[2017] FWC 6667

FAIR WORK COMMISSION

DECISION

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

Christopher O'Byrne
v
Conlon Murphy T/A Barge Express
(U2017/6749)

COMMISSIONER WILSON

MELBOURNE, 19 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] Christopher O’Byrne was employed by Conlon Murphy Pty Ltd, trading as Barge Express, from November 2011 until his dismissal on 23 June 2017. On 26 June 2017, Mr O’Byrne lodged an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr O’Byrne’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] For the reasons set out below, I have found that Mr O’Byrne was unfairly dismissed; that reinstatement as a remedy is inappropriate; but that an order for compensation is appropriate to make.

BACKGROUND

[4] Mr O’Byrne was employed by Barge Express from November 2011 as an “AB Deckhand” on several vessels operated by the company, taking goods and produce by sea from Darwin to other communities in the Northern Territory.

[5] The vessels on which Mr O’Byrne worked are relatively small, with 4 to 6 employees on board at a time, with each vessel controlled by a master.

[6] The vessels are subject to various navigational legislation, including Commonwealth legislation regulating their safe operation, being the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) (the National Law). 1

[7] The company’s vessels operate in accordance with rosters which have them away from the home port for periods of up to several weeks. During the roster period and vessels’ absence from port, an employee will live and mess on the vessel. While operating several vessels, the company is relatively small, reporting around 35 employees at the time Mr O’Byrne was dismissed. 2

[8] Mr O’Byrne has worked on several of the company’s vessels, including the Sammy Express, the Trader Express and Sealink Express. From late January 2017, Mr O’Byrne’s assignments were as follows; 3

• Between 30 January 2017 and 27 February 2017 – assigned to the vessel “Sammy Express”, the master of which was Dean Hallam;

• 26 March 2017 – 26 April 2017 – “Sealink Express”, the masters of which were Mike Fraser and Glenn McPhee;

• 8 May 2017 – 9 May 2017 – “Sammy Express”, master – Cameron Dawe;

• 11 May 2017 – 18 May 2017 – “Sammy Express”, master – Richard Reed;

• 19 May 2017 – 9 June 2017 – “Trader Express”, master – Stephen Francis;

• 10 June 2017 – 14 June 2017 – “Sammy Express”, master – Richard Reed.

[9] Mr O’Byrne’s evidence is that, in February 2017, he complained to Cameron Dawe, one of the company’s managers, about his then master, Dean Hallam, in charge of the Sammy Express;

“February 2017 I made a complaint to Cameron Dawe about my Master Dean Hallam. The complaint was that he was not communicating with me and his behaviour had become rude towards me. I was called to Jason Moon's office that afternoon to discuss the issues.” 4

[10] Mr Moon is one of the company’s managers, and his recollection, reported in a short written statement to the Commission, and with a different date to that referred to by Mr O’Byrne above, is that;

“At the end of March Chris approached me reference the way he was being treated by the master Dean Hallam. Chris believed he was being unfairly treated by Dean, as Dean would alienate him from day to day tasks.

I spoke to the master Dean Hallam regarding Chris's concerns. Dean acknowledges he has alienated Chris for reasons of underperformance issues which Dean has addressed with Chris on, but no change is Chris's performance and attitude has occurred.

I come back to Chris and explained the issue of why Dean alienated him, due to his frustration towards Chris inability to improve his performance after Dean has addressed his performance numerous times. Chris disagrees with Deans assessment of his performance.

It was decided by management to separate Chris and Dean, to give Chris the opportunity to work under a new master and crew, and for management to assess Chris's performance and attitude.

Chris returned to work on the Trader Express for 3 weeks working with a new crew and master. During his time on the Trader, the same reports where coming back to management for underperformance and attitude.” 5

[11] As a consequence of the complaint Mr O’Byrne moved vessels, initially to the Trader Express and then back to the Sammy Express.

[12] On 2 June 2017 Mr Dawe was briefed by Stephen Francis, master of the Trader Express, about an incident involving Mr O’Byrne alleged to have taken place on board the vessel on the night of Friday, 26 May 2017, its first night out of Darwin. The allegation was that Mr O’Byrne had neglected to inform him of a distress call from another vessel and that as a result he had cause to “address” Mr O’Byrne about the situation. In the course of the post-voyage debrief to Mr Dawe, Mr Francis;

“Mentioned he had to address C. O'Byrne, regarding situations to which he needs to be notified of during his watch. Essentially reminding Chris of his obligations & Standing Orders. Situation originated from the Master discovering from a conversation with another crew member. There was a situation with F.V Ocean Myst on the night of departure from Darwin Fri 26th May 17. This conversation was heard by Chris on the VHF Radio (Broadcast range limited, therefore generally close) during his watch on Trader express, during this broadcast vessels were communicating regarding a vessel in need of assistance.” 6

[13] On 14 June 2017, Mr O’Byrne was called by telephone by Mr Moon to a meeting at Barge Express’ Darwin office. Mr Dawe also arrived for the meeting shortly after Mr O’Byrne did.

[14] Acting on some advice given to him by another former employee, to the effect that if he was ever called up to the company’s office he should record the conversation, Mr O’Byrne did so without informing either of the other men. Although Mr O’Byrne has filed the recording in the Commission in preparation for his case, its admission was objected to by the Respondent and ultimately was not admitted by me after discussion with the parties. It was put by me to each of the parties that, since they both had a copy of the recording, they could use it as an aide memoire for the giving of their evidence to the Commission. As a result, I have not relied upon the recording, nor made findings about its content.

