David Keogh v French Par-Bake

[2017] FWC 2865

[2017] FWC 2865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Keogh
v
French Par-Bake
(U2016/11839)

COMMISSIONER CRIBB MELBOURNE, 26 MAY 2017

Application for relief from unfair dismissal.

[1] Mr David Keogh (the Applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) in relation to his dismissal by French Par-Bake (the Respondent, the company).

[2] The company made a jurisdictional objection on 29 September 2016 on the grounds that there was no termination at the initiative of the employer.

[3] The jurisdictional objection was heard together with the merits of the substantive application on 20 January 2017. Further material was subsequently received from Mr Keogh, at the request of the Commission, regarding monies earned following his dismissal. It was agreed that the Commission would deal with the Respondent’s jurisdictional objection in the first instance. Depending on the outcome of that, the Commission would then deal with whether Mr Keogh’s dismissal was unfair, if required.

[4] Mr Keogh gave evidence as did Mr Mark Pato, Director and shareholder of the company. Mr Simon Pato, Warehouse Manager with the company swore that his written statement was true and correct but was not required for cross examination. Mr Keogh was represented by Mr M White, of Counsel whilst the Respondent was represented by Mr G Christodoulou, solicitor.

JURISDICTIONAL OBJECTION

Legislative framework

[5] One of the prerequisites, under section 385 of the Act, for a person to have been unfairly dismissed is that the person has been dismissed (section 38(a)). Section 386(1) sets out the meaning of dismissed 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.”

[6] Both parties referred to the principles set out in the decision in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 1 (Mohazab) in relation to what constituted a termination at the initiative of the employer. A termination is at the employer’s initiative when:

• the employer’s action ‘directly and consequentially’ results in the termination of employment, and



• had the employer not taken this action, the employee would have remained employed. 2

[7] The Commission respectfully adopts the approach taken in Mohazab.

Submissions

Respondent

[8] The company submitted that Mr Keogh’s employment was not terminated at the initiative of the employer nor was Mr Keogh forced to resign because of conduct or a course of conduct engaged in by the employer. 3 The company argued that, on the basis of the principles set out in Mohazab, there must be action by the employer that either intends to bring the relationship to an end or has that probable result. It was stated that it was not sufficient to demonstrate that the employee did not voluntarily leave their employment to establish that there had been a termination at the initiative of the employer.4

[9] It was argued by the company that the Respondent’s Director had consulted with Mr Keogh regarding a possible change in his role during the meeting on 9 August 2016. The Respondent stated that Mr Keogh had every opportunity to raise any consideration he wanted to, both during that meeting and between then and the meeting on 15 August 2016. It was explained that, at the meeting, Mr Keogh was provided with a document that gave some details of the proposed changes. The Respondent indicated that the reason that Mr Keogh was moved to the storeperson’s job was that he had been trained to do that job for four years and had taken over that position when Mr Simon Pato was on leave. Hiring a new employee meant that that person would need to be trained. 5 The company stated that this was prior to a definite decision being made on 12 August 2016.6

[10] With respect to the consultation provision, the Respondent submitted that the situation was one of a major workplace change as the definition went far beyond termination and/or redundancy. This was because the clause talked about the need for retraining or transferring employees. It was argued that the company was able to request that Mr Keogh move from one position to another if it had complied with the consultation clause and provided that the requirement was reasonable. The company stated that the request to Mr Keogh was reasonable as there were no medical or safety issues or issues with Mr Keogh’s skills in relation to the “new” position. 7

[11] With respect to the reasons Mr Keogh did not want to work in the new position, it was recounted that he had partially raised quasi-medical issues and also that he had no desire to work as a storeperson in the freezer. The Respondent stated that, if the Commission found that an employee was able to refuse a new role because they did not desire it, there would be a considerable number of applicants saying that they had been constructively dismissed because their employer had looked to put them in a reasonable position that they had no desire to work in. 8

[12] The Respondent stated that, with respect to consultation, there was no requirement for there to be agreement between the parties. This was said to mean that there was no requirement that the employee has to agree. 9

[13] Further, the company contended that the change in Mr Keogh’s role (the new position) was not action that either intended to bring the relationship to an end or have that probable result. This was on the basis that there was no reduction in Mr Keogh’s remuneration and the duties that form part of the new position were being performed by Mr Keogh on an ad hoc basis and were within his skill set. It was also stated that the new position carried slightly higher levels of responsibility and seniority and that the requirement to fill the new position was reasonable. 10

[14] The Respondent argued that Mr Keogh was learning the job that he was later sought to be transferred to. It was stated that the other drivers were not capable of doing the warehouse storeperson job. Mr Keogh was being trained so that perhaps he could take over that role one day. 11 The company contended that Mr Keogh had been asked to move from one classification to a different classification under the same award.12 It was stated that Mr Keogh was employed originally in 2008 and his position had evolved to being full-time and then having partial duties working in a cool room.13

[15] It was acknowledged that Mr Keogh’s job was changed but the company argued that the positions were under the same award which meant that they were more related. 14 The Respondent argued that it was not as if the Applicant was being asked to go from being a plumber to a butcher. Rather, it was said to be to move from one classification in an award to another.15 The company stated that the transfer of the position involved no safety or medical issues and that Mr Keogh was being transferred to a position he had previously worked in.16

[16] The Respondent contended that, if the employer was not unilaterally able to change someone’s classification, even after complying with the consultation requirements, then no employee could be asked to do a different job. Further, the company stated that, if an employer was unable to change an employee’s position within reason, what were the consultation provisions there for? 17

[17] In terms of whether Mr Keogh agreed to the new role, it was recounted that, on 15 August 2016, Mr Keogh came to the site and went to commence his previous role at the usual time for that role. Mr Keogh was then told that he was not to commence his previous role because his role had changed. It was stated that Mr Keogh had then taken his things out of the truck and left the premises. At that point in time, it was argued by the company that Mr Keogh would have known that the position available for him was that of a storeperson and not as a driver. 18

[18] The Respondent referred to Mr Keogh’s letter, dated 29 August 2016, in relation to being unfit for work for the period from 29 August 2016 to 2 September 2016, with a return to work on Monday, 5 September 2016. Reference was also made to a second letter from Mr Keogh advising that he would not be at work on Monday and giving the company notice to return him to his normal duties. The company argued that Mr Keogh had, in a sense, accepted the transfer and then a week later, had reneged on it. 19

[19] The Commission was referred to the decision in Campbell v Mayjay Hotels Pty Limited T/A Maroubra Junction Hotel 20 in support of the Respondent’s submissions.21 With respect to the decision in Dixon v Orsino Images Pty Ltd T/A Orsino Images, Wedding Movies, Godwin Pictures22(Dixon) which was referred to on behalf of the Applicant, it was contended that the decision concerned consultation in relation to redundancy. It was stated that, in this case, there was no genuine redundancy and so the Dixon case was not relevant.23

[20] Finally, in relation to the consultation requirements, it was stated that the Respondent was a small business and that “other work” was other work. The company contended that the clause did not say anything about a job or duties which were different. It was argued that it was broader than just termination by redundancy. What occurred in this case was said to be well covered by the consultation clause. 24

[21] In relation to the argument about forced resignation, the Respondent submitted that the onus was on the employee to prove that they did not resign voluntarily and that the employer had forced their resignation. It was stated that, throughout Mr Keogh’s employment, Mr Keogh was carrying out the duties of the new position from time to time when other employees needed to be relieved. As well, the company contended that the company’s decision to move Mr Keogh into the new position did not result in Mr Keogh being forced to resign because of conduct or a course of conduct engaged in by his employer. 25

