Darrel Duke v Central Norseman Gold Corporation Limited
[2013] FWC 2993
•11 JUNE 2013
[2013] FWC 2993 |
FAIR WORK COMMISSION |
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darrel Duke
v
Central Norseman Gold Corporation Limited
(U2012/8946)
COMMISSIONER CLOGHAN | PERTH, 11 JUNE 2013 |
Unfair dismissal.
[1] This is an application in which the Applicant, Mr Duke, is seeking a remedy for alleged unfair dismissal and his former Employer claims he has abandoned his employment.
PROCEDURAL BACKGROUND
[2] On 27 June 2012, Mr Darrel James Duke (Applicant) made an application to Fair Work Australia, now Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with L2 Project Management-Norseman Pty Ltd (originating Employer).
[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[4] The application was the subject of a conciliation conference on 6 August 2012 and was referred to me for arbitration on 15 August 2012.
[5] In response to the application, the Employer asserts that:
- • “Mr Duke’s employment ceased, with immediate effect, on 13 June 2012 as a consequence of having been absent from work for two or more days without notification to the Employer which, in accordance with the Applicant’s Workplace Agreement, is deemed to be abandonment of employment.”
[6] Put shortly, the originating Employer asserts that the Commission has no jurisdiction to hear Mr Duke’s application for unfair dismissal as he was not dismissed but abandoned his employment.
[7] To assist in the determination of the originating Employer’s jurisdictional objection, I issued procedural directions on 23 August 2012. The procedural directions invited the originating Employer to make a submission concerning its jurisdictional objection and gave the Applicant an opportunity to respond to those submissions. The originating Employer was, in turn, given an opportunity to respond to the Applicant’s submission.
[8] The originating Employer chose not to make any submission. The Applicant provided submissions on 3 September and 4 October 2012.
[9] Having considered the material provided by the Applicant as a consequence of the procedural directions, I advised the parties that I intended to hold a hearing into Mr Duke’s application.
[10] On 22 October 2012, I issued further procedural directions for a hearing on 6 December 2012.
[11] In the absence of the originating Employer complying with the procedural directions issued on 22 October 2012, I contacted Ms Davis of Central Norseman Gold Corporation Limited. I advised Ms Davis on 15 November 2012 that, due to non compliance with the procedural directions, the hearing on 6 December 2012 would be vacated. Ms Davis was provided with copies of both procedural directions that had been issued.
[12] Communication between the Applicant, Ms Davis and the Commission continued until 19 December 2012. On 19 December 2012, I advised the parties that I would be convening a conference and requested advice from Ms Davis as to who would be attending on behalf of the Employer. Ms Davis’ out-of-office reply, of the same day, advised that the office would be closed until 14 January 2012. No further communication was received from Ms Davis.
[13] On 19 December 2012, my Associate forwarded to the Employer, the Applicant’s submission to its jurisdictional objection.
[14] In addition to the hearing date to determine the jurisdictional objection, the Applicant had, separate to this application, received correspondence from the Employer which, as a consequence, required clarity as to who the employer was at the time of his dismissal. On 17 December 2012, Ms Davis clarified and agreed that the application should name the Respondent as “Central Norseman Gold Corporation Limited” (Employer).
[15] Pursuant to paragraph 586(a) of the FW Act, the Commission, and with the consent of the Employer, amended the application to have Central Norseman Gold Corporation Limited as the named Respondent.
[16] On 21 January 2013, the Commission advised the parties that the application was to be the subject of a conciliation conference on 15 February 2013. The Applicant attended. The Employer did not attend or communicate why it was unable to attend.
[17] On 22 February 2013, I issued further procedural directions for a hearing on 9 May 2013. In the procedural directions, I highlighted to the Employer the provisions of s.600 of the FW Act.
[18] The Applicant complied with the procedural directions of 22 February 2013. The Employer did not comply with the procedural directions.
[19] The Applicant attended the hearing on 9 May 20123. The Employer did not attend the hearing or communicate why it was unable to attend.
[20] At the hearing, the Applicant represented himself and gave evidence on his own behalf.
[21] Having received the Applicant’s written material as a result of the procedural directions, oral evidence and submissions, I reserved my decision on 9 May 2013. This is my decision and reasons for decision.
