David Mitchell v Coles Group Supply Chain Pty Ltd T/A Coles Liquor Group
[2011] FWA 4231
•4 JULY 2011
Note: An appeal pursuant to s.604 (C2011/514) was lodged against this decision.
[2011] FWA 4231 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Mitchell
v
Coles Group Supply Chain Pty Ltd T/A Coles Liquor Group
(U2010/12100)
DEPUTY PRESIDENT MCCARTHY | PERTH, 4 JULY 2011 |
Termination of employment - remedy.
[1] On 20 May 2011, I issued a decision (my decision) which determined that the termination of employment of Mr David Mitchell (the Applicant) by Coles Group Supply Chain Pty Ltd T/A Coles Liquor Group (the Respondent) was unfair. The parties were directed to confer with the aim of agreeing on a remedy. A resolution was not reached and the parties agreed that the matter could be decided on the evidence already provided and on further written submissions.
[2] The Applicant does not seek reinstatement but does not assert that it would be inappropriate. He says that he has not attended the Respondent’s premises in 18 months and has lost business specific knowledge and skills. Thus, he says if he were reinstated he may be required to be retrained. He says further that reinstatement could result in fellow employee animosity. He also submitted that his employment was terminated after the Respondent concluded that they no longer had a position available for him, although he asserts that he still has the ability to work for the Respondent in many other positions.
[3] The Respondent submitted that in my decision I found that that the Applicant was not able to be safely allocated other work and that there was a valid reason for termination. The Respondent submits that in those circumstances it would be inappropriate to reinstate the Applicant in their employment.
[4] The length of time since the Applicant has worked without restriction for the Respondent weighs against reinstatement being appropriate. Further, it appeared to me from the evidence and submissions that the nature of the relationship between the Applicant and the Respondent was not a very co-operative one. It appears from the Applicant’s submissions that he has little inclination to be reinstated, although he does not assert that it would be inappropriate. I consider that should the Applicant be reinstated in his employment, that a reasonable level of trust and confidence is unlikely to be able to be established.
[5] I find that it would be inappropriate for the Applicant to be reinstated in his employment.
[6] The Applicant submitted that he has sustained a loss of income since his termination of employment slightly in excess of $25.000, a figure arrived at by calculating the difference between his pre-dismissal earnings and his weekly worker’s compensation payments. The Applicant also provided information regarding his efforts to obtain employment.
[7] The Respondent submitted that a decision would still have been made terminating the employment of the Applicant even if the procedures followed were different. The Respondent relies on some of the findings in my decision to support those contentions. They say that the Applicant would not have remained employed beyond 1 October 2010. They therefore contend that the appropriate amount of compensation would be $2506.48, being the difference between the Applicant’s pre-injury earnings and his worker’s compensation weekly payments for a period of four weeks.
[8] The Applicant’s employment was terminated on 30 August 2010. He was given notice of termination on 2 August 2010, and not required for work from that date. In my view, had the Respondent provided the Applicant with further opportunity to meet with them to provide them with further information or for any other reason, his employment would still have been terminated. In all likelihood the date the termination would have taken effect would have remained as 30 August 2010. The Respondent, in my view, is being very reasonable by being prepared to consider that the employment would have lasted to 1 October 2010. I am therefore prepared to apply that extended period for the purposes of determining a remedy.
[9] I find that the effect of the order for compensation would not affect the viability of the employer’s enterprise. I have had regard to the length of service that the Applicant had with the Respondent. 1 The remuneration that the Applicant would have received for the dismissal on 30 August 2010 I find to be $2506.48. From the evidence provided I find that the Applicant has made minimal effort to mitigate his loss, however I have not altered the amount of compensation for this factor.
[10] The Applicant has not earned any remuneration since his dismissal and I consider it is unlikely he would have earned other income during the period between the dismissal and this decision.
[11] I also consider it relevant that for procedures involved with the termination of employment on 30 August 2010, the Applicant’s employment would in all likelihood have been terminated on that date anyway had further discussions and meetings have taken place with the Applicant as he had sought.
[12] I also consider it relevant to take into account the worker’s compensation status of the Applicant and his fitness for work, especially in the context of income he would, or would have likely have received, but for the termination.
[13] Having regard to and taking all of these circumstances into account, I Order that the Respondent pay the Applicant $2506.48 less any tax payable by law within 14 days.
DEPUTY PRESIDENT
Final written submissions:
24 July 2011
1 see paras [1] to [13] of my decision
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