Glenn Rogers v Chevron Australia Pty Ltd T/A Chevron

[2015] FWC 2271

[2015] FWC 2271 [Note: Appeals pursuant to s.604 (C2015/1884 and C2015/2483) were lodged against this decision - refer to Full Bench decision dated 18 August 2015 [[2015] FWCFB 5354] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glenn Rogers
v
Chevron Australia Pty Ltd T/A Chevron
(U2014/7791)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 31 MARCH 2015

Application for relief from unfair dismissal.

[1] In my decision 1 of 9 February 2015, and in light of my decision to order Mr Rogers be reinstated, I provided the parties with an opportunity to provide submissions as to any orders I should make under section 391(3) and (4) of the Fair Work Act 2009.

[2] Mr Rogers submitted that I should make the following orders, that Chevron Australia Pty Ltd (Chevron):

1. pays Mr Glenn Rogers $81,550.72 less any tax instalments it is obliged by law to withhold and remit to the Australian Taxation Office;

2. recognises Mr Glenn Rogers’ service as continuous since he commenced employment on 31 May 2006, for all purposes;

3. reinstates Mr Glenn Rogers’ annual leave entitlement to 496.14 hours;

4. reinstates Mr Glenn Rogers’ personal leave entitlement to the amount he had as at 20 May 2014 plus an additional 64.44 hours; and

5. reinstates Mr Glenn Rogers’ entitlement to DIL to 36 hours.

[3] Mr Rogers submitted an order for back pay is normal if an order for reinstatement is made as this places the employee in the position he or she would have been in but for the unfair dismissal. It was further submitted that unless the Fair Work Commission was of the view that Mr Rogers had engaged in some kind of misconduct, then there should be no reduction. It was submitted that Mr Rogers did not engage in any conduct of that kind.

[4] Mr Rogers submitted that I would be entitled to infer that Chevron may have punished him by not paying him an incentive payment and as such, that has not been included in the calculation.

[5] Chevron submitted that there should be no order for lost remuneration, or alternatively, there should be a significant reduction because of the significance of the misconduct as found. It was submitted that the Commission should send a clear message to Mr Rogers that his conduct was unacceptable and amounts to a serious and potentially very dangerous error. It was further submitted that I should have regard to monies already paid to Mr Rogers. It was also submitted that Mr Rogers’ remuneration attracts a field loading. It is said that as Mr Rogers has not been enduring the disabilities for which the field loading is paid, this should not be included.

[6] Chevron further submitted that there should be no orders recrediting Mr Rogers’ leave entitlements and he should not be credited with accrued leave for the period between termination and reinstatement.

[7] I do not accept Mr Rogers’ submissions. I found that there was a valid reason for the termination of his employment. I found Mr Rogers’ breach was serious.

[8] Mr Rogers’ remuneration package consists of:

(a) $143,400.00 as an annual salary;
(b) $57,360.00 as a field allowance;
(c) at least $1,591.00 as a transport allowance; and
(d) $22,944.00 in superannuation contributions.

a total of $223,704.00 per annum.

[9] At termination, Mr Rogers submitted that he received the following payments:

(a) $19,464.15 in lieu of 5 weeks’ notice;
(b) $7,949.51 in field loading;
(c) $3,309.23 in lieu of accumulated additional hours to be taken as days off in lieu of additional hours worked;
(d) $24,114.07 in lieu of unused annual leave accrued;
(e) $5,907.95 in lieu of leave loading on annual leave accrual;
(f) $28,574.80 in lieu of unused annual leave accrued; and
(g) $1,527.70 in superannuation contributions.

[10] Mr Rogers submitted the Respondent subsequently deducted overpayments of:

(a) $49.32 of transport allowance; and
(b) $4,240.26 in salary payment.

[11] It was submitted that Mr Rogers received a total of $86,557.83.

[12] Chevron submitted that in addition to these amounts, an additional $4,412.31 of days off in lieu was paid. A payslip to support this was provided.

[13] Chevron submitted that Mr Rogers received $98,759.72 from them and other work since termination. It submitted that Mr Rogers’ loss was $72,848.83. As it submitted that the field allowance and transport allowance should not be included, this would see Mr Rogers receive $13,897.83.

