Gregg Davis v Odell Resources Pty Ltd
[2025] FWC 1150
•28 APRIL 2025
| [2025] FWC 1150 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Gregg Davis
v
Odell Resources Pty Ltd
(U2024/11892)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 28 APRIL 2025 |
Application for unfair dismissal remedy - Finding that dismissal was unfair - Compensation appropriate - Assessment of compensation
Mr Gregg Davis (“the Applicant”) has applied to the Fair Work Commission (“the Commission”) for a remedy, alleging that he was unfairly dismissed from his employment with Odell Resources Pty Ltd (“Odell” or “the Respondent”).
For the reasons set out below I have decided to grant the application and order compensation in the amount of $2,890.08.
Background
Mr Davis began working for Odell in March 2023.
Mr Davis was an Operator, employed on a full-time basis. He worked at Wiluna Mine at Leonora in Western Australia but lived in Queensland.
Mr Davis’s employment contract was reduced to writing, in the form of a document headed “conditions of employment,” attached to a letter of offer dated 21 February 2023.[1] Mr Davis signed the conditions of employment document on 10 March 2023.[2]
On 17 September 2024, Mr Davis was on night shift. While on that same shift, on the morning of 18 September 2024, Mr Davis was involved in a physical altercation with another mine worker, Mr Paul Tsoukalas. Another co-worker, Mr Bruce Bowden, was also present.
On 18 September 2024, Mr Davis was rostered on for another night shift. He attended for work and was stood down without pay from 19 to 22 September 2024.
On 23 September 2024, a public holiday in Western Australia, Odell emailed a show cause letter[3] to Mr Davis. That letter asked Mr Davis to respond to certain allegations by 24 September 2024. In addition to asking him to respond to allegations, the Respondent instructed Mr Davis to take a flight to Perth and return home to Queensland from there.
Mr Davis missed his flight. He was then driven to Perth airport. This was a nine-hour drive.
Mr Davis then had to book a flight to Brisbane via a Melbourne connection at his own expense. He says this took 35 hours from the time at which he was dropped off at Perth airport.
Mr Davis was summarily dismissed for serious misconduct on 25 September 2024. He was informed of his dismissal by letter,[4] sent to him by email on that date.
Legislative framework
This application was made under section 394 of the Fair Work Act 2009 (Cth) (“the Fair Work Act”), and alleges that the Applicant was unfairly dismissed. In unfair dismissal cases the two main questions are:[5]
·Was the Applicant “protected from unfair dismissal” at the time their employment ended?[6]
·Was the Applicant unfairly dismissed?[7]
These questions are considered in that order. If the Commission is satisfied that the answer to both is yes, then it can consider whether to order a remedy for the unfair dismissal.
There are various conditions the Applicant has to meet to be protected from unfair dismissal. There are also various issues to consider in deciding whether someone has been unfairly dismissed.
Section 382 of the Fair Work Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Section 385 of the Fair Work Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
In this matter the Applicant was summarily dismissed on grounds of serious misconduct. By section 12 of the Fair Work Act, “serious misconduct” has the meaning prescribed by the Fair Work Regulations 2009 (Cth). Regulation 1.07 relevantly provides:
“1.07 Meaning of serious misconduct
(1) For the purposes of the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
Examples of serious misconduct—employees
(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:
(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business;
(c) engaging in theft, fraud, assault or sexual harassment in the course of the employee’s employment;
(d) being intoxicated at work;
(e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(3) Paragraphs (2)(c) to (e) do not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
…”
By operation of section 123 of the Fair Work Act, an employee whose employment is terminated because of serious misconduct is not entitled to notice of termination, or payment in lieu of notice under section 117.
This application
The application was filed on 4 October 2024. The employer response was filed on 1 November 2024. The parties did not resolve their dispute by conciliation, and so this application is now being determined.
If there are contested facts the Commission has to hold a conference or hearing when determining the application.[8] By Directions issued on 12 December 2025, I directed that the parties could provide their views, if any, as to whether this application should be determined in what is referred to as a “determinative conference,” or at a hearing, in their outlines of submissions. The parties did not provide any views either way. I considered whether a hearing would be the most effective and efficient way to resolve the matter. After doing so I decided[9] to hold a hearing. That hearing/conference was held on 24 February 2025.
Mr Davis represented himself at the hearing. Earlier in these proceedings I gave the Respondent permission to be legally represented. My discretion to grant permission was enlivened because I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. I granted permission, and issued a direction to that effect, on 23 December 2024. Pursuant to that direction, the Respondent was legally represented at the hearing.
Mr Davis gave evidence for himself, along with Mr Dowden. Mr Tsoukalas, Mr Scott Dryland, and Mr Matthew Hess gave evidence for the Respondent.
The Applicant filed an outline of submissions on 18 January 2025. The Respondent filed an outline of submissions on 5 February 2025.
Consideration: initial matters
The dismissal took effect on 25 September 2024 and Mr Davis filed his application on 4 October 2024. There is no doubt, and I find, that the application was made within the period required under subsection 394(2) of the Fair Work Act.
It was not in contest, and I find, that at the time of being dismissed Mr Davis met the requirements of section 382 of the Fair Work Act and was a person who is protected from unfair dismissal for the purposes of section 382.
It is also not in contest, and I find, that Mr Davis was dismissed, Odell was not a small business employer, and the dismissal was not a case of genuine redundancy. So, the only issue that arises under section 385 of the Fair Work Act is whether Mr Davis’s dismissal was harsh, unjust or unreasonable.
Consideration: was the dismissal harsh, unjust or unreasonable?
Section 387 of the Fair Work Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) 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; and
(h) any other matters that the Commission considers relevant.