RELEVANT BACKGROUND
[22] Mr Duke commenced full-time employment with the Employer on 31 March 2011 as an Airleg Miner at the Harlequin underground mine near Norseman, Western Australia. Mr Duke was a fly-in-fly-out employee with his home in Perth.
[23] Mr Duke’s conditions of employment were regulated, in part, by the Central Norseman Gold Workplace Agreement 2009 (Agreement).
[24] On 20 September 2011, Mr Duke was injured in a rock burst.
[25] The Employer conducted an investigation into the accident. The Applicant acknowledges that the cause of the accident is in dispute.
[26] Due to injuries received by Mr Duke, the Applicant drove to Kalgoorlie Regional Hospital (KRH) on 25 September 2011.
[27] The treating doctor at the KRH Emergency Department provided Mr Duke with a Workers’ Compensation First Medical Certificate which declared him totally unfit for work for seven (7) days and further, a restricted return to normal duties from 4 October to 14 October 2011. The restrictions are set out in the medical certificate 1.
[28] Notwithstanding the Applicant was not fit for normal duties, he drove to Norseman to assist with the investigation into the accident. The Applicant was unhappy with being “scapegoated” 2 by the Employer and indicated that he would be raising his concerns with the Department of Mines and Petroleum.
[29] On or about 12 October 2011, the Applicant was informed that the investigation had been completed and that he “would not be receiving a written warning and that it was accepted that the accident had been a seismic event (rock burst) that was out of [his] control” 3.
[30] The Applicant returned to Perth for his rostered duties off work on 13 October 2011.
[31] Due to pain and weakness in his left elbow and hand, the Applicant attended a medical practitioner on 18 October 2011.
[32] The medical practitioner issued the Applicant with a workers’ compensation progress medical certificate extending his restricted return to work until 2 November 2011 4.
[33] On 21 October 2011, the Employer’s workers’ compensation insurer accepted liability for medical expenses 5.
[34] On 1 November 2011, Mr Duke attended a medical practitioner who further issued a workers’ compensation progress medical certificate which extended a restricted return to work until 15 November 2011. On 15 November 2011, the same medical practitioner extended the restricted return to work until 24 November 2011 6. Between 1 and 15 November 2011, Mr Duke undertook his rostered swing in the Employer’s Perth office undertaking filing and archiving.
[35] On 16 November 2011, the Applicant returned to the Harlequin mine site. Between 16 and 20 November 2011, the Applicant carried out duties such as washing cars, weeding, opening packing cases and office duties at the mine site.
[36] On 20 November 2011, the Employer advised Mr Duke that the insurer had rejected his workers’ compensation claim relating to his elbow. The Applicant telephoned the insurer and was advised that the information provided to him by the Employer was incorrect, however, if the Employer was disputing that the injury was work related, it was necessary for the injury to be assessed by a Review Doctor. The Applicant sought for this to happen as soon as possible.
[37] On 30 November 2011, the Employer’s insurer advised the Applicant that an appointment had been made for him to see the Review Doctor on 14 December 2011.
[38] On 14 December 2011, the Applicant attended to the Review Doctor who requested that he undertake further ultra sound and x-rays.
[39] On 7 January 2012, Mr Duke received the Review Doctor’s report. The relevant parts of the report are set out in full:
- “7. In your opinion do you feel that the worker’s employment with Central Norseman Gold Ltd contributed significantly to the onset of the worker’s symptoms? Please provide reasons for your answer with reference to the elbow injury.
I do believe his employment at Central Norseman Gold Ltd has been a significant contributing factor to his left elbow symptoms and I consider, taking into account, the incident which occurred on 20 September 2011, I do believe it was a significant contributing factor causing his left elbow symptoms.
I consider the rock burst resulted in a contusion or a strain to the extensor muscles in the left elbow.
8. Do you believe that Duke’s current elbow symptoms are a result of the workplace injury allegedly sustained on the 20/09/2011?
Yes, as already outlined in Question 7.
9. With reference to the elbow injury, please advise whether there are any pre-existing medical condition/s or other non work related factors which may be attributable to or contributing towards the worker’s current symptoms. If so, please specify.
