Jason Fenton v Builders Trading Cooperative Limited
[2021] FWC 857
•17 FEBRUARY 2021
| [2021] FWC 857 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Fenton
v
Builders Trading Cooperative Limited
(U2020/10230)
DEPUTY PRESIDENT DEAN | SYDNEY, 17 FEBRUARY 2021 |
Application for an unfair dismissal remedy.
[1] Mr Jason Fenton has made an application under s.394 of the Fair Work Act 2009 for a remedy, alleging that he had been unfairly dismissed from his employment with Builders Trading Cooperative Limited (the Respondent).
[2] The application was heard by video on 9 November 2020. At the hearing Mr Fenton appeared on his own behalf. Ms Rebecca Richardson of BAL Lawyers appeared with permission for the Respondent.
Background
[3] Mr Fenton commenced employment with the Respondent in February 2010 as a yard hand and forklift driver. At the time of his dismissal he was the Yard Supervisor, which involved supervising other yard staff, picking orders, programming deliveries, loading trucks and serving customers.
[4] By letter dated 21 July 2020 Mr Fenton was notified of his dismissal which took immediate effect with payment in lieu of notice. The Respondent claimed that his dismissal was on the basis of his misconduct and underperformance. The reasons for the dismissal were set out in the letter of termination as follows:
1. Spending more than 15 minutes for morning tea.
2. Spending more than 30 minutes for lunch.
3. Poor attitude to staff members.
4. Making mistakes picking orders.
5. Threatening behaviour and bad attitude to management.
[5] Mr Fenton contended that his dismissal was procedurally and substantively unfair.
Evidence
[6] The following persons gave oral evidence and each provided a witness statement prior to the hearing:
• Mr Jason Fenton (Applicant)
• Mr Darren Clarke (Managing Director)
• Mr Torrin Bonazza (Operations Manager)
• Mr Chris Murphy (HR and Sales Manager)
The case for Mr Fenton
[7] Mr Fenton gave evidence that from the time his employment commenced in 2010 until he was dismissed on 21 July 2020, there were no serious issues raised with him about his performance, behaviour or attitude.
[8] He said in 2013 he was appointed Yard Supervisor, and in around 2016 his manager raised with him a concern about working a second job several nights per week. As a result, he agreed to step down as Supervisor and continued to work as a Yard Hand.
[9] Mr Fenton gave evidence that in around April 2019 Mr Chris Murphy, the HR and Sales Manager at the time, raised an issue with him about arriving late to work. He said the conversation “got a bit heated” when Mr Fenton explained that his late arrival was sometimes due to traffic.
[10] In June 2019 Mr Darren Clarke commenced as Manager of the Respondent. Mr Clarke promoted Mr Fenton to Yard Supervisor in August 2019.
[11] Mr Fenton gave evidence that in around October 2019 Mr Clarke raised with him an issue around taking too long for his meal breaks. Mr Fenton said he explained to Mr Clarke that he preferred not to have a morning tea break and instead have a longer lunch break.
[12] In June 2020, Mr Fenton said he was approached by Mr Clarke who spoke with him about attending work late. He says he explained that sometimes there was traffic, and so he was occasionally late as a result. Mr Clarke advised him that he needed to be ready to commence work by his start time of 7am each day. Mr Fenton said that after that conversation, he was not late to work again.
[13] On 7 July 2020 Mr Fenton was handed a letter from Mr Clarke (the warning letter). The letter was in the following terms:
“This is a written warning to inform you of the possible action proposed if you can not start work at the agreed time of 7am.
I have previously discussed this issue with you and unfortunately if you are unable to arrive to work by 6.50am your position of yard supervisor will be reversed, and your pay will resume to yard staff wages.
I would hope you can amend this issue and continue your role as Yard Supervisor.”
[14] Mr Fenton said he tried to talk to Mr Clarke about the letter but he walked away. Mr Fenton said he felt extremely embarrassed and frustrated because this was done in full view of other staff and customers. He said his frustration must have come across in the tone of his voice because Mr Clarke said that “there’s no need to become aggressive”.