These are mandatory criteria that should be taken into account and weighed, to the extent they are relevant to the factual circumstances before me.[10]
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
As stated above, Odell summarily dismissed Mr Davis for serious misconduct. Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[11]
It was common ground that Mr Davis’s employment contract explicitly stated that fighting was unacceptable conduct.[12]
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[13]
A Full Bench of the Australian Industrial Relations Commission has held[14] that “… in determining whether there is a valid reason for a termination of employment arising from a fight in the workplace, the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:
·whether the terminated employee was provoked and whether he or she was acting in self defence;
·the employer’s need to establish and retain discipline amongst its employees; and
·the service and work record of the employee concerned.”
Odell submitted:[15]
“The approach of the FWC, and other industrial tribunals, is that generally, in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. This approach is consistent with previous matters in the FWC and findings that it tantamount to serious misconduct.”
(citations omitted)
This proposition had been expressly rejected by a Full Bench of this Commission in Newton v Toll Transport Pty Ltd:[16]
“[172] In support of the proposition put, the Deputy President relies on the following observation of Moore J in AWU-FIME v Queensland Alumina Limited (AWU-FIME) regarding the approach taken by industrial tribunals when fighting or an assault had been established:
‘What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence.’
[173] The Deputy President’s observation may be taken as advancing some sort of ‘decision rule’ such that in dismissals for fighting the Commission ‘will tend to’ find that the dismissal is not harsh, unjust or unreasonable, absent extenuating circumstances. With respect, we reject that proposition.
[174] AWU-FIME, and other relevant authorities regarding fighting or assault at work, were considered by a Full Bench of the Commission in Fearnley v Tenix Defence Systems in which the Full Bench concluded:
‘We think these authorities support the view that in determining whether there is a valid a reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:
- whether the terminated employee was provoked and whether he or she was acting in self defence;
- the employer's need to establish and retain discipline amongst its employees; and
- the service and work record of the employee concerned.’
[175] To similar effect, the Full Federal Court in Allied Express Transport Pty Ltd v Anderson 109 (Allied Express) held that: ‘the entire relevant factual matrix must be considered in determining whether an employee’s termination is for a valid reason.’ Allied Express was applied by the Full Federal Court in Qantas Airways Limited v Cornwall – another fighting case:
‘We accept that in this case, as in Allied Express Transport Pty Ltd v Anderson, it is necessary to examine the circumstances surrounding the conduct relied on, which constitute the ‘relevant factual matrix’, to decide whether the termination was supported, in the words of the statute, by ‘a valid reason . . . connected with the employee’s . . . conduct’. As was said in Cosco Holdings and in Allied Express Transport, a valid reason is one which is ‘sound, defensible, or well-founded’. But it is important to remember that the governing words are those of the statute, and that attempts at judicial explanation should not be substituted for the statutory provision. The question remains whether, the employer having terminated the employee’s employment, there was a valid reason connected with the employee’s conduct... conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterise the nature of the conduct involved. In our opinion, the trial judge was entitled...’
[176] In determining whether a dismissal was harsh, unjust or unreasonable the Act directs the Commission to take into account the matters in ss.387(a) – (h). It is not for the Commission to impose an arbitrary limitation not expressed in the Act. The Commission’s statutory task is obfuscated by attempts to articulate a tendency for the Commission to determine certain categories of cases in a particular way.”
(citations omitted)
Odell also submitted it had considered, but rejected, arguments that Mr Davis had acted in self-defence and/or in response to provocation.[17]
At the hearing the Commission had the benefit of hearing from Mr Davis, Mr Dowden, and Mr Tsoukalas, and seeing a brief video, in relation to the altercation.
Mr Davis gave the following account of the events of the morning of 18 September in his witness statement.[18]
“At approximately 06.00 am on the 18th September 2024 I observed Paul Tsoukalis driving a quad road train into the parking area on the edge of Leonora.
After a brief conversation with another driver present known to me as Mr. Bruce Dowden, we both thought that he had driven too fast and created too much dust.
When Paul [Tsoukalas] walked over to us, I informed him that I thought he was making a lot of dust driving in that fast and suggested that we might lose the use of this area if we create too much dust.
He became aggressive towards me, threatening me and calling me derogatory names and asking repeatedly "how fast was I going"?, "have you got a radar"?, "are you the traffic police"? etc.
Unperturbed, I passively replied "too fast, you're making too much dust".
Paul was extremely aggressive towards me and threatened my personal safety.
I must add that some time ago I had a similar problem with another hot-headed close friend of his, but I was able to de-escalate the situation and avert any physical contact. Paul was aware of this and I feel that it’s possible that it may have rallied him.
I calmly told him that I did not appreciate him being so aggressive towards me and that I would count slowly to three, in order to allow him time to calm down.
I counted slowly whilst raising fingers and each time taking a step back from him. Paul continued to threaten me and stepped towards me each time.
When I got to 3, he said come on cunt and I believe that he went to punch me. I defended his punch and he got smacked in the mouth for his effort and then placed in a sleeper hold. He calmed and I released him. He got up and started yelling "do you know who I am"? several times. He then continued to threaten me with "when my boys in Sydney hear about this, you'll be fucked", etc.”
Mr Davis went on to say:[19]
“Later at the Supervisors office, I offered him an apology for my involvement and he readily accepted it and shook my hand. I asked him if it was over and he said that he didn't want it to go any further. I agreed and this time he offered me his hand. Since then, we have interacted amicably with no further problems.”
This account was consistent with, but more extensive than, an account Mr Davis provided on 19 September 2024.[20]
Under cross-examination, Mr Davis said that he had waved at Mr Tsoukalas to slow down when he pulled in. He maintained that Mr Tsoukalas had walked to him. He said he may have taken one or two steps toward Mr Tsoukalas, but that would be it. He said that he did not raise his voice during the whole interaction.
