Gwatking v Schweppes Australia Pty Ltd
[2015] FWC 3969
•15 JULY 2015
| [2015] FWC 3969 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mark Gwatking
v
Schweppes Australia Pty Ltd
(U2015/331)
COMMISSIONER HAMPTON | ADELAIDE, 15 JULY 2015 |
Application for relief from unfair dismissal – altercation between two employees at the workplace – long serving employee – applicant provoked but response beyond self-defence – serious incident for individuals and other employee seeking to intervene - valid reason found – dismissal harsh in the circumstances – remedy - remedial benefit of reinstatement - no contrition or sense that conduct inappropriate – grounds for loss of trust and confidence found – reinstatement not appropriate – compensation awarded.
1. Background and case outline
[1] Mr Mark Gwatking has made an application under s.394 of the Fair Work Act 2009 seeking a remedy for an alleged unfair dismissal. Mr Gwatking had been employed as a Filler Operator by Schweppes Australia Pty Ltd (Schweppes) at its Payneham factory in South Australia for a period of over 30 years at the time of his dismissal in January 2015.
[2] Mr Gwatking was dismissed by Schweppes following an incident with another employee on 9 January 2015 during which a physical and verbal altercation occurred. There is a dispute about the details of that altercation, including which employee initiated the incident, the nature of the physical and verbal exchanges, and the degree to which Mr Gwatking actively participated.
[3] Mr Gwatking was represented by United Voice in this matter and contends that he was, in effect, assaulted by the other employee, Mr FW, 1 and pushed to the ground. He further contends that he pushed Mr FW away in self-defence and his conduct was reasonable and proportionate in the circumstances. That is, the altercation was at the very low end of seriousness and any conduct on his part was undertaken in the face of significant provocation. Mr Gwatking also contends that he showed remorse, honesty and contrition during the investigation and disciplinary process.
[4] On the basis of the above contentions, Mr Gwatking submits that there was no valid reason for his dismissal and that the dismissal was harsh and disproportionate to the conduct given the consequences for a very long serving and loyal employee. Further, he contends that the dismissal was unreasonable in that it was based upon inferences that were not available to the employer. Mr Gwatking seeks reinstatement and relies upon his own circumstances and the attitude of the workforce to support that notion. In the alternative, Mr Gwatking seeks significant compensation.
[5] Schweppes, which was represented with permission by Ms Aistrope of Kelly Hazel Quill Lawyers, contends that the altercation between the applicant and Mr FW involved Mr Gwatking acting aggressively and actively engaging in the physical altercation. This was said to involve both men going at each other including by pushing and shoving, “air punching”, the grabbing of Mr FWs’ clothing and aggressive language. The altercation occurred in the context of a workplace where employees work in close proximity to both each other and a production line and where conduct of the nature alleged was not tolerated. Schweppes also contends that Mr Gwatking had, in the lead up to the altercation, acted aggressively in throwing a partly filled bottle of soft drink at or in the direction of Mr FW.
[6] Schweppes also contends that Mr Gwatking did not show remorse during the disciplinary process, did not accept that he had done anything wrong, had a tendency to lose his temper, and previously had been given a final warning for an earlier incident with another employee.
[7] Schweppes submits that the above circumstances provided a valid reason for dismissal and it further contends that the dismissal was not harsh, unjust or unreasonable. In the alternative, it also opposes reinstatement and any award of compensation given the alleged conduct of the applicant and the circumstances of the workplace.
[8] In general terms, there is no dispute that the procedure followed by Schweppes leading to the dismissal was fair and it is common ground that Mr Gwatking was protected from unfair dismissal by the terms of the Act. 2
[9] Accordingly, amongst other considerations, the key disputes in this matter concern the circumstances leading to, and the conduct of Mr Gwatking in and surrounding, the altercation with Mr FW and whether in that context a valid reason for dismissal existed. Further, an assessment is required as to whether the dismissal was harsh or unreasonable, given all of the circumstances of Mr Gwatking and the workplace.
2. The cases presented
[10] Mr Gwatking provided a witness statement and gave evidence. He also relied upon the evidence of George Dadleff, a Forklift Driver who had worked with Mr FW and the applicant. Mr Dadleff’s evidence went to some alleged incidents involving Mr FW and his view of Mr Gwatking’s conduct.
[11] Mr Gwatking also called Mr Craig Burgess, a Machine Operator and United Voice delegate. Mr Burgess provided evidence to confirm how a petition of production workers at Schweppes supporting Mr Gwatking’s reinstatement was collected. Mr Burgess also acted as a support person for Mr Gwatking during the disciplinary process leading to the dismissal.
[12] Schweppes provided witness statements and oral evidence from the following employees:
● Frank Carella - Syrup Maker;
● Steven Flynn - Syrup Maker;
● Robert Murray - Reliability Manager;
● Leon Rentis - EHS State Lead and RRTW Coordinator; and
● Andrew Morrison - Site Manager, South Australia.
