Christopher Barton v Viva Energy Refining Pty Ltd
[2021] FWC 193
•20 JANUARY 2021
| [2021] FWC 193 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Barton
v
Viva Energy Refining Pty Ltd
(U2020/653)
COMMISSIONER LEE | MELBOURNE, 20 JANUARY 2021 |
Application for an unfair dismissal remedy.
[1] On 21 January 2020, Mr Christopher Vincent Barton (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Viva Energy Refining Pty Ltd (the Respondent). The Applicant seeks reinstatement and compensation.
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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:
(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.
When has a person been unfairly dismissed?
[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Background
[6] While there are a number of facts in dispute, there is agreement on a significant number of key facts reflected in the “Chronology of Agreed Facts” document tendered by the parties. I am grateful to the parties for the production of that document. The agreed chronology is set out below:
"1. Date: 11 July 1989
The Applicant, Christopher Barton, began working at Viva Energy, then called Shell Refining Australia.
At the time of the events in question, Mr Barton was employed as High Grade Spare (HGS) and Shift Team Leader (STL). He held these roles for about 10 years.
Between September 2017 and December 2019, Mr Barton reported to:
• James LoRicco, between September 2017 and 26 July 2019. Mr LoRicco reported to Les Sarkady, who reported to Glenn Lyons.
• Jessica Farchione, between 27 July 2019 and 13 August 2019. Ms Farchione (formerly Jessica Tay) reported to Mr Sarkady, who reported to Mr Lyons.
• Darren Pitman, between 14 August 2019 and 31 December 2019. Mr Pitman reported to Mr Lyons.
2. Date: 14 June 2018
At a compulsory Fitness to Work assessment conducted by Viva, Mr Barton is assessed as suffering hearing loss that may require hearing aids.
Dr Chee’s notes in the report (at page 2) state:
“Significant hearing deterioration since 2016. To repeat in 2-4 weeks. Seen audiologist. Suggest hearing aid but can’t afford. He is certain that it is work related as he has stopped racing bikes since 2000. Son races bikes so he is around but not racing himself. He may consider claiming WC [workcover] to fund hearing aid.”
3. Date: 6 July 2018
Mr Barton submitted a Work Cover claim for impairment benefits in relation to his hearing loss.
The injury circumstances are described as “hearing loss” occurring over a period of “29 years”, first noticed in “2015”, with the injury occurring at “Viva Energy Australia”. He wrote: “Initially a slow decline was experienced – this has accelerated over the last year”.
4. Date: 3 September 2018
Mr Barton is examined by ear, nose and throat specialist Mr Robert Webb. In his report, Mr Webb wrote (at page 2):
ANALYSIS
Mr Barton has a long history of industrial noise exposure both when he was in the UK and working at the refinery. The enclosed audiograms include one performed on the 11/04/1989 which is when he started work at the refinery. There is no hearing loss in this audiogram, so his work in the UK and work with earlier employers in Australia has not contributed to his hearing loss.
There is a gradual increase in his hearing loss from about 1995 onwards.
The pattern of his hearing loss is not consistent with a pure noise induced hearing loss in that the lower frequencies are affected to too great a degree. However excessive noise during his working period at the refinery could have contributed to the hearing loss at the higher frequencies.
…
There is some non-occupational noise exposure but it is not possible to estimate how much this has contributed to his hearing loss.
The cause of the constitutional factor affecting his hearing is as yet unknown.
…
DIAGNOSIS
A complex hearing loss, with a component due to industrial noise exposure, presbycusis and another factor affecting the lower frequencies.
…
COMPENSABLE LOSS
13.8%. This corresponds to a Whole Person Impairment under Section 91(3) of 12%.
…
CONCLUSION
Mr Barton has a significant hearing loss. Much of this will be due to constitutional factors, but excessive noise exposure in his work at the refinery could have contributed to his overall hearing loss.
5. Date: 5 October 2018
Mr Barton’s Work Cover claim was approved by Viva.
Mr Barton was offered compensation for non-economic loss of $26,960 with whole person impairment assessed at 12%.
6. Date: 21 – 23 November 2018
Mr Barton challenged the assessment of whole person impairment of 12%. The matter was referred to Medical Panels.
7. Date: 11 December 2018
Bloom Hearing recommended the provision of ‘Unique 110 Fusion’ hearing aids to Mr Barton. Viva approved these hearing aids.
8. Date: 19/20 December 2018
Mr Barton was fitted with the ‘Unique 110’ hearing aids by Bloom Hearing
9. Date: 11 January 2019
Following a trial of the Unique 110 hearing aids, Mr Barton reported to Bloom Hearing that he struggled to manage wearing the hearing aids at work, and socially when there was competing noise, and that he needed to turn them off at work due to the uncomfortable quality of the sound.
Bloom Hearing recommended that Mr Barton be fitted with ‘Evoke 440 Fusion’ hearing aids.
10. Date: 15 January 2019, 16 January 2019, 4 February 2019
Ms Ransom sought information as to why the ‘Evoke 440’ hearing aids were not on the Work Cover approved list.
11. Date: 7 February 2019
The Medical Panel published its Opinion regarding Mr Barton’s Work Cover claim. The Panel determined that Mr Barton had a whole person impairment of 12% (page 1 of 5). In the Opinion, the Panel wrote:
• at page 2 – “The Panel noted that it is accepted that the worker sustained a hearing loss injury in the course of his employment…”.
• at page 4 – “The Panel calculated that there is a total noisy employment period of 42 years (32 years in Victoria from 1987 until 2019 and 10 years noisy employment in the United Kingdom from 1977 to 1987). The Panel considered the period of 10 years should be deducted from the assessment in accordance with Section 58(1) of the Act, as exposure to occupational noise whilst employed in the United Kingdom”.
• at page 4 – “The Panel noted the report of Mr R Webb dated 3 September 2018. The Panel arrived at the same impairment as that assessed by Mr Webb, although for different reasons, based on its own examination of the worker on 16 January 2019”.
12. Date: 7 February 2019
Viva approved provision of the ‘Evoke 440’ hearing aids to Mr Barton.