[15] The precise discourse of the conversation on 14 June 2017 is the subject of some debate between the parties, not so much as to the actual things said or done in the meeting, but more as to the purpose or intention of the things discussed. It is common ground between the parties that Mr Moon said to Mr O’Byrne words to the effect that;

• because of some of the interpersonal difficulties which had arisen in relation to Mr O’Byrne’s assignments to different vessels, he did not know what to do about Mr O’Byrne, with that being a reference to what the company may be able to do in relation to Mr O’Byrne’s future rostering;

• there were two serious issues involving Mr O’Byrne about which Mr Moon was concerned; the first of these was the loss overboard of a pallet of fencing wire from one of the company’s vessels when Mr O’Byrne was aboard; the second incident was an allegation that Mr O’Byrne had not followed the vessel’s “night orders”; and

• that as a consequence Mr Moon was going to swing Mr O’Byrne off his current vessel assignment early, with Mr O’Byrne being told that he should pack his bags and move off the vessel.

[16] Mr O’Byrne recollects being told by Mr Moon during the meeting things to the effect that he cannot get along with masters and that they cannot get along with him, and that he goes missing when he should be available for duties.

[17] Mr O’Byrne knew what the reference to the loss of a pallet of fencing wire was about and did not need to be reminded about its details. His evidence is also that in the 14 June 2017 meeting he asked Mr Moon whether he was being solely blamed for the loss of the pallet, to which Mr Moon replied with words to the effect that he was not being solely blamed and that another employee was also being held responsible.

[18] He contends that he was not directly told in the 14 June 2017 meeting of the circumstances relating to the allegation about the failure to follow the vessel’s “night orders”, but that he assumed it to be the circumstance reported by Mr Francis to Mr Dawe when Mr O’Byrne was on the Trader Express on the night of 26 May 2017.

[19] Mr O’Byrne also contends that while he had general familiarity with each subject, he was not told the precise nature of the allegations Mr Moon was making and was not directly asked for a response about those allegations. He also contends that he was not told that the company was considering his termination of employment. In relation to the matters of being given an opportunity to respond or being aware that the future of his employment was being considered, he puts forward that “[w]hen I asked about these I was given the response that we will not be going into specifics however if I wanted that they will provide it to me later. I was to discover that it was my Termination Letter dated 23rd of June that was to inform me of these specifics”. 7 Mr O’Byrne’s recollection is that most of the speaking in the meeting on the part of Barge Express was by Mr Moon, and that Mr Dawe said very little.

[20] To this end, Mr Moon’s unsworn statement records about the meeting that “[h]is failure to improve his performance and attitude over the previous 6 months was discussed, and the allegations of serious misconduct. Again, Chris denies and disagrees with every point I was trying to make. It was highlighted that these issues have raised by every master and supervisor you have worked for, for the last 6 months.” 8

[21] After the meeting ended, the next matter of significance was that Mr O’Byrne received a letter by email from Barge Express on the afternoon Friday, 23 June 2017, which communicated to him his immediate dismissal. The letter was signed by Ben Floyd, the Barge Express shipping manager. While the correspondence communicates that Mr O’Byrne’s termination of employment would take effect immediately, namely Friday, 23 June 2017, the nature of payments to seafarers is that accrued leave payments needed to be paid to Mr O’Byrne sometime after that date and the termination letter indicated to him that his last pay would be on Wednesday, 19 July 2017.

[22] After discussion on the subject by me with the parties, the matter proceeded by way of determinative conference in Darwin. Oral evidence was given by only three people, namely Mr O’Byrne, Mr Dawe and Mr Floyd.

[23] Short written statements of evidence have also been provided by a number of other persons on behalf of both parties, namely Bill Grant, a former engineer and colleague on behalf of Mr O’Byrne; and on behalf of the Respondent, Dean Hallam, a Barge Express master; Stephen Francis, master of the Trader Express; Jason Moon, a Barge Express manager; and Jason Pearce, a Barge Express mate. None of these people were available for oral evidence and so my reliance upon their statements has been limited and I have endeavoured to prefer the oral or documentary evidence where that is available.

LEGISLATION

[24] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[25] Determination of whether Mr O’Byrne’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[26] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way; 9

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 10

• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 11

• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 12

• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 13 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 14” (original references)

[27] I will deal with each of the criteria within s.387 in turn.

(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)

[28] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 15

[29] If a matter involves a dismissal for misconduct, the Commission is first required to find whether, on the balance of probabilities, the alleged conduct actually occurred. 16 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.17

[30] The Commission will also take into account the need for honesty on the part of the applicant during the course of an investigation. 18 In the circumstances of Mr O’Byrne’s matter, in which the conduct complained of was not the subject of an investigation about which Mr O’Byrne was aware, this factor will not require further consideration.

[31] The letter of termination forwarded to Mr O’Byrne by email on 23 June 2017 sets out five matters justifying his termination of employment, being four matters for alleged misconduct, and a fifth grouping of 5 matters of alleged underperformance on his part. While not relied upon as a primary reason for dismissal, the fifth group is put forward as a group of matters taken into account by Barge Express in forming its overall decision to dismiss Mr O’Byrne.

[32] The matters relied upon by Barge Express for Mr O’Byrne’s dismissal are set out within the letter of termination;

“Chris,

Your employment with in Barge Express has been terminated for incidents of negligence, serious misconduct and months of underperformance issues, poor attitude and work ethic that poses an unacceptable risk to the viability, profitability and reputation of Barge Express.