[15] Because he felt distressed by the incident, he went home and obtained a medical certificate covering his absence for that day and the following day.
[16] Mr Fenton returned to work on Monday 11 July 2020. He said that Mr Clarke avoided him from then on, which caused him to feel excluded and undervalued.
[17] On 22 July 2020 when Mr Fenton arrived at work, he was approached by Mr Clarke who handed him a letter (the termination letter) in the following terms:
“We regret to inform you that our current position at the Builders Trading Cooperative Ltd has been terminated.
This is due to your lack of improving in the following areas:
1. Spending more than 15 minutes for morning tea.
2. Spending more than 15 minutes for lunch.
3. Poor attitude to staff members.
4. Making mistakes picking orders.
5. Threatening behaviour and bad attitude to management.
It is well documented that management have tried to work with you to overcome the above issues over several years.
Your termination will take effect immediately and your final pay will include all leave entitlements.
Thank you for your Service and we wish you all the best for the future.”
[18] After Mr Fenton read the letter, told Mr Clarke that these were all old issues and couldn’t be used against him now. After a further exchange, he then collected his belongings and left the premises.
[19] Mr Fenton gave evidence that prior to receiving the termination letter, Mr Clarke had not spoken to him formally or informally about having a poor attitude to staff members, making mistakes picking orders or threatening behaviour. Although the length of his meal breaks had been discussed, Mr Fenton said they were never formally raised with him as serious issues. He also said he had never been advised he had made an error when picking orders, and in fact had corrected mistakes made by other staff on occasions. Mr Fenton also pointed out that the termination letter did not mention lateness to work as a reason for his dismissal, which was the subject of the warning letter.
[20] Mr Fenton submitted that the matters raised in the termination letter did not justify his dismissal, in that the issues were either historical and irrelevant, or did not exist. Further, the warning letter only dealt with his punctuality in terms of arriving at work, and did not inform him he was at risk of being dismissed - only that he might be demoted.
[21] Mr Fenton said that he worked hard and got on well with everyone including staff members and customers.
[22] In his witness statement in reply, Mr Fenton took issue with a number of aspects of the witness statements filed by the Respondent’s witnesses.
[23] In cross examination, Mr Fenton acknowledged that discussions had occurred with him regarding punctuality and meal breaks, but contended that issues were only serious if they were written down.
The case for the Respondent
Darren Clarke
[24] Mr Darren Clarke commenced his role as Managing Director in January 2019.
[25] He promoted Mr Fenton to Yard Supervisor in about August 2019 based on his seniority.
[26] Soon after Mr Clarke commenced, he noticed Mr Fenton was regularly not ready to commence work at 7:00 am when the Respondent opens its doors to customers. He noticed on numerous times that Mr Fenton was not ready for work until about 7:10 am or 7:15 am.
[27] He also noticed that Mr Fenton routinely spent more than 15 minutes for morning tea breaks and was taking more than 30 minutes for lunch breaks.
[28] He had a conversation with Mr Fenton in October 2019 about his tea and lunch breaks being too long and Mr Fenton responded to the effect of “Don’t worry about me, worry about everyone else. I’m the most efficient worker here … The other guys go and take cigarette breaks or play with their phones”.
[29] Mr Clarke denied being told by Mr Fenton that he took longer lunch breaks because he did not take morning tea breaks.
[30] He gave evidence that Mr Fenton’s behaviour did not change after this conversation and he continued to take long morning tea and lunch breaks.
[31] Mr Clarke gave evidence that had had further conversations with Mr Fenton about this issue in November 2019 and March 2020, and at no time did Mr Fenton mention to him that he was combining his morning tea and lunch breaks. Further, he said it was rare that employees were prevented from taking a morning tea break because of work commitments.
[32] Mr Clarke said that in late June 2020 he approached Mr Fenton to talk with him about arriving at work late. He gave evidence that Mr Fenton’s response when questioned was “I don’t understand why I have to start at 7am”, because he had a higher work output than anyone else. Mr Clarke said he reinforced with Mr Fenton that he needed to be ready to work at 7am, and so should arrive at work by 6.50am.