[13] Mr Carella directly observed the altercation and stepped in to separate the two men. The incident was also observed and/or heard to various degrees by Mr Flynn and Mr Murray. There is tension between elements of the evidence of these witnesses and the evidence given by Mr Gwatking about some of the details of the altercation.
[14] Having heard and seen the witnesses, I prefer the evidence of Mr Carella as to the actual facts of the altercation to the extent that it conflicts with Mr Gwatking’s account. Mr Carella gave his evidence clearly and it was evident to me that he was simply telling the truth from his perspective. Although called by Schweppes, he was one of the employees who signed the petition in support of the applicant’s reinstatement and whilst this may have influenced his view about what the outcome should be, his version of the facts as provided to the Schweppes investigator, Mr Rentis, and confirmed in his witness statement, is to be preferred.
[15] I do not consider that Mr Gwatking attempted to mislead the Commission. He had a tendency to give short abridged answers that reflected his views but did not at times fully articulate his position. I accept that this is consistent with his personality and conduct during the investigation of this matter. However, I did find that Mr Gwatking exaggerated the extent of his personal safety concerns during the incident and has also understated the degree to which he actively responded to Mr FW.
[16] In terms of what was said in the course of the altercation, many of the witnesses were imprecise about that detail and this is understandable in the circumstances. As accepted by Mr Murray in cross-examination, the evidence of Mr Flynn in that respect is likely to be more accurate given the circumstances under which each witness observed/heard the altercation.
[17] I find that the evidence of Mr Dadleff is relevant to the degree that it sets some of the context within the workplace more generally. There is also some dispute about an earlier incident involving Mr FW and a Supervisor, and the resolution of that dispute is not assisted by a lack of precision as to when this occurred and whether the Supervisor was at work at the time. Mr Dadleff did not observe the altercation between Mr Gwatking and Mr FW.
[18] I accept the evidence of Mr Rentis and Mr Morrison as to the facts of the investigation and the basis upon which the decision was made. To the extent that these and other witnesses expressed views about the seriousness of the conduct and the appropriateness of the dismissal (and the request for reinstatement) these are ultimately matters for the Commission. This includes the evidence of Mr Dadleff, Mr Burgess and Mr Murray, and I note that their long association with the applicant and their personal views of Mr Gwatking and/or Mr FW mean that care must be exercised in placing weight on their subjective opinions of the individuals concerned.
[19] The petition 3 contained various alleged facts about circumstances surrounding Mr Gwatking’s dismissal. The petition was, with the concurrence of both parties, admitted as an indication of the views of some of Mr Gwatking’s former colleagues potentially going to the issue of remedy.
3. Findings
[20] Schweppes conducts a carbonated soft drink production facility at its Payneham site. Mr Gwatking and Mr FW were two of the employees who primarily worked on the production line. The production line is largely automated; however the various stages along the line involve employees monitoring the processes involved and undertaking various tasks to ensure that the production occurs as required. This includes work associated with flavour and other product changes.
[21] The production line has a drip tray underneath it and there are various walkways and platforms where employees stand or move around the line. The facility at Payneham is not large in relative terms and employees work in close proximity to one another. Given the nature of the production line, each of the employees is dependent upon the others to do their respective roles and it is important in that environment that interactions between them are conducted in a professionally appropriate manner.
[22] Schweppes had in place at the time of the altercation and the dismissal, a “Managing Performance and Conduct Issues” policy. 4 That policy included expectations that all employees would “treat other people in the way themselves would want to be treated”. In addition, the policy included, under the banner of serious misconduct that might warrant immediate dismissal, conduct that is inconsistent with the continuation of the employment contract or causes serious and imminent risk to health and safety of a person, and fighting on the premises.
[23] Mr Gwatking is currently 50 years of age. He was employed by Schweppes as a Filler Operator from February 1984 until his dismissal on 15 January 2015. Mr Gwatking was considered to be a skilled and good operator.
[24] Mr Gwatking holds a Certificate III in Food Processing and has forklift certification.
[25] During the course of his over 30 years of service Mr Gwatking was the subject of some relatively limited disciplinary action. This included a verbal warning and counselling in relation to not following correct procedures in 2000 and 2010, and a first written warning for leaving work early in 2007.
[26] Mr Gwatking also received a final written warning in 2008. The terms of the warning were as follows:
“...
Dear Mark,
This morning witnesses reported an incident where you lost your temper with another employee and punched a hole in the canteen door then followed the employee back to his work station with the purpose of inciting a fight. Fortunately the other employee retreated and a fight did not develop.
When I spoke with you about these allegations you admitted that this had occurred and your anger was provoked due to the manor in which the employee had spoken to you in the canteen. Your actions constitute 3 serious breached of company policy.
1. Wilful disregard for your own safety when you punched the door and suffered an injury to your hand.
2. Wilful disregard for company property when you damaged the door with your fist.
3. Acting aggressively toward an employee with verbal abuse and threats of physical violence.
It is for these reasons that I give you this final written warning about your aggressive behaviour and if there are any future repeats of this type of behaviour then this will result in your termination of employment.