There are no pre-existing or non work-related factors contributing to his left elbow symptoms.” 7
[40] The Applicant provides in evidence his email and telephone contact with the Employer between 1 and 23 December 2011. The communication was not responded to by the Employer. On 22 December 2011, the Employer emailed Mr Duke asking him when he would be “collecting his belongings from site” 8
[41] Following receipt of the Review Doctor’s report, the Applicant contacted the insurer and was advised of their preferred provider (Advanced Personnel Management (APM)) for a Vocation Rehabilitation Programme.
[42] APM contacted Mr Duke on 12 January 2012 to begin vocational rehabilitation.
[43] On 17 January 2012, the Employer’s insurer relevantly advised Mr Duke as follows:
“As you aware the claim had already been accepted. We do not provide the worker with anything in writing other than the acceptance of liability letter. We have confirmed that the elbow injury was part of the initial claim. This has already been accepted.
...
There still seems to be barriers in regards to you returning to work that need to be overcome to ensure you get back to your pre injury role. APM are there to mediate between yourself and the employer to ensure this process runs smoothly from here on in.” 9
[44] The Applicant’s return to work on restricted duties continued pursuant to workers’ compensation progress medical certificates.
[45] On or about 27 January 2012, the Applicant received from APM, the Insurer’s Return to Work (RTW) Assessment dated 23 January 2012. The relevant parts of the RTW assessment are as follows:
“Other Relevant Employment Details
A Proposed Graduated Return to Work Programme has not been approved by all parties due to:
- Alternative duties being currently unavailable.
- Noresman (sic) Gold have reported that once Mr Duke is fit for pre injury duties he will be able to resume employment as an Airleg Miner.
Recommended Strategies to Achieve a Successful Return to Work
As Norseman Gold have indicated that restricted duties are not available, and that once Mr Duke is certified fit for full duties that he can return to his full Air Leg Driller duties, the following is recommended by APM to assist in Mr Duke’s return to work:...” 10
[47] On 24 February 2012, the Employer was advised of a corporate restructure and that his employment was immediately terminated but inviting him to apply for employment with L2 Project Management-Norseman Pty Ltd.
[48] On the same day (24 February 2012), the Applicant attended an appointment with his medical practitioner who further extended his restricted return to work.
[49] Mr Duke, on 8 March 2012, sought employment with L2 Project Management-Norseman Pty Ltd for the position of Airleg Miner. In the application, he set out that he was restricted in his return to full time duties but expected to be cleared within a few weeks 12.
[50] On 15 March 2012, the Applicant received an offer of transfer of employment as an Airleg Miner from L2 Project Management-Norseman Pty Ltd. The relevant parts of the offer of transfer of employment are as follows:
“We are pleased to confirm our offer of transfer of your employment to L2 Project Management-Norseman Pty Ltd (L2) in the position of Airleg Miner. As an L2 employee you will report directly to the Airleg Foreman effective 17th March 2012.
It is acknowledged that you originally commenced employment with Central Norseman Gold Corporation Ltd on the 3/29/2011 and on acceptance of the above position all serviced based entitlements, will be transferred to L2.
Your remuneration will remain as per the terms and conditions outlined in the existing Central Norseman Gold Corporation Ltd Collective workplace Agreement 2009 and you will be paid fortnightly into a nominated bank account of your choice.
...” 13
[51] On 16 March 2012, the Applicant accepted the offer of transfer of employment 14.
[52] On 23 March 2012, the Applicant was provided with a workers’ compensation medical certificate in which the medical practitioner declared that Mr Duke was “fit to return to pre-disability duties, but requires further treatment”. The treatment is described as “physiotherapy/chiropractor - two times per week if required” 15.
[53] On 25 March 2012, the Applicant was informed by the Employer’s on-site representative that, on his return to work, he would be assigned truck driving duties. Mr Duke objected to be assigned truck driving duties and also advised the Employer that he was not licensed to drive the particular classification of truck required 16.
[54] On arriving at site on 3 April 2012, Mr Duke was informed that he had been assigned to the Diesel Crew and his duties were to drive trucks. The Applicant advised that he was medically cleared to return to his pre-injury duties as an Airleg Miner and was not licensed to drive the trucks on-site 17.
