Fr Andrea Bellia v Assisi Centre Inc. T/A Assisi Centre Aged Care
[2011] FWA 1504
•29 MARCH 2011
Note: An appeal pursuant to s.604 (C2011/4075) was lodged against this decision - refer to Full Bench decision dated 11 August 2011 [[2011] FWAFB 5249] for result of appeal.
[2011] FWA 1504 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Fr Andrea Bellia
v
Assisi Centre Inc. T/A Assisi Centre Aged Care
(U2010/5284)
COMMISSIONER RYAN | MELBOURNE, 29 MARCH 2011 |
Termination of employment - no valid reason - reinstatement not appropriate - compensation.
Background
[1] The Assisi Centre is an Italo-Australian Aged Care Facility which provides residential care for approximately 120 persons of Italian heritage or language. The majority of the residents are Roman Rite Catholic and as part of the services provided to residents the Assisi Centre arranges for Mass to be celebrated within the centre and other sacraments to be provided in the Roman Rite of the Catholic Church. The centre has its own chapel.
[2] In 2005 the Roman Catholic Priest who was providing services to the Assisi Centre advised that he would no longer be in a position to do so. The Catholic Archdiocese of Melbourne was unable to provide a replacement priest to the Assisi Centre to provide Mass and the other sacraments on an ongoing basis.
[3] In mid 2005 the Assisi Centre approached the Melkite Catholic Eparchy Australia and New Zealand to determine whether it was able to assist. The Assisi Centre reached agreement with the Most Rev Archbishop Issam, John Darwish, the Melkite Catholic Eparch in late 2005 whereby the Melkite Catholic Eparchy would provide the services of then Deacon Bellia on an open ended basis to provide pastoral care for the Assisi Centre residents subject to Assisi Centre providing Deacon Bellia and his family with a stipend ($15,600), a house, a motor vehicle, private health cover and other benefits. Deacon Bellia commenced work at the Assisi Centre in mid 2005 and in late 2005 Deacon Bellia was ordained as a Priest in the Melkite Catholic Rite. In early 2007 the Assisi Centre and the Melkite Catholic Eparchy agreed to continue the arrangement. The stipend was agreed to be $30,000.
[4] The Melkite Catholic Church is part of the Catholic Church which recognises His Holiness Pope Benedict XVI as Supreme Pontiff. However the Catholic Church is made up of 23 different Churches each of which have its own Rite. The largest of these Churches is the Roman Rite, hence the usual expression, Roman Catholic. The other 22 Churches are referred to as the Eastern Catholic Churches and each of these Churches has its own Rite. In order to preserve the Rites of each of the 22 Eastern Catholic Churches limitations are placed on the clergy of those churches which generally prevent them using the Roman Rite. Mechanisms exist within the Catholic Church which, when used, allow clergy within one Rite to use another Rite.
[5] On 5 January 2010 the Assisi Centre terminated the agreement it had with the Melkite Catholic Eparchy in relation to having Fr Bellia provide pastoral care at the Assisi Centre.
[6] Fr Bellia commenced this proceeding on 14 January 2010.
[7] The Assisi Centre raised a jurisdictional challenge to the application on the basis that Fr Bellia was not an employee. That jurisdictional challenged was determined in favour of Fr Bellia by Deputy President Hamilton in a decision dated 1 June 2010 in [2010] FWA 2904.
[8] An application for costs was made by Fr Bellia and this application was determined by Deputy President Hamilton on 4 October 2010 in [2010] FWA 7706.
[9] The hearing of the substantive application was heard by me on 9, 10 and 14 December 2010.
[10] The substantive matter proceeded on the basis that Fr Bellia was employed by the Assisi Centre to provide “pastoral care” to residents. Whilst Fr Bellia gave evidence as to a range of duties that he undertook at the Assisi Centre 1 at no stage did either Fr Bellia or the Assisi Centre seek to define the parameters of the work that Fr Bellia was employed to do. In other words the strict limits of the term “pastoral care” were not explored by either side. The Assisi Centre did not challenge the accuracy of the list of duties which Fr Bellia identified as being included in his provision of “pastoral care” to the Assisi Centre residents.