...” 5
[27] Mr Gwatking takes issue with the degree to which he was aggressive to the other employee at the time, but also expressed regret about that event and noted that he was in the middle of some significant personal issues that may have contributed to that incident. 6
[28] The previous warnings, including their nature, context and when they were issued, and the applicant’s long work history more generally, are relevant to the determination of this matter.
[29] There is some evidence to support the notion that Mr Gwatking does have a short temper and at times will yell at himself and potentially others. 7 There are some suggestions in the evidence of Mr Morrison and Mr Murray that the applicant may have a tendency to respond angrily to being challenged and was a risk to other employees. However, the incident in 2008 and the altercation in 2015, represent the only direct evidence of any such alleged propensity turning into conduct.
[30] Mr FW was employed by Schweppes in December 2011 through a program facilitated by a non-profit organisation known as Whitelion. The program involves providing work for young people that are at risk due to abuse and neglect, drug addiction and poverty. There is no indication that Mr FW’s past involved being in trouble for violence and his only disciplinary action at Schweppes did not involve violence or aggression. There is some indication in the evidence that Mr FW was involved in an altercation with a Supervisor and that at times following the absence of that Supervisor (for unrelated personal reasons), he would leave the production line and was not always constructive in his responses to other employees. None of this led to disciplinary action being taken.
[31] On the day of the altercation, Mr Gwatking was working on the production line and this included, amongst other more substantive duties, monitoring whether caps were being correctly applied to the plastic bottles after being filled. Mr FW was working in relatively close proximity further down the line on or near to the labeller. At some point, the bottles were not being correctly capped and this was impacting upon Mr FW’s area. This took place during or associated with a flavour change being undertaken at that time.
[32] Mr FW threw at least one bottle (and probably more), with a lid not correctly fitted, into the drip tray under the production line in the direction of Mr Gwatking. This may have been to attract the applicant’s attention to the problem but was clearly inappropriate. The bottles were spraying soft drink and this impacted upon Mr Gwatking. Mr Gwatking took exception and threw a bottle, which was still at least half full, back in the direction of Mr FW. Mr FW at that stage was about 10 metres away from the applicant and Mr Gwatking threw the bottle over the top of the production line. The bottle did not hit Mr FW and heated words were exchanged between the two employees.
[33] The actions in throwing the bottle back towards Mr FW was also inappropriate and was itself provocative and is likely to have been influenced by Mr Gwatking’s general frustration with the work of Mr FW at that time.
[34] Shortly thereafter, lunch was called and Mr Gwatking and Mr Carella walked towards the lunch room and the wash basin area that was adjacent to the production line. In doing so, they came across Mr FW. It is likely that Mr FW approached Mr Gwatking and aggressively took exception to having the bottle thrown at him and moved into Mr Gwatking’s personal space. The exchange then quickly escalated into mutual yelling and at one point early in the exchange, both Mr Gwatking and Mr FW were pushed over. In the case of Mr FW, he fell against the wash basin. In the case of Mr Gwatking, Mr Carella, who was standing alongside the men, caught Mr Gwatking as he was falling to the ground and then stood directly between them.
[35] Mr FW and Mr Gwatking then continued to grab each other’s shirts at the neck, and to yell and push. In addition, both men continued to make “air punches” which were more in the nature of angry swinging of fists at each other over and around the head of Mr Carella (who remained between them) rather than concerted attempts to strike.
[36] Both Mr FW and Mr Gwatking were actively involved in the altercation and both were being aggressive, physically and verbally. The incident went on even after Mr Carella stepped between them and repeatedly yelled for them to stop. Although Mr Murray stated in his witness statement that some specific threats were made by Mr Gwatking towards Mr FW during the course of the exchange, this was not confirmed by Mr Flynn and Mr Murray conceded that Mr Flynn’s recall of the details was more likely to be accurate. I am not satisfied that such specific threats were made. The language used by both men was however aggressive and threatening and involved heated swearing at each other.
[37] I find that Mr Carella’s summary description of the altercation is apt; namely:
“Throughout the incident both (Mr Gwatking) and (Mr FW) were actively involved. They were doing things to each other with fists going everywhere in the air (they didn’t connect) and pushing and shoving each other. They were screaming and carrying on, swearing at each other. It was really bad. I thought it was going to get out of hand because they were really angry with each other so I stepped in to try and diffuse the situation.” 8
[38] The incident was reported to Mr Morrison and after a brief discussion with both Mr Gwatking and Mr FW, they were suspended on pay pending an investigation.
[39] An investigation was conducted by Mr Rentis and this involved interviewing, and preparing statements for, Mr Gwatking, Mr FW, Mr Carella, Mr Flynn and Mr Murray. Mr Gwatking was accompanied by Mr Burgess as his support person. The statements were provided to each of these employees to seek confirmation and in the case of Mr Gwatking, he was given the opportunity to confirm the statement at the subsequent “outcomes” meeting.