[14] The starting point is to determine the remuneration lost by Mr Rogers. Mr Rogers says that had he been employed, he would have earned $223,704 per annum. In the time between his dismissal and his reinstatement order, he would have received $171,608.55, ie (280/365x223,704).

[15] I accept the submissions that in light of Mr Rogers’ serious error, he should not receive in compensation the equivalent of the monies he would have earned had he not been terminated. I also accept the submission of Chevron that given during this period Mr Rogers was not on an even-time work cycle, I should not include any compensation for the loss of the field allowance. Equally, as he was not required to travel, I have not included the transport allowance. For the period between his dismissal and reinstatement these allowances would total $45,222.68 (280/365x(57360+1591)). Had it not been for the conduct that lead to his dismissal, I would not have deducted the full amount of these payments. However, in light of my findings, I propose to deduct the full amount.

[16] Mr Rogers was paid holiday pay (including leave loading) and long service leave.

[17] Mr Rogers has sought to have his annual leave reinstated and be accorded an additional 128.88 hours annual leave, being the leave he would have accrued had he been employed.

[18] Chevron submitted that the annual leave and long service leave should be taken into account when calculating the amount to be paid to Mr Rogers and that leave should not be recredited and no annual leave or long service for the intervening period should be credited.

[19] Mr Rogers is not entitled to both the payment for the annual leave and long service leave and to have his leave recredited. However, given Mr Rogers has accepted this proposition, I see no reason not to recredit Mr Rogers for the annual leave and long service and the amount paid to Mr Rogers for annual leave, leave loading and long service leave should be deducted from the amount to be paid to Mr Rogers.

[20] Mr Rogers was paid five weeks in lieu of notice. That should be deducted from the amount.

[21] I have deducted the monies paid to Mr Rogers’ superannuation fund. I have also deducted the monies paid for the infield loading which leaves a total of $38,847.69.

[22] Mr Rogers earned at most $3,500 and that should be deducted.

[23] I have not made any deduction for the monies paid in lieu of additional hours worked. As these were payments for hours worked prior to termination, I do not consider the amount relevant to this calculation.

[24] The table sets out the calculations:

Lost pay	$171,608.60
Less field allowance and travel allowance	$45,222.68	$126,385.92
Less annual leave and long service leave	$58,596.82	$67,789.10
Five weeks notice	$19,464.15	$48,324.95
Superannuation	$1,527.70	$46,797.25
Infield loading	$7,949.51	$38,847.74
Monies earned	$3,500.00	$35,347.74
Total Amount	$35,347.74

[25] As I have deducted monies paid to Mr Rogers for annual leave and long service leave, it is appropriate that I make orders reinstating Mr Rogers’ annual leave and long service leave. As his accrued personal leave was lost on termination of his employment, I will order that he be recredited with any personal leave lost at the date of termination.

[26] Further, I consider it appropriate that orders be made to maintain Mr Rogers’ continuity of service.

[27] Chevron submitted that Mr Rogers should not be credited with leave entitlements that may have accrued for the period between his termination and reinstatement. I do not accept this submission. I have already made a substantial reduction in the amount to be paid to Mr Rogers by not including the transport allowance and field allowance. This should send a message to Mr Rogers that there was a valid reason for the termination of his employment and but for the finding that his dismissal was harsh, his dismissal would not have been unfair.

[28] I therefore consider it is appropriate that orders be made crediting Mr Rogers with the annual leave and personal leave that he would have accrued had he remained in employment.

[29] I therefore make the following orders, that Chevron:

1. pays Mr Glenn Rogers $35,347.74 less any tax instalments it is obliged by law to withhold and remit to the Australian Taxation Office;

2. recognises Mr Glenn Rogers’ service as continuous since he commenced employment on 31 May 2006, for all purposes;

3. reinstates Mr Glenn Rogers’ annual leave entitlement to 496.14 hours; and

4. reinstates Mr Glenn Rogers’ personal leave entitlement to the amount he had as at 20 May 2014 plus an additional 64.44 hours.

DEPUTY PRESIDENT

 1   [2015] FWC 897.

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