Incidents of serious misconduct: Chris O'Byrne

1. 26^th - 27^th May 17: Whilst conducting a navigation watch on-board Trader Express, you received a broadcasted radio message in relation to fishing vessel Ocean Mist, as they were having difficulty in their operations and required assistance. The Masters night orders clearly stated if there was a situation as the above when conducting a navigation watch you must wake the master immediately. You were negligent in your duties as you did not follow company policy and the Masters Night Standing Orders as you did not wake the masters to alert him of the fishing vessel Ocean Mist having difficulty and required assistance.

2. 14th May 17: Whilst conducting a voyage on-board Sammy Express, a pallet of fencing wire was lost overboard for Barge Express client [redacted]. You were negligent in your duty as you did not follow company policy and secure this pallet/load to the deck.

3. June 17: Whilst conducting unloading operations at Maningrida, you were negligent in your duty as you lost a pallet of goods off the forklift from excessive speed. The pallet of goods was for Barge Express Client [redacted].

4. February 17: Whilst conducting loading operations for Port Keats, you were negligent in your duty as a AB deckhand and failed to plug into the power outlets 2 x Refrigerated containers which consisted of goods for the Port Keats community and for Barge Express client [redacted]. Further to this you left the vessel and went home, arriving back on the vessel prior to departure where it was discovered by the master the 2 x refrigerated containers have been off for at least 6-hour duration.

Summary of underperformance for previous 12 months

5. Your conduct and ability to fit into a crew and get along with fellows work staff has come to point where it is impossible for you to work with any other staff and be a team member for Barge Express. Over the past 12 months you have been shuffled from crew to crew to find a crew that you can work with. Each time we get the same report coming back to the office. No crew can work with you for the following reasons:

• The mate or master will give you clear direction to carry out a task, you will then decide if you want to do it or not, then proceed to do something that was not asked of yourself to do.

• The mate or master will ask you a direct question, and you will respond with a long winded and confusing response that makes no sense at all, and when broadcasted over the radio it prolongs the other crew from communicating.

• You show no initiative when carrying out your tasks, this is highlighted last swing when you parked the telehandler in the middle of the access road which the 16 Ton forklift was busy using, and started talking to a customer. The 16 Ton forklift could not go past, you could see the situation but waited and until you were directed to move it.

• You formed a pattern for when work requires to be done on deck or on the landing, you seem to disappear or on numerous occasions start talking on your mobile phone. This had also been observed by management during loading and unloading operations in the Barge Express yard.

• You have caused extensive minor damage to Barge Express equipment through actions of not thinking or actions that cannot be described. Minor damage or late has been when you were tasked to watch the shore power led powering the refrigerated containers on shore so the led wouldn't end up in the water. Consequently, the led ended up in the water, destroying both plugs and the lead as you didn't carry out the task you were instructed to do. The other minor incident was when you were moving a refrigerated container which was still plugged into the power socket, consequently pulling the power socket off the main distribution board and destroying the plug.

Your responses on Wednesday the 14th June 17, in the company of Jason Moon and Cameron Dawe, to the above incidents of negligence, serious misconduct and months of underperformance issues, poor attitude and work ethic against the evidence, was found to be unsubstantiated.

Your termination will take effect immediately and your last pay will Wednesday the 19th July 2017. A sea service letter will also be provided.

BEN FLOYD

SHIPPING MANAGER BARGE EXPRESS” 19

[33] In the context of the overall evidence, the penultimate paragraph in the above was probably meant to read that Mr O’Byrne’s responses were “found to be unsatisfactory”, or “found to be unpersuasive”, rather than “found to be unsubstantiated”.

[34] The first four of the matters referred to in the termination letter are couched as misconduct. In such a case, the Commission must, if it is an issue in the proceedings, determine whether the conduct occurred. 20

First misconduct allegation – compliance with “night orders”

[35] The first matter is an allegation that Mr O’Byrne failed to comply with the Trader Express’ “night orders” on the night of Friday, 26 May 2017, the vessel’s first night out of Darwin. The allegation is in two parts; that Mr O’Byrne failed to wake the master to alert him to a call from a fishing vessel which was “having difficulty and required assistance”; and that this failure was in contravention of the company’s policies and the Master’s Night Standing Orders.

[36] It is uncontested that Mr O’Byrne was, at the time, undertaking a “watch”, being in control of the vessel while other crew members slept or relaxed. During the course of Mr O’Byrne’s watch there was a distress call from an unrelated vessel, the FV Ocean Myst. The call was made over a VHF radio channel reserved for such calls. The precise things said in the call or the time the call commenced are not in evidence before the Commission, however the fact of the call is not in dispute.

[37] Mr O’Byrne gave evidence that his recollection was that after the initial call had been made, Coastal Radio, which monitors the channel, contacted the Ocean Myst to see if the vessel needed assistance, with it replying that there was no need for immediate attendance. Mr O’Byrne’s recollection is that Coastal Radio then told the Ocean Myst to stop using the relevant channel since it is reserved for emergencies and that presumably the vessel and other users of the channel changed to another frequency.

[38] The only report made by Mr O’Byrne proximate to the call itself was to the watchperson he handed over to, Matt Teong, whom he told general things about the call. Mr O’Byrne recollects that he told Mr Teong that there had been a communication on VHF Channel 16; that he related the circumstances of the call saying that Mr Teong should just be aware of the situation and that at that point it was not a distress call. Mr O’Byrne did not make an entry into a logbook of any kind or report the matter to the vessel Master, Mr Francis. It appears that sometime later Mr Teong spoke to Mr Francis about the matter, who then in turn raised the matter with Mr O’Byrne.