[40] Mr Gwatking’s statement read as follows in relation to the actual incident:
“…
MG: (Mark Gwatking) I finished with the flavour change until around 11.35am when I called for lunch via the PA system. Both Frank Carella and I were walking towards the lunch room. When we go to the hand wash station I heard (Mr FW) calling me, I turned around with (Mr FW) staring at me aggressively. (Mr FW) said to me “throw another bottle at me c**t. I turned around and told him to “Piss Off” before attempting to walk away. As I started to walk towards the lunch room, (Mr FW) again proceeded to push me using his chest, I reacted by pushing him away from using my hands, I shoved him away.
Leon: (Leon Rentis) Did (Mr FW) …(sic) to the ground?
MG: No I don’t think so, he kind of stumbled onto the wash station. At this point (Mr FW) became really aggressive and he pushed me to the ground. I got back on my feet and we both were going for each other.
Leon: What do you mean going for each other?
MG: We both had each other by the collar, pushing each other
Leon: Were any punches thrown?
MG: No just pushing each other.
Leon: OK, so what happened next?
MG: Frank Carella tried to separate us by getting between us and pushing us apart.
Leon: Did he succeed?
MG: Yes, we both let go of each other and walked our separate ways.
… …” 9
[41] The results of the investigation by Mr Rentis were reported as follows:
“...
(6) INVESTIGATOR’S FINDINGS
ALLEGATION 1:
The company alleges that both Mark Gwatking and FW were involved in a serious incident which breached numerous company policies. This incident was witnessed by a number of employees who have provided their own accounts via signed statements during the investigation process.
(1) Background to the incident
FW was working near the warmer pushing full 1.25ltr bottles into the machine as part of a flavour change. During this process, he found numerous bottles with a faulty cap application. FW grabbed a hand full of these bottles and threw them towards Mark Gwatking’s drip tray. FW then alleges that Mark threw a 1.25ltr bottle at him while he was walking on the catwalk headed towards the contiroll labeller. The incident then proceeded to escalate when both employees bumped into each other near the hand wash station as they were heading to the lunch room for their break. At this point there was aggressive behaviour displayed by both employees which involved verbal abuse, pushing and shoving and numerous air punches being thrown. Both employees were pushed with one landing on a bin (FW) and the other on the floor (MG). The aggression continued with both employees pushing and holding on to each other’s shirts until another employee stepped in and physically separated both of them
On this basis, the allegation is found to be SUSTAINED”. 10
[42] I note that the above represented a summary and did not reflect all of the details of the events or the statements provided by those involved or witnessing the events. The statements were however also supplied to Mr Morrison and taken into account.
[43] Mr Rentis was not requested to make any specific recommendations and did not do so.
[44] An outcomes meeting was conducted by Mr Morrison on 16 January 2015. Mr Gwatking attended with Mr Burgess as his support person. Mr Rentis was also in attendance. When requested to review and comment on the statement of his version of events that had been prepared by Mr Rentis, Mr Gwatking indicated words to the effect that “only a few minor wording errors, everything else is correct”.
[45] Mr Morrison then summarised the outcomes of the investigation and confirmed that it was a very serious incident. Mr Morrison then indicated, in effect, that it was the view of Schweppes that Mr Gwatking’s employment was to be terminated immediately for serious breaches of company policies.
[46] Mr Gwatking was then given an opportunity to say anything else that might change that decision. His response was that he was trying to defend himself and to the effect that he was not just going to stand there and take it. It was “a man’s right to fight back”. Upon being prompted by management, Mr Gwatking acknowledged that a better option would have been to not get involved.
[47] Mr Morrison confirmed that it was unacceptable to get involved in a fight and that it would have been proper for the applicant to have reported the original incident to the team leader and let them handle it. Mr Gwatking confirmed that he needed a job and Mr Burgess indicated that he and many other employees supported Mr Gwatking and would be impacted by any dismissal.
[48] Mr Morrison referred to the need to apply the policies, that fighting in the workplace was unacceptable and that it was not appropriate to “give a second chance to deliberately hurt someone in the workplace.” Mr Burgess again sought a last chance for Mr Gwatking.
[49] Mr Morrison considered the circumstances, including Mr Gwatking’s length of service and decided to proceed with his termination. Mr Morrison had earlier also considered, but rejected, the notion of a warning being given. Mr Morrison then confirmed the dismissal and read a letter of dismissal to Mr Gwatking.
[50] The termination letter, which reflected the views of Mr Morrison, outlined the allegation, finding and outcome in the following terms:
“…
The specific allegation made against you is as follows:
● That on Friday 9 January 2015, you engaged in a physical altercation with FW by the hand washing station at the Payneham factory.
This letter confirms the outcome of this incident investigation as discussed with you at our meeting on Monday 12 January 2015.
Finding
After a full investigation of the fact and careful consideration of your responses, the Company has determined that the allegation made against you has been substantiated and in particular that you did engage in a physical altercation with FW on the premises at Payneham.
Outcome
The Company considers your behaviour and conduct to constitute serious misconduct. Your conduct was inconsistent with your obligations as an employee and unacceptable for a number of reasons, including that:
● It was in serious breach of the Company’s Managing Conduct and Performance Issues Policy, in particular that you engaged in fighting on the premises; and
● It was in serious breach of the terms and conditions of your employment.