13. Date: 14 February 2019 – 8 March 2019
Mr Barton was on personal leave (with a medical certificate).
14. Date: 27 February 2019
Viva offered Mr Barton $26,960 in settlement of his Work Cover claim, which he accepted. Payment of this amount was made to Mr Barton on 21 March 2019.
15. Date: 12 March 2019
In an Early Intervention Management Plan (a Viva document), Mr Barton is assessed by Dr Min Kim as “fit for normal duties”.
16. Date: 8 May 2019
Mr Barton sent an email to Jessica Tay and Jimmy LoRicco, attaching the annual leave and long service leave for his shift (‘B Shift) for the year ending 20 June 2020.
In the covering email, he wrote (relevantly):
“As you will note, personally I have not entered any A/L and in its place I have applied for the total sum of my LSL balance which I have accrued over my 30 years of service”.
In the attached roster, Mr Barton applied for a period of long service leave between 26 October 2019–31 March 2020.
17. Date: 30 May 2019
Ms Tay replied to Mr Barton’s email. Mr Barton’s leave request was partly accepted and partly declined. In her email, Ms Tay wrote, relevantly:
“…For your long service leave, you are entitled to 13 consecutive weeks of LSL on the year of the anniversary of your service (ie 2019).
Unfortunately we cannot approve the extra ‘backlog’ of LSL at this point in time due to the following constraints:
• Currently no HGS available to cover STL positions. This means that any STL absence must be covered by an STL from another shift.
• We are entering a Turnaround year in 2020 where we need experienced RCCU operators to come off shift for turnaround preparation. This will require extra numbers on the shifts to make up the overtime requirements.
I would envisage that the remaining balance of LSL which is ‘backlog’ can be considered to be taken at an appropriate time post 2020 T/A when we are adequately manned up and have a greater pool of HGS to provide cover.
Can you please update the calendar to reflect the LSL during 2019 for 13 consecutive weeks (equivalent to 520 hours). Note that I have already pre-filled this from Oct to Dec in line with the period of time that you have previously requested. Please confirm your LSL as soon as possible…
If you would like to therefore use your 224 hours of annual leave for the year… then please populate these into the gaps on the STL roster attached as we do not want double ups with STLs.
Once these dates have been confirmed, Jimmy and I will be able to approve the leave for all STLs.”
(emphasis in original)
18. Date: 31 May 2019 – 11 June 2019; 17 – 18 June 2019
Mr Barton was on annual leave between 31 May 2019 and 11 June 2019. He was not rostered on between 12–16 June 2019. He was on annual leave on 17 and 18 June 2019.
19. Date: 19 June 2019, 6:30pm
Mr Barton’s first day back at work after his period of leave was 19 June 2019. His shift commenced at 6.30pm and finished at 7.30am on the 20th.
20. Date: 20 June 2019, 12:45am
Mr Barton sent an email to Jessica Tay and James LoRicco. The email stated:
“Dear Jess/Jimmy,
As mentioned in a previous e-mail I have been giving my future plans some serious consideration over the last few weeks/months, and after much thought and discussion I have finally decided to tender my resignation from the company (Viva Energy Australia).
In doing so I wish to depart the Company on Friday the 12th June 2020 – this by calculation of current and accrued LSL/AL should be my departure date should I commence my LSL followed by my accrued A/L on Saturday the 26th October 2019.
Kindest Regards,
Chris Barton”.
21. Date: 21 June 2019, 2:02pm
Mr LoRicco sent an email to Mr Barton (cc Jessica Tay, Les Sarkady, Leah Richards, Glenn Lyons). The email stated:
“Hi Chris,
Thank you for your email, we acknowledge and accept your resignation from your position at Viva Energy. However, as we have outlined in previous correspondence, we are unable to approve the full amount of leave requested due to operational requirements.
We can approve 13 weeks of Long Service consecutively from:
• From Monday 21st October 2019 (after your last night shift that corresponds with your start of hours as 26th October).
• Until Monday 20th January 2020 (taking into account you will return on Wednesday 22 January 2020).
Your annual leave will need to be further discussed as to how to fit this in as per current leave roster.
Anything in addition to that is unable to be supported by the business.
We can discuss the final date of your notice period when you return to work next week, however, we will decline the additional Employee Central leave request submitted last night accordingly.
Thanks,
Jimmy and Jess.”
(emphasis in original).
22. Date: 21 – 25 June 2019
Mr Barton was on rostered days off in this period.
23. Date: 26 June 2019
Mr Barton and Mr LoRicco had a conversation.
The parties agree that:
• Mr Barton was upset in the conversation.
• Mr Barton referred to his hearing issues in the conversation (although the parties do not agree on the precise way in which this was addressed).
• Mr LoRicco asked Mr Barton if he was sure he wanted to resign (but the parties do not agree on Mr Barton’s response).
• Mr LoRicco told Mr Barton that he was bound by the relevant enterprise agreement, and did not have the power to authorise the extended period of leave that Mr Barton had requested.
• Mr LoRicco told Mr Barton that he would get back to him about the ‘end date’ for Mr Barton’s employment with Viva.
24. Date: 26 June 2019 – 17 October 2019
Save for two periods of personal leave (22–25 July 2019, and 8 August – 6 September 2019) Mr Barton attended for work.
Mr Barton did not seek to rescind his resignation during this period.
25. Date: 27 June 2019
Mr Barton applied for the following periods of leave by entering the requests into the Viva Employee Central database:
• 26 October 2019–16 January 2020: long service leave;
• 22 January 2020–13 March 2020: annual leave.
26. Date: 27 June 2019
Viva approved Mr Barton’s leave request for the period 26 October 2019–13 March 2020 as follows:
• 26 October 2019–16 January 2020: long service leave;
• 22 January 2020–13 March 2020: annual leave
27. Date: 22 – 25 July 2019
Mr Barton was on personal leave (with a medical certificate).
28. Date: 8 August 2019 – 6 September 2019
Mr Barton was on personal leave (with a medical certificate). He returned to work on 13 September 2019 (see below).