[22] The company also argued that Mr Keogh had not been given an ultimatum but a direction. 26 Further, the Respondent referred to the letter from Mr Keogh which said that he would be returning to work.27

[23] With respect to whether Mr Keogh had been demoted into the new position, it was submitted by the company that the new position did not result in a reduction in Mr Keogh’s remuneration nor his duties. It was stated, therefore, that section 386(2)(c) was not applicable. 28

[24] In relation to the witness evidence, it was stated by the Respondent that there were not many occasions where the evidence from the witnesses conflicted. It was thought that there would not be many occasions where the Commission would have to prefer one person’s evidence over the others. 29

Applicant

[25] It was submitted on behalf of Mr Keogh that Mr Keogh’s position as a driver was unaffected by the structural rearrangement/restructuring. The Applicant argued that, therefore, in a sense, there was nothing for his employer to consult with him about. This was because it was undisputed that Mr Keogh was replaced on the day that he was told he was to be a storeperson. Therefore, it was argued that Mr Keogh had the rug pulled out from underneath his feet as he was replaced and then told to go to the store. 30

[26] The Applicant contended that this was a classic case of a forced resignation as Mr Keogh was given an ultimatum. The ultimatum was said to have been that Mr Keogh was to work as a storeperson with a different job description or else he no longer had a job. This was said to have been the case on the basis that, after Mr Keogh had made it clear that he was never going to accept the job of storeperson, Mr Keogh was sent a letter stating that the company considered that he had abandoned his employment. It was argued that, at no point after 9 August 2016, when Mr Keogh was told he was going to be a storeperson, was Mr Keogh given an opportunity to take up his job as the driver again. This was said to be notwithstanding the fact that Mr Keogh’s driving job continued to exist. 31

[27] It was submitted that what this case stood for was that an employer could not unilaterally change an employee’s job description and duties without prior consultation and replace the employee without there being a genuine redundancy. The Applicant argued that, as there was no redundancy, the arguments about being internally relocated and having done the other role previously were irrelevant. 32

[28] In relation to “desires”, it was the Applicant’s contention that it was the unilateral desire of the employer to move Mr Keogh from being a delivery driver to being a storeperson. This “desire” or will was said to have been exercised improperly because Mr Keogh’s position was unaffected by the organisational changes. 33

[29] The Commission was referred to the decision of Dixon in support of the Applicant’s submissions. 34 It was contended that, in this case, there was no genuine redundancy as Mr Keogh was replaced and that it was instead, an exercise of the employer’s will to take a delivery driver and make him a storeperson.35

[30] It was submitted that Mr Keogh was either constructively dismissed (forced to resign) (section 386(1)(b)) or was dismissed as a delivery driver and the new contract which was offered to him at the time was for a completely different job (section 386(1)(a)). 36 The storeperson ultimatum was described as repudiatory conduct by the Respondent of Mr Keogh’s employment contract and, in his resignation, Mr Keogh accepted the repudiation of the driver employment agreement.37

[31] The Applicant submitted that, in addition, the lack of consultation, the rapidity of the change and the company’s failure to plan for the foreseeable rejection of the new contract, were all objective factors which weighed in favour of the Applicant in assessing whether there was a constructive dismissal. 38

[32] Further, it was argued by Mr Keogh that, if it was accepted that the consultation clause operated as the Respondent contended, there had been no consultation. The Applicant described the situation as having been one of a unilateral decision, then on the Tuesday, the Applicant was told what was going to happen and on the Friday, was told to rethink his “No” answer and on the Monday, someone else was doing the Applicant’s job. It was stated that there was no consultation with the decision being unilateral with no opportunity given to Mr Keogh to discuss mitigation. The Applicant argued that there was no evidence that the employer had taken reasonable steps to take Mr Keogh’s objection into account. This was therefore said to enliven the jurisdiction because it was either a straight up dismissal of a delivery driver or a forced resignation. 39

[33] With respect to the reference in the consultation clause to “other work or locations”, it was indicated by the Applicant that, if there had been a process of communication about the restructure to the employees and there had been a genuine effort to engage with Mr Keogh in relation to his view, it was likely that Mr Keogh’s response would have been “No”. 40 It was stated that there was a complete absence of reasonable endeavours by the employer to take account of Mr Keogh’s feedback during “what was the briefest consultation period in the history of consultation periods”.41

[34] The Respondent was said to have agreed that there was a line - as in one couldn’t take someone from being a plumber and then just put them in a butcher. The Applicant contended that, taking a delivery driver and making them work a storeperson was the same as the plumber - butcher analogy. 42 This was because it was one job being supplanted with another. It was argued that there was a fundamental change in Mr Keogh’s job description, work and duties. Reference was made to Mr Keogh being a career driver and wanting to continue to be a driver and never having expressed a desire to be a storeperson.43

[35] In relation to “other work”, the Applicant argued that moving from being a delivery driver to a storeperson was not “other work” but a complete substitution of work. It was stated that, at no point after 9 August 2016, with Mr Keogh not ready, willing and able to perform his job as a driver. 44 “Other work” was said to mean, for example, doing nightshift instead of dayshift; driving a different size truck or working as a courier in a small van.45

[36] Finally, it was submitted by the Applicant that the proposed new position was a demotion because it involved a significant reduction in his duties. The Applicant contended that he would have been considerably worse off in the new position because he would be required to work longer hours with a significant change in duties but with no increase in his pay. In addition, the Applicant stated that he would have to work for extended periods of time in the freezer which placed him at an increased risk of illness or injury due to his susceptibility to exposure to cold conditions. 46

[37] In relation to the evidence given by the “two main protagonists in this case”, it was submitted that Mr Keogh’s evidence should be preferred. This was on the basis that there were fundamental credibility issues in relation to the evidence given by Mr Mark Pato. It was stated that it was plainly obvious that there were some elements of Mr Pato’s written evidence that had morphed or evolved into something different when Mr Pato was in the witness box. In addition, it was stated that each of these metamorphoses, occurred in such a way as to render the factual circumstances more favourable to the case narrative. 47

Witness evidence

Mr Keogh

[38] Mr Keogh gave evidence that:

• He had effectively resigned in lodging a constructive dismissal application on 6 September 2016. 48



• Prior to working with the Respondent, he had worked as a truck driver which required a medium rigid license which he had obtained in about 2006. 49 He had obtained that license so he could become a truck driver, possibly line haul interstate, to work his way up that field.50



• When the proposal that he work as a storeperson was put to him on 9 August 2016, his response was that he didn’t want to do it. Mr Keogh recalled that he had always maintained (from the day he had started) that he would not do the storeperson role. Mr Keogh stated that he had never changed his mind or said that he would give it a go. 51 Despite him being adamant about not accepting the proposed change, Mr Mark Pato asked him to think about it for a few days.52



• On 11 August 2016, he notified Mr Mark Pato of his decision to turn down the offer. 53



• On 12 August 2016, he was called into the office with Messrs Pato and given two documents one of which was the job description for the new position. 54 Mr Keogh recalled that the told Mr Mark Pato again that he did not want to change his position.55



• Prior to 9 August 2016, he had not received any documentation from the company that they were considering making him a permanent storeperson. 56



• When he had temporarily filled in for Mr Simon Pato (on compassionate grounds), he was not told that this could potentially result in being full-time as a storeperson. Mr Keogh said that he did not realise that the company was training him ahead of making him a permanent storeperson. Mr Keogh indicated that he had never done the role in full. 57



• Prior to agreeing to help Mr Pato out so he could go on leave, Mr Simon Pato had asked him on many occasions, if he would do Mr Simon Pato’s job. Mr Keogh stated that he had always responded No - that it was too cold.



