David Payne v Lower North Shore Community Transport Inc T/A Lower North Shore Community Transport

[2016] FWC 102

[2016] FWC 102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Payne
v
Lower North Shore Community Transport Inc T/A Lower North Shore Community Transport
(U2015/8524)

COMMISSIONER JOHNS MELBOURNE, 6 JANUARY 2016

Application for relief from unfair dismissal – continuity of service.

[1] On 30 November 2015 the Fair Work Commission (Commission), as presently constituted, issued a decision in which it found that the dismissal of the applicant was harsh, unjust or unreasonable. Accordingly the Commission, as presently constituted, found that the applicant’s dismissal was unfair 1.

[2] In relation to the question of remedy the Commission, as presently constituted, decided that reinstatement was not inappropriate.

[3] The Commission, as presently constituted, further ordered that “the applicant’s continuity of employment between 26 May 2015 and the date that his is reinstated be maintained”.

[4] The respondent reinstated the applicant with effect from 14 December 2015.

[5] Following further submissions from the parties, on 23 December 2015 the Commission, as presently constituted, issued a further decision 2 ordering the respondent pay the applicant $4203.06 by way of lost pay.

[6] The parties have now sort clarification from the Commission about the effect of the order that “the applicant’s continuity of employment between 26 May 2015 and the date that his is reinstated be maintained”.

[7] The Fair Work Act 2009 provides that the Commission may, where appropriate, make an order to maintain continuity of employment in addition to reinstatement. 3

An order for continuity is an exercise of discretion ‘separate and distinct from the decision to reinstate the employee’. 4

[8] An order for continuity ‘ensures that the period specified is taken into account in determining any entitlement to service related benefits’. 5

[9] That is to say, in relation to the present matter, the applicant is to be treated as if he had worked during the period 26 May 2015 and 14 December 2015. He is to be treated as having continued to accrue leave entitlements during this period and is to be paid superannuation in relation to income received in respect of this period.

COMMISSIONER

 1   [2015] FWC 8145.

 2   [2015] FWC 8945.

 3 Fair Work Act s.391(2).

 4   Kenley v JB Hi Fi (unreported, AIRCFB, Ross VP (as he then was), Watson SDP, Holmes C, 22 June 2000) Print S7235 [27].

 5 Ibid. [34].

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