David Hill v Boeing Defence Australia Ltd
[2023] FWC 1305
•1 JUNE 2023
| [2023] FWC 1305 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Hill
v
Boeing Defence Australia Ltd
(U2022/4056)
| COMMISSIONER P RYAN | SYDNEY, 1 JUNE 2023 |
Application for an unfair dismissal remedy
Introduction and Background
On 2 January 2023, I issued a decision[1] in which I found Mr David Hill (Applicant) had been unfairly dismissed from his employment with Boeing Defence Australia Ltd (Respondent). Mr Hill was employed by the Respondent in the position of Qualified Aircrewman Instructor from 18 August 2014 until his employment was terminated by the Respondent effective from 17 March 2022.
The Respondent terminated the Applicant’s employment because of his repeated failure to comply with its Vaccination Policy.[2]
In Merits Decision, I found that:
· the Respondent’s direction to comply with the Vaccination Policy was lawful and reasonable and was a valid reason for dismissal;[3]
· the Applicant was notified of the reason and given an opportunity to respond to the reason;[4]
· the Respondent did not unreasonably refuse to allow the Applicant to have a support person present to assist in discussions relating to his dismissal;[5] and
· the Respondent was a large employer with dedicated human resource management specialists and expertise and that these matters weighed neutrally in my consideration.[6]
In relation to other relevant matters, I found that the termination of the Applicant’s employment while he was being considered for the role of Performance Excellence Manager was harsh and unreasonable, and concluded that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.[7]
Turning to the issue of remedy, I noted there was insufficient material before me[8] and I proceeded to program the matter further on the question of remedy.[9]
Following a mention and directions hearing on 27 January 2023, directions were issued for the parties to file any further witness statements, documentary material and submissions on the question of remedy.
The following materials were filed by the parties:
· The Applicant filed written submissions in chief and a range of supporting documentary material;
· The Respondent filed a statement of Kate Morrison and written submissions;
· The Applicant filed written submissions in reply and further supporting documentary material.
I directed the Respondent to refile the statement of Ms Morrison in the form of a statutory declaration or sworn affidavit. The Respondent filed a statutory declaration of Ms Morrison declared on 23 February 2023 (Morrison Declaration).
The parties requested that the issue of remedy be determined on the papers. Having regard to the request of the parties and s.397 of the FW Act, I have determined this matter on the papers.
This decision is to be read in conjunction with the Merits Decision.
For the reasons that follow, I decline to order any remedy.
Evidence of Kate Morrison
Ms Morrison is employed by the Respondent as Project Management and Operations Manager and was responsible for the recruitment of the Performance Excellence Manager position.[10]
Ms Morrison stated that the role of Performance Excellence Manager reported to her and was part of the Respondent’s Air Combat and Electronic Attack Program. Specifically, the role was responsible for identifying and realising measurable efficiencies in the Air Combat and Electronic Attack Program. Stakeholder management, project management and analysis skills and experience were identified as essential attributes for the role.[11]
Ms Morrison took the following steps in the recruitment of the role of Performance Excellence Manager:
15 February 2022: The Respondent advertised for the position internally and externally;[12]
1 March 2022: Applications closed;[13]
3 March 2022: Ms Morrison received the Applicant’s resume. Ms Morrison does not recall receiving any cover letter or other supporting material;[14]
February/March 2022: Ms Morrison and Mr Vincent Rogers independently reviewed each of the 15 applications received;[15]
16 March 2022: Ms Morrison and Mr Rogers met to discuss the applications received and create a shortlist of four applicants to proceed to the interview stage. Following their meeting, Ms Morrison sent an email to Mr Scott Stewart (Talent Acquisition Specialist) identifying the four applicants selected for the interview stage and seeking Mr Stewart’s assistance with the interview stage. The Applicant was not included on the list of selected candidates;[16]
Late March 2022: Interviews conducted;[17]
May 2022:Ms Eleesa Lewis was offered the role.[18]
Ms Morrison stated that after reviewing the Applicant’s resume she formed the view that he was not suitable for the role because he lacked experience in business improvement and project management and most of his experience related to technical implementation of discrete and specific aspects of projects and working alongside project managers.[19]