In these circumstances, the Company has no option but to terminate your employment effective immediately. You will be paid five (5) weeks in lieu of notice in accordance with your contract of employment.” 11
[51] As advised in the letter of termination, Mr Gwatking was terminated with immediate effect but was paid five weeks in lieu of notice.
[52] Mr FW was also dismissed as a direct result of the altercation.
4. Was the dismissal of Mr Gwatking unfair within the meaning of the FW Act?
[53] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC 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.”
[54] Mr Gwatking was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.
[55] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.
[56] The FW Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 FWC considers relevant.”
[57] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.
[58] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to Mr Gwatking’s capacity or conduct (including its effect on the safety and welfare of other employees)
[59] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly. 12
[60] In applying this approach, it is also important to recognise that conduct occurs in a context and this must also be taken into account. This might include the circumstances in which any misconduct occurs and the events leading to that point. 13
[61] More specifically, it is well established that physical violence in the workplace will generally constitute a valid reason for dismissal and that all of the circumstances must be considered as to whether this is so in any given case. Those circumstances include, but are not limited to:
● Whether the dismissed employee was provoked and whether he or she was acting in self defence; 14
● The employer’s need to establish and retain discipline amongst its employees; and
● The service and work record of the employee concerned. 15
[62] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason. 16
[63] In this case:
● Mr Gwatking was provoked by the aggressive approach to him undertaken by Mr FW and there was an element of self-defence in the initial response. However, Mr Gwatking was also partly responsible for the events leading to that provocation (in throwing the bottle (back) at Mr FW and engaging in the earlier verbal exchange);
● Mr Gwatking’s part in the subsequent altercation went well beyond self-defence and he became actively involved in the incident;
● The workplace is one in which violence or aggressive behaviour creates immediate physical safety concerns and there is a genuine need for Schweppes to retain discipline amongst employees in relation to that conduct;
● The physical part of the altercation involved aggressive pushing and shoving with each being pushed over (combined with aggressive language) and the swinging of fists in the air but without any blows being struck. The combined effect of the conduct of both Mr FW and Mr Gwatking was such that it was a genuinely threatening event for those involved and for Mr Carella;
● Mr Gwatking cooperated with the investigation, raised the issue of provocation and, albeit only after prompting, acknowledged in that process that he should have walked away from the incident;
● Neither Mr Gwatking nor Mr FW were in a supervisory capacity; and
● Mr Gwatking had a very long and largely positive employment record with Schweppes; albeit punctuated with some warnings including a directly relevant final warning some 7 years before the altercation.
[64] Having considered the above factors and my findings more generally, I find that there was a valid reason for Mr Gwatking’s dismissal related to his conduct.
Section 387(b) – whether Mr Gwatking was notified of the reasons for dismissal
[65] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 17
[66] Mr Gwatking accepts that he was notified of the reasons. 18
Section 387(c) – whether Mr Gwatking was given an opportunity to respond to any reason related to his capacity or conduct
[67] Mr Gwatking accepts that he was given the opportunity contemplated by this consideration. 19
Section 387(d) – any unreasonable refusal by the respondent to allow Mr Gwatking a support person
[68] Mr Gwatking accepts that there was no refusal to allow a support person. 20
Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Gwatking – whether he has been warned about that unsatisfactory performance before the dismissal.
[69] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 21
[70] The dismissal was not determined by reference to any unsatisfactory performance and this consideration does not arise.
Section 387(f) – the degree to which the size of Schweppes enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
[71] Schweppes is a large and well resourced employer and the procedures followed were consistent with those circumstances.
Section 387(h) - other matters considered to be relevant
[72] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 22
[73] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo, 23 the Full Bench observed:
“[24] ... ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[74] In this case there are competing elements bearing upon this consideration. These include the nature and extent of Mr Gwatking’s employment and the impact of the dismissal upon him. In that regard, the loss of employment held by him for over 30 years, his age and relatively narrow skill set, are significant mitigating factors to be taken into account. 24
[75] I must also consider the actual conduct and the view that I have formed that such provided a valid reason for dismissal. Further, all of the circumstances, including the provocation and the physical context for the altercation, Mr Gwatking’s attitude to the events and his particular role in such, and the earlier warnings, are also important considerations and must be factored into any assessment of the dismissal for present purposes.
[76] Mr Gwatking contends that the decision was unreasonable on the basis that certain inferences were relied upon that were not reasonably open to the employer. This primarily relates to whether punches were thrown during the altercation. I accept that the notion of “air punches” was understood by Mr Morrison and Mr Rentis as attempted punches that did not connect. Based upon the evidence before the Commission, 25 these “air punches” were more in the nature of both men angrily flailing about with their fists rather than serious attempts to strike each other. In any event, the seriousness of the conduct must be considered in its entirety and I have made findings about such earlier in this decision.
[77] Mr Gwatking was paid five weeks in lieu of notice and this is also to be taken into account.