The Competing Contentions
[11] The Respondent’s Closing Submissions were:
‘...3. Fr Bellia’s engagement as Chaplain was ended due to his behaviour towards staff of the Assisi Centre, particularly Lidia Petrone and Antoinette Andaloro. This had caused a breakdown in his working relationship with staff and management at the Assisi Centre.
4. His working relationship with Ms Petrone had soured after a confrontation in August 2007 concerning an elderly volunteer, Mr Vladovich, who had been moving Fr Bellia’s rubbish bins for collection ................................What actually occurred with the incident with Mr Vladovich is relatively unimportant: the significance is that although this incident occurred in August 2007, it resulted in a complete collapse in the working relationship between Ms Petrone and Fr Bellia from that time onward: Fr Bellia agreed that from August 2007, Ms Petrone did not communicate directly with him at all, and that by the end of the relationship, there was no communication between him and Ms Petrone at all.
5. He admitted that the working relationship with Ms Petrone, by December 2009, was toxic.
6. Similarly, his working relationship with Ms Andaloro was, from mid 2009, very strained..........................................Again, an actual fine analysis of whether Ms Andaloro’s concerns were made out – such as whether Fr Bellia was or was not attending to his duties – is relatively unimportant, as against the consequence of the clearly strained relationship between the two persons with pastoral care duties.
...
9. It is submitted that these behaviours evinced an intention on the part of Fr Bellia not to be bound by the contract of employment that has now been held by FWA to exist. The Assisi Centre was entitled to, and did, accept that repudiation by Fr Bellia in writing to Archbishop Darwish seeking to end the Chaplaincy on 6 January 2010. There was no termination at the initiative of Assisi Centre, but rather one at the initiative of Fr Bellia.’
Emphasis added.
[12] The Assisi Centre has focussed on the outcomes rather than the causes of the breakdown in the working relationship between Fr Bellia and Ms Petrone and Ms Andaloro.
[13] Fr Bellia in his submissions focuses on the allegations made against him and contends that the allegations were without merit when considered in the light of the evidence in this matter.
[14] I am of the view that the proper way in which to deal with this matter is to carefully consider the evidence which goes to the cause of the breakdown in the working relationship between Fr Bellia and Ms Petrone and Ms Andaloro. It is clear that the causal reason for the termination of Fr Bellia was the breakdown in the working relationship between Fr Bellia and Ms Petrone and Ms Andaloro. However in addressing the requirements of the Act it is necessary to understand what caused the breakdown in the working relationship between Fr Bellia and Ms Petrone and Ms Andaloro. If the underlying cause is the wrong conduct of Fr Bellia then the contentions of the Assisi Centre may be made out and there may not be an unfair dismissal. If however the underlying cause is the wrong conduct of either or both Ms Petrone and Ms Andaloro then there may be an unfair dismissal.
Who to Believe
[15] Where there is a contest between the evidence of Fr Bellia and witnesses for the Assisi Centre I prefer the evidence of Fr Bellia.
[16] I found Fr Bellia to be a credible witness. He gave his evidence confidently and in a calm and measured manner. His body language, tone of voice and overall demeanour in the witness box led me to conclude that here was a person who was sure of the truth of his answers and was unafraid about being cross examined or being challenged on his evidence. I note in passing that my assessment of Fr Bellia is consistent with the view of Deputy President Hamilton who “found Father Bellia to be a convincing witness” 2.
[17] In very stark contrast to Fr Bellia both Ms Petrone and Ms Andaloro presented as completely unreliable witnesses.
[18] The very demeanour of Ms Andaloro whilst giving her evidence was one of open hostility towards Fr Bellia and those representing him. I specifically adopt the Submissions of the Applicant of 15 December 2010 at paragraphs 42 to 58 inclusive and the Applicant’s Reply of 23 December 2010 at paragraphs 13 to 23 inclusive.
[19] Ms Petrone did not display the open hostility displayed by Ms Andaloro. However Ms Petrone’s demeanour in the witness box led me to conclude that her evidence was tainted by an extreme antipathy towards Fr Bellia. Her body language, tone of voice, method and delivery of her answers disclosed a witness who had an extreme antipathy towards Fr Bellia and who would only give the answers that were damaging to Fr Bellia. I note that Ms Petrone did nothing to hide her antipathy towards Fr Bellia and her evidence made clear that she placed her dislike for Fr Bellia ahead of the interests of residents of the Assisi Centre and of the Assisi Centre itself 3.