• In late 2012, after a further approach from Mr Simon Pato, he was called into a meeting with both Messrs Pato and was told that they wanted him to do some of the duties of a storeperson whilst continuing as a driver. This involved coming to work earlier to open up, join Mr Mark Pato in a conference call and sort the invoices out for the drivers. After having done all his deliveries, he was to work in the freezer and put the pallets straight into the racks (rather than breaking them down). 58

• In early 2014, Mr Simon Pato had indicated that he was going to take some leave. Mr Mark Pato asked him if he could learn some of the invoicing. Mr Keogh recalled being uncomfortable about doing the computer as he was a driver. However, he agreed to it and agreed to fill in for Mr Simon Pato but only for 2 weeks. Mr Keogh recalled that he gave the same reason again for this - he did not want to work as a storeperson as it meant working in the freezer which was too cold for him. Mr Mark Pato accepted it on those terms. 59



• The position he had applied for with the company was as a driver. 60



• Between 9 August 2016 and 6 September 2016, he was ready and willing to return to work as a driver and would have gone back as a driver if he had been invited to. 61



• He confirmed that he had been replaced as a driver and that he had met his replacement on the morning of 15 August 2016. 62



• He had gone to see his doctor on 10 July 2015 for pain in his hands secondary to exposure to cold environments in the workplace. 63



• He had voiced his opinion before about his issues with coldness in his hands. 64 When the company changed the type of gloves it was providing, he had found them to be ineffective and too cold. Mr Keogh recalled that he had advised Mr Mark Pato of this and Mr Pato had continued to purchase the previous gloves for him. He was the only employee wearing the previous gloves.65



• Whenever he worked in the freezer he felt the cold to the point that the pain was unbearable, particularly in his hands. He reported the pain to his doctor on 10 July 2015. 66



• On 22 November 2016, he had obtained from his doctor, confirmation that the doctor had seen him on 10 July 2015. Mr Keogh explained that he had done this because he thought it was necessary for his case. 67



• He confirmed that he was absent from work for three weeks from 15 August 2016 to 6 September 2016. Mr Keogh agreed that he had not obtained the confirmation during that time but said that he did not know why but that he was highly stressed. 68



• Despite attending the same medical clinic a number of times during that period, he had not obtained the confirmation to give to the company to explain that he could not work in the cold. Mr Keogh said that he had not realised that he would need such a document. 69



• Mr Pato already knew that the work environment was too cold for him and so did not understand why that document would have any effect at that point in time. 70



• The document was proof that he had seen a doctor previously about the cold conditions. 71 He had obtained it after he had seen the Respondent’s evidence.72



• He denied that he had worked in the cool room for about four weeks per year when Mr Simon Pato was on leave. 73



• He had asked the other two drivers if they had been offered the storeperson role to see if the job had been offered to other employees (which it had). Mr Keogh explained that this was because he wanted to know that it wasn’t just put on him to force him into that position/sideline him. 74



• He said that the other two drivers had not had their trucks taken off them for refusing to do the storeperson’s role. Mr Keogh said that he was the only one who had suffered. It was confirmed that there were three drivers including himself and all three had refused to do the storeperson’s job. 75



• His decision would not have changed if the other drivers had not been asked. 76



• He was not aware that any of the other drivers had undergone any training as storeperson. Mr Keogh confirmed that he had had training to some degree. 77



• When he was given the letter on 12 August 2016, he told Mr Mark Pato again that he did not want to change his position. Mr Keogh recalled Mr Pato saying that he had hired another driver to do his driving job that there was no longer a driving position for him. 78



• He felt that he had no control and no say and he went home very stressed and anxious about his future. This was because, although he was still employed, Mr Pato had told him that he had hired another driver to start on the following Monday so he had nothing but the storeperson’s job. Therefore, he no longer had a job as a driver. Mr Keogh agreed that he had not lost his job. 79



• He confirmed that he had said to Mr Mark Pato that he needed to give him four weeks’ notice if he wanted to change his position. 80



• He agreed that, when he left work that morning, it was clear that he was no longer employed as a driver but as a storeperson. 81



• He had attended work at his normal starting time of 5:30am, on 15 August 2016, hoping to commence work as a driver. Mr Keogh recalled that he met Mr Simon Pato in the office who confirmed that another driver had been hired to do his role and that he was to start as a storeperson that day. Mr Keogh had responded that, if that was the case, he needed to get his stuff out of the truck. Mr Simon Pato had then said that Mr Mark Pato has asked that he hand back his keys. 82



• He confirmed that he had sent a letter to Mr Mark Pato, on 21 August 2016, and explained that he was hoping to return to his driver position. 83 Mr Keogh also confirmed that it was the intention of his employer that his position would be that of storeperson.84



• He stated that he had no intention to be a storeperson or to do that duty. 85



• On 4 September 2016, he had written another letter which stated that he was giving notice to the company to return him to his normal duties as a driver on 6 September 2016. Mr Keogh explained that he did not know for sure if it wasn’t available and so he put it on his employer to return him to his normal duties. 86



• He confirmed that, on 15 August 2016, he was prevented from entering the truck to start his shift. 87



• Between 29 August 2016 and 4 September 2016, he had received legal advice about the proper or formal way to get back to his original position. 88



• He disagreed that his letters of 4 and 5 September 2016 were threatening. Mr Keogh said that they were just stating the facts. 89



• It took him three weeks from 15 August 2016 to tell the company that he was resigning because he was extremely stressed as his financial security had been taken from him. This was due to having been replaced as a driver. 90



• He agreed that the company had made another job available but said that he did not want to do it. 91 Mr Keogh stated that they were two different jobs and that he could not just move to a completely different position.92



• He confirmed that the job description for the new job included warehouse and delivery duties and he agreed that the job had delivery duties built into it to a degree. 93 Mr Keogh said that “delivery duties” were fill-in type delivery duties. He stated that, when he was a driver, his primary responsibility was being a delivery driver.94 Mr Keogh agreed that, with the new position, he would only ever drive if one of the drivers was unavailable. This was a complete reversal of the situation he was in prior to 9 August 2016.95



• He agreed that, when he was a delivery driver, he did have to do warehouse related duties. 96



• He agreed that, when he was filling in a storeperson, he received and unloaded all stock and put away stock in the freezer and the racks but did not do these duties when he was a driver. 97



• Also, only when he was filling in as a warehouse person, he had done a little bit of daily stock rotation but not when he was a driver. Mr Keogh stated that, as a warehouse storeperson, he had ensured that stock had good dates but only on receiving deliveries. In addition, as a driver, he had put the stock in his truck and had picked all orders but did not label orders as required (as a warehouse storeperson he did). 98



• As a warehouse storeperson, he did not do weekly stock takes or maintain and clean the forklift but he had kept the freezer and surrounding areas clean. Mr Keogh said that he had a forklift license. 99



• As a driver, he had maintained truck cabins and windows, filled in for other drivers and had picked up/dropped off trucks for service or repairs. 100



• It was Mr Keogh’s view that the new job was very different from what he had been doing. 101