[39] Mr O’Byrne’s evidence is that Mr Francis did not raise directly with him any significant concerns, and that the matter was not raised with him again until the meeting held on 14 June 2017.

[40] Mr Dawe’s evidence provides context to the matter that was raised, including that Mr Francis had debriefed him about the voyage on 2 June 2017, raising several matters about Mr O’Byrne, including about the communication from the Ocean Myst. 21 Mr Francis’ unsworn (and untested) statement recollects that he raised the matter with Mr Dawe when he returned on 2 June 2017, as well as indicating that when he and Mr O’Byrne spoke about the matter he explained the importance of waking him and that decisions concerning such communications are for the master to decide, not the watch keeper.22 Mr O’Byrne’s evidence on the subject is broadly consistent with these recollections.

[41] The evidence supports that Mr O’Byrne did not wake Mr Francis, or, perhaps more broadly, take any action about the communication from the Ocean Myst, other than letting Mr Teong know about the situation when handing over the watch.

[42] The proposition that this was in contravention of the company’s policies and the Master’s Night Standing Orders relies, after listening to the Respondent’s evidence on the subject, on the combined effects of the content of the company’s “Shipboard Safety Management Manual” and the National Law. The former requires the officer of the watch to call the master immediately in 10 defined circumstances, including “[i]f traffic conditions or the movements of other vessels are causing concern” and “[i]n any other emergency or situation in which he is in doubt”. The National Law broadly requires that a vessel’s master proceed as fast as practicable to the assistance of a person on a vessel if they have reason to believe that the person is in distress on a vessel in waters covered by the law. The obligation does not apply when the master is informed by the person in distress, or by the master of another vessel that has reached that person, that assistance is no longer necessary. 23

[43] Ultimately the difficulty faced by the Respondent is that the evidence of Mr O’Byrne about the circumstances of the Ocean Myst did not reasonably fit these obligations. The uncontradicted evidence of Mr O’Byrne is that Coastal Radio required the parties to leave the emergency channel once the Ocean Myst itself advised it did not require assistance. While there is evidence before the Commission that the Ocean Myst initiated an assistance call, heard by Mr O’Byrne, its subsequent communications do not support a finding that it was in an emergency situation or in distress. To the contrary, Mr O’Byrne’s evidence is that the vessel advised Coastal Radio that there was no need for immediate attendance. In the absence of more specific evidence about the circumstances of the Ocean Myst, it is most probable that Mr O’Byrne’s evidence is correct and therefore capable of acceptance on the content of the call from the vessel and the exchange he then had with Coastal Radio.

[44] As a result, the finding cannot be made that Mr O’Byrne committed the conduct encompassed by the first misconduct allegation. With the Ocean Myst informing Coastal Radio that assistance, or at least immediate assistance, was not necessary, it cannot be said that on the balance of probabilities Mr O’Byrne was contravening either the Barge Express policies and directions or the National Law. While the first head of the allegation is established (that he did not communicate with Mr Francis on the subject), the second (that this was a breach of the company’s policies and the Night Orders) cannot.

Second misconduct allegation – loss of pallet overboard

[45] The second matter alleges Mr O’Byrne’s involvement (in the form of negligence) in an incident in which a pallet of fencing wire was lost overboard from the vessel “Sammy Express” in May 2017, it seems because of an alleged failure to properly secure, or lash, the pallet to the deck of the vessel to prevent its movement in the event of pitching or rolling. The available evidence is that a pallet was in fact lost overboard, and that Mr O’Byrne and another employee had between them been responsible for securing the pallet once it was on board. Mr O’Byrne knew of the loss of the pallet not long after it occurred, as did others, including the vessel’s master who did not raise it with Mr O’Byrne either as a matter of underperformance or misconduct on his part. It was, however, referred to by Mr Moon in the 14 June meeting when, after a short discussion, and it being the subject of a query from Mr O’Byrne, Mr Moon agreed that the company was not holding Mr O’Byrne solely accountable for the incident, but jointly responsible with the other employee involved in securing the vessel’s loads.

[46] The evidence does not disclose what the failure of Mr O’Byrne was; merely that he was one of two employees involved in securing the cargo together with the supposition that, because the pallet was lost he and the other person involved must have been negligent in how they secured the pallet. Mr O’Byrne accepts that he had responsibility for assisting with the lashing of the pallet, along with the other, less experienced deckhand, however he disputes that the loss of the pallet overboard occurred due to his negligence.

[47] The evidence about the circumstances of this matter allows a finding that it was more likely than not that Mr O’Byrne had some responsibility for securing the pallet along with the other deckhand. While it is said that the other deckhand was less experienced, the evidence does not lead me to be satisfied that Mr O’Byrne had greater responsibility for the particular pallet. Nonetheless, it is reasonable to accept that he had some responsibility for it and, in the absence of evidence that he had no responsibility for the pallet whatsoever, that it was reasonable for Barge Express to have the view that he had made an error, perhaps along with the other deckhand involved.

[48] In the absence though of evidence about what precisely the lashing error was, it must be the case that any finding that the conduct alleged against Mr O’Byrne occurred is to be regarded as misconduct at the lower end of the scale. That is, while it can be established on the balance of probabilities that Mr O’Byrne made an error in the way the pallet was lashed, it is not, however, possible to make an assessment on the evidence before the Commission as to whether that was a serious or negligent error.