[33] Mr Clarke also gave evidence that in June 2020, he overheard Mr Fenton speaking inappropriately to the Respondent’s receptionist, saying words to the effect of: “stop putting through deliveries. There are way too many fucking deliveries”. Mr Clarke followed Mr Fenton out to the yard and told him he was not to speak to the receptionist in that manner, as it was aggressive and inappropriate. Mr Fenton is said to have grunted and walked off.
[34] In terms of the warning letter issued on 7 July, Mr Clarke said he handed Mr Fenton the letter and asked him to read it. Mr Clarke said that as soon as Mr Fenton saw the word ‘warning’ on the top of the letter, he immediately began to raise his voice and become aggressive. He said Mr Fenton refused to read the letter and began to yell abuse at him, so in order to de-escalate the situation, Mr Clarke began to walk away from him. As Mr Clarke was walking away, Mr Fenton yelled words to the effect that none of the staff liked him, and he was not respected.
[35] Mr Clarke later became aware that Mr Fenton had left the workplace, citing ‘stress leave’ as the reason for his absence.
[36] Mr Clarke said that when Mr Fenton returned to work on 11 July 2020, it was apparent to him that Mr Fenton was still angry, so he ‘gave him space and time to improve on the areas of concern’ that had been raised in the warning letter.
[37] Mr Clarke gave evidence that he wrote Mr Fenton’s termination letter on the morning of 21 July 2020, and handed it to him when he arrived at work that morning. During the conversation that followed, Mr Clarke said that Mr Fenton threatened to knock his teeth out, and was aggressive and intimidating, speaking in a raised voice and with his fists clenched.
[38] Mr Clarke attached to his witness statement a document titled Record of Performance Discussion, signed by Mr Fenton and dated 2 March 2015 in which it was recorded that the Respondent’s previous General Manager had discussed with Mr Fenton the requirement to follow instructions willingly, respect management decisions, and conduct himself in a professional manner. A warning letter dated 6 March 2015 dealing with similar issues was also issued to Mr Fenton. This was followed by another Record of Performance Discussion form, again dealing with similar issues, dated 25 August 2015.
[39] Attached to Mr Clarke’s witness statement was also a summary of the Respondent’s timesheet data, showing the times Mr Fenton ‘clocked in’ each day from January 2019 through to his dismissal on 21 July 2020. On the majority of days within that timeframe, Mr Fenton clocked in on or after 7am. From 4 June 2020 until his dismissal, Mr Fenton arrived at work on or after 7am on two occasions. The second of those occasions was 7 July 2020, being the date the warning letter was issued.
Chris Murphy
[40] Mr Murphy had two periods of employment encompassing various roles with the Respondent. He resigned in September 2019 and recommenced in May 2020. He initially commenced employment with the Respondent in around September 2013.
[41] Mr Murphy gave evidence that his observations of Mr Fenton were that he was often aggressive and defensive whenever managers spoke to him about an issue in the workplace.
[42] He said that as the HR and Sales Manager, he had oversight of the yard staff generally, but Mr Fenton as Yard Supervisor reported directly to him.
[43] Mr Murphy said that prior to 2019 when Mr Fenton was promoted to Yard Supervisor, the supervisor at that time would speak to him on occasions about Mr Fenton being rude or being late to work or taking long breaks. In April 2019 the supervisor resigned, citing reasons including that it was difficult to work with Mr Fenton because of his aggression, and because of the ongoing issues with Mr Fenton being late to work and taking long breaks.
[44] Mr Murphy took over the supervisory role until he resigned in September 2019.
[45] Mr Murphy said that Mr Fenton often swore in the workplace and raised his voice whenever workplace issues were discussed with him. The swearing included calling other employees ‘cunts’ and telling Mr Murphy to ‘fuck off’ on a number of occasions.
[46] Mr Murphy gave evidence that this sort of language was not common in the Respondent’s workplace, and he found Mr Fenton’s language jarring.