Ms Morrison stated that Ms Lewis was an existing employee working on the Air Combat and Electronic Attack Program, had project management experience, and had been employed in the role of Change Project Manager since March 2020. Furthermore, Ms Morrison stated that Ms Lewis had worked alongside the previous incumbent and knew both the position and the Air Combat and Electronic Attack Program intimately.[20]
Ms Lewis’ resume identifies that she has held roles as Change Project Manager or Project Controller since April 2012.[21]
Ms Morrison stated that each of the other persons who were selected for the interview stage had Six Sigma qualifications and extensive experience in business improvement, project management or leadership.[22]
Ms Morrison stated that she was not aware of any disciplinary proceedings with respect to the Applicant or his vaccination status when his application for the role of Performance Excellence Manager was reviewed.[23]
Applicant’s Submissions
The Applicant submitted that reinstatement would not be suitable as he has relocated back to Queensland and that an order for the payment of compensation should be made in lieu of reinstatement.
The Applicant’s submissions addressed the criteria set out in s.392(2) of the FW Act as follows:
· Section 392(2)(a) – the Applicant submitted that the Respondent is part of a global company, and a compensation order would have very little impact on the Respondent’s enterprise;
· Section 392(2)(b) – the Applicant’s length of service was approximately 7 years and 7 months;
· Section 392(2)(c) – the Applicant submitted that he intended to continue working for the Respondent for another 6-10 years and would have received approximately $1,012,680.00 over the next 6 years if he had not been dismissed;
· Section 392(2)(d) – the Applicant submitted that he had made significant efforts to mitigate his loss and had obtained temporary employment with CHC Helicopter (Australia) Pty Ltd, although the rate of remuneration was less than he earned with the Respondent;
· Section 392(2)(e) – contracts of employment and a payslip filed by the Applicant identify the amount of remuneration earned by the Applicant in the period of 12 months following his dismissal was $58,385.55 gross; and
· Section 392(2)(f) – the Applicant submitted that he is not likely to earn any income in the period between the making of the order for compensation and the payment of compensation.
In relation to s.392(3) of the FW Act, the Applicant submitted that his conduct and work ethic was at a high level, and he has received workplace recognition awards.
Respondent’s Submissions
The Respondent submitted that reinstatement would not be appropriate as the Applicant has been steadfast throughout the proceedings that he does not seek reinstatement, and the Respondent does not want the Applicant to be reinstated.
The Respondent submitted that the only matter for consideration is whether an order for compensation is made.
The Respondent submitted that any order for compensation is to be considered in the context of the process adopted by the Respondent in filling the role of Performance Excellence Manager.
The Respondent submitted that the Applicant was one of 15 applicants for the role and that his application must be considered against the other applicants that were shortlisted for the role.
The Respondent submitted that when considered against the inherent requirements of the position and the other applicants, the Applicant lacked the relevant experience, or had limited experience, in business improvement, leadership and project management.
The Respondent submitted that the purpose of compensation is to compensate for loss rather than be punitive in nature and that it would not be appropriate to make an order for compensation as the Applicant has not suffered any loss. In this respect, the Respondent submitted the decision not to ‘short list’ the Applicant was made prior to his dismissal and the Applicant received five weeks’ pay in lieu of notice.
In relation to the matters set out in s.392(2) of the FW Act, the Respondent submitted:
· Section 392(2)(a) – a compensation order would have no effect on the viability of the Respondent’s enterprise;
· Section 392(2)(b) – there is no dispute as to the Applicant’s length of service;
· Section 392(2)(c) – the Applicant would not have received any additional remuneration as the decision not to short list the Applicant for the role of Performance Excellence Manager was made prior to his dismissal;
· Section 392(2)(d)-(f) – there is no dispute as to the Applicant’s efforts to mitigate his loss, the income he has received, or his current income;
· Section 392(2)(g) – it is relevant to take into account that the Applicant was paid five weeks’ pay in lieu of notice and that this payment adequately compensates the Applicant for the period following his dismissal.