• Even if the company had offered him a pay increase, he would not have commenced in the new role. Mr Keogh stated that the new position entailed longer hours and working harder. Mr Keogh stated that he was offered the new position on less pay than he had been paid when he had last filled in. 102



• It was not his intention to resign. 103 However, as he had refused to accept the change in his role, and the company had made it clear that there was no job for him if he did not accept the new role, he had no other option but to resign, which he did, effective 6 September 2016.104

Mr Mark Pato

[39] It was Mr Pato’s evidence that:

• The restructuring was implemented to allow him to focus on growing the business by training other staff to do his role - something he began to consider in early 2016. Mr Pato explained that Mr Simon Pato was trained so that he could be promoted to Warehouse Manager and also to take over his role. 105 Mr Pato had also considered employing an additional salesperson.106



• Mr Pato clarified the difference between his oral evidence and witness statement by saying that Mr Simon Pato was promoted to Warehouse Manager but also to primarily handle the operational requirements of the business. Mr Pato made it clear that he was not one for titles and did not believe in them. 107



• Mr Keogh had been trained sufficiently to take over Mr Simon Pato’s role and Mr Keogh had also performed that role enough. 108 Mr Pato confirmed that he was changing Mr Keogh from a driver to a warehouse storeman. Mr Pato then described the change from that of driver to warehouse storeman /driver and said that the latter title was reflected in the new job description.109 Mr Pato also stated that Mr Keogh was a driver who also filled in as a warehouse storeman.110



• On 9 August 2016, he and Mr Simon Pato and met with Mr Keogh and explained what they wanted to do with the business and the reasons Mr Keogh was being offered the position. Mr Keogh was advised that he was the only person other than Mr Simon Pato who was qualified to do the job. This was because he was the only person who had been trained. 111 It was stated that Mr Keogh had been given an opportunity to raise any other issues during the meeting.112



• It was recalled that Mr Keogh had been offered a full-time role in 2012 on the basis that he would do the storeperson’s role as required. It was stated that Mr Keogh had agreed. Mr Pato said that that was the only reason he had agreed to give Mr Keogh a full-time position. This was because all of his drivers were casual. Mr Keogh was the only full-time driver. 113



• Prior to Mr Simon Pato going on holidays, Mr Keogh had been trained in that role. Mr Keogh was required to do the storeperson’s job when Mr Simon Pato went on leave. Mr Keogh was trained in the computer and so could do the invoicing and all of the paperwork in relation to the store work, together with the store work. 114 It was recalled that the role was not offered to anybody else because the other staff were not capable of doing it.115



• It was recalled that, during the lengthy meeting on 9 August 2016, Mr Keogh was a little bit reluctant but had said that he would have a think about it. Mr Pato had suggested that Mr Keogh should consider the position and try it out for a period and then reassess it. Mr Keogh he indicated that he wasn’t interested in that. Mr Pato recalled that he had thought that this was “fairly negative” of Mr Keogh given that he had already done the role. Mr Pato stated that Mr Keogh was a great driver and the longest serving driver (Mr Pato later added “out of all the drivers there”) and, given that he had been trained in the storeperson’s role “he was the next in line”. It was also said that Mr Keogh was an integral part of the business which was currently struggling because Mr Keogh decided to leave/losing David. 116 Mr Keogh had indicated that he wasn’t happy with/did not wish to/ move to/the storeperson’s role. Mr Pato recalled that he had said to Mr Keogh that he was trained and that that was why he had been given a full-time position.117



• He did not recall Mr Keogh saying that he did not want to do that job. 118



• When it was pointed out to Mr Pato that, in his witness statement, he had stated that Mr Keogh had said that he did not want to do that job, Mr Pato agreed that that was what Mr Keogh had said. 119



• Later on in his evidence, Mr Pato said that Mr Keogh had said that he would consider the storeperson position. Mr Pato agreed that there was nothing in his witness evidence to that effect. 120 The reason it was not in his witness statement was because Mr Pato thought that it was “fairly obvious” the Mr Keogh was considering the position given he had had a week to think about it.121 Mr Pato denied that this, and other matters, were an invention.122



• On 12 August 2016, he met with Mr Keogh and advised him that he had taken into account Mr Keogh’s comments that he did not wish to do the job but that he had decided to proceed with the change. Mr Pato stated that Mr Keogh’s comments were based on him having a medical condition which prevented him from doing the new role. Mr Pato stated that Mr Keogh had not provided the company with any evidence to support that contention. Mr Pato could not recall whether he had asked Mr Keogh to get a medical certificate. 123



• Mr Keogh had performed the storeperson’s role for about three - four weeks per year between 2012 and 2016 or about 10-20% of his total working hours. 124



• Mr Keogh was not offered a wage increase to go into the storeperson’s role. Mr Pato stated that Mr Keogh was already being paid the correct award rate for that role. 125



• Mr Keogh was offered less hours in the storeperson’s role. This was because, as a driver, Mr Keogh was paid for 45 hours per week although he worked an average of 42 hours per week. 126



• In the storeperson’s role, Mr Keogh would have had to have filled in for the three drivers and so, each year, would have driven for 12 - 13 weeks. This amount did not take into account any unforeseen circumstances. 127



• When he was told that Mr Keogh had come to work on 15 August 2016 and tried to commence driving, he was a bit disappointed and surprised. This was because Mr Pato had made it very clear to Mr Keogh on the Friday that his new role would commence on the Monday. Mr Keogh had not presented at work on 16 August 2016. 128



• He was a bit bemused when he then received a sick certificate on 17 August 2016 as Mr Keogh have been fine to come in and do his driving job. Also, the medical certificate did not tell the company why Mr Keogh was unfit for work. 129



• He had interpreted Mr Keogh’s letter of 29 August 2016 as saying that Mr Keogh would come in and take his new role. 130



• He could not accept that Mr Keogh had issues with the cold in his hands because he had been doing the job for eight years and part of the job was working in the cold. 131 Mr Pato explained that Mr Keogh was not working 38 - 40 hours a week in the cold and that Mr Keogh was in the truck as well - a freezer truck. Mr Pato stated that Mr Keogh was in the freezer every morning loading the vehicles and then was in and out of the freezer in the truck.132

Mr Simon Pato

[40] In his Witness Statement, 133 Mr Pato stated the following:

• Prior to July 2012, he recalled having mentioned to Mr Keogh that he could not go on leave as no one was properly trained who could do his job whilst he was away. 134



• From 1 July 2012 - August 2016, he was able to take about four weeks leave per year as Mr Keogh was able to fill in in his position. 135



• In August 2016, his brother (Mr Mark Pato) approached him and asked him if he would like to take on more responsibility and move to a new position of Warehouse Manager. 136



• On 9 August 2016, he and Mr Mark Pato met with Mr Keogh to discuss Mr Keogh taking over his previous role. The reasons were explained to Mr Keogh together with the revised duties and hours of work. 137



• On 12 August 2016, he was advised that Mr Mark Pato had decided to move Mr Keogh into his (Simon’s) previous position. From 15 August 2016, Mr Keogh was to begin at 6:30 am instead of 5:30 am in the new role. 138



• On 14 August 2016, he had sent Mr Keogh a text message reminding him that his new starting time was 6:30 am and not 5:30 am. 139



• On 15 August 2016, he had arrived at work at approximately 5:30 am and recalled that Mr Keogh had arrived shortly after. Mr Keogh had asked if the driving position was there for him. Mr Pato had replied that his new starting time was 6:30 am as he had commenced his new storeperson role from that day. 140