Third misconduct allegation – loss of pallet during unloading

[49] The third allegation of misconduct is that in June 2017, while operating a forklift to unload goods at Maningrida, Mr O’Byrne lost a pallet of goods because of excessive speed. Mr O’Byrne concedes he lost a pallet of goods from the forklift, but denies that the incident was caused by excessive speed, putting forward that he was not speeding and that the reference to speed appears to be an assumption that speed must have been involved since a pallet of goods was lost. Other than the evidence of Mr O’Byrne, Jason Pearce’s unsworn and untested statement provides the following about the incident;

“Whilst unloading at Maningrida, I witnessed Chris O’Byrne picking up and restacking at pallet he has lost on the forks on the telehandler. The cause was travelling too fast for the conditions of the road, I directly spoke to Chris about this and explained this is the first pallet I have lost in Maningrida for whole time we have been servicing Maningrida for general freight. Chris disagreed that speed was the factor, I directed him to slow down, he then took a further 10 pallets to the shop without incident.”

[50] Mr O’Byrne accepts that the incident occurred when he was operating the forklift, but disputes that it was caused by his negligence. Mr O’Byrne denies that he was travelling at excessive speed, putting forward that the incident occurred where the road turns from rough to smooth and that there may have been many variables which may have led to the load then being lost, rather than one single factor. He puts forward that in any case he was not going excessively fast at the time.

[51] The allegation before the Commission is that Mr O’Byrne’s conduct led to the loss of a pallet of goods off a forklift from excessive speed. I accept Mr O’Byrne’s evidence about the multiplicity of factors that may have contributed to the load being lost from the forklift. Where the evidence of Mr O’Byrne conflicts with the unsworn evidence of Mr Pearce, I prefer the former’s.

[52] Because of the state of the evidence before the Commission on this subject, the balance of probabilities does not allow a finding that the conduct alleged against Mr O’Byrne occurred.

Fourth misconduct allegation – failure to plug in refrigerator

[53] The fourth allegation of misconduct against Mr O’Byrne is that, during unloading operations at Port Keats in February 2017, he was negligent in his duties by failing to plug into a power source two refrigerated containers, and that the failure to notice that the containers had not been refrigerated was only discovered six hours later.

[54] Mr O’Byrne concedes that the refrigerated containers were not plugged in but denies that he had direct responsibility for the incident or that he was negligent in any way.

[55] The evidence in relation to this matter is somewhat slight, both as to the obligation either on Mr O’Byrne or other employees, as well as concerning the damage which may have been caused. Nonetheless it appears obvious that a failure to plug into a power source for 6 hours refrigerated containers loaded with food goods in a tropical climate would lead to irreversible spoilage of the products within. Mr O’Byrne’s view is that responsibility for the incident was with the second AB Deckhand in conjunction with the engineer. 24 Mr Hallam’s unsworn statement relates a conversation between himself and the Applicant, whereby Mr Hallam informed Mr O’Byrne that not charging the refrigerators immediately after loading was unacceptable and that it would be reported to the office, and that Mr O’Byrne resisted this and generally played down the oversight.25

[56] Given the small number of staff involved in unloading from the vessel, the balance of probabilities in relation to this matter is that Mr O’Byrne likely does bear some, but perhaps not complete, responsibility for not connecting the refrigerated containers.

[57] I have found that each of the four alleged incidents of misconduct have not been established as misconduct.

[58] The fifth category of matters referred to in the termination letter is a grouping of 5 matters of alleged underperformance on the part of Mr O’Byrne. With proper evidence about the occasions of each alleged incident of underperformance, it may well be possible to find that there had been underperformance on Mr O’Byrne’s part, however the identified matters are rather too general to be relied upon and otherwise not demonstrated to the requisite standard of proof on the evidence, or have not been demonstrated as negligent conduct in which Mr O’Byrne was involved.

[59] As a result I am unable to find on the basis of the evidence before the Commission that Mr O’Byrne was dismissed for a valid reason relating to his capacity or conduct (including its effect on the safety and welfare of other employees).

(b) whether the person was notified of that reason

[60] The evidence supports a finding that Mr O'Byrne was notified of the reasons for his dismissal, with those reasons being set out in the letter from Mr Floyd on behalf of Barge Express to Mr O’Byrne on 23 June 2017.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[61] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 26 I have not found there was a valid reason for Mr O'Byrne's dismissal.

[62] The reasons relied upon by Barge Express for Mr O’Byrne’s dismissal are those set out in its termination letter to him. Barge Express put forward that the matters contained within the correspondence were known to Mr O’Byrne, having been put to him in the meeting on 14 June 2017. However, that submission is not consistent with Mr O’Byrne’s recollection of the meeting, with him having only a limited understanding of the matters being put to him by Mr Floyd, with the latter also declining to elaborate in the meeting when asked to do so upon the criticisms being made about Mr O’Byrne’s employment. Mr O’Byrne’s evidence is that when asked for further details Mr Floyd said words to the effect that they would not be going into the specifics on that occasion but that they would provide details at a later time. The overall evidence before the Commission leads to a finding that such was how the meeting proceeded; matters were discussed in general terms only without specifics being given and that Mr Floyd declined an opportunity to provide greater details when requested by Mr O’Byrne. Notwithstanding that situation, Mr O’Byrne’s recollection is that he was able to glean from the matters actually discussed two of the most significant criticisms, being his involvement in the loss overboard of a pallet of fencing wire and the allegation that he had not followed the vessel’s night orders on the night of Friday, 26 May 2017. Mr O’Byrne was also able to put a response of sorts, at least in relation to the alleged involvement in the loss of a pallet, with him contesting that he should be held solely liable for the matter and Mr Floyd seemingly agreeing with that proposition.