[47] Mr Murphy also gave evidence that Mr Fenton was usually hostile when given directions from managers. Mr Murphy said that he had approximately twelve conversations with Mr Fenton between October 2015 and September 2019 about his punctuality. He also said that on each occasion, Mr Fenton became angry during the conversations and frequently swore at him. On four or five of these occasions, Mr Murphy had to send Mr Fenton home because he was ‘so worked up’ that Mr Murphy was concerned about this ability to operate heavy machinery safely.
[48] Mr Murphy said that over the course of his employment, he had regularly observed Mr Fenton skipping his morning tea break but instead of then taking a 45 minute lunch break, he would take between 1 and 1.5 hours for his lunch break. Mr Murphy said he spoke with Mr Fenton on at least 10 occasions about this. On one occasion, he had Mr Fenton sit down with him in his office to have a more formal conversation. During the conversation, Mr Fenton’s reply to the issue was “Fuck this, I do more work than all these other fucking cunts down there. I should be able to take as long as I like”.
[49] Mr Murphy noted he had not kept a record of his discussions with Mr Fenton.
Torrin Bonazza
[50] Mr Bonazza is the Operations Manager who commenced with the Respondent in August 2009.
[51] He gave evidence that he worked in close proximity to Mr Fenton and observed that Mr Fenton often spoke abruptly to co-workers and managers. He also noticed that Mr Fenton would usually arrive at work right on 7am or up to 15 minutes after 7am.
[52] Mr Bonazza gave evidence that he witnessed several altercations between Mr Fenton and Mr Clarke which arose when Mr Clarke sought to discuss performance issues with Mr Fenton. He also witnessed arguments with Mr Fenton and the previous General Manager when performance issues were raised with him, particularly about Mr Fenton being late to work.
[53] Mr Bonazza gave evidence that many other staff had spoken with him on a confidential basis about Mr Fenton. This included complaints that Mr Fenton had an aggressive way of speaking and was often angry for no reason, his mannerisms were intimidating and confronting, and at times they felt like they did not want to attend work because of him.
[54] Mr Bonazza also gave evidence about Mr Fenton’s dismissal on 21 July 2020. He said he saw Mr Clarke hand Mr Fenton the termination letter and advise him that he was being ‘let go’. He confirmed Mr Clarke’s evidence that Mr Fenton threatened to ‘knock his teeth down his throat’.
Consideration
Protection from Unfair Dismissal
[55] There is no dispute and I am satisfied that Mr Fenton is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.
Was the dismissal unfair?
[56] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
[57] There is no dispute that Mr Fenton was dismissed and that subsection (d) does not apply.
[58] While the Respondent indicated it had only 11 employees, it did not claim that the dismissal was consistent with the Small Business Fair Dismissal Code and accordingly I am satisfied that subsection (c) does not apply.
Was the dismissal harsh, unjust or unreasonable?
[59] Section 387 of the 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 FWC considers relevant.
[60] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd1as follows:
‘... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’
[61] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.2
Valid reason - s.387(a)
[62] The Respondent must have a valid reason for the dismissal of Mr Fenton, although it need not be the reason given to him at the time of his dismissal.
[63] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced.”4 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.5
[64] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.6 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.7
[65] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
[66] Having considered all of the evidence and submissions of the parties, I am satisfied there was a valid reason for Mr Fenton’s dismissal.
[67] Having observed the demeanour of each of the witnesses giving their evidence, I am satisfied and find that the Respondent’s witnesses gave an accurate description of the issues with Mr Fenton’s conduct and performance. In particular, I accept and find that:
• Mr Fenton was perceived to be aggressive, intimidating and disrespectful to other staff, including managers;
• When performance or conduct issues were raised with him, he responded in an aggressive and inappropriate manner;
• He was regularly late to work over a long period of time, and there were numerous discussions with him about the requirement to be ready to commence work at 7am;
• He regularly took breaks that were longer than he was entitled to, and there were also numerous discussions with him about this matter;
• His language in the workplace, including telling his manger to fuck off or referring to other staff as cunts, was highly inappropriate.
[68] These matters combined constitute a valid reason for Mr Fenton’s dismissal.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
[69] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,8 in explicit terms9 and in plain and clear terms.10 In Crozier v Palazzo Corporation Pty Ltd11 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”12
[70] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied 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.13 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.14
[71] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Fenton before his dismissal was effected.
