfully adopt and apply the approach set out in that decision.

Viability (s.392(2)(a))

[99] There is no evidence to suggest that an order requiring Berry Street to pay Mr Okiya compensation would impact on the viability of its enterprise. I find that this factor does not warrant any adjustment in the amount of compensation.

Remuneration Mr Okiya would have received, or would have been likely to receive, if he had not been dismissed (s.392(2)(c))

[100] In my view, had it not been for his dismissal, Mr Okiya would have remained in employment with Berry Street for a further six months. I consider it likely, in the absence of dismissal, Mr Okiya would have been subject to performance management to address Berry Street’s reasonable concerns about his conduct in February and March 2017 and that ultimately, this would have resulted in an end to the employment relationship.

[101] Exhibit R1 states that Mr Okiya’s average weekly earnings as a casual employee were $1370.15 gross per week in the 6 months prior to his dismissal. I find this to be the likely weekly earnings capacity of Mr Okiya in the 6 month period from 22 May 2017 to 21 November 2017.

[102] On that basis, Mr Okiya would have earned $35,623.90 gross in the 6 month period from 22 May 2017, had he not been dismissed with effect from that date (26 weeks x $1370.15 gross = $35,623.90 gross) and I so find.

Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))

[103] It was agreed that as a casual employee, Mr Okiya was not paid any notice of termination. Mr Okiya gave evidence that he had not been able to find a job because he did not have a reference from Berry Street. At the time of the conference on 31 August 2017, he was not employed and was receiving welfare benefits.

[104] In my view, Mr Okiya is likely to find work again in the welfare and support services industry in the next month, and his earnings potential if he does will be at least the amount payable for a level 1 employee under the Social, Community, Home Care and Disability Services Industry Award 2010 ($755.60 gross per week).

[105] Accordingly, I find that the calculation of compensation should be adjusted as follows:

(a) $35,623.90 (anticipated gross earnings in 6 month period after dismissal)

(b) Less $4533.60 (expected gross remuneration from 12 October 2017 to 21 November 2017: $755.60/week x 6 weeks = $4533.60);

(c) Subtotal = $31,090.30 gross.

[106] This calculation is intended to put Mr Okiya in the position he would have been but for the termination of his employment.

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

[107] Mr Okiya had approximately 5 years’ service with Berry Street. This factor weighs in favour of an order of compensation, but does not warrant an adjustment in the amount of compensation in this case.

Mitigation efforts (s.392(2)(d))

[108] Mr Okiya gave evidence that he had made some efforts to obtain alternative employment. I am not satisfied that his efforts to mitigate his loss have been significant. I find that the amount of compensation should be reduced by 30% in this regard. This results in an adjusted amount of compensation of $21,763.21 gross.

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

[109] In this case, I consider it appropriate to discount the amount of compensation for "contingencies", taking into account the possibility that Mr Okiya’s earning capacity or earnings may change in the future. 21 The amount of compensation will be reduced by 10% for contingencies. This reduces the compensation amount to $19,586.89 gross.

Misconduct (s.392(3))

[110] Mr Okiya’s misconduct was a significant contributing factor to the dismissal. But for his conduct, which was serious in nature, I am satisfied that the dismissal would not have occurred. On this basis, I must reduce the amount of compensation under section 392 of the Act. I am satisfied that a reduction of 65% is appropriate, and that the compensation amount should be adjusted to $6855.42 gross, less applicable taxation.

Shock, Distress (s.392(4))

[111] The amount of compensation does not include a component for shock, humiliation or distress.

Compensation cap (s.392(5)&(6))

[112] The amount of $6855.42 gross is less than the compensation cap of 26 weeks’ pay and I find that no further adjustment of the amount is necessary.

Instalments (s.393)

[113] No application was made by Berry Street to pay any compensation awarded by instalments and no order will be made to that effect.

Conclusion on remedy

[114] In my view, the compensation figure arrived at in this case does not yield an amount that is clearly excessive or clearly inadequate.

[115] For the reasons set out above, I am satisfied that a remedy of compensation in the sum of $6855.42 gross in favour of Mr Okiya is appropriate in the circumstances of this case. I will issue an order [PR596053] to that effect.

COMMISSIONER

Appearances:

T Shanmugam for the Applicant.

J Waite for Berry Street Inc.

Hearing details:

2017

Melbourne

August 31.

 1   Fair Work Act 2009 (FW Act), s.385

 2   Exhibit R9

 3   Form F3 Employer Response, 13 June 2017

 4 FW Act, s.388

 5 FW Act, s.23

 6 [1995] HCA 24; (1995) 185 CLR 410 at 465

 7   Exhibit R 17

 8   Exhibits R15 and R16

 9   Exhibit R16

 10   Exhibit R16

 11   Exhibit A3

 12   Exhibit R15

 13   Exhibit R15; Exhibit A3

 14   Exhibit R8

 15   Exhibits A4, A5, R1 and R2

 16   Exhibit R8

 17   Employer Form F3 response, 17 June 2017

 18   Exhibit R2

 19   Exhibit R2

 20   [2013] FWCFB 431

 21   Ellawala v Australian Postal Corporation Print S5109 at [36]

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<Price code C, PR596052>