Odell’s legal representative asked Mr Davis whether he could walk away. Mr Davis said “Well, I still had an issue to deal with. I still needed to placate Mr Tsoukalas and encourage him not to come into the lay down in future at that speed.” Asked why he was doing this when he was not Mr Tsoukalas’s supervisor, he said he was an “elderly, more experienced driver” and that he was also a driver trainer, though that was not a formal title that he held. Odell’s representative asked why Mr Davis did not walk away once Mr Tsoukalas got angry. Mr Davis said because that would not solve anything. He said he was talking calmly as Mr Tsoukalas was yelling at him and threatening him and his personal safety. He maintained he counted to three, slowly, and stepped back and raised a finger each time, so there would be no confusion. Asked what he intended to do on three, Mr Davis said he was counting to three to give Mr Tsoukalas time to calm down, and that he probably would have walked away had Mr Tsoukalas not attempted to strike him. He went on to say:
“And then I got to the end of the three. And then he said, what are you gonna do now? And he called me the C word and then he attempted to strike me.”
In subsequent cross-examination he said the punch had not been immediately after he had counted to three. He said it had taken him several minutes to get to three. He was also unclear on the length of the whole interaction, but thought it could have been fifteen minutes.
Mr Davis agreed that Mr Tsoukalas had not hit him. He said Mr Tsoukalas had commenced what he believed was a striking action, and that if someone was going to strike you, it would be obvious. Mr Davis then demonstrated, indicating that Mr Tsoukalas had got his hand upwards, and that his (Mr Davis’s) right cross had then locked his hand, and followed through to strike him on the chin. He said it was an instinctive reaction, not premeditated, for preservation. Odell’s legal representative put to him that his other evidence, that he had deliberately not broken Mr Tsoukalas’ nose or blackened his eye, suggested it was a controlled punch. Mr Davis agreed you could call it that. Asked about why he had referred to it as a “smack” in his witness statement, he said he had been trying to downplay it.
Under cross-examination, Mr Davis also stated Mr Tsoukalas had attempted to strike him with his left hand, and said it would have been a left-handed uppercut.
Asked if he had put Mr Tsoukalas in a chokehold or a sleeper hold, Mr Davis said they were the same thing. He agreed he put his arm around Mr Tsoukalas’s neck and held his head, and said he had Mr Tsoukalas in front of him.
Asked why he did not retreat when he had knocked Mr Tsoukalas down, he said that Mr Tsoukalas was still threatening him, his person, and his family.
Odell’s legal representative also asked Mr Davis about his reference to one of Mr Tsoukalas’s friends. Mr Davis said that the friend had offered to fight him several times, and he had said no. He said the friend had an acquired brain injury and spoke to everyone poorly, and referred to “young hot heads,” and immaturity.
As to the period after Mr Tsoukalas was released from Mr Davis’s hold, Mr Davis said that after he let Mr Tsoukalas up, the latter said “don’t you know who I am. You don’t know who I am. You know, when my mates in Sydney find out I’m gonna get you, you’re fucked and so’s your family.”
Mr Dowden gave the following account in his witness statement:[21]
“On the 18-09-2024 I was at the lay down at Leonora. I was talking to Gregg Davis as we had just finished work.
At this time Paul Tsoukalis came into the lay down and I thought that he was going a bit quick and Gregg also noticed this and waved his arms to slow down because Paul was creating too much dust.
When Paul pulled up Gregg went up to him and asked him in a civil manner if he could slow down the next time as the Council will say something about the dust.
Paul didn't like this and got pretty aggressive at this time. He walked up to Gregg and started yelling are you a f--Ken copper. Have you got a f--Ken speed gun on you. Get F--ed you stupid old C--t. His face was only inch's away from Gregg's face.
Gregg asked him to calm down but Paul said he would knock Gregg out.
Gregg calmly told Paul that he would slowly count to three to give him time to calm down and asked him to back off and get out of his face, but Paul was pretty angry by now and I was getting concerned he would throw a punch.
Each time Gregg counted, he raised a finger and took a step back from Paul and each time that he did this, Paul stepped towards Gregg. I was starting to fear for Gregg's safety and was also suggesting to Paul that he should calm down.
From where I was standing, it looked to me that when Gregg got to three, Paul started raising his fist at Gregg and I thought that he was starting to strike Gregg when Gregg lashed out putting Paul on the ground.
I helped Paul up and asked if he was alright and to settle down, but Paul went straight back to yelling at and walking towards Gregg as he stepped back and they both tripped over my work bag and rattle gun.
Gregg then got Paul in a choke hold trying to settle him down.
Paul then said he was calm and settled but as soon as Gregg let him go and they both got up, Paul again started yelling at Gregg. I was trying to settle him down but to no avail. The bus then turned up so I left them and got on the bus as did Gregg. We asked Paul if he was coming but he said no. We got back to camp and the supervisor told Gregg that he was stood down.”
Under cross examination Mr Dowden says that Mr Davis came to talk to him when he was doing work on his (Mr Dowden’s) truck. Mr Davis had already finished working on his truck. They were talking. When Mr Tsoukalas pulled up, Mr Davis took one or two steps towards him. He said Mr Davis said to Mr Tsoukalas, calmly and in a polite manner:
Paul, when you come in next time, can you keep it down a bit?
Look at the amount of dust you cause.
The council will kick us out of here.
He said Mr Davis did not shout or raise his voice. He said Mr Tsoukalas was the one who was arguing. He said Mr Tsoukalas “just went right off,” and got right up in Mr Davis’s face. Mr Dowden said Mr Tsoukalas said:
Are you an f-ing copper or something? What do you got an f-ing speed gun there? Who do you think you are? You’re not an f-ing supervisor. I should knock you out you old C.
Mr Dowden said Mr Tsoukalas was right in Mr Davis’s face. He said Mr Tsoukalas was that close that Mr Davis was back walking backwards and Mr Tsoukalas just kept going and going.
He said Mr Davis attempted to retreat by backing up, walking backwards. He said Mr Davis had walked backwards probably a couple of metres. He said Mr Davis had counted to three. Mr Dowden gave the following account:
He said Paul, back off, back off mate, don’t get in me face.
Paul just kept coming and coming.
He said, listen Paul, he said, back off now. I’ll count to three. If you don't back off, he said, we're gonna have trouble.
Then he went 123. Then he didn't hit him straight away.
Then Paul’s dropped his arm like he's gonna uppercut him. And Greg, just, ah, yeah, lashed out.