Conclusion on nature of dismissal
[78] I have found that there was a valid reason for dismissal and the considerations relating to the procedural aspects of the dismissal do not support a finding that the termination was unfair on those grounds. However, having regard to all of the circumstances I am, on balance, persuaded that the dismissal was harsh.
5. Remedy
[79] Division 4 of Part 3-2 of the Act provides as follows:
“Division 4—Remedies for unfair dismissal
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) the FWC may make the order only if the person has made an application under section 394.
(3) the FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
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), 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.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
[80] The prerequisites of ss.390(1) and (2) have been met in this case.
[81] Mr Gwatking primarily seeks reinstatement to his former position with the maintenance of continuity of service. Amongst other considerations, he relies upon the contentions that he was a long standing employee who was well regarded, has the support of a considerable number of former colleagues who sought his return to Schweppes, and that Mr FW (who was described as the source of the problem) was no longer in the workplace.
[82] Mr Gwatking has not secured any on-going work and has been actively seeking alternative employment. He has only earned something in the order of $1,500 from some private work for a friend since his dismissal.
[83] Schweppes is opposed to that outcome on the basis that it, as the employer, has lost trust and confidence in Mr Gwatking and contends that this view was soundly based. Amongst other factors, Schweppes contends that Mr Gwatking did not have an unblemished record, that he has a short temper and that his responses during the course of the investigation and the hearing of this matter meant that there could be no confidence that he would not behave in a violent and aggressive manner in the future.
[84] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, it is proper to firstly consider whether reinstatement is appropriate.
[85] In Australia Meat Holdings Pty Ltd v McLauchlan 26a Full Bench of the AIRC, having considered the language of the Act, which is comparable to the present provision, said:
“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability.
... ...
We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.
In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:
"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
Each case must be decided on its own merits."
While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case.”
[86] More recently, a Full Bench of the Commission further considered the statutory scheme surrounding the remedy provisions including the role played by an alleged loss of trust and confidence felt by the employer. In Colson v Barwon Heath, 27 the Full Bench found as follows:
“[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing remedies if a dismissal is found to be unfair, which is one element of the object of Part 3–2. Section 381(2) of the Act requires as part of the object that a “fair go all round” is accorded to both the employer and employee concerned in deciding on and working out remedies under Part 3–2. Section 390(3) of the Act provides that the payment of compensation should not be ordered unless the Commission is satisfied that reinstatement of the person is inappropriate (and an order for compensation is appropriate).
...
[31] The approach of the Deputy President is consistent with that of the Full Bench in Regional Express Holdings Limited trading as REX Airlines v Richards which stated:
“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner’s statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. Rex’s first submission on remedy must fail.
[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate.”
[87] The Full Bench further observed that consideration of reinstatement involved a balancing of the relevant considerations based upon evidence, 28 and that the approach outlined in Perkins remains sound and requires consideration of the “rationality” of the basis of the employers concerns.29
[88] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter 30 the Full Bench conveniently summarised the approach required as follows:
“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
● Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
● Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
● An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
● The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”
[89] Given the potential remedial benefit of reinstatement in the circumstances of Mr Gwatking, and the basis upon which that course of action is opposed, it is appropriate to assess the basis upon which it is contended that there has been a loss of trust and confidence within the framework provided by the decisions outlined above, along with other considerations.
[90] Mr Morrison, Mr Murray and Mr Rentis all expressed concerns about the propensity for Mr Gwatking to act inappropriately if returned to the workplace. Mr Murray, who expressed the strongest view, that other workers “feared the applicant,” 31 did not provide any convincing foundation for that particular position beyond the notion that the applicant got angry and had damaged some equipment. This concern was not a feature of any of the other witnesses including those employees called by Schweppes.
[91] Mr Flynn indicated in his statement that Mr Gwatking had a short temper and got frustrated and would yell at himself. 32 Under cross-examination Mr Flynn indicated that he had not seen Mr Gwatking yell or intimidate anyone in the workplace or be physical, and that he had no problems working with applicant.33
[92] Mr Carella also indicated during oral evidence that Mr Gwatking was not aggressive.
[93] The petition concerning Mr Gwatking was organised by United Voice and signed by 19 employees including Team Leaders, Syrup makers, Forklift Operators and Maintenance employees. This included Mr Carella and Mr Flynn and the thrust of the petition was to strongly support the applicant’s reinstatement.
[94] The reservations held by Mr Morrison and Mr Rentis 34 were primarily based upon what Mr Gwatking said about the events and his views about his role in the altercation. In the case of Mr Morrison, the earlier warning and his perception that Mr Gwatking “won’t take anything from anyone and will initiate confrontation with other people” was also relied upon.35 The earlier warning appears to be the foundation for that view and given the timing of that warning and the context, and having regard to the other evidence touching upon this issue, I consider that whilst there is an issue with Mr Gwatking’s temper on occasions, that view is somewhat of an exaggeration.
[95] These findings are relevant but are subject to my earlier observations about the weight that might be attached to the subjective views evident in much of the above evidence.