29. Date: 9 August 2019
Mr Barton told Joanne Millar (Viva Medical Centre) that he was taking personal leave due to ongoing fatigue and that he was struggling with his hearing at work. He asked for a repeat of the hearing test he had had previously.
30. Date: 20 August 2019
Mr Barton attended the company doctor, Dr Nguyen. Dr Nguyen’s notes state:
“57yo team leader with moderate hearing loss and recent hearing aid (6/12).
Difficulty adjusting to use of aid.
Noise “too bad” at work. “Feedback” with wind.
Trouble with “constant communication (conversations)” required in position.
Also feels that work is “undermanned” and (he) is “letting the team down” with planned annual leave.
Also Chris would like to repeat audiometry & cf [compare with] result before hearing aid use.
Long discussion about:
• Review with audiologist – adjustment and calibration of aids.
• Can have audiometry after removal of hearing aids great than 26/29 and no loud noise exposure.
• Remove self from environment (noisy) and see how he copes (with stresses) on return.
Chris mentioned that he has put in “notice to resign”.”
31. Date: 28 August 2019
Mr Barton attended Bloom Hearing. He discussed the noise issues he was experiencing. His hearing aids were adjusted and a new application was installed on his phone.
32. Date: 10 September 2019
In a conversation with Joanne Millar about returning to work, Mr Barton told Ms Millar that he wished to be able to “switch off” in his breaks.
33. Date: 11 September 2019
Dr Min Shik Kim completed a Viva Energy Fit for Work Skills Task Analysis, noting (on page 1) that Mr Barton “will need to have rest periods when required”.
An Early Intervention Management Plan of the same date records that Mr Barton was “fit for normal duties”, and that he should take “x 2 20 minute breaks to be taken per shift”.
34. Date: 13 September 2019
Mr Barton returned to work after being on sick leave.
35. Date: 17 October 2019, 10:00am
Mr Barton had a discussion with Mr Lyons, in which he told Mr Lyons that he wished to rescind his resignation.
(Mr Barton states that he told Mr Lyons that his hearing issues had improved; Mr Lyons does not recall any discussion regarding Mr Barton’s hearing issues in this conversation).
36. Date: 18 October 2019, 11:36am
Mr Barton sent an email to Mr Lyons, Thys Heyns, Glen Pasque, Les Sarkady, Darren Pitman and Jessica Tay. The email stated:
“Hi Glen,
After the conversations I had yesterday with both yourself Les; I have then had a brief chat with Leah of the HR Department informing me that I must formally apply to you in writing in regards to rescinding my notice of resignation from the company.
With that in mind I formally wish to rescind my notice of resignation from the Company (Viva Energy Australia) tendered on 20th June 2019.
At the time of my tendering this resignation there were a number of circumstances both on the health front as well as on a private and personal level which were the driving forces behind my decision at the time to depart the company after 30 years of service.
In recent weeks there have been a number of changes in my situation with both of these contributing factors, and hopefully with your support I am able to successfully withdraw my termination notice and continue with my duties as STL ON Z1+2 PAS.
I am of course fully aware and very much a part of working with the company’s manning shortfalls in the STL role across Z1+2 PAS, and feel that with myself resuming my current role that I can alleviate some of these issues currently being experienced.
Glen, I have taken the liberty to include the above on the email as in recent weeks they have all been part of various conversations, and shown an interest in what has been up till now my pending departure from the company.
Yours sincerely,
Chris Barton”.
37. Date: 18 October 2019, 12:30pm
Meeting between Chris Barton and Glenn Lyons. James LoRicco and Bruce Doherty also attended the meeting.
At the meeting, the parties agree that:
• Mr Lyons handed Mr Barton a termination letter and checklist dated 18 October, which stated that his last day was 31 December 2019.
• Mr Lyons told Mr Barton that Viva would not accept Mr Barton’s rescission of his resignation.
• Mr Lyons said to Mr Barton words to the effect that there were issues with his performance as STL.
• Mr Lyons told Mr Barton that based on references from former line managers, he could not accept Mr Barton’s rescission of his resignation.
• Mr Lyons told Mr Barton that there were reports of Mr Barton undermining junior female operators and had issues with gender diversity.
38. Date: 21 October 2019
Mr Barton sent an email to Leah Richards (Viva HR). The email stated:
“Dear Leah,
In response to the letter received from you dated 18 October it appears to me that the company has misunderstood my offer and this is based on the email sent on the 26/June at 6.56am, the company has made it clear that my offer has not been accepted.
What has been accepted is the taking of my Long Service Leave and I will accept taking only my Long Service Leave.
After taking my Long Service Leave I intend to report for work as usual.
If the company persists with its position I will request the AWU to make application to Fair Work Australia under the disputes clause.
Again in short I made an offer to the company, the company has not accepted my offer, in my view that is the end of the matter.
Best regards
Chris Barton”.
39. Date: 23 October 2019
Mr Lyons informed Mr Barton that an expression of interest that Mr Barton submitted in 2016 concerning voluntary redundancy. The email stated that Mr Barton’s “role is still required”, and that his expression of interest was not accepted.
40. Date: 20 November 2019
Viva withdrew its approval of Mr Barton’s leave which was to conclude on 13 March 2020 (see Item 25 above).
Per the leave record in CB-24:
• the record of approved long service leave for the period 26 October 2019 to 21 January 2020 was amended to conclude on 31 December 2019;
• the record of approved annual leave for the period 22 January 2020 to 13 March 2020 was amended to read ‘Cancelled’.
41. Date: 19 December 2019
Viva Energy paid Mr Barton his accrued entitlements totalling $101,397.41, comprised of:
| • Final base salary and allowances • Annual Leave (Marginal) • Long Service Leave (Post 78) • Long Service Leave (Post 93) • Life Benefit ETP (49%) | $15,497.42 $33,189.09 $20,852.89 $26,858.01 $ 5,000.00 |
42. Date: 31 December 2019
Mr Barton’s last day at work.”
[references to documents and/or statements omitted]
The hearing
[7] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
[8] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act). 1
Permission to appear
[9] Both the Applicant and the Respondent sought to be represented before the Commission by a lawyer.