[20] I simply don’t believe the evidence of Ms Petrone and Ms Andaloro on all key contested issues.
[21] Evidence was also given in support of the Assisi Centre by Mr Peter Staples. I found his evidence to be unhelpful and unreliable. Mr Staples was not an employee of the Assisi Centre. Mr Staples is the CEO of Advantage Management Services P/L which is contracted as the management provider for the Assisi Centre 4 and in that capacity Mr Staples operates as the Executive Manager for the Assisi Centre. Mr Staples was a member of the Assisi Centre as well as an attendee at Board meetings, although he was not a Board member. Mr Staples’ written evidence5 discloses that he had an active involvement in relation to the pastoral care workers including specifically dealing with Fr Bellia in relation to Ms Andaloro’s complaints and in relation to finding a replacement for Fr Bellia. This evidence was consistent with his position as Executive Manager at the Assisi Centre. However under cross examination Mr Staples gave very clear evidence that neither he nor his management company had any responsibility in relation to the pastoral care workers at the Assisi Centre as those workers were under the direct control of the Board.6 Mr Staples did not reconcile the fact that he had no responsibility in relation to pastoral care matters with his heavy involvement in most of the matters concerning Fr Bellia as Senior Pastoral Worker for the Assisi Centre.
Valid Reason
[22] The Assisi Centre contended that the valid reason for the dismissal of Fr Bellia was because of a complete breakdown in the working relationship between Fr Bellia and both Ms Petrone and Ms Andaloro which was caused by Fr Bellia’s behaviour towards those two employees.
[23] I accept that there has been a complete breakdown in the working relationship between Fr Bellia and the two named employees. However given my consideration of the witness evidence I find that the cause of the breakdown was the conduct of the two employees and not the conduct of Fr Bellia.
[24] Whilst in some circumstances a complete breakdown in the working relationship between employees who are required to work together may constitute a valid reason for termination, that assessment must be made by considering all of the circumstances of the case.
[25] In this matter the breakdown in the working relationship between Fr Bellia and Ms Petrone was caused by Ms Petrone adopting a hostile and uncooperative attitude towards Fr Bellia because Fr Bellia challenged her over her quite inappropriate treatment of an elderly volunteer worker at the Assisi Centre.
[26] The breakdown in the working relationship occurred in mid 2007 yet the Assisi Centre only used it in January 2010 as a reason for the dismissal of Fr Bellia.
The breakdown in the working relationship between Fr Bellia and Ms Andaloro was not attributed to any single incident or point of time but was expressed by the Assisi Centre to have occurred from mid 2009. The evidence in this matter clearly suggests that Ms Andaloro did not consider her role as a Pastoral Associate to be either subordinate to or even equal to that of Fr Bellia as the Senior Pastoral Worker. Rather it appears that Ms Andaloro had an exaggerated view as to her status as an employee. 7 Not only was Ms Andaloro an employee of Assisi Centre she was also a Board Member8 and in that capacity Ms Andaloro was part of the body that acted as the employer of Fr Bellia. Whilst there was an obvious conflict of interest in being both an employee and part of the employer it appears that Ms Andaloro attended and exercised her vote at the Board meeting which dismissed Fr Bellia.9
[27] For there to be a valid reason it must be sound defensible or well founded. In the present matter the reason for the dismissal, the breakdown in the working relationship between Fr Bellia and two other employees, was caused by the conduct of those employees and in circumstances where one of those employees was also on the body that constituted the employer. In this context the reason for the dismissal is neither sound, defensible nor well founded. It would be more apposite to describe the reason for dismissal as unsound, indefensible and unfounded.
[28] I find that there was no valid reason for the dismissal of Fr Bellia.
Criteria for considering Harshness, Unjustness or Unreasonableness
[29] S.387 sets out the several criteria that FWA must take into account in considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable.
[30] The key criteria are whether there is a valid reason for the dismissal. In the present matter I have found that there was not a valid reason for the dismissal. However given the structure of s.387 I am required to consider each of the criteria in that provision.