[96] During the outcomes meeting, Mr Gwatking indicated words to the effect that it was a man’s right to fight back. This view is consistent with the actual conduct during the altercation as I have found it to be. That is, having been confronted, Mr Gwatking yelled and pushed back but went well beyond defending himself and became actively involved in a mutual scuffle. That conduct is, in part, why a valid reason for dismissal was found. That statement is also more consistent with a view that something beyond mere reasonable self-defence is appropriate when confronted.
[97] Although submissions were made on his behalf that Mr Gwatking had shown contrition, this was not evident in the outcomes meeting or in his evidence before the Commission. As found earlier, the indication that the better option would have been to walk away was only given in response to prompting by Mr Morrison.
[98] In cross-examination, Mr Gwatking confirmed that in his view he “had done nothing wrong” on the day of the altercation. 36 Although this was said in the context of proceedings where the applicant was contesting, amongst other matters, whether there was a valid reason for his dismissal, this is not consistent with a sense of responsibility or contrition. This is also a post-dismissal factor that should be taken into account in terms of remedy.
[99] In this case, I have also found that the application of the relevant policy and the maintenance of appropriate discipline within Schweppes are important. The impact of a potential reinstatement, together with any associated orders and actions that might be taken by the employer in that regard, is also important.
[100] Those mitigating factors that have led to the finding that the dismissal was harsh are however also important considerations reinforcing the remedial benefit of reinstatement in the circumstances of Mr Gwatking. These include his very long service, the impact of the dismissal and his circumstances more generally.
[101] I have found that a valid reason for dismissal existed but, on balance, termination was harsh given the all of the circumstances including the nature of the conduct, the impact upon the applicant and the long service he had given to that point. In some such situations, an order for reinstatement might be appropriate as it is capable of directly addressing the impact of the dismissal.
[102] However, each case must be considered on its own facts and there is no automatic relationship between the findings on merit and remedy. 37 In this case, I have found that the application of the relevant policy and the maintenance of appropriate discipline within Schweppes are important. Further, the fact that Mr Gwatking has not shown any real appreciation of his conduct or contrition, including during the hearing of this matter, leads to genuine concerns about whether reinstatement is apt. That is, there is a rational basis for the loss of trust and confidence given all of the evidence now before the Commission. This must be considered along with all of the above circumstances to ensure a fair go all around.38
[103] Despite the remedial benefit of reinstatement to Mr Gwatking, I am satisfied that an order of that nature is inappropriate in this case.
[104] As set out above, under the Act, it is then necessary to consider whether compensation in lieu of reinstatement is appropriate.
[105] A recent Full Bench in McCulloch v Calvary Health Care Adelaide39 (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg40 remains appropriate in that regard.
[106] Section 392(2) of the Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act,41 it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.
The effect of the order on the viability of Schweppes
[107] Nothing has been put to the Commission on this issue.
The length of Mr Gwatking’s service with Schweppes
[108] Mr Gwatking has been employed with Schweppes for over thirty years. This consideration is supportive of an award of compensation being made. The period of service is also to be taken into account in determining the level compensation, including when making an assessment of the remuneration that would likely have been received if not for the termination.
The remuneration Mr Gwatking would have received, or would have been likely to receive, if he had not been dismissed
[109] This involves in part a consideration of the likely duration of Mr Gwatking’s employment in the absence of what I have found to be an unfair dismissal.
[110] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of 12 months. This arises from the length and nature of Mr Gwatking’s employment, the nature of the conduct, the nature and timing of the earlier final warning, and the circumstances of the applicant and the workplace more generally. That estimate is also subject to the later consideration of contingencies.
[111] There is no evidence about Mr Gwatking’s exact remuneration with Schweppes at the time of dismissal. Accordingly, it is not feasible to determine the projected remuneration loss in dollar terms at this point.
The efforts of Mr Gwatking to mitigate the loss suffered by him because of the dismissal
[112] I accept that Mr Gwatking has made reasonable efforts to mitigate his losses.
[113] No discount to the amount of compensation is warranted based upon this consideration.
The amount of any remuneration earned by Mr Gwatking from employment or other work during the period between the dismissal and the making of the order for compensation
The amount of any income reasonably likely to be so earned by Mr Gwatking during the period between the making of the order for compensation and the actual compensation
[114] Mr Gwatking has earned something in the order of $1,500 from some private work for a friend. He was also paid five weeks pay in lieu of notice. These amounts are to be taken into account. He is not presently employed.
Any other matter that the FWC considers relevant and the remaining statutory parameters
[115] I have taken into account the projected nature of the anticipated loss of remuneration over a relatively long period (s.392(2)(c)) and the actual remuneration from the new employment (s.392(2)(e)). In that light, and given the circumstances of this case, it is appropriate to make a further allowance for contingencies associated with the projected remuneration loss and to do so before making other deductions.42 Having regard to the normal factors touching upon such an assessment, and in this case, the prospect that another relevant incident could have taken place in the workplace, a discount of 30 per cent is appropriate to the losses projected after the hearing of this matter. 43
[116] There is demonstrated misconduct that should be taken into account as provided by s.392(3) of the Act. That is, there is misconduct that contributed to the decision and in the circumstances it is appropriate to make a significant deduction on the amount of compensation otherwise due. In the circumstances, a further deduction of 40 per cent of the amount otherwise contemplated is appropriate.