• Mr Keogh had responded by saying that Mr Mark Pato had to give him four weeks’ notice if he wanted to change his position. Mr Pato recalled that Mr Keogh had also said that he would not be back at 6:30 am and he had then observed Mr Keogh getting some of his personal belongings from the truck before he left the premises. 141



• He had asked Mr Keogh for the warehouse keys back before he had left because Mr Keogh only needed those keys when he was filling in in his absence and he (Mr Simon Pato) was at work. Mr Pato also explained that it was unclear whether Mr Keogh would return to work at all. 142

Considerations and conclusions

[41] Before considering the legal question in relation to the Respondent’s jurisdictional objection, it is first necessary to make certain findings of fact. It was common ground that Mr Keogh commenced employment with the company as a delivery driver, firstly as a full-time casual driver and then, in July 2012, as a permanent ongoing full-time driver. Later on in 2012, it was undisputed that Mr Keogh agreed to fill in as warehouse storeperson when the warehouse storeperson (Mr Simon Pato) went on leave. To this end, Mr Keogh was trained in particular aspects of the storeperson’s role.

[42] With respect to whether or not Mr Keogh was made permanent expressly on the basis that he would take over the warehouse storeperson’s position in the future, this may have been the company’s intention. However, there is no evidence before the Commission that Mr Keogh was advised that being made a permanent driver was on the basis that he would transition into the position of warehouse storeperson on a permanent basis rather than just to cover periods of leave by Mr Simon Pato.

[43] In terms of the company’s organisational restructure, on the basis of the material before the Commission, I find that the restructure involved the creation of a new position of Warehouse Manager which would take over the operational side of the business from Mr Mark Pato. This would therefore free up Mr Mark Pato so that he could grow the business. It was proposed by the company that the current warehouse storeperson (Mr Simon Pato) would move into the newly created Warehouse Manager role. There was no change to the number of driving positions. The company sought to move Mr Keogh into the vacant warehouse storeperson’s role and the company employed another driver to fill Mr Keogh’s delivery driver position.

[44] On the basis of the findings above, it is clear that Mr Keogh was employed by the company as a delivery driver. Subsequently, in addition to that role, Mr Keogh had been trained to perform some of the duties of the storeperson in order to cover for the storeperson when that person was away on leave. The employer made a decision that it wished to change Mr Keogh’s position from that of driver to storeperson (who also provided coverage when the drivers went on leave). Mr Keogh did not want to take on the new position. In unilaterally changing Mr Keogh’s position, it is my view that the employer contravened Mr Keogh’s contractual right to be employed as a delivery driver by changing his position from that of delivery driver to storeperson and by filling his delivery driver position with someone else.

[45] For the company to have the right to transfer Mr Keogh from his position of delivery driver to that of storeperson, the company first has to have the right to transfer Mr Keogh. If the company has the right, then the company is required to consult with Mr Keogh as per the relevant modern award (Road Transport and Distribution Award 2010) (the Award). I have formed the view that Mr Keogh has a contractual right to be employed as a delivery driver and that Mr Keogh had a verbal contract that he was employed as a delivery driver. The Award does not create the right to transfer an employee which cuts across an employee’s contractual right.

[46] The employer can make a definite decision in relation to an organisational restructure but that decision cannot contravene an employee’s contractual right. In this case, Mr Keogh was employed as a driver and I have found that Mr Keogh’s conversion to permanent employment was from a casual delivery driver to a permanent delivery driver. This did not include an agreement that Mr Keogh would transition to the position of warehouse storeperson. As the verbal contract did not include that Mr Keogh would transfer to the storeperson’s position, it is my view that the company does not have the right to compel Mr Keogh to take on the new position - unless Mr Keogh agrees.

[47] Accordingly, on this basis, I find that Mr Keogh was dismissed by his employer. Mr Keogh was forced to resign as a result of the employer’s action in unilaterally deciding that Mr Keogh would move from his driving position to that of warehouse storeperson and then employing another person to replace Mr Keogh as a driver. Mr Keogh was forced to resign because of this course of conduct by his employer, thereby meeting the requirements of section 386(1)(b) in relation to when a person has been dismissed.

[48] The Respondent’s jurisdictional objection is dismissed.

WAS THE DISMISSAL UNFAIR?

[49] I will now turn to deal with the next question - whether Mr Keogh’s dismissal was unfair.

[50] It was common ground that the Respondent is a small business employer and so is covered by the terms of the Small Business Fair Dismissal Code (the Code). For dismissals not involving summary dismissal, the Code provides as follows:

“Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.”

Compliance with the Code

Applicant

[51] It was submitted on behalf of Mr Keogh that the Respondent was in an invidious position. This was said to be because, when it was denied that someone had been dismissed, the employer has not generally turned their mind to compliance with the Code. 143 Mr Mark Pato’s evidence was highlighted where he indicated that he was not aware of the Code. It was acknowledged that Mr Pato had denied dismissing Mr Keogh and so therefore Mr Pato was not required to have had regard to the Code.144

[52] The Applicant submitted that, on its face, there was a complete lack of written and verbal warnings and a lack of anything that might be said to engage the Small Business Fair Dismissal Code. 145 It was contended that the Code was inapplicable in this case simply because it was not adhered to nor was known to the employer.146

Respondent

[53] For its part, the Respondent submitted that, even if the “dismissal” was not consistent with the Small Business Fair Dismissal Code, all four components of section 385 of the Act needed to be satisfied for the “dismissal” to be unfair. 147

[54] It was contended that, as the Code relies very heavily on a clear dismissal, it was said to be either inapplicable or little weight should be placed on it for that reason. 148

Considerations and conclusions

[55] In cases not involving summary dismissal (Other Dismissal), the Code requires that the employee must be given a reason why he or she is at risk of being dismissed. That reason must be a valid reason based on the employee’s conduct or capacity. The employee must be warned that he or she risks being dismissed if there is no improvement. The employee must be given an opportunity to respond to the warning and be given a reasonable chance to rectify the problem.

[56] It is acknowledged that it is a difficult position for an employer to be in if the employer’s jurisdictional objection is dismissed and the Commission is therefore then required to consider whether the Code has been complied with (and, if not, whether the dismissal was harsh, unjust or unreasonable). This difficulty arises in a situation where the employer did not believe that it was dismissing the employee.

[57] Section 385(c) of the Act requires the Commission to consider whether the dismissal complied with the Code’s requirement for a valid reason and with certain procedural aspects. On the basis of the material before me, I am satisfied that the Respondent did not comply with the Small Business Fair Dismissal Code.

Was Mr Keogh unfairly dismissed?

[58] Given the non-compliance by the Respondent with the Code, it is necessary to consider if Mr Keogh was unfairly dismissed in accordance with section 385 of the Act.

[59] I am satisfied that Mr Keogh was dismissed (section 385(a)); that the dismissal was not consistent with the Code (section 385(c)) and that the dismissal was not a case of genuine redundancy (section 385(d)).

[60] To decide whether Mr Keogh was unfairly dismissed, the Commission is required to determine if Mr Keogh’s dismissal was harsh, unjust or unreasonable (section 385(b)).

[61] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides 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.”

[62] I will consider each of the criteria in turn.

Section 387(a) - valid reason for the dismissal?