Was Fr Bellia notified of the reason for dismissal
[31] The Assisi Centre contended that Fr Bellia was notified of the reason for dismissal and that this was established through the evidence of Mr Staples at paragraphs 29 and 30 of Exhibit R7 and through the notes attached as PS2 to that exhibit. There is nothing in the notes comprising attachment PS2 to Exhibit R7 to indicate that at any time was Fr Bellia advised of the reasons for his dismissal. As the notes make clear, Mr Staples was not speaking for the Board and was not in a position to know whether the Board intended to dismiss Fr Bellia as at 10th or 11th of December. There was no other evidence to suggest that the Board, before deciding to dismiss Fr Bellia, gave him notice of the reasons for dismissal.
Was Fr Bellia given an opportunity to respond to the reasons for dismissal which related to capacity or conduct of Fr Bellia.
[32] Fr Bellia was not given any opportunity to respond to the reasons for dismissal given that he was never notified of the reasons. However it is clear from the evidence that Fr Bellia strongly suspected that his engagement at the Assisi Centre may have been in jeopardy and he took on himself to prepare material presenting his side of the story to the Board. This material, Attachment AB2 to Exhibit A1, was given to the Board members prior to the Board making the decision to dismiss Fr Bellia.
Any unreasonable refusal by the Assisi Centre to allow Fr Bellia to have a support person present to assist at any discussions relating to the dismissal
[33] Fr Bellia made no contention that the Assisi Centre refused to allow Fr Bellia to have a support person present if he so desired in relation to any discussions relating to the dismissal.
Whether Fr Bellia was warned about unsatisfactory performance before the dismissal.
[34] There was no evidence that the Board warned Fr Bellia at any time prior to the dismissal that his performance was considered to be unsatisfactory.
The degree to which the size of the Assisi Centre’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and 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.
[35] The Assisi Centre contended that it is “a small employer with no specialist human resource management expertise.” No evidence was given as to the actual staffing of the Assisi Centre nor as to the staffing engaged by Advantage Management Services P/L in the management of the Assisi Centre. However as the Assisi Centre has 120 residents, including some in high care, it would appear that it may have more than 15 full time equivalent employees. No evidence was given as to the specialist human resource management expertise available to the Assisi Centre either through the Board members or through the contracted management provider for the Assisi Centre.
Other matters that FWA considers relevant
[36] It is clear from the initial proceedings in this matter before Deputy President Hamilton that the Assisi Centre dealt with Fr Bellia on the basis that they did not consider him to be an employee of the Assisi Centre. The motion passed by the Board of the Assisi Centre on 4 January 2010 was in the following terms: “That the Assisi Centre Executive move, without delay, to meet with the Melkite Eparchy to arrange for Fr Bellia to be removed from pastoral duties at the Assisi Centre.” The basis on which the Assisi Centre dealt with Fr Bellia is a relevant factor to be considered in this matter.
Conclusion as to Harshness, Unjustness or Unreasonableness
[37] Having considered each of the criteria identified in s.387 I am satisfied that the dismissal was harsh, unjust and unreasonable.
Reinstatement or Compensation
[38] S.390 of the FW Act provides that FWA may make an order for a remedy.
Fr Bellia has specifically sought reinstatement
[39] Reinstatement is the primary remedy provided for under the FW Act as s.390(3) provides that FWA must not order the payment of compensation unless two conditions are met. Firstly, that FWA is satisfied that reinstatement is inappropriate, and secondly, that FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
The parties contentions on reinstatement
[40] Both Fr Bellia and the Assisi Centre have made submissions on the appropriateness of reinstatement and both have drawn attention to issues which directly relate to Fr Bellia’s status as a priest.
[41] Fr Bellia has contended that:
‘47. Reinstatement is the only remedy to restore the reputation concerning the moral integrity of Fr Bellia as a priest. His priestly status is a matter of great delicacy in the public mind.
48. If the applicant is not reinstated, the insinuation made in the public mind by the dismissal will not clear within the church and within the society. This will adversely affect the future of Fr Bellia as a priest and as an employee 10.’