[10] Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission. Permission was granted to both the Applicant and the Respondent to be represented by a lawyer. 2
Witnesses
[11] The Applicant gave evidence on his own behalf and the following witnesses also gave evidence on his behalf:
• Mr Bruce Doherty, Operator - Shift Team Leader, Operator Trainer, and member of Viva Refinery AWU Executive Geelong; and
• Mr Scott Grimes, Operator, and member of Viva Refinery AWU Executive Geelong.
[12] The following witnesses gave evidence on behalf of the Respondent:
• Mr Glenn Lyons, Refinery Operations Manager; and
• Mr James LoRicco, Movements Production Specialist.
Submissions
[13] The Applicant filed submissions in the Commission on 22 May 2020 (amended on 16 June 2020). The Respondent filed submissions in the Commission on 6 July 2020. The Applicant filed submissions in reply on 1 September 2020.
[14] Final written submissions were filed by both the Applicant and the Respondent on 29 October 2020.
Has the Applicant been dismissed?
[15] A threshold issue to determine is whether the Applicant has been dismissed from their employment.
[16] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[17] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed.
[18] It is apparent that the Applicant resigned his employment on 20 June 2019, nominating an end date to his employment of 12 June 2020. The Applicant submits that the resignation was conditional, and I deal with that submission in due course. For present purposes, the fact that there was a resignation gives rise to the question of whether the termination was at the initiative of the employer. A key factor here is that the employment of the Applicant did not end on 12 June 2020. As can be seen from paragraph [37] of the agreed facts, Mr Lyons handed a termination letter to the Applicant which stated that his last day would be 31 December 2019 and his employment ended on that day.
[19] The Respondent in its first submissions asserted that the circumstances of the Applicant’s termination do not demonstrate it to have been at the Respondent’s initiative. 3
[20] However, the Respondent ultimately conceded that its conduct in informing the Applicant on 18 October 2019 that his employment would end on 31 December 2019 was, in fact, termination at the initiative of the employer, and that it therefore dismissed the Applicant on that day. 4 The concession was properly made and I agree with it.
[21] Ultimately, there was no dispute and I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.
[22] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
[23] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[24] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
[25] It is not disputed, and I find that the Applicant was dismissed from his employment on 31 December 2019 and made the application on 21 January 2020. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
[26] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[27] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
[28] It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 11 July 1989 and was dismissed on 31 December 2020, a period in excess of 12 months.
[29] It was not in dispute and I find that the Applicant was an employee.
[30] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Application of an enterprise agreement
[31] It was not in dispute and I find that, at the time of dismissal, the Viva Energy Refining Enterprise Agreement 2019 – Geelong Operator Employees (the Agreement) applied to the Applicant’s employment.
[32] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[33] It is not in dispute that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
[34] It is not in dispute that the dismissal was not a case of genuine redundancy.
[35] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
[36] However, it is convenient to begin with the evidence and submissions on the significant matter of whether or not the resignation of the Applicant was a conditional or unconditional resignation.
Was the resignation of the Applicant a conditional resignation?
[37] The Applicant did not in its initial submissions argue that the Applicant’s resignation was unconditional. However, the Applicant subsequently amended its submissions to argue that the resignation was conditional. The Respondent in its final submissions argued that the Applicant should seek leave to withdraw the earlier admission (that the resignation was not conditional), as it had not sought leave to do so, and if leave was sought, that it should not be granted. At the hearing, the Respondent maintained that position but accepted the submission of the Applicant that the point had been argued, and that this was the basis on which the case was approached.
[38] Having considered the submissions on the point, in the event that leave to withdraw the admission of the Applicant is required, it is granted. My decision is consistent with the way in which the case has been conducted. In the circumstances, it would be inconsistent with the interest of justice if I was not to grant leave.
[39] The Applicant submits that the Applicant’s resignation was conditional on the acceptance by the Respondent of two matters. Firstly, that he would be granted an extended period of leave on the terms set out in his 20 June 2019 email (the leave condition), and that his last day would be 12 June 2020 (the end date condition). In the alternative, the Applicant submits that the termination was conditional only on the end date condition.
[40] The Applicant submits that in those circumstances, the Applicant was entitled to withdraw his notice because the leave condition was only partially met, and the end date condition was not met at all.
[41] Having considered the submissions and evidence, I do not agree that the resignation of the Applicant was conditional either on the basis of the leave condition, or the end date condition.
[42] Firstly, with respect to the end date condition, the giving of notice of termination of the contract of employment is a unilateral right which does not depend on acceptance or rejection of the notice by the other party to the contract. 5 A notice of resignation cannot be unilaterally withdrawn after it has been received.6
[43] I agree with the Respondent that it follows from this that the expiry date of a notice period cannot be a relevant “condition” determining whether or not the notice is effective. Were that to be the case, a notice of termination could always be withdrawn prior to the expiry date of the notice period, regardless of whether or not that notice had been received by the other party. 7
[44] As was said by his honour Justice Gray in Rodney Birrell v Australian National Airlines Commission:
“The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice.
…
These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible.” 8
[45] The Applicant does not dispute the principle that the giving of notice of resignation is a unilateral right that does not depend on the acceptance by the recipient. 9 However, the Applicant submits that the principle is not an absolute rule as notice of resignation can be subject to conditions and therefore to say that an employee could never give a notice of resignation where the end date is expressed as a condition is too bold a statement. In this case, it is said by the Applicant that the Respondent expressly reserved its position on the date the Applicant would cease employment for future discussion, but never had the discussion.10. However, the fact that the future discussion about an end date never occurred meant that the Applicant’s unilateral determination that he was leaving on 12 June 2020 still stood. If there had been discussions, the Applicant could have agreed to vary that date, but there were no discussions, and therefore no agreement to vary the end date of employment unilaterally nominated by the Applicant. The Applicant was not “in limbo” as asserted by the Applicant in respect to his end date of employment. The Applicant nominated that date and did not agree to change it. The expiry date of the notice period, in this case, 12 June 2020, is not a relevant “condition” determining if the notice was effective.