In relation to s.392(3) of the FW Act, the Respondent submitted that even if the Commission considered an amount of compensation was appropriate, that amount must be reduced to nil on the basis that the Applicant’s misconduct contributed to the Respondent’s decision to terminate his employment.
The Respondent submitted the fact that the Applicant was not notified that his application for the role of Performance Excellence Manager was unsuccessful does not entitle him to compensation.
Applicant’s Submissions in Reply
In reply, the Applicant submitted that he was not notified that he was unsuccessful for role of Performance Excellence Manager and had he been notified, he intended to apply for other Group 2 roles.
The Applicant submitted that it was questionable as to whether Mr Stewart provided Ms Morrison with his covering email.[24] The Applicant submitted that his covering email addressed the criteria set out in the advertisement for the role and that had Ms Morrison received that information there may have been a different outcome.
The Applicant disputed that he was not dismissed for misconduct or serious misconduct and submitted that the payment in lieu notice is required under the FW Act.
The Applicant submitted that his dismissal has had a significant personal impact on him and his family through loss of remuneration and the incurrence of costs associated with relocating back to Queensland.
The Applicant submitted that he intended to remain employed with the Respondent for some time and that there were alternatives to dismissal, which included affording him a ‘fair go all round’ by granting him a special exemption or ‘grandfather clause’ in relation to the Vaccination Policy,[25] or providing a further opportunity to secure a Group 2 role which he was confident would have been achieved in a short time.
Relevant Legislative Provisions
Section 390 of the FW Act provides:
“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.”
Section 391 of the FW Act provides as follows:
“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:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(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.”
Section 392 of the FW Act provides as follows:
“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.”
Consideration
Being satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act, I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Under s.391 of the FW Act, the Commission may order reinstatement to the position in which the person was employed immediately before the dismissal or another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
The Applicant did not seek the remedy of reinstatement.[26] In such circumstances, “the Applicant’s disposition is a sure guide to the Commission as to whether it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”[27]
In all the circumstances, I find it would be inappropriate to reinstate the Applicant. Therefore, I need to consider whether compensation is appropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”.[28]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[29]
It should also be noted that a compensation remedy is designed to compensate a person found to have been unfairly dismissed from employment in lieu of reinstatement for losses reasonably attributable to the unfair dismissal. A compensation order is not designed to be a form of punitive measure.[30]
As set out above, in the Merits Decision I found the Respondent’s decision to terminate the Applicant’s employment while he was being considered for the role of Performance Excellence Manager was harsh and unreasonable, and concluded that the Applicant was unfairly dismissed.[31]
It follows that the point in time at which the Respondent determined the Applicant’s application for the role of Performance Excellence Manager will be determinative as to the “anticipated period of employment”, that is, the estimate of how long the Applicant would have remained in employment in assessing the quantum of any compensation.[32]
In the substantive proceedings there was no evidence as to when the Respondent determined the Applicant’s application. While on the materials before the Commission at that stage of the proceedings it appeared that no decision had been made as of 17 March 2023[33], and the Respondent did not contend otherwise, the Respondent has now adduced evidence, supported by email correspondence, confirming the decision was made on 16 March 2023, the day prior to the Applicant’s dismissal.
Having regard to this evidence, there is no basis for me to anticipate a period of employment beyond 17 March 2023.