[42] The Assisi Centre contends that:
‘27 Reinstatement is clearly not an appropriate remedy, and should not be ordered in this case: see s. 390 of the Act. It would be inappropriate for an order to be made using the coercive powers available under the Act for restoration of a person to a position involving priestly duties as well as a pastoral care role. The spiritual as well as secular nature of Fr Bellia’s position means it one unsuited to repair by tribunal order.
and
30. Moreover, reinstatement ought not to be contemplated because Fr Beliia is no longer authorised to perform the Catholic (Latin) rites for which he was engaged in the first place. So much is clear from Exhibits EB-6 and EB-7 to Mr Belli’s statement. Fr Bellia agreed in cross-examination that he could not currently perform his priestly duties in the Latin rite. He cannot now perform the duties listed at paragraphs 14(h), (i) &(j) of his witness statement, which overlap significantly with the duties listed in paragraphs 14(e) and (f). His evidence that he will “follow, in obedience what is the vocation of the Catholic Church” makes it untenable that he will perform those duties.
31. It is now also evident that Fr Bellia was never authorised by (had not received a special biritual faculty from) the Apostolic See represented by the Prefect of the Oriental Churches, as required by the 1990 Code of Canons of the Oriental Churches, Canon 674. There is obviously reason for disquiet by the Assisi Centre that the legitimacy of the conduct of his priestly duties whilst serving at the Assisi Centre is questionable: however whatever may have been the position in the past it is clear that he is currently unable to perform the priestly duties in the Roman Catholic rite, to a residential group including many devout Roman Catholics. It is not to the point that Fr Bellia had previously administered Latin rites, nor that he may be optimistic about being given permission in the future: he clearly does not currently have the ability to perform the functions listed in his own witness statement as those involved in his former position. Reinstatement would be impracticable and ought not to occur in circumstances where Fr Bellia is unable to perform the duties of the position.’ 11
[43] The issues raised by the Assisi Centre in paragraphs 30 and 31 of the Respondent’s Closing Submissions warrant careful and specific consideration.
The right to use the right Rite
[44] Whilst Fr Bellia was employed to provide pastoral care for residents of the Assisi Centre his status as clergy (initially as Deacon and later as Priest) was integral to his employment. As the Assisi Centre acknowledged, the approach to the Melkite Catholic Eparch was made because the Roman Catholic Archbishop could not provide a priest to replace the priest who had previously provided the pastoral care for the Assisi Centre residents. The Assisi Centre in making that approach to the Melkite Catholic Eparch were not seeking a lay pastoral care provider but were seeking a clergy pastoral care provider. The Assisi Centre accepted Deacon Bellia in the knowledge that he was soon to be ordained as a priest. In this context the status of Fr Bellia as a Priest in the Catholic Church is directly relevant to the matter before the Tribunal.
[45] The Assisi Centre contended that Fr Bellia no longer has the right to perform the sacraments of the Catholic Church in the Roman Rite and this inability is a relevant factor to be considered in the determination of this application. Fr Bellia contends that the removal of his right to perform the sacraments of the Catholic Church in the Roman Rite was as a result of the Assisi Centre making approaches to the Roman Catholic Archdiocese of Melbourne for that to happen.
[46] The evidence suggests that both contentions may be off the mark.
[47] It is conceded by Fr Bellia that he has been refused a grant of a biritual faculty from the Sacred Congregation for the Eastern Churches. This means that Fr Bellia has not been granted the right as a Melkite Catholic Priest to perform the sacraments of the Catholic Church in a Rite other than the Melkite Rite. As the evidence in this matter discloses, if a biritual faculty had been granted then Fr Bellia would in accordance with that grant have been able to perform the sacraments in the Rite specified in the grant only subject to any conditions in the grant. In essence the grant of a biritual faculty would entitle Fr Bellia to perform the sacraments in another Rite without the need to seek permission from his Eparch or any other local Ordinary (Bishop) in the Catholic Church.