[63] Overall though, and noting that strictly speaking consideration of this factor is not enlivened because there has not been a finding of a valid reason for Mr O’Byrne’s termination of employment, it is plain from the evidence that there was not an opportunity for Mr O’Byrne to meaningfully respond to the reasons held by Barge Express for his termination of employment. Firstly, he was unaware until he received the termination of employment letter that consideration was being given to his dismissal or why that may be; secondly, when viewed as a whole, the meeting on 14 June 2017 did not allow Mr O’Byrne to put forward a comprehensive response to all of the company’s criticisms. It is also doubtful, within the context of the evidence as a whole, that such things as Mr O’Byrne did say or may have said would reasonably have swayed Mr Floyd or Mr Dawe in their thinking.

(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

[64] There was no refusal by Barge Express for Mr O'Byrne to have a support person in any discussions that were had about the future of his employment. Accordingly this factor is a neutral consideration in my decision.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[65] Barge Express’ termination letter refers to 4 matters of serious misconduct as well as a fifth category of underperformance from the previous 12 months. While the evidence allows a finding that Barge Express had been dissatisfied with Mr O'Byrne for some time and had become increasingly frustrated about what could be done with him, and that to some extent Mr O’Byrne was similarly frustrated with people within Barge Express, the evidence does not rise to a finding that Mr O'Byrne had been warned about his unsatisfactory performance.

(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

[66] As set out above, Barge Express is a small business, albeit not within the definition of the term in the Act. In considering all of the evidence before the Commission about the procedures followed by Barge Express in effecting Mr O’Byrne’s dismissal, it appears likely that its size and relative lack of managerial sophistication may have impacted upon the procedures it did follow. Balanced against that observation is the likely fact that the company’s business and the industry within which it operates is small and apparently based upon the close and productive functioning of small teams of people. By its very nature, Barge Express’ business involves seafarers being away from home for a relatively extended time and being required to work very closely together. To some extent then it could be said that the dysfunctionality of any particular team would be quite apparent to the members of the team when they were away from home and at sea. In that regard, it is likely Mr O'Byrne, as much as the vessels’ masters and other deckhands, was aware that an ongoing productive employment relationship was becoming increasingly unlikely.

(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

[67] Similarly, the absence of dedicated human resource management specialists or expertise in Barge Express’ enterprise would likely have impacted upon the procedures it followed in dismissing Mr O'Byrne.

(h) any other matters that the FWC considers relevant

[68] The Commission does not consider that there are any other matters requiring to be dealt with in this decision.

[69] After analysis of the material before the Commission, and especially the five matters set out in the termination letter dated 23 June 2017, it may be said that there was a culmination of matters during May and June 2017 which led to Barge Express forming the view that Mr O’Byrne’s ongoing employment with it was untenable. To that point it is not the case that his employment relationship was without wrinkle. Clearly there had been some concerns, potentially mutually held, about Mr O’Byrne’s interaction with other people on the vessels upon which he worked. Significantly, there had also been concerns about his overall work performance. Nonetheless though, those matters in and of themselves were, before about May 2017, not matters over which Barge Express was actively considering termination of employment.

[70] It could be said even that the first of the May incidents, in which the pallet of fencing wire was lost overboard, was not the deciding factor, perhaps not even when combined with the loss of goods from the forklift at Maningrida. It appears, however, that upon Mr Francis’ return from the Trader Express’ late May 2017 voyage, when in discussion with Mr Dawe, that he looked upon the three most recent incidents, namely the two aforementioned, as well as the failure to alert him about the Ocean Myst’s communication, as culminating to a point at which they decided enough was enough and that Mr O’Byrne simply had to go.

[71] Despite the criticisms which can and have been directed by Barge Express to Mr O’Byrne for the failure to alert Mr Francis about the circumstances of the Ocean Myst, those circumstances do not allow a finding that there was an actual transgression on the part of Mr O’Byrne that might be characterised as serious misconduct. That is not to say that Mr Francis did not have a right to be concerned about the Ocean Myst’s communication and what Mr O’Byrne did with it. It is also not to say that he could not impose upon his crew a higher standard of notification than specified within the company’s policies or the National Law; however there is no evidence that this was the case.

[72] It seems that Mr Francis was under the apprehension that Mr O’Byrne should have notified him and was concerned that he had not been notified. Such may be a reasonably held apprehension on the part of the vessel’s master; however it is not one that could reasonably be said to be misconduct on the part of Mr O’Byrne, at least in the circumstances of this specific case.

[73] The other matters of alleged misconduct on the part of Mr O’Byrne do not reasonably allow a finding that he should have been dismissed for serious misconduct because of those events.

[74] The findings made above about the remaining three matters were that it was reasonable for the company to attribute some level of misdemeanour on the part of Mr O’Byrne in respect of the loss of the pallet of fencing wire overboard and the failure to connect the refrigerated containers to power, but that it was not reasonable for the company to find that Mr O’Byrne had lost the pallet of goods off a forklift at Maningrida because of excessive speed. It flows from those findings that the fault attributable to Mr O’Byrne in respect of the fencing wire and the refrigerated containers were matters that Barge Express could reasonably take up with him; however the evidence does not allow a finding that those matters either individually or in tandem with anything else were sufficiently serious to warrant Mr O’Byrne’s termination of employment for serious misconduct.