Mr Dowden said there was probably four or five minutes from the initial conversation to the punch. He says the punch was not right away at the conclusion of counting to three, it was probably eight to ten seconds or so afterwards. He said Mr Tsoukalas did not hit or punch Mr Davis. Contrary to his written statement, he said he did not see Mr Tsoukalas raising his fist at Mr Davis. He said Mr Tsoukalas dropped his shoulder and closed his left fist. He later described this as Mr Tsoukalas clenching his fist.
Mr Dowden agreed Mr Davis had Mr Tsoukalas in a chokehold or sleeper hold. He said he had all his gear stacked in front of the truck, and they both tripped over the gear. He says that throughout he was telling Mr Tsoukalas to tell Mr Davis he had had enough, and telling Mr Davis to stop, and that he was choking Mr Tsoukalas. He said he went to grab Mr Davis’s arm from Mr Tsoukalas’s throat. He said Mr Tsoukalas said “OK, I’ve had enough.”
He says that Mr Davis let Mr Tsoukalas go, and then they both got up. He said Mr Tsoukalas went straight back at Mr Davis, and it just started all over again. Mr Dowden said Mr Tsoukalas continued to threaten Mr Davis. He said after they both got up, Mr Tsoukalas had got back in Mr Davis’s face and said, “you don’t know who I am. You’ve got no idea who I am. I’ve got mates in Sydney. One phone call from me, they’ll wipe you out. They’ll wipe your whole family out.”
Mr Tsoukalas’s account in his witness statement[22] was as follows.
“On 18 September 2024, I was driving a loaded truck from Wiluna and heading south to the laydown pad in Leonora. Upon entering the laydown pad, I proceeded around the back of the offices at a speed of 15 km/h. Due to the exhaust fan being on, the truck was kicking up dust.
As I approached, I observed the Applicant waving his arms up and down and yelling. I parked my truck to conduct my post-journey inspection.
I noticed through the quarter of my window that the Applicant was signalling me. I interpreted this to mean that he was signalling me to slow down.
As I opened the door to exit the truck, I saw the Applicant and Mr Bruce Dowden approaching me. The Applicant approached me in an aggressive manner, still waving his arms and yelling.
I didn't understand why the Applicant was coming towards me. He is not my supervisor and in any event I hadn't done anything wrong.
He shouted, "Slow down, we're going to get kicked out by the council. I responded, "Look, Gregg, I was only doing 15 km/h in a yard. I don't think that was fast".
The Applicant replied, "No, that's bullshit, you were going a lot faster than that. I then said, "No, are you a fucking idiot? Do you hold a radar gun to check the speed I was going?" The situation escalated, and we were both face-to-face in a heated verbal exchange.
Mr Dowden was standing next to the Applicant and appeared to be backing him up. He didn't say anything or attempt to break up the argument. I got the impression that he was supporting the Applicant.
The Applicant stood his ground and continued to argue. I just wanted to finalise my post journey inspection and get out of there. At no stage did the Applicant back off or attempt to retreat.
I repeatedly told the Applicant to walk away three times. On the third occasion, he punched me in the face with a closed fist, hitting the left side of my jaw. The impact caused me to fall onto the bulbar of my truck and then onto the ground.
The punch surprised me as our argument was purely verbal at that stage. The punch had considerable force as it knocked me back and I fell over.
At no stage did I punch or threaten to punch the Applicant.
I have no recollection of the Applicant counting to three.
While I was on the floor, completely vulnerable, the Applicant put me in chokehold and began dragging me away from my truck.
At this stage Mr Dowden also involved himself and grabbed my right arm and started pulling me in the opposite direction. It felt like I was a ragdoll.
This moment was terrifying for me. The Applicant had his arm around my neck, and I was genuinely scared that he would choke me out as I was struggling to breath.
Instead of telling the Applicant to stop or trying to get him off me Mr Dowden actively joined in on the unprovoked attack.
At one point, the Applicant asked me "Have you calmed down". I was still scared but answered "yes" in the hope that he would stop. As the Applicant and Mr Dowden were both attacking me it felt like I had no other option.
Following this he let me go and I stood up. He continued to shout at me and kept pointing in an intimidating way at my chest. I walked away at this point.
I immediately called my supervisor Mr Hayden Goodwin and reported the incident to him.
Shortly after this call I was picked up by my other supervisor, Mr Ben McKay, who took me back to the yard.”
Under cross-examination, Mr Tsoukalas did not agree that the conversation between him and Mr Davis went on for a lot longer than the video. Under questioning from Mr Davis, his account was:
“I did get out of the truck. We were in a verbal heated argument. I did state to you to walk away three times, which is then when you have punched me with a closed fist, to the left hand side of my face, which has caused me to fall over and hit the bull bar, fall onto the ground, and then you have decided to put me in a choke hold, and drag me away from the vehicle.”
Mr Tsoukalas agreed he had threatened Mr Davis afterwards, but said, “could you blame me?” He maintained Mr Davis had not counted to three. He said Mr Davis had raised his fingers, but had not stood back.
Mr Tsoukalas maintained Mr Dowden had grabbed his right arm, and that he felt like a rag doll. He did not accept Mr Dowden was trying to help him up. He said he was disorientated.
Mr Hess, Maintenance Manager for Odell, provided with his statement footage that he had taken on his phone camera. The footage ran for 1 minute and 49 seconds (109 seconds). It was a video of a screen playing video footage, which was from a front-mounted camera on the vehicle that Mr Tsoukalas had been driving. The altercation had taken place in front of that vehicle. The footage had been captured via that front-mounted camera between 6.22 am and 6.24 am on 18 September 2024.
During the course of these proceedings Mr Davis had obtained an order for production of “the original video file … with sufficient duration to include events two (2) minutes prior to the supplied footage.” Odell had responded that it had no such document or record in its possession, power or control.