[48] However as the evidence in this matter identifies, there is a second route by which Fr Bellia can obtain permission to perform the sacraments in a Rite other than the Melkite Rite. That is by obtaining a special authorisation from his Eparch on the basis that special or extraordinary circumstances exist which necessitate the performance of the sacraments in another Rite. In the present matter it appears from the evidence (Exhibit A5) that the Melkite Catholic Eparch was prepared to exercise his powers to grant the special authorisation to Fr Bellia whilst he was providing pastoral care to the Roman Rite Catholic residents of the Assisi Centre. The evidence in this matter makes clear that the Roman Catholic Archbishop of the Melbourne Archdiocese concurred with the special authorisation given to Fr Bellia. 12
[49] My attention was drawn to a pronouncement from the Vicar General of the Roman Catholic Archdiocese of Melbourne to all Priests of the Roman Catholic Archdiocese of Melbourne and to the Assisi Centre that Fr Bellia did not have authority to perform the sacraments in the Roman Rite. 13 This is not inconsistent with the above. In fact it is entirely consistent with the above. All that the communication from the Vicar General confirms is that Fr Bellia does not have a grant of a biritual faculty and therefore cannot perform the sacraments of the Catholic Church in the Roman Rite within the churches of the Archdiocese of Melbourne. I find it impossible to come to the conclusion that the communication from the Vicar General had the effect of revoking the special or extraordinary permission given to Fr Bellia from the Melkite Catholic Eparch, and agreed to by the Roman Catholic Archbishop of Melbourne, that Fr Bellia was entitled to perform the sacraments in the Roman Rite whilst he was providing pastoral care to the Roman Catholic residents of the Assisi Centre.
[50] I note that the special or extraordinary permission given to Fr Bellia from his Eparch and concurred with by the Archbishop in Melbourne was not a permission limited by time nor was it dependent upon an employer/employee relationship being in existence. The permission was purpose driven, i.e. the purpose of the permission was to provide the most appropriate pastoral care for the Roman Rite Catholic residents of the Assisi Centre. The specific words of the permission were: “This permission is only for the particular case of your Centre and in your private chapel, for the good of the souls of the faithful attending this Centre where Fr. Andrea Bellia resides.” It would appear as a matter of logic that the permission would cease to operate when Fr Bellia was no longer providing pastoral care to the Roman Rite Catholic residents of the Assisi Centre. As the evidence in this matter made clear Fr Bellia continued to reside in the house on the grounds of the Assisi Centre and had continuing contact with some of the Assisi Centre residents from the time of his dismissal in January 2010 up to the hearing of this application in December 2010. It would appear that whilst Fr Bellia was providing any pastoral care to the Roman Rite Catholic residents of the Assisi Centre during that period then the special permission given to him from his Eparch continued to operate.
[51] Should reinstatement occur then the Vicar General’s communication to parishes continues to apply to Fr Bellia as that communication does nothing more than state the obvious, namely that Fr Bellia does not hold a grant of a biritual faculty. Equally the special permission from the Melkite Catholic Eparch would continue to operate as any order for reinstatement would trigger the purpose of that special permission.
Is reinstatement inappropriate?
[52] I do not accept the contention of the Assisi Centre that “It would be inappropriate for an order to be made using the coercive powers available under the Act for restoration of a person to a position involving priestly duties as well as a pastoral care role. The spiritual as well as secular nature of Fr Bellia’s position means it one unsuited to repair by tribunal order.”
[53] Merely because there is a mix of the spiritual and the secular in the nature of Fr Bellia’s position is no justification for FWA to refuse to grant a remedy of reinstatement.
[54] Equally the contention of Fr Bellia that “Reinstatement is the only remedy to restore the reputation concerning the moral integrity of Fr Bellia as a priest” is insufficient to determine the appropriateness or inappropriateness of a remedy of reinstatement.
[55] The decision I have to make under s.390 is not a decision that the reinstatement of Fr Bellia is appropriate.
[56] Rather under s.390 I must proceed on the basis that reinstatement will occur unless I determine that reinstatement is inappropriate.
[57] In the present matter I determine that reinstatement of Fr Bellia to the position of Senior Pastoral Worker at the Assisi Centre is inappropriate.
[58] I have taken into account the following factors.
[59] Fr Bellia has a real and substantial interest in restoring his reputation particularly concerning his moral integrity as a priest. Reinstatement will assist in this but there is nothing to suggest that the overall outcome of this matter (without reinstatement) will not have a similar effect in restoring Fr Bellia’s reputation.
[60] The conduct of the Board of Assisi Centre causes me real concern in relation to the possible reinstatement of Fr Bellia. As I have already noted in this decision, Ms Andaloro, the employee of the Assisi Centre with whom Fr Bellia will have to work if he is reinstated, was quite prepared to carry her antipathy towards Fr Bellia into a Board meeting of the Assisi Centre and was quite prepared to vote on the motion to have Fr Bellia removed. I also note that Ms Andaloro’s sister, Lilian Antonelli, and brother-in-law, Sauro Antonelli, were also on the Board of the Assisi Centre 14 and participated in the vote to have Fr Bellia removed from the Assisi Centre. All three persons would appear to have had such a conflict of interest in the matter that they should not have participated in the Board’s consideration of matters concerning Fr Bellia. I have no confidence that the Board would act professionally or fairly in relation to Fr Bellia if he was reinstated.