[72] While I am satisfied based on the evidence that Mr Fenton was notified of a valid reason for his dismissal, those reasons being related to his punctuality, aggressive behaviour and long meal breaks, I am not satisfied that he was given an opportunity to respond prior to a decision being made to dismiss him.
[73] The mere fact that the Respondent has failed to provide Mr Fenton with an opportunity to respond does not automatically render the dismissal harsh, unjust or unreasonable. As noted by the Full Bench, “s.387(c) is not a ‘criterion’. It is not the case that a person must be provided with an opportunity to respond to any reason related to conduct or performance. Rather, s.387(c) is a consideration to which the Commission must have regard in its analysis of whether a termination is harsh, unjust or unreasonable …”15
[74] For his dismissal to be procedurally fair, the Respondent ought to have outlined to Mr Fenton the performance and conduct concerns it held, including referencing the previous performance discussions if it sought to rely on those discussions, and indicated that it was considering his dismissal. Mr Fenton should then have had an opportunity to respond before a decision was made.
[75] I acknowledge there was an obvious reluctance on the part of the Respondent to fully engage with these performance and conduct issues because of Mr Fenton’s aggressive and intimidating nature when such issues were raised. The cross examination of Mr Clarke by Mr Fenton made this obvious. When asked whether Mr Clarke had raised with Mr Fenton the issue about his poor attitude towards other staff members, Mr Clarke responded saying “no, I was afraid to, to be honest”. While I accept Mr Clarke’s evidence in this regard, this does not mean that procedural fairness can be discarded.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[76] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[77] There is no evidence to suggest that Mr Fenton was unreasonably refused a support person.
Warnings regarding unsatisfactory performance - s.387(e)
[78] A warning for the purposes of s.387(e) must clearly identify:
(a) the areas of deficiency in the employee’s performance;
(b) the assistance or training that might be provided;
(c) the standards required; and
(d) a reasonable timeframe within which the employee is required to meet such standards.16
[79] The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”17
[80] I am satisfied and find that over the course of his employment, the deficiencies in Mr Fenton’s performance, specifically in relation to his punctuality, long meal breaks, and the inappropriateness of his conduct in the workplace, were raised with him on numerous occasions. However, the warning letter arguably didn’t make it clear that Mr Fenton’s employment was at risk unless the performance and conduct issues were addressed, in that it only referenced a possible outcome of reverting to a Yard Hand from his position of Yard Supervisor. There was no other evidence from the Respondent’s witnessed to otherwise be satisfied that Mr Fenton had been told his employment was in jeopardy.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
[81] The Respondent is a small employer and while Mr Murphy’s role encompassed a human resources function, he had no qualifications nor experience in this regard.
[82] I am satisfied that the lack of human resource expertise had an effect on the procedures followed in effecting the dismissal.
Other relevant matters - s.387(h)
[83] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[84] Both parties submitted that there were no other relevant matters required to be considered. I agree with that assessment.
Conclusion as to unfairness
[85] As stated above, I am satisfied that there was a valid reason for Mr Fenton’s dismissal, however some of the key procedural fairness elements were absent. Specifically, Mr Fenton was not given an opportunity to respond before a decision was made to dismiss him, and the warning letter did not state that he was at risk of being dismissed.
[86] Procedural fairness is one factor that the Commission may take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.
[87] In the context of administrative decision-making, the rules of natural justice are flexible and require fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise. 18
[88] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am on balance satisfied that Mr Fenton’s dismissal was unjust.
[89] In coming to this view, I have also taken into consideration that there is no evidence of any particular incident occurring between the issuing of the warning letter on 7 July 2020 and the dismissal on 21 July 2020. Further, the timesheet data produced by the Respondent shows that Mr Fenton had not been late to work from the date of the warning letter to the date of his dismissal.
Remedy
[90] Having found that Mr Fenton’s dismissal was unjust, and therefore unfair, it is necessary to consider what, if any, remedy should be granted to him. Mr Fenton seeks the remedy of compensation.