In his statement Mr Hess said that Odell is required by the Main Roads Department to have In-Vehicle Monitoring Systems as part of their Heavy Vehicle Accreditation.[23] He said he is able to access the footage from a web-based server by searching for footage from time packets which are up to 180 second packets.[24] The system overwrites itself every 24 hours and Odell cannot access previous footage once this occurs.[25]
Mr Hess said he was able to identify a packet between 6:22 am to 6:24 am from the vehicle’s front-mounted camera, and that this packet captured the altercation. He says he reviewed the other cameras and packets but no other footage of the individuals was captured. He said he tried to download and send the file, but it did not work, and he could not email the footage, so he took a video of the footage on his phone and sent it to Mr Dryland.[26]
Mr Hess explained that he had taken this approach – using his phone camera to video a video – because he had been unable to download the original. Under cross-examination he said that he had been unable to do so because the vehicle was physically distant from where he was, and because downloading footage from the vehicle’s cameras was not a simple matter of removing an SD card but instead would require a specialised technician. I accept that this is plausible as it would not be a robust regulatory system if anyone, driver included, could remove the SD card from the vehicle. Mr Dryland said the SD card is only removed if there is a serious incident, such as a truck rolling over. Mr Davis put to him that on the employer’s argument that this was an assault, it was a serious incident, and that it was serious for him because he was dismissed. Mr Dryland said the only time you take it out is if a truck’s rolling over, if it’s burning down, or if it’s damaged. And he said as far as they were concerned they gained the relevant video footage that was required.
Mr Hess’s statement said the cameras videoed in a cycle, one at a time, not all at once. He said that the lead up to the incident was not captured by the front facing camera as the other cameras were in operation at the time, and as they were rear-facing they did not capture any footage of the individuals.[27] Under cross-examination, though, Mr Hess contradicted his written statement. He said that the assertion in his statement that “the three cameras are not continuously recording all at once” was incorrect. He said that each of the three video cameras – one front-mounted, and two rear-mounted – on Mr Tsoukalas’s vehicle had continuously taken video in 180-second packets.
Under cross-examination Mr Hess said he had looked at the video packet prior to the video provided, and had gone back “two or three hours.” He said that what was provided was all that the forward-facing camera had picked up. He said the only footage with people in it was between 6.22 am and 6.24 am. Mr Davis asked him if the three people had just appeared in the frame, and Mr Hess said they had.
This is difficult to accept. If, as Mr Hess now said, the camera had been recording continuously it is doubtful that the three of them appeared in the middle of the shot between frames. At the commencement of the video the three of them were in the centre-third of the frame. We do not know what happened in the video immediately beforehand, or why the video was only 109 seconds long. Mr Davis’s argument is that the period immediately before this footage would have shown him trying to de-escalate the situation.
Unsurprisingly given it was a video of a video, the footage was very low quality. Watching the video, it is difficult to tell what was happening. Faces and hands cannot be made out. There is no sound. The footage is shot in portrait orientation. Mr Davis and Mr Dowden had different interpretations of what the footage showed. The following is my own review of the footage.
00:00 The three men are in the centre-third of the frame, both horizontally and vertically. Mr Tsoukalas has his back to the camera and Mr Davis and Mr Dowden are facing the camera. The footage zooms in rapidly so that the three of them take up the whole of the bottom half of the frame.
00:01-00:02 Mr Tsoukalas takes a step towards Mr Davis. Mr Dowden is standing behind Mr Davis’s left shoulder. Almost all of Mr Tsoukalas’ left arm, and his hand are obscured by his body and what appears to be the front of the truck. The top of his shoulder, extending about ten centimetres down his arm, can be seen from the back.
00:03 Mr Davis raises his right arm.
00:06-00:09 Mr Davis drops his arm and takes a step back.
00:10 Mr Davis raises his right arm again.
00:11 Mr Tsoukalas’s right elbow moves in front of his body and out of view. At the same time, Mr Davis tilts his head back and brings his right arm down.
00:12 Mr Tsoukalas’s right elbow is back in view. His left arm and hand are still obscured. Mr Davis is leaned slightly left, so that his head can be seen over Mr Tsoukalas’s right shoulder.
00:13 Mr Davis crouches slightly and then hits Mr Tsoukalas in the face with what looks like a heavy right cross. Mr Tsoukalas falls to the ground. Mr Bowden takes a step back.
00:14 Mr Tsoukalas is not in the frame.
00:15 Mr Davis steps forward and to his right, out of the frame.
00:16 – 00:20 Mr Dowden walks towards where Mr Tsoukalas had fallen.
00:21-00:23 Mr Davis emerges into the frame, standing up and appearing to lift Mr Tsoukalas. They move out of the right side of the frame. It is not clear but they then appear to be down on the ground again.
00:24-00:45 Mr Dowden walks towards Mr Tsoukalas and appears to bend slightly to lean over Mr Tsoukalas. It is not possible to tell whether Mr Dowden is holding or even touching Mr Tsoukalas or Mr Davis, but at the least his arms are both down towards them. Mr Dowden continues to lean over Mr Tsoukalas with his arms down, without taking any steps back.
00:45-00:46 Mr Dowden moves his arms away from or releases Mr Tsoukalas and takes a couple of steps backwards.
00:47-00:50 Mr Tsoukalas gets to his feet.
00:51- 01:24 Mr Davis comes back into view, at the right side of the frame. Mr Tsoukalas moves towards Mr Davis and stands in front of him. They appear to be talking. At 1:06, Mr Dowden turns and leaves the frame.
01:25-01:26 Mr Tsoukalas walks out of the frame, to his right. Mr Davis does not move.
01:27-01:44 Mr Tsoukalas comes back into the frame, bends down to pick something up, then stands up to face Mr Davis again. They appear to be talking.
01:45-01:49 Mr Dowden re-enters the left side of the frame and bends over to pick something up. Mr Davis looks down at him, and Mr Tsoukalas tilts his left shoulder back and down, and half turns, to look down at Mr Dowden as well.