[46] Of course, a notice of resignation could be truly conditional, that is, subject to a condition precedent. In this case, the question is whether the 20 June 2019 email references to leave create such a condition precedent, and it is to that matter that I will now turn.
[47] I agree with the Respondent, it is appropriate to approach this by asking the question of what a reasonable person in the position of the parties would have understood the objective position to be based on what each party said or did in light of the surrounding circumstances. The answer to that question is that the Applicant resigned on 20 June 2019, giving 12 June 2020 as his end date, without the approval of the particular leave periods contemplated in his resignation letter as a condition.
[48] The reasons for that determination are broadly consistent with the submissions of the Respondent on the point and are as follows:
[49] Firstly, the text of the email does not, properly construed, make the resignation conditional. The email is headed “Notice of Resignation from Company”, and reads as follows:
“As mentioned in a previous e-mail I have been giving my future plans some serious consideration over the last few weeks/months, and after much thought and discussion I have finally decided to tender my resignation from the company (Viva Energy Australia).
In doing so I wish to depart the Company on Friday the 12th June 2020 – this by calculation of current and accrued LSL/AL should be my departure date should I commence my LSL followed by my accrued A/L on Saturday the 25th October 2019.”
[50] The email shows firstly, in the first paragraph, a considered and thought through decision by the Applicant to resign from his employment in absolute terms. The second paragraph sets out in the first line, a clear date that the Applicant intends to end his employment period, that being 12 June 2020. The balance of the email sets out that the Applicant has calculated the 12 June departure date based on his calculations of his long service leave and annual leave entitlements.
[51] I agree with the Respondent that the email in that way contemplates the possibility of some future negotiations on an alternative departure date based on alternative leave arrangements. However, it sets out in concrete terms – 12 June 2020 – as the outer limit at which his employment will end.
[52] I agree that, properly construed, the circumstances here can be distinguished from Nohra v Target Australia Pty Ltd, 11 in that the resignation in that case was clearly conditional “in the format attached”. Those features are not present in the 20 June email. After serious consideration, thought and discussion, the Applicant unilaterally determined to end the employment relationship with effect from 12 June 2020. Nowhere is it stated that the Applicant’s resignation is conditional on his leave request being granted or that he would seek to withdraw it unless that request was agreed to.
[53] Secondly, the resignation was accepted by the Respondent in the 21 June email from Mr LoRicco in clear terms. The leave proposed was rejected also in that email, and Mr LoRicco leaves the door open to a future discussion about further applications for leave and/or end date of employment. However, it is clear that Mr LoRicco did not reject the 12 June 2020 resignation date.
[54] Thirdly, despite the Applicant being aware on 21 June 2020 that his leave request was rejected, he did not react in a way that would suggest that the resignation was conditional on the leave request. The Applicant did not seek to withdraw his resignation. He met with Mr LoRicco on 26 June and restated that he was “not interested in working for Viva”, but that he “would like to be able to finish up on 12 June 2020”. 12 Instead, the Applicant follows the advice of Mr LoRicco to submit a revised leave request covering the period 27 October 2019 to 13 March 2020 which Mr LoRicco approved. That revised request is not consistent with the notion that the 20 June email resignation was conditional.
[55] Fourthly, when the Applicant sought to withdraw his resignation by email on 18 October 2019, there is no mention of the original leave request in the 20 June 2019 email being a condition of his resignation and a reason for his seeking to withdraw his resignation. In fact, there is no mention of the leave request. Rather, the request is made because the Applicant’s health and private and personal circumstances have changed.
[56] There was some controversy as to what the evidence was as to the extent to which the Applicant’s change of circumstances were health (in particular, hearing) related, the extent to which there were changes in his “private and personal” circumstances and the extent to which they overlap. Despite the clear terms of the 18 October email suggesting that “health” and “private and personal” were separate and distinct issues, during the hearing, the Applicant contended that the private and personal matters were associated with his hearing difficulties. I agree with counsel for the Applicant that the state of the evidence is that the change in the effectiveness of the Applicant’s hearing aid changed both the Applicant’s health and private/personal circumstances. 13 However, this is evidence that the Applicant’s request to rescind the resignation was likely driven by that change of circumstances. It does not assist the Applicant’s submission that the periods of leave referred to in the 20 June email were a condition of the resignation.
[57] For these reasons, I do not accept that the Applicant’s resignation was conditional on the leave referred to in the 20 June 2019 email being granted.
[58] In any event, if I am wrong as to the request for the leave periods being a condition, the condition was subsequently varied and agreed. That agreed variation took place via the conversation between the Applicant and Mr LoRicco on 26 June 2019 where Mr LoRicco indicated to the Applicant that he should apply for leave between October 2019 and March 2020.
[59] During cross examination, the Applicant accepted that he was satisfied with that aspect of the discussion with Mr LoRicco. The Applicant was clear that he understood he would come back to work in March after his leave and work through until June 2020. Having applied for the October – March leave (as suggested by Mr LoRicco), and it having been granted, the Applicant agreed that he took no steps at that point to rescind the resignation. 14
[60] The Applicant said that, had the Respondent refused him any of his leave, he “…would have probably withdrawn [his] resignation there and then…”, and that the conditions that he had asked for had, to a point, been met. 15 It is clear from this that even if the leave condition was in fact a condition, that it was no longer a condition after the 26 June meeting between the Applicant and Mr LoRicco.
[61] The common understanding that existed after that point was that the Applicant would come back to work in March and work until 12 June 2020. Therefore, even if the Applicant’s resignation was subject to the leave condition when it was first made, it is apparent that was no longer the case after 26 June 2019.
[62] I now turn to consider the factors in s.387(a) – (h) of the FW Act, as to whether the dismissal was harsh, unjust or unreasonable.
Was the dismissal harsh, unjust or unreasonable?