[91] Under section 390(3) of the Act, I must not order the payment of compensation to Mr Fenton unless:
a. I am satisfied that reinstatement is inappropriate; and
b. I consider an order for payment of compensation is appropriate in all the circumstances of the case.
[92] In this case, I am satisfied that reinstatement is inappropriate. Mr Fenton does not seek reinstatement. Additionally, it is inappropriate to reinstatement Mr Fenton given his threat to knock Mr Clarke’s teeth out, which I accept occurred.
[93] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation including:
a. the effect of the order on the viability on the Respondent;
b. the length of Mr Fenton’s service;
c. the remuneration that Mr Fenton would have received, or would have been likely to receive, if he had not been dismissed;
d. the efforts of Mr Fenton (if any) to mitigate the loss suffered by him because of the dismissal;
e. the amount of any remuneration earned by Mr Fenton 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 Mr Fenton 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.
[94] In relation to the circumstances I am required to take into account, I am satisfied and find that:
a. The effect of any order will not effect the viability of the Respondent, as there is no evidence to the contrary;
b. Mr Fenton had just over 10 years’ service. His employment record shows that his service was not unblemished. I consider that his length of service does not support reducing or increasing the amount of compensation ordered;
c. Given the evidence of the Respondent, Mr Fenton’s employment would have been unlikely to continue for longer than one week, that being a period necessary for it to have provided Mr Fenton with an opportunity to respond to its concerns, consider any response provided by Mr Fenton, and then dismiss him. Accordingly, I am satisfied that the remuneration Mr Fenton would have been likely to receive is one week’s pay;
d. Mr Fenton took steps to find alternative employment and in that regard has taken reasonable steps to mitigate his loss;
e. Mr Fenton gave evidence that he had earned $1850.41 since his dismissal; and
f. There are no other relevant matters.
[95] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act … is to apply the ‘Sprigg formula’ derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 19 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages20.”21
[96] The approach in Sprigg is 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.
STEP 2: Deduct moneys 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 awarded.
STEP 3: The remaining amount of compensation is discounted for contingencies.
STEP 4: The impact of taxation is calculated to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
STEP 5: The legislative cap on compensation is applied…22
[97] I have estimated the remuneration Mr Fenton would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $1,140 gross (being one week’s wages calculated by multiplying his hourly rate of $30 by 38 hours) on the basis of my finding that Mr Fenton would likely have remained in employment for a further period of one week. This estimate of how long Mr Fenton would have remained in employment is the ‘anticipated period of employment’. 23
[98] I have found that the amount of remuneration earned by the Applicant from the date of dismissal was $1850.41. However this was not earned in the week following his dismissal.
[99] I do not consider it necessary to make any adjustment for contingencies.
[100] I have considered the impact of taxation but have elected to settle a gross amount of $1,140 and leave taxation for determination.
[101] 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 Act.
[102] I do not consider the amount should be reduced on account of misconduct.
[103] One week’s pay is less than the compensation cap provided in s.392(5) of the Act.
[104] In light of the above, I will make an order that the Respondent pay $1,140 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.
DEPUTY PRESIDENT
Appearances:
J Fenton on his own behalf.
R Richardson of BAL Lawyers for Builders Trading Cooperative Limited.
Hearing details:
2020.
Sydney (By video):
November 9.
Printed by authority of the Commonwealth Government Printer
<PR727070>
1 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
2 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].
3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
4 Ibid.
5 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
6 Edwards v Justice Giudice [1999] FCA 1836, [7].
7 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
8 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
9 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
10 Previsic v Australian Quarantine Inspection Services Print Q3730.
11 (2000) 98 IR 137.
12 Ibid at 151.
13 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
14 RMIT v Asher (2010) 194 IR 1, 14-15.
15 Etienne v FMG Personnel Services[2017] FWCFB 3864, [33].
16 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
17 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
18 Kioa v West [1985] HCA 81, [11] (per Gibbs CJ).
19 (1998) 88 IR 21.
20 [2013] FWCFB 431.
21 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
22 70 IR 360 at 380-381.
23 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
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