[55] Over the next three days, discussions took place on-site. It would appear, at its most generous, that the Employer did not have the latest medical information on the Applicant and relied upon the RTW assessment of January 2012.
[56] On 6 April 2012, the Applicant was informed that there was no Airleg mining work available for him and his new substantive role was to drive trucks. Further, that his roster had changed and his wages would be reduced to that of a truck driver 18.
[57] Over the next two days, a hiatus existed until the Applicant was asked to commence washing cars as part of a Return to Work programme. The Applicant resisted the request as no genuine attempt was being made to find him alternative acceptable duties. The Employer’s response was to issue the Applicant with a written warning which Mr Duke refused to accept.
[58] As a result of the unfolding events, the Applicant emailed the Employer asserting he was being bullied, harassed and was returning to Perth to pursue a formal WorkCover Dispute Resolution process to resolve the dispute. Mr Duke provided the email to his immediate line manager, the Employer’s Human Resource Manager and the insurer. In doing so, the Applicant fulfilled the grievance requirements in his employment agreement.
[59] The Applicant left site and returned to Perth.
[60] Prior to 13 April 2012, the Applicant details his endeavours to discuss his difficulties with his Employer, the Employer’s workers’ compensation insurer and rehabilitation provider.
[61] On or about 13 April 2012, the Employer’s insurer advised him that, after discussions with the Employer and rehabilitation provider, the Insurer had not been able to resolve the impasse and he was informed not to return to site until advised otherwise 19.
[62] Between 13 April 2012 and 12 June 2012, the Applicant obtained further workers’ compensation progress medical certificates stating that he was fit to return to his pre-disability duties.
[63] On 12 June 2012, the Applicant received at telephone call from WorkCover WA who informed him that the Employer had no Airleg mining work available for him and it was “truck driving or nothing” 20. The Applicant advised the WorkCover representative of the difference in remuneration and the fact that he was not licensed to drive the trucks at site.
[64] On 18 June 2012, the Applicant telephoned the Employer and enquired as to why his workers’ compensation payment had not been paid into his bank account on pay day. The Employer’s response was to enquire of the Applicant whether he knew what was “going on” 21.
[65] On the same day (18 June 2012), the Applicant’s wife received an email from the site Human Resources and Administration Manager which contained an attached letter to the Applicant dated 13 June 2012.
[66] The emails reads:
“Please find attached correspondence in relation to your employment status.”
[67] The entire correspondence reads as follows:
“Please be advised that you are hereby notified that your employment with Central Norseman Gold Corporation Pty Limited (Employer) has been terminated effective immediately, pursuant to Clause 11.1 of the 2009 Collective Workplace Agreement which states as follows:
11.1 Employees are required to present for work as rostered, ready, willing and able to perform all normal work. If an Employee is absent, or not fit for work except when in receipt of payment of workers’ compensation or on paid leave, that Employee will not be paid for such absence. If an Employee is absent from work for two or more consecutive days without notification to the Employer, that Employee will be deemed to have abandoned employment and the contract of employment.” 22
[68] For completeness, the Applicant received an original of the letter of termination of employment on 22 June 2012.
[69] On 27 June 2012, the Applicant filed an application with the then Fair Work Australia.
RELEVANT STATUTORY FRAMEWORK
[70] In determining whether a person has been unfairly dismissed, s.385 of the FW Act provides:
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[71] The meaning of “dismissed” is set out in subsection 386(1) of the FW Act as follows:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[72] Finally, the Commission must take into account the following in s.387 of the FW Act in determining whether the dismissal was harsh, unjust or unreasonable:
- (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
[73] To “abandon”, according to the Australian Concise Oxford Dictionary, is to “forsake” or to “give up” a possession - in this case, a job. Accordingly, the question is, “Did Mr Duke “give up” his employment he was offered by the Employer on 15 March 2012?”
[74] If Mr Duke abandoned his employment on 18 June 2012, he will also have given up his right to allege that he was dismissed at the initiative of the Employer. Accordingly, it is necessary for the Commission to determine, in the first instance, whether Mr Duke abandoned his employment. If Mr Duke did not abandon his employment, it is still necessary to determine whether he was dismissed at the initiative of the Employer.