Mr Davis is in his sixties, decades older than Mr Tsoukalas. On the video Mr Tsoukalas appeared taller than Mr Davis.
Mr Davis said he had a head injury in 1990 and was in a coma as a consequence, and that that had left him with a fragile frontal cranium. He said he was constantly aware that a blow to the face could kill him or leave him with paralysis or a severe brain injury.[28] Odell said that no medical evidence had been provided in that regard, and that no such vulnerability had been picked up in Mr Davis’s pre-employment medical checks, of which it provided copies.[29]
I accept that Mr Davis spoke to Mr Tsoukalas calmly when Mr Tsoukalas got out of his truck. I accept that Mr Davis was offering unsolicited criticism to Mr Tsoukalas, despite not being Mr Tsoukalas’s supervisor. I accept that Mr Tsoukalas reacted angrily to that, telling Mr Davis off. I accept Mr Tsoukalas was heated and Mr Davis was calm. It is clear enough from the video that Mr Davis was backing up and Mr Tsoukalas was stepping up to him, before the punch.
If Mr Davis was trying to de-escalate by counting to three, his actions likely had the opposite effect. If Mr Tsoukalas was telling Mr Davis to walk away, this also likely had the opposite effect of Mr Davis not backing down.
As to whether Mr Tsoukalas closed his fist, raised his first, or attempted a punch, the three witnesses gave three different accounts and all of them seemed to be recounting their genuine recollection. I found all of them forthright and I accept they were truthfully recounting their recollection of the events. The video shed no light on the matter given Mr Tsoukalas’ left arm was almost wholly obscured, and his left hand was wholly obscured. Having regard to Mr Davis and Mr Dowden’s evidence I accept Mr Tsoukalas at least closed his fist. I do not find that Mr Tsoukalas actually attempted an uppercut. Mr Tsoukalas’s evidence was that he did not punch or threaten to punch Mr Davis. I accept that too and I do not consider this to be inconsistent with the previous finding, as a person may well not believe that by just closing his fist he is threatening a punch.
I accept that Mr Davis thought Mr Tsoukalas was about to attempt a left uppercut, and that that prompted Mr Davis’s right cross. He had reasonable grounds for this given he had been backing away and Mr Tsoukalas had been stepping towards him, had been telling him off and swearing in a heated manner, and, at least, closed his fist. I accept that Mr Davis was afraid of being punched.
It is not in contest that Mr Tsoukalas fell when punched, and hit the bullbar. It is not in contest that Mr Davis put Mr Tsoukalas into a chokehold or sleeper hold, however described. It is rational to try to subdue a person who you believe you just punched in self-defence, especially if that person is much younger than you, and taller.
I accept that being punched, falling, hitting the bullbar and then being put into a chokehold or sleeper hold was terrifying for Mr Tsoukalas. His conduct after getting up is readily explainable. His concession that he threatened Mr Davis after he got up reinforced my impression that he was a forthright and truthful witness.
I accept Mr Dowden thought he was trying to de-escalate the chokehold and that he told Mr Davis he was choking Mr Tsoukalas. I accept that Mr Tsoukalas thought that Mr Dowden was helping Mr Davis.
From the video, the chokehold or sleeper hold appears to have lasted around twenty seconds. Both men were scared and I do not find that Mr Davis was deliberately trying to cause more harm to Mr Tsoukalas than was necessary to protect himself. But twenty seconds is a long time.
Having regard to the matters I have referred to above, on balance, I find that there was a valid reason for the dismissal related to the Applicant’s conduct. The punch was, from Mr Davis’s perspective, an act of self-defence. The chokehold or sleeper hold was rational for the reasons stated above. Even if Mr Davis had not been acting in self-defence, Mr Tsoukalas was a younger, taller man who had been getting in Mr Davis’s face in a disproportionate and heated response to Mr Davis’s criticism of his driving. This was provocation or at least mitigating circumstances. But the length of the chokehold or sleeper hold made it excessive, giving rise to a valid reason in relation to conduct, arising from the altercation.
Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[30]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[31] and in explicit[32] and plain and clear terms.[33] Odell met these requirements by its show cause letter dated 23 September 2024.[34]
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[35]
The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[36] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[37]
It was common ground that Mr Davis provided a statement after the altercation, which he signed on 19 September 2024. The statement signed on 19 September 2024 was typed. Mr Davis said he had also provided a handwritten statement, but did not know what had become of it. The handwritten statement was not before me.
Mr Dryland conceded he had spoken to Mr Tsoukalas about the incident after it had occurred, but at that point had relied only on Mr Davis’s written statement, rather than speaking to him as well. He also agreed he had not interviewed Mr Dowden.
Mr Dryland accepted that Mr Davis was suspended from duty, while Mr Tsoukalas was not. He said this was because they had not been in a fight, but instead Mr Davis had assaulted Mr Tsoukalas. This suggests a degree of prejudgement.
It was also common ground that a show cause letter was provided on 23 September 2024, and that the letter required a response by the following day. 23 September 2024 was a public holiday in Western Australia.
The parties are in dispute as to whether Odell provided the correct flight details for Mr Davis to travel from Leonora to Perth that day, whether the details were provided by email or by telephone call, and whether Mr Davis refused to get on the flight. But it was common ground that Mr Davis missed the flight, and was, at some later point, driven from Leonora to Perth, a nine-hour drive. It was in dispute whether Mr Davis was entitled to have Odell pay for his flight from Perth to home, but it was common ground that he had to make his own arrangements to get to Queensland at his own expense.
Mr Dryland and Mr Davis both said that Mr Davis asked for an extension on 23 September. Mr Davis said the timeframe did not give him time to get legal advice.[38] Mr Dryland said that he declined it on the basis that Mr Davis was aware of the nature of the show cause and had previously provided a statement, and Mr Davis was not working on 23 September so he had over a full day to prepare his response. Mr Davis said that he spoke to Mr Dryland by phone about the extension. He said Mr Dryland had told him he should have thought about that before he struck Mr Tsoukalas, and that it was a public holiday and he never had time for this (expletive) shit.[39] Odell did not put on any evidence contradicting this. Under cross-examination Mr Dryland agreed he had said “it’s a public holiday” and he didn’t “need this fucking shit,” but then said he did not think that was exactly what he had said, but agreed he had used profanity.