[63] It was submitted on behalf of Mr Keogh that, as the Respondent has at all times denied dismissing Mr Keogh, then it follows that the Respondent has never contended that it had a valid reason for the dismissal related to Mr Keogh’s capacity or conduct. 149 The Applicant argued that there was no reasonable or valid reason for the dismissal and no consideration under section 387 that the Respondent could rely on in this regard.150

[64] The Applicant submitted that there was nothing in the evidence which amounted to a reason for terminating Mr Keogh’s delivery driver role other than to put him in the storeperson role. It was stated that there was evidence that Mr Keogh was a great delivery driver and that his loss has caused harm to the business. Therefore, it was said to be “nigh on impossible” for the Respondent to say that there was a valid reason for the dismissal because Mr Keogh’s performance was that of an excellent employee who had no performance management issues. 151

[65] The Respondent contended that there was a valid reason. Mr Pato was said to have testified that he wanted a restructure. Mr Pato did not say that he wanted Mr Keogh’s employment to cease and so had concocted this other strategy so that Mr Keogh’s employment came to an end. Rather, Mr Pato had simply wanted to restructure and Mr Keogh was the perfect candidate as he had been trained over the past four years. 152

[66] Given that it has been found that the Respondent did not have the ability to unilaterally change Mr Keogh’s position when he did not agree to taking on the new role, it is hard to envisage that there would have been a valid reason for Mr Keogh’s constructive dismissal.

Section 387(b) - notified of the reason

[67] The Applicant contended this consideration was not relevant in this matter. 153

[68] It was submitted by the Respondent that Mr Keogh was notified of the reason. The respondent stated that there was our meeting during which Mr Keogh was advised as to why there was a minor restructure proposed to take place. 154

[69] It is difficult to imagine that Mr Keogh would have been advised of the reason for his dismissal given that the Respondent has maintained that it did not terminate Mr Keogh’s employment.

Section 387(c) - opportunity to respond?

[70] It was the Applicant’s contention that this consideration was not relevant in this matter. 155

[71] The Respondent argued that Mr Keogh was given an opportunity respond as there was a meeting held and Mr Keogh stated that he did not want to do it. Mr Keogh’s evidence was recalled to have been that Mr Mark Pato asked him to think about it for a few days and that his supervisor, Mr Simon Pato had asked him his thoughts about the job. It was argued that Mr Keogh’s evidence was consistent with someone thinking about it. 156

[72] In relation to the health reasons raised by Mr Keogh, it was noted that Mr Pato had said that he did not ask Mr Keogh to obtain a medical certificate. This was stated to be consistent with Mr Pato not asking Mr Keogh to get doctor’s certificates for all of the times he was absent in the three weeks following. The Respondent contended that very little weight, therefore, should be placed on the fact that Mr Pato did not ask Mr Keogh to obtain a medical certificate. Further, it was contended that if one was going to rely on a quasi-medical condition, it was that person’s responsibility to go off and get a medical certificate as well. 157

[73] As the discussions between the company and Mr Keogh concerned whether or not he would move to the new position of storeperson, it is not possible to make a direct finding as to whether Mr Keogh was offered an opportunity to respond.

Section 387(d) - support person

[74] It was submitted by the Respondent that Mr Pato did not envisage that the employment would end at any of the meetings that he held with Mr Keogh and so there was not an unreasonable refusal. 158

[75] There is no evidence before the Commission that Mr Keogh requested a support person be present. Therefore there could be no refusal by the employer to allow a support person.

Section 387(e) - warned about unsatisfactory performance

[76] It was common ground that Mr Keogh was a very good worker so, therefore, this criteria is not relevant in this matter.

Section 387(f) and (g) - size of the employer and specialist human resources

[77] The Applicant submitted that these two criteria were relevant and that the Commission should accord them neutral value. 159

[78] It was contended by the Respondent that it was a very small enterprise and that there should be substantial weight placed on these two factors.

[79] On the basis of the evidence, it is clear that the Respondent is a small business and that it did not have specialist human resources. The difficulty here, as well as with the other criteria (b), (c) and (d) is that, for the Respondent’s part, there was no dismissal. Therefore, it is not possible to find that the Respondent’s size and the absence of dedicated human resource specialists would be likely to have impacted on the procedures followed in effecting this dismissal - for the reason that there was no dismissal process put in train by the Respondent.

Section 387 (h) - any other matters

[80] The Respondent argued that the Commission should place little weight on Mr Keogh seeking reinstatement and that moderate weight should be placed on the fact that the Respondent would believe that that would not be a good remedy. This was because people in the workplace talk and if Mr Keogh was able to talk to other employees, the employer’s authority would be undermined. 160

[81] These submissions will be taken account of when considering the question of remedy.

Conclusions

[82] In all of the circumstances of this matter, and having taken account of each of the factors set out in section 387 of the Act, I determine that Mr Keogh’s dismissal was harsh, unjust and unreasonable. It has been found that there was a valid reason for Mr Keogh’s dismissal and that, in this particular matter, the situation was such that the other criteria are neutral or simply not relevant.

Remedy

[83] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is 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.”

[84] With respect to the requirements of section 390, I am satisfied that Mr Keogh was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Keogh has made an application under section 394 of the Act (section 390(2)).

[85] Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).

[86] In Mr Keogh’s application to the Commission, Mr Keogh had sought reinstatement. In the Applicant’s Outline of Argument, Mr Keogh sought either reinstatement or compensation. 161 However, in closing submissions, it was argued that the Applicant had quite properly sought reinstatement and that it had been made in good faith and with a genuine desire to be returned to his job.162 It was said to be Mr Keogh’s position not to just seek compensation and that, from Mr Keogh’s calm and recollect of evidence, the Commission could satisfactorily conclude that there was no animus on behalf of Mr Keogh.163

[87] Further, the Applicant submitted that, for public policy reasons, there should be denunciation of the attitude expressed by the Respondent that the reason why Mr Keogh would not be reinstated is because he had made an unfair dismissal application to the Commission. 164

[88] On the other hand, the Respondent pointed out that the Applicant was also seeking compensation. It was argued that it did not happen in the majority of cases that an employee who had filed an unfair dismissal claim could be accepted back into the business and could work well from that point on. This was said to be particularly so when the employee in question had talked to the other drivers. It was argued that there was nothing to stop the Applicant from, after having been reinstated by the Respondent, talking to the other drivers and telling them that he had taken legal action and the employer had backed off. It was argued that the other drivers would think that the Respondent was a pushover. Therefore, it was contended that the relationship would not necessarily flow on well.

[89] I have considered the evidence before me and the submissions of the parties. Taking into account all of the circumstances of this matter, I am satisfied that it would be inappropriate to reinstate Mr Keogh. As mentioned previously, the Respondent is a small employer and, on the basis of Mr Mark Pato’s evidence, it is clear that the relationship between himself and Mr Keogh has broken down.

Compensation

[90] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[91] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(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.”

[92] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 165 (Haigh). In Haigh, the Full Bench also referred166 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket167 (Sprigg). I respectfully adopt the approach taken in Haigh.