[75] Where questions of jurisdiction are being considered, I consider the statement of the Full Bench in Searle v Moly Mines Limited [2008] AIRCFB 1088 at paragraph [38]. The statement reads as follows:
- “Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs, or the reasonableness of their conduct.”
[77] In this case, Mr Duke attempted, through progress medical certificates, rehabilitation provider, Return to Work programme and physically attending his workplace to get back to the job he was employed to do on 15 March 2012.
[78] Despite being fit to return to work as an Airleg Miner from 23 March 2013, the Employer insisted that Mr Duke carry out truck driving duties - duties which he was not licensed to undertake.
[79] On 6 April 2012, Mr Duke was advised by the Employer that his new substantive role was as a truck driver and he would be paid accordingly.
[80] On or about 13 April 2012, Mr Duke was advised by the Employer’s insurer not to return to site and a hiatus existed.
[81] Between 13 April and 12 June 2012, Mr Duke obtained two further progress medical certificates stating that he was fit to return to his pre-injury duties. Notwithstanding his medical status, Mr Duke was advised by WorkCover WA that the Employer’s position was that it had no Airleg mining work and it was “truck driving or nothing” 23.
[82] On 28 May 2012, the Employer ceased paying Mr Duke his weekly compensation payments.
[83] As at 12 June 2012, a situation existed where the Employer has stopped Mr Duke’s weekly compensation payment from 28 May 2012 and insisted it had no Airleg mining work and that the Applicant start his new roster, job and wages as a truck driver - driving trucks for which he had no licence.
[84] It is in these circumstances that the Employer claims Mr Duke has abandoned his employment. The facts outlined above were not contested by the Employer. In the circumstances, I find that it was the Employer who repudiated its contract of employment with Mr Duke by attempting to unilaterally change his occupation from Airleg Miner to Truck Driver. When this unilateral change met with resistance, it would appear that the Employer attempted to force Mr Duke to agree to take up truck driving duties by ceasing his workers’ compensation payments.
[85] When Mr Duke enquired as to why he had not received his workers compensation payments on 18 June 2012, his wife was provided with his letter of termination back dated to 13 June 2012.
[86] I cannot find any facts which would indicate that Mr Duke “gave up” or had “forsaken” his employment. On the contrary, Mr Duke, once fit to return to his pre-disability duties, had agitated for months to return to his old job.
[87] Notwithstanding the above, for completeness, it should be noted that the WC&IM Act provides that, if it is reasonably practicable, an employer is obliged to make available the position held by injured worker for a period of 12 months from the date he or she became entitled to compensation payments. Mr Duke became entitled to payments from 20 September 2011. With respect to what is reasonably practicable, I note that the Employer was advertising for Airleg Miners in June 2012 which is in contrast to its assertion that it had no work for Airleg Miners.
[88] In this application, while the Employer chose to terminate Mr Duke, it did not provide him with the necessary 28 days under the WC&IM Act, but used the fiction that he abandoned his employment instead.
[89] Finally, I note that Mr Duke complained to WorkCover WA that the Employer had unlawfully ceased his workers’ compensation payment. Mr Duke’s complaint was conciliated by WorkCover WA. The Finalising Orders indicate, by consent, that Mr Duke, despite the Employer’s claim that he had abandoned his employment, received workers’ compensation payments from 28 May 2012 to 26 July 2012. If Mr Duke had abandoned his employment on 12 June 2012, the Employer saw fit approximately one (1) month later to make compensation payments to him as an employee.
[90] In conclusion, I am satisfied that Mr Duke did not abandon his employment.
[91] I now turn to the relevant statutory provisions.
CONSIDERATION OF STATUTORY FRAMEWORK
Was there a valid reason for the Applicant’s dismissal? - s.387(a)
[92] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:
- “In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons 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 treated fairly’.”
[94] On 8 June 2012, Mr Duke received notice of listing of the conference in WorkCover WA for 28 June 2012.