[63] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[64] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 16
[65] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[66] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 17 and should not be “capricious, fanciful, spiteful or prejudiced.”18 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.19
[67] The Respondent has conceded that it had no valid reason to dismiss the Applicant when it did. 20
[68] The Applicant submits, and I agree that, although s.387(a) is only one of the eight factors in s 387, “it may be considered to be an important consideration in relation to the fairness of a dismissal”. 21 Further, although all of the factors in s.387 must be given due weight by the Commission, the validity of the reason for dismissal (if it existed) is the focus of four out of the eight matters in s.387. I accept that, viewed in the context of s.387 as a whole, the absence of a valid reason for dismissal weighs heavily in favour of finding that a dismissal was unfair.
Was the Applicant notified of the valid reason?
[69] As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 22
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[70] As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 23
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[71] This ground is not applicable. The Applicant was permitted to have a support person, Mr Doherty, attend the meeting on 18 October 2019.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[72] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal, and to what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[73] The Respondent is a large employer with dedicated human resources management. The Applicant submits, and I agree, its procedures should be of a high standard.
[74] There is nothing arising from a consideration of the factors in s.387(f)-(g) that suggests there was anything impacting on the ability of the Respondent to follow a fair process of effecting the dismissal. This is a neutral consideration.
What other matters are relevant?
[75] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[76] Any other maters must be relevant in the context of the circumstances of the particular case. 24 Not every submission that is made had to be dealt with, but those which are centrally relevant to the consideration of whether a dismissal was unfair should be given adequate consideration.25 The Applicant makes a number of submissions as to other factors that should be considered and I consider a number of those to be relevant as follows.
The Respondent disregarded its prior approval of long service leave and annual leave for the Applicant up to 13 March 2020
[77] In determining to terminate the Applicant’s employment as at 31 December 2019, the Respondent disregarded the fact that it had approved leave for the Applicant up to and including 13 March 2020.
[78] There was no first-hand evidence before the Commission from any person responsible for selecting the Applicant’s end date. Mr Lyons stated that he was informed of the end date by the Respondent’s former People & Culture Lead, Leah Richards. The evidence supports a finding that Ms Richards and Ms Craven had access to the Employee Central database where Mr Barton’s leave was recorded. 26 Therefore, at the time the Respondent determined to terminate the Applicant’s employment, it either knew that it had approved leave for the Applicant until 13 March 2020 – in which case, it simply disregarded the Applicant’s right to take the leave – or it did not know, which is inexcusable.
[79] Although Ms Richards left the Respondent’s employment in February 2020, Mr Lyons agreed that the Respondent was still able to contact her, and that the company could access the records created by her, 27 and that in the absence of Ms Richards giving evidence, and in light of the failure to explain why she was not called, the Commission should find that her evidence would not have assisted the Respondent.28 I agree with the Applicant that in the circumstances it can be inferred that the evidence of Ms Richards would have not assisted the Respondent.
[80] The failure by the Respondent take into account the leave period it had approved for the Applicant up to 13 March 2020 weighs towards a finding of unfairness.
No proper or reasoned basis for selecting 31 December 2019 as the date of termination
[81] The evidence as to the reason 31 December 2019 was selected as the Applicant’s end date was most unsatisfactory.
[82] The Applicant submits that in cross examination Mr Lyons stated that he was informed by Ms Craven, former Head of Industrial Relations, that the date of 31 December 2019 had been selected at least in part because it aligned with the date on which another employee was scheduled to retire. 29 Another possible reason was that 31 December 2019 aligned with the company’s ‘census date’.30 To the extent it can be relied on, this admittedly hearsay evidence reveals that the Respondent had regard purely to its own administrative convenience when determining the Applicant’s end date. It was plainly unreasonable and unfair of the Respondent to do so.
Additional relevant matters: age, length of service, and experience of the Applicant
[83] The Applicant is 58 years old. He has found it very difficult to find alternative work. The difficulties faced by many men of this age in finding alternative work have been exacerbated by the COVID-19 pandemic.
[84] The Applicant is a very long term employee of the Respondent. He has worked at the Geelong refinery since 1989, almost the entirety of his life in Australia. He has an unblemished record of service to the Respondent. He has been a conscientious employee who has been promoted to and held positions of responsibility with the Respondent.
[85] These factors weigh in favour of a finding the dismissal was harsh.
[86] The Respondent raises three matters engaging with s.387(h) which it says weighs against a finding that the dismissal was unfair in all the circumstances.
[87] Firstly, that the Applicant’s resignation on 20 June 2019 was both unconditional and certain. For reasons advanced earlier in the decision, I agree that the resignation was both unconditional and certain, or in the alternative, if there was a leave condition, then that condition has been varied by agreement. Under either scenario, the end date of employment was to be 12 June 2020. The action of the Respondent bringing forward that end date for reasons that are not particularly clear weigh towards a finding of unfairness. Hence, I disagree with the first of the Respondent’s three propositions advanced under s.387(h).
[88] As to the second reason, I agree that the Applicant still had the benefit of a substantial notice period in excess of that required under the Agreement, but this was notice of a dismissal for which there was no valid reason. This is a neutral consideration; it does not weigh against a finding that the dismissal was unfair.
[89] The third proposition is that the Applicant was not materially disadvantaged by the Respondent bringing forward his end date. That submission is simply wrong. The Applicant was clearly materially disadvantaged by the fact that his chosen end date of employment on 12 June 2020 was not met and he was therefore deprived of almost 6 months further employment, including the benefits associated with that employment.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[90] I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 31
[91] There was no valid reason for the dismissal and this weighs in favour of a finding the dismissal was unfair.
[92] The procedure engaged to effect the dismissal was fundamentally flawed. There was no proper basis for selecting 31 December 2019 as the date of termination. The Applicant did not account for the fact it had already approved leave for a period after the date of the Applicant’s termination. These factors weigh in favour of a finding the dismissal was unfair.
[93] The factors considered under the heading ‘age, length of service, and experience of the Applicant’ weigh in favour of a finding of unfairness.
[94] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was unjust as there was no valid reason for the dismissal. It was unreasonable as the procedure for effecting the dismissal was flawed and there was no account taken of the fact of the Applicants pre-approved leave. The dismissal was harsh having regard to the Applicant’s age, length of service, experience and difficulty in finding alternative work, exacerbated by the COVID-19 pandemic.