[117] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.
[118] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or $66,500. 44 The amount of compensation that would arise from my findings is less than that limit.
[119] Taxation is to be paid on the amount determined.
[120] The compensation confirmed below is also appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.45
Conclusions on remedy
[121] After taking into account each of the relevant considerations, I find that compensation is appropriate in this matter. Further, I find that the compensation should be assessed having regard to the factors outlined above.
[122] Given the absence of evidence about Mr Gwatking’s earnings at the time of his dismissal, I have calculated the compensation by reference to weeks of remuneration as follows:
● Projected earnings lost 52
● Deduction for contingencies (30% of the period beyond the hearing) 46 (9)
Deduction for misconduct (40% of 43 weeks) 47 (17)
Deduction for notice and earnings 48 (7)
● Total 19 weeks
[123] Accordingly, I find that compensation in lieu of reinstatement should comprise a payment to Mr Gwatking by Schweppes of nineteen (19) weeks remuneration.
6. Conclusions and orders
[124] I have found that the Mr Gwatking’s dismissal was harsh and therefore unfair within the meaning of the Act.
[125] I have found that reinstatement is inappropriate but that compensation of the amount determined above is appropriate in all of the circumstances.
[126] The payment of required compensation is to be made to Mr Gwatking by Schweppes within 14 days of this decision.
[127] An Order 49 to the above effect has been issued in conjunction with this decision.
[128] Liberty is granted to seek a further order in the event of a dispute about the precise monetary value of the compensation.
COMMISSIONER
Appearances:
N Grealy of United Voice for Mr Gwatking.
K Aistrope of Kelly Hazel Quill Lawyers, with permission, for Schweppes Australia Pty Ltd.
Hearing details:
2015
Adelaide
June 18.
1 I have not named the other employee as he was not a party to these proceedings and has not given evidence about his version of events.
2 Section 382 of the Act.
3 Exhibit A1.
4 Attachment HM – 4 to the witness statement of Mr Morrison’s.
5 Attachment HM – 1 to the witness statement of Mr Morrison’s.
6 Witness statement of Mr Gwatking – Exhibit A3 at 5.
7 The evidence of Mr Flynn.
8 Witness statement of Mr Carella – Exhibit R1 at 11.
9 Attachment LR4 to the witness statement of Mr Rentis – Exhibit R4.
10 Workplace Investigation document prepared by Mr Rentis - AM-5 attached to Exhibit R5.
11 Letter of termination – AM-10 attached to Exhibit R5.
12 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at par [36].
13 See Qantas Airways v Cornwall (1998) 83 IR 102.
14 See also Culpeper v Intercontinental Ship Management (2004) 134 IR 243 at [44] and Foster v BHP Steel Long Products Division (IRCSA) Print I.50/1997.
15 See Tenix Defence Systems Pty Ltd v Fearnley AIRCFB Print S6238 per Ross VP, Polites SDP and Smith C, 22 May 2000; Qantas Airways v Cornwall (1998) 83 IR 102; AWU-FIME Amalgamated Union v Queensland Aluminia Ltd (1995) 62 IR 385; and Jetstar Services Pty Ltd v Ishak[2013] FWCFB 7030.
16 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.
17 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
18 Applicant’s written outline of submissions.
19 Supra.
20 Supra.
21 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
22 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
23 [2011] FWAFB 1166.
24 See Sexton v Pacific National (ACT) Pty Ltd (2003) AIRC PR931440.
25 Primarily that of Mr Carella.
26 AIRC Print Q1625, per Ross VP, Polites SDP and Hoffman C, 5 June 1998.
27 [2014] FWCFB 1949.
28 Supra at [49] to [51].
29 Supra at [60].
30 [2014] FWCFB 7198. See also JBS Australia Pty Ltd v Mr Scott Challinger[2015] FWCFB 520.
31 Audio recording of evidence at 11.59am.
32 Exhibit R2 at 4.
33 Audio recording of evidence at 11.31am.
34 Audio recording of evidence at 12.11pm.
35 Witness statement – Exhibit R5 at 12, 37 and 39.
36 Audio recording of evidence at 11.09am.
37 See JBS Australia Pty Ltd v Mr Scott Challinger[2015] FWCFB 520 at [22].
38 Section 381 of the Act.
39 [2015] FWCFB 873.
40 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431.
41 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.
42 See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.
43 Applying the approach taken in McCulloch at [21];
44 Section 392(5) of the Act.
45 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].
46 Approximately 30 weeks of the anticipated future employment period is post the hearing.
47 This has been rounded down in light of the approach adopted to the estimation of the earnings from other employment.
48 I have estimated the (further) earning received by the applicant from other employment as being two weeks.
49 PR569460.
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