[95] On 18 June 2012, the Applicant telephoned the Employer and enquired as to why his workers’ compensation payment had not been paid into his bank account. It would appear that this enquiry “triggered” the Employer sending, on the same day, an email to Mr Duke’s wife which deemed the Applicant to have abandoned his employment as at 13 June 2012.
[96] At the conciliation conference on 28 June 2012 at WorkCover WA, the Employer agreed to reinstate Mr Duke’s weekly workers’ compensation payments from 28 May to 26 July 2012.
[97] With the exception of the Employer’s correspondence to Mr Duke dated 13 June 2012, I have no other evidence before me why the Employer deemed the Applicant had abandoned his employment.
[98] In contrast, I have evidence from Mr Duke that he received a telephone call on 12 June 2012 from a Conciliation Officer at WorkCover WA who informed him that the Employer had no Airleg mining work and offering him “truck driving or nothing”. For reasons of licensing requirements, safety and less remuneration, Mr Duke did not accept the offer and was advised that the issues would be discussed at the conciliation conference on 28 June 2012.
[99] In view of the Employer not offering any evidence to the contrary, I find that it did not have a valid reason to terminate Mr Duke’s employment.
Notification of the reason for termination of employment - s.387(b)
[100] Mr Duke was notified of the reason or the cessation of his employment on 18 June 2012. This reason specified that the Employer deemed Mr Duke of having abandoned his employment. This reason is considered in paragraphs [73] to [90] above.
Opportunity to respond - s.387(c)
[101] The nature of the Employer’s correspondence to Mr Duke did not invite, or give the Applicant, an opportunity to respond to the alleged reason or his employment ceasing.
Support person - s.387(d)
[102] The manner in which Mr Duke’s employment ceased did not provide for or allow a support person to be present or assist in any discussions.
Unsatisfactory performance - s.387(e)
[103] The Commission has no evidence from the Employer which indicates that unsatisfactory performance was a factor in Mr Duke’s cessation of employment.
Size of the enterprise - s.387(f); and
Human resources - s.387(g)
[104] The Employer indicates in its response to the originating application by Mr Duke that it employs 150 employees. With such a size, and the nature of the industry of the Employer, a certain degree of human resources sophistication would be expected; none was evident.
Other matters - s.387(h)
[105] With the exception of those matters outlined above, I have not taken into account any other matters into consideration in reaching this decision.
[106] Having considered the submission of Mr Duke and the tendered evidence, I find that the Applicant did not abandon his employment but was dismissed at the initiative of the Employer. Further, I am satisfied that the dismissal was unfair after considering the criteria in s.387 of the FW Act.
[107] Having found that Mr Duke was unfairly dismissed from his employment, it is necessary to consider remedies for unfair dismissal.
[108] Mr Duke is not seeking reinstatement, and in any event, I am satisfied for the reasons set out above that it would be inappropriate. Consequently, I consider and award of compensation is appropriate.
COMPENSATION
[109] The relevant parts of s.392 of the FW Act are as follows:
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.
[110] Given the non-appearance of the Employer at the hearing into the jurisdictional objection and merits of the application, I will set down for hearing an opportunity for both parties to make submissions and adduce any witness evidence as to compensation. Based on the material before me, I will make a decision as to the appropriate compensation, if any, to be ordered by the Commission.
[111] My Associate will contact the parties as to the date and time of the hearing.
COMMISSIONER
Appearances:
D Duke, Applicant on his own behalf.
No appearance or representation by or on behalf of the Respondent.
Hearing details:
2013:
Perth,
9 May.
1 Exhibit A6
2 Exhibit A2 paragraph 7
3 Exhibit A2 paragraph 12
4 Exhibit A6
5 Exhibit A6
6 Exhibit A6
7 Exhibit A6
8 Exhibit A6
9 Exhibit A5
10 Exhibit A5
11 Exhibit A2 paragraph 56
12 Exhibit A5
13 Exhibit A5
14 Exhibit A5
15 Exhibit A5
16 Exhibit A2 paragraph 72
17 Exhibit A2 paragraph 74
18 Exhibit A2 paragraph 82
19 Exhibit A2 paragraph 98
20 Exhibit A2 paragraph 109
21 Exhibit A1 paragraph 112
22 Exhibit A5
23 Exhibit A2 paragraph 109
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