[95] Therefore, I find that the dismissal of the Applicant was harsh, unjust and unreasonable.
Conclusion
[96] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
[97] Being satisfied that the Applicant:
• made an application for an order granting a remedy under section 394;
• was a person protected from unfair dismissal; and
• was unfairly dismissed within the meaning of section 385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
[98] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
[99] A key consideration is the fact the Applicant resigned, in clear terms stating 12 June 2020 as the end date. As determined earlier, the resignation of the Applicant was either unconditional or if it was conditional on the leave condition, that condition was varied by agreement well before the Applicant sought to rescind his resignation and before he was terminated.
[100] Against that background, it would be entirely inappropriate to reinstate the Applicant well after the date his resignation was to take effect, contrary to what would otherwise been the intention of both parties. The Applicant conceded in cross examination that he intended his employment would end at the latest on 12 June 2020. Reinstatement would establish a circumstance which neither the Respondent or the Applicant contemplated at the time of the resignation was given and accepted.
[101] In my view, the foregoing consideration in its own right weighs strongly against a finding that reinstatement would be appropriate in all the circumstances.
[102] There is the additional consideration that the evidence was that the Respondent took steps to “fast track’” Ryan Collins, an internal candidate, to replace the Applicant. Those steps were taken as early as late June 2020.32 That fact alone does not justify on its own a conclusion that an order for reinstatement is inappropriate. Dismissed employees are often replaced.
[103] However, the more significant facts are that the Respondent has no need for the Applicant to perform an additional role as an STL and HGS, or a ‘training or mentoring’ role.
The Respondent’s written final submissions at paragraphs 51 to 52 set out the state of the evidence on the point, and I agree with that element of the Respondent’s submissions.
[104] The key issue in that evidence is that employing one person to cover overtime across five different shifts would not actually work. In any event, those considerations are somewhat overshadowed by the following evidence:
• The COVID-19 pandemic led to significant reductions in demand for petroleum leading to partial closures and significant financial losses.33
• There has been an effective hiring freeze on new internal and external hires.34
[105] Of further significance, Mr Lyons gave unchallenged evidence that:
• reinstating Mr Barton to his STL role would require him to demote an existing STL in order to accommodate Mr Barton (which would in turn lead to a surplus in operator numbers);
• as a consequence, Mr Lyons would have to give serious consideration to making an existing role redundant; and
• the same would be the case if the Respondent was required to re-employ the Applicant as a HGS or an operator. 35
[106] These factors weigh against a finding that reinstatement is appropriate.
[107] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
[108] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 36
[109] The Respondent submits that a compensation order is not appropriate. A significant element of the Respondent’s opposition to any compensation order being made is associated with the recently emerged evidence that the Applicant has been provided salary continuance payments from The Australian Workers’ Union Geelong Operators Fund. The details are set out in the supplementary statement of agreed facts which is set out below:
"1. At 3:00pm on 15 January 2020, delegates of the Australian Workers Union (AWU) convened a meeting of some AWU members employed by the Respondent at its Geelong Refinery (the Meeting) who manage a fund known as the ‘AWU Geelong Refinery Operators Fund’ (the Fund).
2. The Meeting was:
a) chaired by Bruce Doherty, Scott Grimes, Stephen Jones, and Daniel Lenzo; and
b) attended by 24 AWU members employed at Respondent’s Geelong Refinery, including Mr Barton.
3. During the course of the Meeting, amongst other things:
a) a motion was proposed in the following terms: “This meeting of AWU members endorse an offer to Chris Barton that the fund will pay him up to the equivalent of his monthly take home salary until the issue is sorted and [Mr Barton] will pay back monies owed from any settlement” (the Payment Motion);
b) the Payment Motion was moved and seconded, and passed unanimously;
c) a motion was proposed in the following terms: “This meeting of AWU members endorse to pay Chris Barton’s existing legal costs and to pay for future costs up to $50,000 total in relation to his dismissal” (the Legal Costs Motion);
d) the Legal Costs Motion was moved and seconded, and passed unanimously; and
e) Mr Barton accepted each of the offers the subject of the Payment Motion and the Legal Costs Motion.
4. Since 15 January 2020, Mr Barton has:
a) pursuant to the Payment Motion, received monthly payments from the Fund equivalent to his take home salary for that period, in the following amounts:
DATE | AMOUNT |
02/03/20 | $10,562.92 |
Total | $95,066.28 |
b) pursuant to the Legal Costs Motion, will receive the benefit of the Fund paying his legal costs incurred in relation to this proceeding on his behalf, up to $50,000.”
[110] The Respondent accepts that this money is not renumeration, rather that it is by way of contingent loan, 37 and that the critical point is that unless the Commission makes an order for compensation, the Applicant does not have to pay back any of it.
[111] The Applicant submits that the Funds are a gift and that the Commission has not ever and should not now take an employee’s personal financial position into account when determining the amount of compensation payable by an employer for unfairly dismissing an employee. To ask the Commission to do so is to ask the Commission to make an impermissible value judgement about the financial circumstances of an employee when deciding if the employee is deserving of compensation. This submission considered with the theoretical examples given by counsel for the Applicant, 38 which I agree are no different in substance to the situation before me, is compelling and I accept it.
[112] The Applicant has suffered loss by reason of being unfairly dismissed. Compensation is appropriate in the circumstances.
[113] In determining the amount of compensation, I am grateful to counsel for the Applicant for the clear articulation of the relevant calculations which I have largely accepted, with some exceptions.
Section 392(2)(a): effect of the order on viability of the employer
[114] This section is not relevant.
Section 392(2)(b): length of employee’s service
[115] The length of the Applicant’s service is a factor that should weigh heavily in favour of an order for compensation. The Applicant was a long term employee of the Respondent. He worked at the Geelong refinery since 1989, almost the entirety of his life in Australia. He has an unblemished record of service. He has been a conscientious employee who has been promoted to and held positions of responsibility with the Respondent.