[61] The antipathy and hostility shown by both Ms Petrone and Ms Andaloro towards Fr Bellia has caused him significant distress. Fr Bellia gave evidence that he had suffered health problems which he attributed to the working environment created by Ms Petrone and Ms Andaloro. Fr Bellia also gave evidence that because of the work environment in which he found himself in late 2009 he had expressed a desire to move from the Assisi Centre. There is nothing in any of the evidence or submissions which even hints at, let alone ensures that, the work environment for Fr Bellia at the Assisi Centre will improve if he is reinstated.
Compensation
[62] Compensation is not automatic simply because of a finding that reinstatement is inappropriate. Compensation can only be considered if FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
[63] In this matter it is the conduct of the Assisi Centre which created the environment which makes reinstatement an inappropriate remedy. Compensation therefore becomes the only remedy which is appropriate in the circumstances of this case.
[64] In determining the amount of compensation I must take into account each of the matters referred to in s.392(2).
Effect of the order on the viability of the employer’s enterprise (s.392(2)(a))
[65] Nothing has been put to me which suggests that any order for compensation would adversely impact on the viability of the Assisi Centre.
Length of the person’s service with the employer (s.392(2)(b))
[66] Fr Bellia has been in service with the Assisi Centre since 2005. However considering the circumstances in which his services were acquired I do not consider his relatively short length of service, 4 years, to be a factor which would operate to reduce any amount of compensation.
Remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed (s.392(2)(c))
[67] The Assisi Centre contends that there was a “likelihood that the relationship would not have continued for long even if the Committee had not passed its 4 January 2010 resolution: in particular the Applicant’s request to the Melkite Archbishop to be moved from the Assisi Centre suggests the relationship was, on balance of probabilities, in its final stages”.
[68] This contention must fail. The likelihood that the relationship was in its final stages only arises because the Assisi Centre created a situation in which Fr Bellia was subject to open hostility and antipathy by employees he worked with and which led Fr Bellia to express a desire to be taken away from the hostility and antipathy. Fr Bellia gave clear evidence that he enjoyed his pastoral care work with the residents of the Assisi Centre and that he considered the position a long term one. But for the open hostility and antipathy directed towards Fr Bellia by Ms Petrone and Ms Andaloro and which was allowed to continue by the Assisi Centre it is clear on the evidence that Fr Bellia would have continued in his employment as Senior Pastoral Worker and in providing the sacraments to the Roman Rite Catholic residents of the Assisi Centre. The post dismissal relationship between residents and Fr Bellia is a strong indicator that Fr Bellia would have, absent the conduct of Ms Petrone and Ms Andaloro, continued in his position.
[69] I also note that Fr Bellia had no desire to leave Melbourne given that a move interstate would be disturbing and stressful for his children and his wife. 15
[70] I am of the view that had Fr Bellia not been dismissed he would have remained in employment for at least 1 year after the date of dismissal. Fr Bellia would have received remuneration of $95,000 if he had not been dismissed.
[71] The amount of compensation under this provision is to be $95,000.
Amount of any remuneration earned by the person from employment or other work between dismissal and compensation order (s.392(2)(e)
[72] Fr Bellia has not been in employment since his dismissal. The “other work” that Fr Bellia has engaged in is the performance of his priestly duties for which he may receive small monetary offerings. No reduction to the amount of compensation will be made under this provision.
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 (ss.392(2)(f))
[73] Fr Bellia has given evidence that his income is limited to social security payments and occasional gifts for performing the sacraments of the Catholic Church. No reduction to the amount of compensation will be made under this provision.
Efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal (s.392(2)(d))
[74] Fr Bellia acknowledges that he has not engaged in paid employment since the dismissal and that he has made only a minimal effort to gain paid employment as a social worker. Fr Bellia acknowledged that he has performed social work since his dismissal but that he has done so as a priest and not as a paid employee. 16
[75] In Biviano v Suji Kim Collection 17 a Full Bench of the AIRC, Ross VP, O'Callaghan SDP, and Foggo C considered the extent to which an applicant seeking a remedy for unfair dismissal was required to mitigate the losses suffered.