Mr Dryland says he received no substantive response from Mr Davis.
The time given for response was very short. The time was curtailed because Mr Davis spent time going on a long car trip, and trying to make alternative travel arrangements, over the course of those two days. Mr Davis’s flight records show he arrived in Brisbane at 12:10 pm on Wednesday 25 September, after a stop in Melbourne at 10 am that same day. In all the circumstances, including that 23 September was a public holiday, and Mr Davis’s travel, it was not reasonable for Mr Dryland to refuse the extension. This militates against a finding that Mr Davis had a full or proper opportunity to respond.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum to the Fair Work Bill 2008 referred to this consideration as follows:[40]
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
There was no evidence of any request, or any refusal of any request, for Mr Davis to have a support person at the meeting that occurred with the Haulage Supervisor after the altercation, or for the purposes of any phone exchanges with Mr Dryland.
In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this consideration does not arise, and does not weigh in support of or against a finding that the dismissal was harsh, unjust, or unreasonable.
Size of the enterprise, and dedicated human resource management specialists or expertise – effect on procedures
Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.[41]
It was common ground between the parties that Odell had one hundred or more employees. It was not established, on the evidence, whether the Respondent had, or lacked, dedicated human resource management specialists or expertise. The Respondent was legally represented in these proceedings. I infer that a resources company that size would have access to at least some internal or external advice.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Mr Davis says Odell deducted approximately $1600 from Mr Davis’s final pay, for the cost of the flight from Wiluna mine to Perth, which as stated above he did not take as he had received incorrect travel information. Odell denies this. It attached a copy of the final payslip to its Response, but did not seek to adduce it into the evidence. Mr Davis also did not include his final payslip in his evidence. In the absence of this document I am not persuaded there was an unauthorised deduction from Mr Davis’s pay.
Mr Davis’s employment contract provided that Odell would cover costs of flights to and from his hometown,[42] not just to and from Perth. Mr Davis confirmed he believed he was entitled to have the cost covered, while giving his evidence. Under cross-examination Mr Dryland stated the contract had been varied. Odell did not put forward any other evidence of this. Odell did not fund the flight home, but left Mr Davis to arrange his own flight home from Perth. He was still in transit at the point at which Odell sent him the termination letter[43] on 25 September 2024. The contract is clear on its face and I am not satisfied it has been varied to remove Odell’s obligation to fund flights to Mr Davis’s hometown. The failure to do so in the period between the issue of the show cause notice and Mr Davis’s termination militate in favour of a finding of unreasonableness.
It was common ground that Mr Davis had no history of violence or misconduct while working for Odell.
The Respondent cross-examined Mr Davis about his criminal record, which included a conviction from sixteen years before this altercation. Mr Davis said that conviction related to a failure to provide for his daughter. He said he now lived with that same daughter. This conviction was not relevant to the matters before me.
Mr Davis had worked for Odell for less than two years.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
Findings have been made, as set out above, in relation to each matter specified in section 387 of the Fair Work Act. The Commission must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[44]
Odell submitted the Commission should be guided by the decisions in Turvey v Roverworth Pty Ltd[45] and Sheridan v Health Secretary.[46] Neither decision is binding. Each is persuasive. Each turned on its own facts. The task before the Commission in this matter is to take into account the factual matrix and weigh each of the considerations set out in section 387 of the Fair Work Act.
Having considered each of the matters specified in section 387 of the Fair Work Act, I am satisfied that the dismissal of the Applicant was harsh, unjust, and unreasonable, having regard to the facts of the altercation, the deficiencies as to the opportunity to respond, Mr Davis’s otherwise clean record, the failure to meet the employer’s obligations as to travel in the intervening period between the show cause and the termination, and the summary nature of the dismissal.
Remedy
Being satisfied that the Applicant made an application for an order granting a remedy under section 394 of the Fair Work Act, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of section 385, the Commission may, subject to the Fair Work Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under section 390(3) of the Fair Work Act, the Commission must not order the payment of compensation to the Applicant unless the Commission is satisfied that reinstatement of the Applicant is inappropriate, and the Commission considers an order for payment of compensation is appropriate in all the circumstances of the case.
Mr Davis says there is no vacancy with his former employer.[47] The employer did not say otherwise. I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. A Full Bench has stated that “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[48] and so the issue of whether the discretion should be exercised in favour of granting compensation will now be considered.
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[49]
In all the circumstances, I consider that an order for payment of compensation is appropriate in light of the loss that Mr Davis suffered.
Section 392(2) of the Fair Work Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
There is no evidence before me to indicate that an order for compensation would affect the viability of the employer’s enterprise. This consideration is neutral.
The Applicant’s length of service was less than two years.
I consider that the Applicant’s length of service does not support reducing or increasing the amount of compensation ordered, though it could affect the remuneration that Mr Davis would have received if he had not been dismissed.
As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[50]
I have found there was a valid reason for termination. In the circumstances if Odell had dealt with the matter more prudently, it is likely that Mr Davis would have been dismissed on a date on or around 2 October 2024. Taking into account the factual matrix set out above I consider he most likely would have been dismissed summarily.
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[51] What is reasonable depends on the circumstances of the case.[52]
Mr Davis said “I have been traumatised by these events and have not been in a state of mind to apply for another job.” Odell submitted and I accept that Mr Davis had taken no steps to mitigate his loss.
There is no evidence of any earnings from employment or other work since the dismissal.
Given the matters set out above this issue does not weigh in favour or against reducing the amount of compensation.
The cost of the flight from Perth to Brisbane was not incurred after the dismissal. Even if Mr Davis had been employed for a further period as described above, he would likely still have flown back to Brisbane prior to termination. Whether or not Mr Davis might have a remedy in contract, I do not consider this loss appropriate to be compensated in these proceedings.