[75] Without proper investigation of the circumstances of these matters Mr O’Byrne’s precise involvement in the situations is unclear, as is the extent of any negligence on his part. It is also the case, particularly in respect of the failure to connect the two refrigerated containers, that it is unclear whether that failure could be said to have caused serious and imminent risk either to the health and safety of a person or the reputation, viability or profitability of the employer’s business. That is not to say that there could not have been serious health risks as a result of the failure to connect the power or the consequential adverse effect upon the employer’s business, merely that the failure to conduct an investigation into those things means that there is not evidence before the Commission of a persuasive nature about those matters.

[76] The manner in which the termination of employment letter has been drafted, and the evidence given on the subject to the Commission, leads to the finding that the underperformance matters related within the correspondence were taken into account by Barge Express as being factors which tended to a decision to dismiss, but were not determinative of the decision.

[77] As a result, it follows that Barge Express’ decision to dismiss Mr O’Byrne summarily was an overreach on its part. The circumstances of the entirety of Mr O’Byrne’s employment would reasonably lead to the view that there were serious questions that needed to be put to him about the future of his employment; however that was not done and because it was not done the decision to dismiss summarily is without the foundation necessary to be able to do so.

[78] In overall effect, I consider that Mr O’Byrne’s dismissal was an unfair dismissal. Mr O’Byrne’s dismissal was harsh in that Barge Express had insufficient grounds to dismiss him at the time it did and it was unreasonable because Barge Express failed to allow Mr O’Byrne an opportunity both to respond to its criticisms about his work performance or to improve on the matters about which it was concerned.

REMEDY

[79] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows;

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person

by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection

(1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

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

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

[80] Pursuant to s.390(3) of the Act, an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[81] Mr O’Byrne does not seek reinstatement as a result of his application, putting forward that it would not be in his best interests. Instead he seeks compensation in the event of a finding from the Commission that his dismissal was unfair. In particular he puts forward that he thinks it would be hard to change Barge Express’ opinion of him and that reinstatement of him would create a stress. For its part, Barge Express put forward that it opposes reinstatement. In particular they do not want to put a future vessel master in a situation where they were accountable for some further action on the part of Mr O’Byrne.

[82] After considering all of the evidence of the matter I concur with the parties that reinstatement of Mr O’Byrne would be inappropriate. Nonetheless I consider that compensation under the Act for Mr O’Byrne’s unfair dismissal would be appropriate.

[83] I now give consideration to the quantum of compensation in accordance with the criteria within s.392(2).

(a) the effect of the order on the viability of the employer’s enterprise

[84] There is no evidence of substance before the Commission about the effect of an order for compensation on the viability of Barge Express’ enterprise.

(b) the length of the person’s service with the employer

[85] Mr O’Byrne commenced employment with Barge Express in November 2011 and was dismissed with effect from 23 June 2017, a period of about 5 years and 6 months. While this is a significant period, I find Mr O’Byrne’s length of service with Barge Express does not require an adjustment to be made to the order I propose.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[86] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters;

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

". . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law."

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.” 27 (endnotes omitted)

[87] At the time of dismissal, Mr O’Byrne’s continued employment with Barge Express was clearly under some question. As referred to earlier, there were some tensions in the working relationship. Each party held concerns about the other, although those matters do not appear to have been the subject of detailed discussions between the two or warnings from Barge Express to Mr O’Byrne. The events which took place in May and June 2017 would plainly have reinforced, in the company’s mind, the unsuitability of Mr O’Byrne for ongoing employment. It is hard to imagine that, at that time, Mr O’Byrne did not similarly hold the view that ongoing employment with Barge Express was for the shorter rather than longer term. When his colleague suggested to him that he record the meeting to which he had been called on 14 June 2017 (and which he did record), both the suggestion as well as the recording highlight the very tenuous relationship which was evident by that time. It is hardly a normal thing for an employee going to a meeting with their employer to record what may take place, for the purposes of protection. Why would protection be needed if there was an anticipation that employment would continue indefinitely?

[88] Notwithstanding the criticisms that may be made of Barge Express about the efforts they went to either to investigate the complaints against Mr O’Byrne or to then put its concerns to him for response or change, Mr O’Byrne himself had little insight about the state of his employment relationships; his responsibility about the things that he had done or not done and about which the company complained; or what needed to be done by him to remedy the situation.

[89] Overall this is not a circumstance in which it can be said that the anticipated period of employment would be indefinite. Far from it, instead this is a circumstance in which if Mr O’Byrne had been given detailed particulars of the company’s complaints against him with a warning that corrective action was required, it is more likely than not that those complaints and the need for corrective action would not be meaningfully heeded. It appears more likely than not that, had these actions been taken on the part of Barge Express, Mr O’Byrne would either have remonstrated with them about the accuracy of what was complained about and whether he could be reasonably held responsible for what had occurred, or whether he would either commit to and then give changed and better performance.

[90] It appears more unlikely than not that had Mr O’Byrne been warned about his performance that change of any significance would occur and that as a consequence he would have been dismissed. The impact of this consideration upon the assessment of the anticipated period of employment is that the outer reach of that period was likely to be two months from 23 June 2017, and in my consideration more likely shorter. As a result I set the anticipated period of employment at four weeks.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[91] Mr O’Byrne’s evidence was that he was unemployed for a period of 86 days after the dismissal and that for about three weeks of that period he was on a family holiday and therefore not in a position to seek a new job. Given Mr O’Byrne’s circumstances, coupled with his skills, his age of 46 years and his location in Darwin, I am satisfied that, broadly speaking, he took satisfactory efforts to mitigate the loss suffered by him because of his dismissal.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[92] Since leaving Barge Express Mr O’Byrne has received some employment in warehousing, with that payment apparently being at a lower rate of pay than that which he enjoyed at Barge Express. The employment is also casual and not certain to continue.