Section 392(2)(a) - effect on the viability of the employer’s enterprise

[93] Mr Mark Pato’s evidence was that an order for compensation would be extremely detrimental to the business. This was due to a costly family law situation which had resulted in him almost losing the business. Mr Pato explained that the company basically runs month-to-month in order to pay the bills. 168 It was argued on behalf of the Respondent that a large order for compensation would most definitely affect the viability of the business.169

[94] In response, the Applicant argued that there was no documentary evidence that an order would affect the viability of the Respondent. It was stated that Mr Keogh was replaced and that it was not a cost cutting dismissal, rather, the reason for the restructuring was to expand the business. Therefore, in the absence of any proof that the company is in financial distress, the Applicant contended that it is reasonable to infer that the company can pay an appropriate level of compensation. 170

[95] Whilst Mr Pato did not claim that an order for compensation would affect the viability of the business, he did indicate that such an order would adversely affect the business financially given the financial pressures on the business as a result of things that had occurred in his private life. However, there was no documentation to support this contention provided to the Commission.

Section 392(2)(b) - Applicant’s length of service

[96] The parties did not agree as to Mr Keogh’s length of service due to whether or not there was a break in Mr Keogh’s service. The Applicant’s view was that Mr Keogh had 7 years’ service on the basis that he commenced in February 2009 and was dismissed in September 2016. 171 The Respondent believed that there was a break in Mr Keogh’s service but indicated that Mr Keogh’s length of service may be a factor taken into account by the Commission.172

[97] Both Mr Keogh and Mr Mark Pato, in their respective witness statements, provided details as to the circumstances surrounding the suspension of Mr Keogh’s driver’s license in 2010. On the basis of this material, I find that it is probable that Mr Keogh did not have a break in service. Therefore, I find that Mr Keogh’s length of service was 7 years.

Section 392(2)(c) - remuneration would have received

[98] The Respondent submitted that, if Mr Keogh had chosen not to resign there and then but to accept the new role and look for another job, his loss would have been less or zero. 173

[99] On the basis of the evidence before me, in all of the circumstances of this matter, I have formed the view that, had Mr Pato not unilaterally decided that Mr Keogh transfer to the storeperson’s position (which brought about the end of his employment) and Mr Keogh had been able to continue in his driving position, it is likely that Mr Keogh’s employment would have continued for at least 12 months. For the purposes of the calculations, in accordance with the Sprigg principles, it is determined that the remuneration that Mr Keogh would have received was 12 months pay.

[100] At the time of his dismissal, Mr Keogh was earning $2,102 gross per fortnight. Therefore, the amount Mr Keogh would have received for the 12 month period of anticipated employment is $54,652.00 (gross).

Section 392(2)(d) - efforts to mitigate loss

[101] The Applicant submitted that he had made every effort to mitigate his loss by earning sporadic casual money until 8 November 2016 and then commencing full-time casual employment. Mr Keogh gave evidence that he had started looking almost straight away for another job and that he had applied for many driving positions. 174

[102] It was indicated by the Respondent that Mr Keogh has sought to mitigate his loss and has obtained other employment. 175

[103] On the basis of the material before me, I am satisfied that Mr Keogh made reasonable attempts to find alternative employment.

Section 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned

[104] As indicated above, the period of anticipated employment has been found to be 12 months i.e. from 7 September 2016 to 6 September 2017. At the conclusion of the hearing, Mr Keogh was requested to provide further material in relation to the question of compensation, which was done.

[105] The material currently before the Commission shows that Mr Keogh earned $660.00 in the period between 7 September 2017 and when he commenced in his new full-time but casual position on 8 November 2016. Secondly, for the period from 8 November 2016 until 8 January 2017, Mr Keogh earned a total of $9221.24. 176 This comes to a total of $9881.24.

[106] The Commission is really not in a position to estimate what Mr Keogh has earned from 9 January 2017 to 26 May 2017 (the date of this decision) or the amount that Mr Keogh is likely to earn between 26 May 2017 and 6 September 2017. This means that the Commission is unable to finalise determination of the amount of compensation in lieu of reinstatement at this point in time.

[107] Therefore, Mr Keogh is requested to provide details of any remuneration earned between 9 January 2017 and the date of this decision, together with the relevant payslips. In addition, Mr Keogh is requested to provide an estimate of what he is likely to earn between 26 May 2017 and 6 September 2017 (just over 3 months) and the basis for calculating the estimate. This material is to be provided by close of business on Friday, 9 June 2017.

Section 392(2)(g) - other matters

[108] It was submitted on behalf of the Applicant that a number of matters were considered relevant. These were that Mr Keogh was not paid his four weeks’ notice nor was he paid his statutory benefits of long service leave and annual leave. In addition, it was stated that it was relevant that Mr Keogh had sought reinstatement and that the employer could have reinstated him but Mr Mark Pato chose not to because Mr Keogh had made an unfair dismissal claim. 177

[109] For the Respondent’s part, it was contended that a relevant matter, which should have some weight placed on it by the Commission, was the lack of medical evidence to suggest that Mr Keogh could not do the storeperson’s role. As well, it was argued that the Commission should take into account that the storeperson’s position was the position that Mr Keogh could have done. It was accepted that Mr Keogh did not want to do it but it was stated that Mr Keogh could have done it. This was because it was within his expertise and his training yet he chose not to. It was stated that Mr Keogh could have stayed in the job until he had found something better. The Respondent submitted that account should be taken of Mr Keogh’s actions in the sense that his actions did significantly contribute to his loss when he need not have suffered that loss because he could have taken up the position until he found a new job elsewhere. 178

[110] The Commission is prepared to take some account of the other matters raised by the parties.

Section 392(3) - misconduct

[111] This section is not relevant in this matter.

Contingencies and taxation

[112] There were no submissions from either party in relation to these issues. As there are only three months remaining out of the 12 months’ anticipated employment, it is proposed to make a small deduction for contingencies – 10%.

Section 392(4) - shock or distress

[113] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Keogh.

Section 393 - payment by instalments

[114] On behalf of the Respondent, it was requested that any compensation should be ordered to be paid in instalments over a 6 - 9 month period. 179 The Applicant’s response was one of concern in relation to the length of the proposed period over which the instalments would be paid.180

[115] Having considered the parties’ submissions, I am prepared to order that the compensation amount be paid in instalments. Once the precise amount of compensation is known, the Commission will then make a decision as to the length of time over which the compensation will be ordered to be paid.

[116] Once the information requested of Mr Keogh is at hand, it will then be possible to finalise determination of the amount of compensation in lieu of reinstatement.

[117] A further decision, and an order, in regard to compensation will be issued within two weeks of receipt of the requested information.

Appearances:

M White of Counsel for the Applicant

G Christodoulou of Fair Work Centre for the Respondent

Hearing details:

2017.

Melbourne:

January 20.