Mr Davis has also indicated he wishes to be compensated for fees he paid to a paid agent in connection with filing his application. This loss will also not form part of the compensation in these proceedings. If Mr Davis wishes to make an application for costs, he is not prevented from doing so. As he was self-represented in these proceedings, it is noted that he should have regard to the relevant provisions of the Fair Work Act and the material freely and publicly available about those provisions’ operation, including in the Fair Work Commission’s unfair dismissals benchbook.
The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket (“Sprigg”)[53] and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases,[54] as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
Mr Davis said he was paid $50 per hour, and worked a minimum of 72, and a maximum 84, hours per week.[55] This was consistent with his employment contract which provided that shifts may be up to 12 hours in duration, and working hours would not exceed 84 hours per week.[56] This means the gross payment per week would have been $3,600.00.
I have found, above, that Mr Davis would have been employed another week. The amounts that Mr Davis would have received, therefore, are:
Period from 25 September to 2 October: $3,600.00
Superannuation guarantee at 11.5% (the rate in financial year 2024/25): $414.00Total: $4,014.00
I have estimated this on the basis of my finding that the Applicant would likely have remained in employment for a further period of one week. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”.[57]
Step 2
Only monies earned since termination for the anticipated period of employment are to be deducted.[58] In this case, there are no monies to be deducted at this step for monies earned during the anticipated period of employment. However, as stated above, I accept Mr Davis took no steps to mitigate his loss.
Given the short period concerned, that is, one week, and given the time necessary to travel back from Perth to Brisbane, it is not clear that even if Mr Davis had sought to mitigate his loss, he would have obtained remunerative work during the anticipated period of employment, or during the one week following the dismissal on 25 September. Having regard to all of the circumstances above, I will reduce the compensation by 10% in light of Mr Davis’s failure to mitigate. The resultant gross amount is $3,612.60.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[59] No party made any submissions about whether any amount should be deducted for contingencies. Given the short period involved I will not deduct any amount for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $3,612.60 and leave taxation for determination.
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,”[60] including my findings set out above.
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the Fair Work Act.
If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the Fair Work Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
I am satisfied that the misconduct of the Applicant contributed to the employer’s decision to dismiss.
In all the circumstances, I am satisfied that the appropriate amount by which to reduce the amount of the order for compensation on account of misconduct is a further 20%.
Applying this reduction to the amount determined at step 4 above, the gross amount of compensation to be ordered, subject to the compensation cap discussed below, is $2,890.08.
I am satisfied that this amount does not exceed the compensation cap provided for in subsection 392(5) of the Fair Work Act.
In light of the above, I will make an order that the Respondent pay the Applicant $2,890.08 gross, less taxation as required by law, in lieu of reinstatement within 14 days of this decision.
Conclusion and disposition
I am satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Fair Work Act.
I have determined to award the Applicant an amount of $2,890.08 gross, less taxation as required by law, as compensation for lost wages.
An order will issue separately, requiring that the amount be paid within 14 days of this Decision.
DEPUTY PRESIDENT
Appearances:
Mr G Davis, Applicant, for himself.
Mr M Used of Pragma Lawyers, for the Respondent.
Hearing details:
24 February 2025
By video
[1] Exhibit 5.
[2] Exhibit 5.
[3] Exhibit 6.
[4] Exhibit 7.
[5] Fair Work Act 2009, section 390.
[6] Ibid, s.382.
[7] Ibid, ss.385 and 390(1).
[8] Ibid, s.397.
[9] Ibid, s.399.
[10] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[11] Sydney Trains v Trevor Cahill[2021] FWCFB 1137, [38], applying Edwards v Justice Giudice [1999] FCA 1836, [7].
[12] Exhibit 12, annexure SD-1.
[13] Sydney Trains v Trevor Cahill[2021] FWCFB 1137, [38], applying King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[14] Tenix Defence Systems Pty Ltd v Fearnley Print S6238 (AIRCFB, Ross VP, Polites SDP, Smith C, 22 May 2000), [25], referred to with approval in Newton v Toll Transport Pty Ltd[2021] FWCFB 3457; 307 IR 140, [174].
[15] Respondent’s outline of submissions, [15].
[16] [2021] FWCFB 3457; 307 IR 140, [173]-[176].
[17] Respondent’s outline of submissions, [21]-[24].
[18] Exhibit 9, [1] – [10].
[19] Exhibit 9, [11].
[20] Exhibit 12, annexure SD-3.
[21] Exhibit 10.
[22] Exhibit 11, [7]-[27].
[23] Exhibit 13, [4].
[24] Exhibit 13, [7].
[25] Exhibit 13, [8].
[26] Exhibit 13, [15]-[16], [18].
[27] Exhibit 13, [9], [17].
[28] Exhibit 4, p 3.
[29] Exhibit 12, annexure SD-2.
[30] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[31] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[32] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[33] Ibid.
[34] Exhibit 12, annexure SD-5.
[35] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[36] RMIT v Asher (2010) 194 IR 1, 14-15.
[37] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[38] Exhibit 4, p 5.
[39] Exhibit 4, p 77.
[40] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[41] Jetstar v Meetson-Lemkes[2013] FWCFB 9075, [68].
[42] Exhibit 12, SD-1.
[43] Exhibit 12, SD-6.
[44] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[45] [2021] FWC 4593.
[46] [2021] NSWIRComm 1043.
[47] Exhibit 4, p 5.
[48] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[49] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[50] He v Lewin [2004] FCAFC 161, [58].
[51] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[52] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[53] (1998) 88 IR 21.
[54] Tabro Meat Pty Ltd v Heffernan[2011] FWAFB 1080; Read v Golden Square Child Care Centre[2013] FWCFB 762; Bowden v Ottrey Homes Cobram[2013] FWCFB 431.
[55] Exhibit 4, p 1.
[56] Exhibit 12, annexure SD-1.
[57] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[58] Ibid.
[59] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[60] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
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