Christopher Carter v Auto Parts Group

[2021] FWC 2364

[2021] FWC 2364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Christopher Carter
v
Auto Parts Group
(C2020/2566)

DEPUTY PRESIDENT BINET PERTH, 21 MAY 2021

Application to deal with a dispute involving stand down.

[1] On 21 April 2020 Mr Christopher John Carter (Mr Carter) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 526 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a stand down dispute with Auto Parts Group Pty Ltd (APG).

[2] APG is a national importer and distributor of vehicle parts which are predominantly sold to the crash repair sector. The Head Office is based in Queensland and the company has traded for more than 20 years, employing approximately 200 employees.

[3] Mr Carter began employment with APG on 17 October 2017, in the role of State Sales Manager (WA).

[4] On Thursday 25 March 2020 Mr Carter was called to a meeting and handed a letter informing him that he was stood down without pay effective immediately for a period expected to be no less than three months because he could “no longer do useful work.” He was informed that all his entitlements (including annual leave) were frozen, and that he was to return all company property (car, mobile phone, laptop, credit card etc).

[5] Considering that the business had been operating as usual, despite the coronavirus outbreak, Mr Carter says that he was confused about the grounds for the stand down. A new sales representative who reported to him had commenced on 16 March 2020 and another commenced on 24 March 2020.   

[6] Of the 14 APG employees in Western Australia only Mr Carter and one other employee were ‘stood down’. The evidence before me at the Hearing was that Mr Carter was the only sales representatives stood down in Western Australia and the other two sales representatives continued to work.

[7] On 21 April 2020 at 9:30am Mr Carter filed the Application.

[8] On the same day Mr Carter was informed that his position was redundant and that his employment would end on 21 April 2020. He was paid in lieu of notice and received severance pay as well as his accrued entitlements including those accrued during the period he was stood down.

[9] Mr Carter claimed that he was not lawfully stood down during the period from 25 March 2020 until the termination of his employment on 21 April 2020 (Stand Down Period) and sought an order for his unpaid wages and commission.

[10] The Stand Down Application was listed for a Hearing in Perth at 10:00am, Thursday 20 August 2020.

[11] In a decision handed down on 25 September 2020 in [2020] FWC 4348 I determined that Mr Carter’s had not been stood down lawfully pursuant to s 524(1) of the FW Act and that I was not satisfied that in any event that his stand down was fair. 1

[12] I was sympathetic to the circumstances in which Mr Carter found himself. However, based on the reasoning set out in Schell v Ensign Australia Pty Ltd [2015] FWC 8825, Dylan Collis v SPI Plumbing (Australia) Pty Ltd[2020] FWC 4196 applying Construction, Forestry, Maritime, Mining and Energy Union v DP World Melbourne Ltd[2020] FWC 4147 at [46] and Bristow HelicoptersAustralia Pty Ltd v AFAP [2017] FWCFB 487 at [53] to [57], I took the view that it was not within my power to order APG to pay Mr Carter his wages for the Stand Down Period as this was a matter for a court of competent jurisdiction.

[13] Mr Carter appealed my decision not to order a remedy. In a decision handed down by the Full Bench of this Commission on 25 February 2021 in [2021] FWCFB 1015 the Full Bench of this Commission distinguished these authorities from the circumstances in this Application. 2

[14] The Full Bench held as follows:

“Apply the principles stated in Re Cram to the Commission’s functions under s 526, it seems to us that while the Commission cannot make a monetary order in grant of a claim for an entitlement to wages said to be owing under an award or a contract of employment, the Commission is empowered to make a monetary order to resolve a stand down dispute based on tis consideration of what is fa fair outcome between the parties and other issues relevant to the industrial merits of the matters an, in doing so, is entitled to take into account whether, in its opinion, the stand down was authorised by s 524(1).” 3

[15] Applying those principles, I have determined that it is appropriate to provide a proportionate remedy to resolve the dispute in this Application. It is appropriate that the remedy bear some relationship to the component of the income loss incurred by Mr Carter which was unwarranted or unfair.

[16] There is no specific formula to apply in these circumstances though I adopt the approach used in Stelzer v Ideal Acrylics Pty Ltd[2020] FWC 4129 and cited with approval by the Full Bench in Christopher Carter v Auto Parts Group Pty Ltd[2021] FWCFB 1015.

[17] Mr Carter was stood down for a period of 17 working days. He was paid for two public holidays which fell during the period he was stood down but was not otherwise paid during this period. I accept his evidence that he was informed that he could not use his accrued annual leave to mitigate his income loss. I therefore take the view that it is not appropriate to expect him to have used any accrued annual leave he had available to him to mitigate his loss during the period he was stood down.

[18] Mr Carter was the most senior and the most experienced sales representative. The other two sales representatives commenced work in the week before Mr Carter was stood down. Fairness and logic suggests that the commencement of employment of these other employees been delayed or that they share any necessary reduction in the hours of work available.

[19] I also take into account the contingency that APG did not know how long the stand down period would last, did not know exactly how the pandemic would impact actual work flows, was acting to avert redundancies and was endeavouring to protect its business by seeking to reduce costs. I apply a discount of one day on this account because the more logical approach would have been to delay the start date of the employment of the new sales representative or to reduce the hours of work of both new sales representatives rather than stand down the most senior and experienced sales representative.

[20] As Mr Carter’s bonus payments were discretionary I do not believe it is reasonable to include these in any payment made by APG to Mr Carter.

[21] Consequently I consider that a payment equivalent to sixteen working days is in all the circumstances a proportionate and reasonable payment that APG should make to Mr Carter as a contribution to his income loss during his stand down (a stand down that I have found not to have been consistent with the FW Act).

[22] On the material before me this equates to a figure of approximately $5476.80.

[23] An order to this effect will issue with this decision.

DEPUTY PRESIDENT

On the papers

Printed by authority of the Commonwealth Government Printer

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 1   [2020] FWC 4348 at [70]-[74].

 2   Christopher Carter v Auto Parts Group Pty Ltd[2021] FWCFB 1015.

 3   [2021] FWCFB 1015 at [27].