Ian Holliday v Coca-Cola Amatil (Aust) Pty Ltd

[2015] FWC 1249

[2015] FWC 1249

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Holliday
v
Coca-Cola Amatil (Aust) Pty Ltd
(U2014/1120)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] On 23 October 2014, I issued a decision 1 in which I determined that Mr Ian Holliday had been unfairly dismissed. A hearing on remedy was held on 24 November 2014. Further information was received from the parties after this date.

[2] Mr Holliday is not seeking reinstatement of his employment.

[3] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[4] Coca Cola is a large corporation and there was no submission that any order would affect the viability of the enterprise. 2

(b) the length of the person’s service with the employer;

[5] Mr Holliday had been employed by Coca Cola from 1 August 2004 to 17 March 2014. It was accepted by Coca Cola that Mr Holliday’s length of service was significant. 3 Mr Holliday submitted that he worked via a labour hire company for Coca Cola for the preceding 18 months. I do not accept that employment with a labour hire company counts as service with Coca Cola but I accept the point made by Coca Cola that he could be given some credit for the work he previously did for the business.4 Given Mr Holliday’s length of service, there should be no reduction in the amount of compensation.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[6] Mr Holliday submitted that had he not been dismissed he would have been employed for at least a further 12 months. 5 Coca Cola submitted that given Mr Holliday’s disciplinary history at work it is unlikely that he would have remained employed for any significant period of time.6

[7] Coca Cola submitted that had Mr Holliday not been dismissed he would have returned to work on light duties on 25 September which was when Coca Cola advised WorkCover that it had light duties for Mr Holliday. At that date Work Cover ceased making payments to Mr Holliday. 7

[8] Mr Holliday did not accept this submission and contended the he was unfit to work for the entire period and remained unfit to work. In effect Mr Holliday submitted that apart from the workers’ compensation payments, any sick leave he may have had, and the four weeks in lieu of notice Mr Holliday would not have earned anything in this period.

[9] Mr Holliday gave evidence that WorkCover accepted that he was unfit for work from 10 July 2014. His own doctor on 15 September 2014 attested to his fitness to do light clerical duties. Mr Holliday advised that his doctor had issued a medical certificate advising that he was unfit for work for the period 24 September 2014 to 24 December 2014.

[10] Coca Cola at the hearing accepted that Mr Holliday was incapacitated from 17 March until 24 September 2014. 8

[11] It is not necessary for me to determine Mr Holliday’s fitness for work as it was not submitted that Coca Cola would have terminated Mr Holliday’s employment whilst he was not fit for duty. It is also not necessary for me to determine if there were light duties for him to perform after 24 September 2014. It was not submitted that Mr Holliday was permanently incapacitated and would never have been able to return to work. Therefore it is necessary for me to determine how long Mr Holliday would have remained in employment had he returned to work because it is accepted that in any period he was totally incapacitated he would not have earned any monies from Coca Cola.

[12] I do not accept the submissions of Mr Holliday that he would have remained in employment for at least 12 months. I am not convinced that Mr Holliday understood even at the hearing that his conduct towards his fellow worker was unacceptable. While he had earlier apologised for the conduct he resiled from this at the hearing and suggested that this was done to protect his job.

[13] While I did not consider that the incident with Luke warranted the termination of his employment, Coca Cola would have been entitled to issue a further warning to him and put in place proper training. I do not accept that Mr Holliday’s evidence at the hearing on this was caused by the stress of being a witness or the stress of being dismissed. 9 I therefore conclude that Mr Holliday would not have changed his approach to conflict resolution and if a similar incident arose he would behaved in the same manner. I therefore consider he would only have remained in employment for another 12 weeks.

[14] Had Mr Holliday been employed for a further 12 weeks he would have earned $18127.32 plus $1,812.73 superannuation.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[15] Mr Holliday gave evidence that he had applied for 7-8 positions. 10 He produced evidence of his registration with an employment services provider11 as well as one job application.12 He later gave evidence that he applied for another position.13 It was his unchallenged evidence that he applied for other positions but he no longer had a record of those applications.14 Coca Cola submitted that there should be a reduction of 10% due to the paucity of evidence that Mr Holliday attempted to mitigate his losses. However at the hearing Coca Cola accepted that there was a significant issue about Mr Holliday’s capacity. Given Mr Holliday’s incapacity I do not propose to make any deduction from the amount of compensation.

(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;

[16] Mr Holliday has not received any income from employment or other work. I do not have regard to the four weeks pay in lieu of notice because Mr Holliday would receive that upon termination unless his employment was terminated for serious misconduct.

(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;

[17] Given Mr Holliday’s incapacity no additional amount due as a result of this criterion.

(g) any other matter that the Fair Work Commission considers relevant.

[18] It was submitted that I should have regard to the fact that if Mr Holliday had remained in employment he would have qualified for long service leave 15 in August or July 2014.16 However section 43 of the Long Service Leave Act 1999 (Qld) (the LSL Act) provides that an employee terminated unfairly after seven years is entitled to pro rata long service leave. As such, it is not necessary for me to have regard to any failure to pay the long serve leave as Mr Holliday may now seek the payment of any entitlement under the LSL Act.

Misconduct

[19] Section 392(3) of the Fair Work Act 2009 provides that if the Commission is satisfied that Mr Holliday’s misconduct contributed to the decision to dismiss the amount of compensation must be reduced by an appropriate amount.

[20] In this case I have found that Mr Holliday engaged in some of the misconduct alleged. That misconduct contributed to the decision to dismiss him. In those circumstances I must reduce the amount of compensation. In the circumstances I would reduce the amount by 10%.

Conclusion

[21] I order that Coca Cola pay Mr Holliday $16,314.59 less appropriate taxation plus $1,631.46 to his superannuation fund within 14 days of the making of this decision.

DEPUTY PRESIDENT

 1   [2014] FWC 7441

 2 Submissions of Coca Cola at [14].

 3 Ibid at [14].

 4   Transcript PN 2333.

 5   Ibid at PN 2321.

 6 Submissions of Coca Cola at [28].

 7   Transcript PN 2350.

 8   Ibid at PN 2334.

 9   Ibid at PN 2385.

 10   Ibid at PN 726.

 11   Exhibit A5.

 12   Exhibit A6.

 13 Exhibit A9 at [3].

 14 Ibid at [4].

 15   Transcript PN 2399.

 16   The parties provided different starting dates for Mr Holliday’s employment.

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