The Applicant submitted that Ms Morrison did not receive the covering email to his application and had she received it, there may have been a different outcome. I do not accept that submission. The principal reason the Respondent considered the Applicant was not suitable for the role was his lack of, or limited, experience in business improvement, leadership and project management. While it was unfortunate that the covering email did not make its way to Ms Morrison, the email does not detail any experience that went beyond what was set out in the Applicant’s resume which was received and considered by Ms Morrison.[34]
The Applicant submitted that he was not notified that he was unsuccessful for role of Performance Excellence Manager and had he been notified, his employment would have continued as he intended to apply for other Group 2 roles. I do not accept that submission for the following reasons. First, when provided with a list of available Group 2 roles, the Applicant only expressed interest in the role of Performance Excellence Manager.[35] Second, while the Respondent assisted the Applicant in providing details of available roles and forwarding his resume to Ms Morrison, the Respondent was not under any obligation to redeploy the Applicant,[36] or to maintain his employment for an indefinite period so that he could apply for other unidentified Group 2 roles.
Taking into consideration that the Respondent made the decision that the Applicant was not suitable for the role of Performance Excellence Manager prior to his dismissal, and that the Applicant received a payment of five weeks’ pay in lieu of notice, I do not consider that an order for the payment of compensation is appropriate.
I therefore decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and had been unfairly dismissed.
Notwithstanding this conclusion, I consider it appropriate to make the following observations.
First, there has been no explanation by the Respondent as to why the evidence regarding the Respondent’s decision not to shortlist the Applicant was not adduced as part of the substantive proceedings, particularly in circumstances where the termination of the Applicant’s employment while he was being considered for the position of Performance Excellence Manager was an issue relevant to the determination of the matter. That the Respondent did not do so has unnecessarily prolonged these proceedings and is regrettable.
Second, despite the Respondent facilitating the Applicant’s application for the role of Performance Excellence Manager, there was a complete failure by the Respondent to advise him of the outcome. While I accept Ms Morrison was not aware of the broader circumstances and the disciplinary action that was on foot, others were, and having facilitated the Applicant’s application for that role, it would have been a matter of common courtesy for the Respondent to advise the Applicant of the outcome.
Conclusion
For the reasons set out above, I decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and had been unfairly dismissed.
The proceedings are concluded.
COMMISSIONER
Hearing details:
Determined on the papers.
Final written submissions:
Applicant: 3 and 17 February.
Respondent: 10 February (Morrison Declaration 23 February).
[1] David Hill v Boeing Defence Australia Ltd [2023] FWC 2 (Merits Decision).
[2] Merits Decision at [50].
[3] Ibid at [99], [103].
[4] Ibid at [104]-[105].
[5] Ibid at [106].
[6] Ibid at [108]-[109].
[7] Ibid at [121], [123]-[125].
[8] Ibid at [126].
[9] See s.390 of the Fair Work Act 2009 (FW Act).
[10] Morrison Declaration at [2]-[8].
[11] Ibid.
[12] Ibid at [7].
[13] Ibid at [13].
[14] Ibid at [14], Annexure KM2.
[15] Ibid at [15]-[16].
[16] Ibid at [18]-[23], Annexure KM4.
[17] Ibid at [26].
[18] Ibid at [27].
[19] Ibid at [17].
[20] Ibid at [25(a)].
[21] Ibid, Annexure KM5.
[22] Ibid at [17], Annexures KM6, KM7 and KM8.
[23] Ibid at [23].
[24] See Merits Decision at [52].
[25] See Merits Decision at [57]-[58].
[26] Transcript at PN471-PN474; Applicant’s Submissions on Remedy.
[27] Taylor v C-Tech Laser Pty Ltd[2013] FWC 8732 at [58].
[28] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9].
[29] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550 at [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171 at [5]-[7].
[30] Kable v Bozelle, Michael Keith[2015] FWCFB 3512 at [17].
[31] Merits Decision at [121], [123]-[125].
[32] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [34].
[33] Merits Decision at [119].
[34] Applicant’s Reply Submissions on Remedy at [6]-[15], Att 1; Morrison Declaration, Annexure KM2.
[35] Merits Decision at [47].
[36] Merits Decision at [121].
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