 1 (1995) 62 IR 200

 2   Ibid at 205 - 206

 3   Exhibit R3 paragraph 13

 4   Ibid at paragraph 5

 5   Ibid at paragraph 6 and Transcript PN 327 - 329 and 1230

 6   Ibid at paragraph 6 and ibid PN 1228

 7   Transcript PN 286 and 300

 8   Ibid PN 291 and 300

 9   Ibid PN 326

 10   Exhibit R3 paragraph 6

 11   Transcript PN 74

 12   Ibid PN 80, 116, 120 and 282

 13   Ibid PN 94

 14   Ibid PN 120

 15   Ibid PN 80 and 114

 16   Ibid PN 282

 17   Ibid PN 48, 123 and 300

 18   Ibid PN 292

 19   Ibid PN 292 - 300, 332 and 390

 20   [2012] FWA 163

 21   Transcript PN 52 - 65

 22   [2011] FWA 6919

 23   Transcript PN 330 - 332

 24   Ibid PN 412 - 414

 25   Ibid PN 282 and 386 and Exhibit R3 at paragraphs 7 - 10

 26   Ibid PN 335

 27   Ibid PN 384

 28   Exhibit R3 at paragraphs 11 - 12

 29   Transcript PN 1225

 30   Ibid PN 302 - 303 and Exhibit A2 at paragraph 15

 31   Ibid PN 304 - 305, Exhibit A1 at paragraphs 6 - 8 and Exhibit A2 at paragraphs 5 and 7

 32   Ibid PN 306

 33   Ibid PN 307

 34   Ibid PN 308 - 310 and Exhibit A2 at paragraphs 10 - 11

 35   Ibid PN 311 and ibid at paragraphs 12 and 16

 36   Ibid PN 311 - 312 and ibid at paragraphs 6 and 8

 37   Ibid PN 1222 - 1223 and ibid at paragraph 9

 38   Exhibit A2 at paragraph 17

 39   Transcript PN 313 - 314 and 323

 40   Ibid PN 316

 41   Ibid PN 317

 42   Ibid PN 317 - 318

 43   Ibid PN 317 - 320, 323 - 324 and 1223 and Exhibit A1 at paragraph 12

 44   Ibid PN 321 and 323

 45   Ibid PN 323

 46   Exhibit A1 at paragraphs 5 and 9 - 12

 47   Transcript PN 1212 - 1213

 48   Ibid PN 579

 49   Ibid PN 589 - 591

 50   Ibid PN 593

 51   Ibid PN 609 - 610 and Exhibit A3 at paragraph 25

 52   Exhibit A3 at paragraph 26

 53   Ibid at paragraph 28

 54   Ibid at paragraph 29

 55   Ibid at paragraph 30

 56   Transcript PN 611

 57   Ibid PN 612 - 614

 58   Exhibit A3 at paragraphs 14 - 15

 59   Ibid at paragraphs 16 - 18

 60   Transcript PN 615

 61   Ibid PN 616 - 617

 62   Ibid PN 618 - 621

 63   Ibid PN 627 - 630, Exhibit A3 at paragraph 20 and Exhibit A4 at Document 3

 64   Ibid PN 632

 65   Exhibit A3 at paragraphs 9 - 10

 66   Ibid at paragraph 20

 67   Ibid at paragraph 20, Exhibit A4 at Document 3 and Transcript PN 631 and 633

 68   Transcript PN 634 - 635

 69   Ibid PN 636 - 637

 70   Ibid PN 638 - 641

 71   Ibid PN 642

 72   Ibid PN 644

 73   Ibid PN 645 and Exhibit A3 at paragraph 22

 74   Ibid PN 646 - 647, 649 and 794 - 798 and Exhibit A3 at paragraph 27

 75   Ibid PN 799 - 804

 76   Ibid PN 648

 77   Ibid PN 650 - 651

 78   Exhibit A3 at paragraph 30

 79   Ibid and Transcript PN 652 - 655

 80   Transcript PN 658

 81   Ibid PN 659

 82   Exhibit A3 at paragraph 32

 83   Exhibit A4 at Document 9 and Transcript PN 660 - 661 and 664

 84   Transcript PN 662 - 663

 85   Ibid PN 665 - 666

 86   Ibid PN 671 - 672

 87   Ibid PN 673

 88   Ibid PN 674 - 675

 89   Ibid PN 702 - 703

 90   Ibid PN 704 - 706, 708 and 770

 91   Ibid PN 707

 92   Ibid PN 709

 93   Ibid PN 711 - 712

 94   Ibid PN 806 - 809

 95   Ibid PN 810 - 811

 96   Ibid PN 710

 97   Ibid PN 734 and 736

 98   Ibid PN 735 and 738 - 745

 99   Ibid PN 746 - 748 and 752

 100   Ibid PN 746 - 754

 101   Ibid PN 755

 102   Ibid PN 776 - 782

 103   Ibid PN 786

 104   Exhibit A3 at paragraph 34

 105   Transcript PN 828 and 946 - 953 and Exhibit R4 at paragraphs 7 - 8

 106   Exhibit R4 at paragraph 8

 107   Transcript PN 953 - 967

 108   Ibid PN 828 and Exhibit R4 at paragraph 8

 109   Ibid PN 969 - 974

 110   Ibid PN 971

 111   Ibid PN 829

 112   Ibid PN 888 and Exhibit R4 at paragraph 10

 113   Ibid PN 829 - 830 and ibid at paragraph 3

 114   Ibid PN 831 - 832

 115   Ibid PN 832 - 833 and 892 and Exhibit R4 at paragraph 4

 116   Ibid PN 834, 886 - 887, 929 - 934, 940 - 945 and 999 - 1001 and Exhibit R5 at paragraph 31

 117   Ibid PN 837 - 844

 118   Ibid PN 867

 119   Ibid PN 872 and Exhibit R4 at paragraph 11

 120   Ibid PN 1020 - 1034

 121   Ibid PN 1035

 122   Ibid PN 1037 - 1038

 123   Ibid PN 986 - 989 and 995 - 997 and Exhibit R4 at paragraph 15

 124   Ibid PN 881 - 885 and ibid at paragraph 5

 125   Ibid PN 889

 126   Ibid PN 890 - 891

 127   Ibid PN 893 - 895

 128   Ibid PN 896 and Exhibit R4 at paragraphs 14 - 15

 129   Ibid PN 897 and ibid at paragraph 16

 130   Ibid PN 898

 131   Ibid PN 990

 132   Ibid PN 992 - 994

 133   Exhibit R1

 134   Exhibit R2 at paragraph 12(a)

 135   Ibid at paragraphs 12(b) and 22

 136   Exhibit R1 at paragraph 3

 137   Ibid at paragraph 4

 138   Ibid at paragraph 5

 139   Exhibit R2 at paragraph 32(a)

 140   Exhibit R1 at paragraph 6

 141   Ibid

 142   Exhibit R2 at paragraph 32(b)

 143   Transcript PN 1214 - 1215

 144   Ibid PN 1214 - 1215

 145   Ibid PN 1215

 146   Ibid PN 1217

 147   Ibid PN 1226

 148   Ibid PN 1227

 149   Ibid PN 1216 and Exhibit A1 at paragraph 17

 150   Ibid PN 1216

 151   Ibid

 152   Ibid PN 1229

 153   Exhibit A1 at paragraph 18

 154   Transcript PN 1230

 155   Exhibit A1 at paragraph 18

 156   Transcript PN 1230

 157   Ibid PN 1231

 158   Ibid PN 1232

 159   Exhibit A1 at paragraph 1

 160   Transcript PN 1248 - 1249

 161   Exhibit A1 at paragraph 20

 162   Transcript PN 1219 - 1220

 163   Ibid PN 1221

 164   Ibid PN 1219 - 1220

 165   [2014] FWCFB 236

 166   Ibid at paragraphs [10] – [12]

 167 (1998) 88 IR 21

 168   Transcript PN 1042 - 1043

 169   Ibid PN 1257

 170   Applicant’s Further Information relating to Compensation, dated 27 January 2017, at paragraph 7

 171   Ibid

 172   Transcript PN 1257

 173   Ibid PN 1276 - 1277

 174   Ibid PN 789 - 791

 175   Ibid PN 1258

 176   Applicant’s Further Information relating to Compensation, dated 27 January 2017, payslips attached

 177   Ibid at paragraph 7

 178   Transcript PN 1276 - 1277

 179   Ibid PN 1278

 180   Ibid PN 1288

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