[93] As mentioned, the period of Mr O’Byrne’s unemployment was 86 days, which is a period longer than the anticipated period of employment I have discussed above. Because of that factor, as well as the uncertainty about its continuation, I consider it not to be appropriate to make any deduction for post-employment earnings from an order for compensation.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[94] At the time of the determinative conference conducted in this matter, Mr O'Byrne was uncertain about whether the warehousing employment would continue, although he thought a decision on the subject may be made in relatively short time.

[95] The evidence before me on the subject is that even if there were to be employment into the future, any such earnings are unlikely to offset the effect of the anticipated period of employment set by me. Accordingly I make no deduction from the order for compensation for the amounts that may be earned by Mr O'Byrne between the making of the order for compensation and the actual compensation.

(g) any other matter that the FWC considers relevant

[96] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

[97] Section 392(3) requires that if the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the FWC must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[98] Although Barge Express characterises Mr O’Byrne's behaviour as misconduct, I am not satisfied in all the circumstances that it was and accordingly I do not discount the amount of compensation for that factor.

CONCLUSION AND ORDERS

[99] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

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

[101] I find that compensation is appropriate.

[102] The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5). 28

[103] The reasoning associated with an adjustment for contingencies was referred to in the matter of Slifka v J W Sanders Pty Ltd, 29 with an adjustment potentially being made for events that may arise if employment continued, with the effect of interrupting employment, such as for reasons such as ill health, lawful termination by the respondent, voluntary resignation, or closure of the respondent’s business. In Ellawala v Australia Post Corporation30, the Full Bench considered the application of a factor for “contingencies”, with it being held that;

“A discount for contingencies is a means of taking account of the various probabilities that might otherwise affect earning capacity. At the time of hearing any such impact on an applicant's earning capacity between the date of termination and the hearing will be known. It will not be a matter of assessing prospective probabilities but of making a finding on the basis of whether the applicant's earning capacity has in fact been affected during the relevant period.” 31

[104] The Full Bench in Bowden v Ottrey Homes 32 noted that contingencies may not be appropriate to deduct with all of the projected period of continued employment having passed.33 In relation to the matter of contingencies, I find there are none that ought to be taken into account in this matter, since all of the projected period of continued employment has passed.

[105] I accept that Mr O’Byrne’s weekly wages at the time of his dismissal were $1,346.15 34 and that superannuation was paid in addition to that amount. The Commission’s order for compensation will be for a payment of 4 weeks’ compensation at the rate of $1,346.15 per week, with a further amount of 9.5% for the purposes of superannuation. My calculation of the amount payable is set out in the following table;

1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated	4 weeks projected lost income at the rate of $1,346.15 per week	$5,385
9.5% Employer superannuation contribution on above	+ $512
Deduction for misconduct 35	- $0
2. Deduct monies earned since termination	$0
3. Deductions for contingencies	$0
TOTAL	$5,897
4. Calculate any impact of taxation
5. Apply the legislative cap

[106] The total amount of $5,897 does not exceed the compensation cap applying at the time of dismissal.

[107] An order requiring Barge Express to pay to Mr O’Byrne the total amount of $5,897, taxed according to law, is issued in conjunction with this decision. The total will be ordered to be split between a payment directly to him, and a payment to his superannuation account, on his behalf.

COMMISSIONER

Appearances:

Mr C O’Byrne, on his own behalf.

Mr C Dawe and Mr B Floyd for Barge Express.

Determinative Conference details:

2017.

Darwin:

16 October.

1 Exhibit R2, Witness Statement of Ben Floyd.

2 Form F3 Employer Response, item 1.7.

3 Email from Respondent, 1 November 2017.

4 Exhibit A2, Witness Statement of Christopher O’Byrne.

5 Exhibit R4, Respondent’s bundle of documents, Witness Statement of Jason Moon.

6 Exhibit R3, Witness Statement of Cameron Dawe.

7 Exhibit A1, Applicant’s Outline of Submissions (first) [4f].

8 Exhibit R4, Witness Statement of Jason Moon.

9 Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520 [28].

10 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

11 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

12 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

13 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

14 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

15 Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.

16 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]

17 Budd v Dampier Salt Ltd (2007) 166 IR 407 at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

18 Streeter v TelstraCorp Ltd (2008) 170 IR 1.

19 Exhibit A4, Termination Letter.

20 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [4].

21 Exhibit R3.

22 Exhibit R4, Witness Statement of Stephen Francis.

23 Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) sch 1 ss 85(1)(b), (2)(c).

24 Exhibit A6, Applicant’s written response to the meeting on 14 June 2017.

25 Exhibit R4, Witness Statement of Dean Hallam.

26 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

27 Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109 at [33]-[34].

28 See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

29 (1995) 67 IR 316.

30 [2000] AIRC 1151, Print S5109.

31 Ibid at [41]-[43].

32 (2013) 229 IR 6; [2013] FWCFB 431.

33 Ibid [54].

34 Exhibit A1 [2(a)]; Exhibit R1, Respondent’s Outline of argument: merits [2(a)].

Printed by authority of the Commonwealth Government Printer

Christopher O'Byrne v Conlon Murphy T/A Barge Express