Section 392(2)(c): remuneration that the employee would have received had he not been dismissed
[116] The Commission must take into account the length of time for which the Applicant would have been employed, but for the dismissal. I have determined that the Applicant has resigned unconditionally or in the alternative, had agreed to vary the terms of his leave. Under either scenario, his employment would have concluded on 12 June 2020. I the circumstances, I agree with the Applicant’s “alternative” submissions as reproduced below.
[117] The Applicant contends that he would have returned to work at the expiration of his approved leave period on 14 March 2020 and worked until 12 June 2020. In this scenario, by his wrongful dismissal he has lost:
1) remuneration for the period 1 January to 12 June 2020; and
2) the annual and long service leave that he would have accrued in the period 1 January 2020 to 12 June 2020 and been paid out on 12 June 2020 (accrued leave), plus superannuation The total amount of lost remuneration on the alternative scenario is $105,200.
Section 392(2)(d): loss mitigation
[118] The Applicant has applied for available positions in the local oil and gas industry but has not been successful. No deduction should be made for failure to mitigate his loss.
Section 392(2)(e) and (f): any remuneration earned by the employee since dismissal, and between the making of the order for compensation and the payment of compensation
[119] In the circumstances, no deduction should be made under ss 392(2)(e) and 392(2)(f).
[120] Since termination, the Applicant has re-instated a small business that he previously ran, importing and distributing competition motorcycle parts. Although he has earned approximately $10,000 to date, the expenditure necessary to re-establish the business to date have consumed this sum. His net losses from this business to date are –$35,794.
Sprigg Factors
[121] The first and second Sprigg factors are addressed above under the headings for s.392(2)(c) and 392(2)(e) respectively.
[122] The third step in Sprigg concerns whether any allowance should be made for contingencies. Contingencies only apply to the anticipated period of employment. 39 In this case, the anticipated period of employment has passed and therefore no deduction for contingencies is appropriate.
[123] The fourth step concerns taxation. While the Commission is obliged to consider the impact of taxation in determining compensation, there is no requirement that the Commission deduct taxation from the total compensation ordered, 40 and the Applicant submits that it should not. I agree a deduction for taxation is not appropriate in the circumstances.
[124] The fifth step concerns application of the statutory compensation cap, which is addressed below.
Section 392(5) and (6): compensation cap
[125] The compensation cap for dismissals in the period 1 July 2019 to 30 June 2020 is, relevantly, $74,350.00. The amount of compensation is greater than the statutory cap. Accordingly the amount of compensation ordered should be reduced to align with the compensation cap to $74,350.00 less taxation as required by law plus superannuation of 9.5%.
[126] In light of the above, I will make an order that the Respondent pay $74,350.00 gross less taxation as required by law plus superannuation of 9.5% to the Applicant in lieu of reinstatement within 14 days of the date of this decision. This remedy accords a fair go all round to both the Respondent and the Applicant.
COMMISSIONER
Appearances:
K Burke, counsel for the Applicant
A Pollock, counsel for the Respondent
Hearing details:
2020.
Melbourne (by video via Microsoft Teams):
September 28 – 29;
October 30.
Printed by authority of the Commonwealth Government Printer
<PR726190>
1 Transcript at PN11.
2 Transcript at PN4.
3 Respondent’s Outline of Submissions – Jurisdictional Objection, dated 1 May 2020 at [10].
4 Respondent’s Outline of Closing Submissions, dated 28 October 2020 at [54]; Transcript at PN22.
5 Carna Group Pty Ltd v The Griffin Coal Mining Company (No 5) [2020] FCA 970 at [11] (McKerracher J).
6 State of New South Wales v Paige (2002) 60 NSWLR 371 at [277]-[283] (Spigelman CJ); In the Matter of Harbour Radio Pty Ltd [2012] NSWSC 1290 at [17] (Brereton J).
7 Respondent’s Outline of Closing Submissions dated 28 October 2020 at [16].
8 Rodney Birrell v Australian National Airlines Commission [1984] FCA 419; 5 FCR 447, 457 – 458.
9 Transcript at PN1644.
10 Ibid.
11 [2010] FWA 6857.
12 Transcript at PN208.
13 Transcript at PN1396.
14 Transcript at PN210 - PN213.
15 Transcript at PN257 - PN287.
16 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
17 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
18 Ibid.
19 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
20 Respondent’s Submissions in Reply, dated 6 July 2020 at [27]; Transcript at PN1550.
21 BlueScope Steel Ltd v Sirijovski [2014] FWCFB 2593, [54].
22 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [46]-[49].
23 Ibid.
24 Kehagias v Unilever Australia Limited Print Q0498 (AIRCFB, Watson SDP, Williams SDP, Larkin C, 29 April 1998).
25 Sipple v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Warkworth Operations [2015] FWCFB 2586 (Catanzariti VP, Harrison SDP, Bull C, 24 April 2015) at [18]; citing Soliman v University of Technology, Sydney [2012] FCAFC 146 (24 October 2012) at [55]–[57], [(2012) 207 FCR 277]; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 (13 December 2013) at [47]; Fox v Australian Industrial Relations Commission [2007] FCAFC 150 (27 September 2007) at [37], [40].
26 Transcript at PN698, PN707–708, PN837.
27 Transcript at PN1073 – PN1076.
28 Per Jones v Dunkel (1959) 101 CLR 298, 321.
29 Transcript at PN1046.
30 Transcript at PN1065.
31 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]–[7].
32 Supplementary Statement of Glenn Lyons, dated 6 July 2020 at [13].
33 Supplementary Statement of Glenn Lyons, dated 28 September 2020 at [14] and ’GL-4’
34 Supplementary Statement of Glenn Lyons, dated 28 September 2020 at [15]; Transcript at PN939, PN985-991.
35 Transcript at PN936-939.
36 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9].
37 Transcript at PN1581.
38 Transcript at PN1431.
39 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) at [39]; citing Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [43].
40 Per Ellawala v Australian Postal Corporation, Print S5109 (AIRCFB, Ross VP, Williams SDP, Cay C, 17 April 2000), Print S5109 at [72].
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