Frank Ioane v Toll Ipec Pty Ltd T/A Toll

[2015] FWC 6069

[2015] FWC 6069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Frank Ioane
v
Toll Ipec Pty Ltd T/A Toll
(U2014/13167)
Marcello Mastroianni
v
Toll Ipec Pty Ltd T/A Toll
(U2014/13168)

COMMISSIONER LEWIN MELBOURNE, 2 SEPTEMBER 2015

Application for relief from unfair dismissal Application for relief from unfair dismissal.

[1] On 11 June 2015, the Fair Work Commission (Commission) handed down a decision concerning these and a related matter in Amiatu & Ors v Toll Ipec Pty Ltd T/A Toll[2015] FWC 3924 (PR568228) (the initial decision). The Commission ordered Toll Ipec Pty Ltd (Toll) to pay Mr Frank Ioane and Mr Marcello Mastroianni an amount equal to 75 per cent of the amount they would have earned but for the termination of their employment between the date of the termination of their employment and 12 March 2015, being the last date of the hearing, less any amount of income earned by Mr Ioane and Mr Mastroianni between those dates.  1

[2] This decision concerns further orders for lost remuneration for Mr Ioane and Mr Mastroianni to be paid by Toll. At paragraph [136] of the initial decision, the Commission noted:

“I will give consideration to further orders for lost remuneration for Mr Mastroianni and Mr Ioane from 13 March 2015, being the day following the last day of hearing, and the effective date of reinstatement, taking into account their circumstances since that date, in due course.”  2

[3] On 4 August 2015, the Commission conducted a hearing in relation to paragraph [136] of the initial decision. At the hearing, Mr Ioane and Mr Mastroianni sought further orders for lost remuneration for the period from 13 March 2015 until their effective date of reinstatement on 15 June 2015 pursuant to s.391(3) and s.391(4)(a)-(b) of the Fair Work Act 2009 (Cth) (the Act). The Commission issued directions for Mr Ioane and Mr Mastroianni to file in the Commission and serve on Toll all information and records in relation to their searches for other employment for the period from 13 March 2015 until 15 June 2015.

Relevant Statutory Provisions

[4] For the purposes of this decision I am required to take into consideration s.391(3) and s.391(4)(a)-(b) of the Act. Section 391 of the Act is as follows:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

Consideration

[5] I have considered the information and records filed by Mr Ioane and Mr Mastroianni in relation to their searches for other employment and submissions filed by Toll. Toll noted that Mr Ioane has only demonstrated that he applied for jobs in May 2015 and submit that the Commission might consider it appropriate to reduce the amount of lost remuneration to be ordered on that basis. I accept this submission. Mr Ioane has not demonstrated to the Commission that he made reasonable efforts to mitigate his losses by searching for other employment outside of the month of May 2015 for the period between 13 March 2015 and 15 June 2015.

[6] I consider it appropriate in all the circumstances to order Toll to pay to Mr Ioane an amount equal to 75 per cent of the amount he would have earned but for the termination of his employment between 1 May 2015 and 31 May 2015.

[7] I consider it appropriate in all the circumstances to order Toll to pay to Mr Mastroianni an amount equal to 75 per cent of the amount he would have earned but for the termination of his employment for the period between 13 March 2015 until his effective date of reinstatement on 15 June 2015.

[8] Orders giving effect to this decision will be issued accordingly.

COMMISSIONER

Final written submissions:

14 August 2015.

 1   Amiatu & Ors v Toll Ipec Pty Ltd T/A Toll[2015] FWC 3924, [129]-[135]; PR568230; PR568231

 2   Amiatu & Ors v Toll Ipec Pty Ltd T/A Toll[2015] FWC 3924, [136]

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