[35] The question of what steps were reasonable in the mitigation of loss is a question of fact to be determined having regard to the particular circumstances.28 The common law principles regarding mitigation may be of some assistance in applying paragraph 170CH(2)(d).
[36] At common law a plaintiff is expected to take reasonable steps to minimise the effect of a breach of contract. As Lord Haldane said in British Westinghouse Electric and Manufacturing Co. v Underground Electric Railways Co. of London:
"The fundamental basis is thus compensation for pecuniary loss flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps."29
[37] While it is frequently said that there is a "duty" to mitigate it is a little misleading to speak in terms of a duty. If the "duty" is not discharged there is no corresponding right of the respondent that mitigation takes place. In this sense the respondent is not possessed of any true right. Rather, the principle of mitigation operates pro tanto as a conditional bar to the recovery of damages.30 As Donaldson MR said in Sotiros Shipping Inc. v Sameiet Solholt (The Solholt):31
"A plaintiff is under no duty to mitigate his loss, despite the habitual use by lawyers of the phrase `duty to mitigate'. He is completely free to act as he judges to be in his best interests. On the other hand ... a defendant is only liable for such part of the plaintiff's loss as is properly to be regarded as caused by the defendant's breach of duty."
[76] In the present matter Fr Bellia was under no obligation to mitigate the losses suffered by him as a result of the unfair dismissal. Fr Bellia was entitled to pursue his priestly vocation. No obligation can be placed upon Fr Bellia to forego his priestly vocation and to actively seek paid employment. However having said the Assisi Centre is liable to compensate Fr Bellia only for the losses suffered by Fr Bellia as is properly regarded as caused by the Assisi Centre’s unfair dismissal of Fr Bellia.
[77] I would reduce the amount of compensation calculated under s.392(2)(c) by one half or an amount of $47,500 under this provision.
Any other matter that FWA considers relevant (s.392(2)(g))
[78] It was acknowledged that whilst this matter proceeded before Fair Work Australia that Fr Bellia was permitted to continue to reside at the house on the grounds of the Assisi Centre. It was also acknowledged by Fr Bellia that the value to him of the provision of a house, phone, car, medical insurance was $65,000 per annum.(Paragraph 18 of Exhibit B2 in proceedings before DP Hamilton on 26 March 2010) The elements of the non-cash part of the package were not separately valued. However I would attribute the greater part of the $65,000 to the provision of a house.
[79] Neither party sought to attribute a specific value to the provision of a house to Fr Bellia since his dismissal. I assess that the value received by Fr Bellia whilst he continued to reside in the house at the Assisi Centre to be $45,000. Whilst this is not remuneration or income earned by Fr Bellia from employment or other work and thus cannot be considered under s.392(2)(e) or (f) it should be taken into account when determining the amount of compensation to ordered under s.392.
[80] I would reduce the amount of compensation by $45,000 under this provision.
Order for Compensation
[81] I will issue an order under s.390 that the Assisi Centre pay to Fr Bellia the sum of $2,500.
COMMISSIONER
Appearances:
F. O’Brien, Senior Counsel, and A. Duffy, Counsel, for the Applicant
M. McDonald, SeniorCounsel, for the Respondent
Hearing details:
2010
Melbourne
December 9, 10, 14
Final written submissions:
17 December, 2010, by Counsel for the applicant
22 December, 2010, by Counsel for the respondent
1 Paragraph 14 of Exhibit A1
2 [2010] FWA 2904) at PN 17
3 PN2017
4 Paragraph 1 of Exhibit R7 and PN2467
5 Exhibit R7
6 PN2698 and PN2703
7 PN728 and 729
8 PN728 and 729
9 Attachment EB2 to Exhibit R6
10 Applicant’s Reply dated 24 December 2010
11 Respondent’s Closing Submissions dated 22 December 2010
12 PN2346 - 2349
13 Attachment AB4 to Exhibit A1
14 PN1744 and 1745
15 PN1117 and PN1122
16 PN1128 - PN1134
17 PR915963
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