Fortunato Perri v Anglo Italian

[2013] FWC 1593

[2013] FWC 1593

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fortunato Perri
v
Anglo Italian
(U2012/7631)

COMMISSIONER GREGORY MELBOURNE, 22 MARCH 2013

Decision Regarding Remedy.

Introduction

[1] On 10 January 2013 I handed down a decision in this matter [PR532832] finding that the Applicant had been unfairly dismissed from his employment with Anglo Italian. I also indicated in that decision I was unclear about the Applicant’s position in terms of preferred remedy. The original application had indicated reinstatement was sought but Counsel for the Respondent indicated during the proceedings he understood this was no longer the case. I accordingly indicated I proposed to allow seven days from the date of the decision for the Applicant to clarify his position in regards to remedy. If reinstatement was sought the matter would be relisted to enable both parties the opportunity to provide any further submissions they wished to make about that outcome. If not, then the issue of remedy would be determined on the basis of the submissions and evidence already provided. Mr Wainwright on behalf of the Applicant subsequently made contact to confirm reinstatement was no longer sought. Against that background I now turn to consider what remedy, if any, is appropriate.

Remedy

[2] Section 390 of the Fair Work Act 2009 (the Act)provides as follows:

“(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.” 1

[3] I am satisfied the Applicant was protected from unfair dismissal at the time he was dismissed and following his application pursuant to section 394 of the Act I have determined in the decision handed down on 30 January 2013 that he was unfairly dismissed from his employment with the Respondent.

[4] I am also satisfied that reinstatement is inappropriate. As indicated, I have clarified that reinstatement is not sought by the Applicant and the Respondent in its submissions made reference to various grounds as to why it believes reinstatement is inappropriate. These include the breakdown in confidence between the parties, the obtaining of further employment by the Applicant, and the Applicant’s misconduct. I now turn to consider whether an order for payment of compensation is appropriate in all the circumstances of the case.

[5] Section 392(1) of the Act provides:

“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.” 2

[6] Section 392(2) of the Act provides:

“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....” 3

[7] It then continues to list various criteria. I now turn to consider each of those criteria in terms of determining any amount of compensation to be paid to the Applicant in this matter.

(a) the effect of the order on the viability of the employer’s enterprise;

[8] The Respondent is a significant and long-standing employer and has been in operation since 1927. It employs a significant number of employees working across various worksites from time to time. There were no submissions made or evidence provided indicating any order of compensation made in favour of the Applicant would impact on the viability of the employer’s enterprise.

(b) the length of the person’s service with the employer;

[9] The Applicant was employed by the Respondent for more than 15 years and up until the time of his dismissal had a long and unblemished record of continuous service.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[10] The Applicant could foreseeably have continued in employment with the Respondent for a considerable period of time if not for his dismissal. However, for the reasons that follow it is unnecessary to give further consideration to this particular criterion.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[11] The Applicant moved quickly to obtain new employment after his dismissal. He was dismissed by the Respondent on Monday 30 April 2012, but was able to find work with another employer on the following Monday. However, he was initially employed at a lower pay rate of $29 per hour during the first three months of his employment with that company. He was then upgraded to a rate of $33.96 per hour, which was similar to the amount he received when employed by the Respondent.

(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;

[12] As indicated above the Applicant moved quickly to find alternate employment following his dismissal. However, he was initially paid at a lower rate of remuneration for a period of three months until subsequently promoted and paid at a rate commensurate with his previous employment. The Applicant submitted that this shortfall amounted to $2,668.32. He was also dismissed without notice and therefore did not receive any payment in the week commencing 30 April 2012. This represents an amount of approximately $1,300 for that week.

(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;

[13] It is understood the Applicant remains in ongoing employment and there are no further considerations relevant in the context of this criteria.

(g) Any other matters that FWC considers relevant.

[14] I am not aware of any further matters that require consideration in this context.

[15] Section 392(3) of the Act continues to indicate:

“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.” 4

[16] The decision handed down on 10 January 2013 deals with the circumstances that led to the Applicant’s dismissal. They involve, in part, the Applicant allowing another employee to sit on a ride on trowel being driven at the time by the Applicant. The Applicant has acknowledged this was the wrong thing to do and was in breach of appropriate safety practices. He stated he sincerely regrets what happened. In those circumstances I am satisfied it is appropriate to make some reduction in the amount of compensation to be awarded in accordance with the provisions of section 392(3) of the Act.

[17] I intend to provide an amount of compensation to the Applicant in the sum of $3,968, representing the total of the shortfall in income received by him during the first three months of his employment with his new employer being $2,668, and the amount of $1,300 representing the one week of income lost by the Applicant from the time he was dismissed until he commenced his new employment one week later. However, I also believe it appropriate to reduce that amount by $750 given the conduct of the Applicant that contributed to his dismissal. I will accordingly issue an Order to the effect that the Respondent is ordered to pay to the Applicant an amount of compensation in the sum of $3,218 and for that amount to be paid within 21 days of the date of this decision.

COMMISSIONER

 1 Fair Work Act 2009 at s.390

 2   Ibid at s.392(1)

 3   Ibid at s.392(2)

 4   Ibid at s.392(3)

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