John Lupson v Australian Pacific Airports (Melbourne) Pty Ltd
[2020] FWC 6721
•14 DECEMBER 2020
[2020] FWC 6721
The attached document replaces the document previously issued with the above code on 14 January 2020, to correct typographical errors at paragraphs [69] and [70].
Associate to Deputy President Mansini
Dated 15 January 2020
| [2020] FWC 6721 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Lupson
v
Australian Pacific Airports (Melbourne) Pty Ltd
(U2020/4160)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 14 DECEMBER 2020 |
Application for an unfair dismissal remedy – valid reason for dismissal – dismissal harsh, unjust or unreasonable – reinstatement not appropriate, compensation awarded.
Introduction
[1] This decision concerns an application by Mr John Lupson for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth)(Act).
[2] Mr Lupson was employed as an Electrical Supply Team Member in the Engineering Services Department at Australian Pacific Airports (Melbourne) Pty Ltd (Melbourne Airport) for more than 8 years. He was dismissed by reason of six allegations which Melbourne Airport considered were substantiated and “in totality” constituted serious misconduct justifying termination of employment.
[3] Mr Lupson asked the Commission to find that there was no valid reason for his dismissal and that his dismissal was motivated by his role as union delegate and complaints made. He sought the remedy of reinstatement and, in the alternative, compensation. Melbourne Airport strongly opposed.
[4] The parties engaged in several attempts at conciliation with the assistance of the Commission but there was no resolution. Accordingly, the matter proceeded to arbitration.
[5] Mr Lupson filed outlines of submissions, a list of documents, two witness statements and gave evidence at the hearing. 1 He also sought to rely on the following in support of his claim:
a) A witness statement of Mr Michael Dubowik, 2 former employee of Melbourne Airport (High Voltage Manager and, prior to that, Department Manager), who also gave evidence at the hearing;
b) A witness statement of Mr Russell Waters, 3 former employee of Melbourne Airport (Mechanical Services Officer in the Terminal Services Buildings);
c) Two witness statements of Mr Michael Philippou, 4 former employee of Melbourne Airport (Team Leader of the Terminal Services Buildings);
d) A witness statement of Mr Simon Quigley, 5 former employee of Melbourne Airport;
e) A witness statement of Mr Matt McLeod, 6 attendee at the funeral of a late colleague; and
f) A witness statement of Mrs Tonia Massimo, 7 widow of the late colleague.
[6] On application by Mr Lupson, Mr Daniel Richardson (Industrial Organiser of the Community and Public Sector Union (CPSU)) and Mr Damien McNeill (CPSU delegate and employee of Melbourne Airport) were required to attend the hearing and gave evidence at the hearing. 8
[7] Melbourne Airport filed outlines of submissions, a list of documents, and the following evidence:
a) Two witness statements of Ms Catherine Pollard, Industrial Relations Manager of Melbourne Airport, who also gave evidence at the hearing; 9
b) A witness statement of Mr Linc Horton, former employee (executive head of property) of Melbourne Airport, who also gave evidence at the hearing; 10
c) A witness statement of Mr Shane Kilroy, Mechanical Maintenance Manager of Melbourne Airport, who also gave evidence at the hearing; 11
d) A witness statement of Mr Stephen Mifsud, Electrical Supply Group Delivery Manager of Melbourne Airport, who also gave evidence at the hearing; 12
e) A witness statement of Mr David Morgan, Head of Utilities and Facility Management of Melbourne Airport, who also gave evidence at the hearing; 13
f) Two witness statements of Mr Murray Smallhorn, Utilities Maintenance Manager of Melbourne Airport, who also gave evidence at the hearing; 14 and
g) A witness statement of Ms Mari Ruiz, Executive People Experience of Melbourne Airport, who also gave evidence at the hearing. 15
[8] At the hearing, Melbourne Airport was granted permission to be represented by counsel having regard to the matters I am required to consider at s.596 of the Act. Mr Lupson is a current member of the CPSU. The CPSU had represented him in the Commission proceedings prior to the arbitration (including to file materials on his behalf) but Mr Lupson represented himself at the hearing. During the course of three days of hearing, Mr Lupson was granted leave to file further evidence and documents. An application for an order requiring the production of documents was met with voluntary production by Melbourne Airport.
[9] This decision is arranged as follows:
INDEX | |
Introduction | [1]-[9] |
Part A: Initial matters to be considered | |
| • Has Mr Lupson been dismissed? | [10] |
| • Other initial matters? | [11]-[12] |
Part B: Was the dismissal harsh, unjust or unreasonable? | |
I) The evidence and submissions | |
| • About the employment relationship | [13]-[23] |
| • The reason for the dismissal | [24]-[27] |
| • 30 December 2019 attendance at the workplace & the USB | [28]-[35] |
| • 23 January 2020 – attendance at the workplace | [36]-[41] |
| • 24 February 2020 – behaviour at the funeral service | [42]-[46] |
| • 20 December 2019 - “Standing up” email | [47]-[51] |
| • Sending inappropriate and unprofessional emails | [52]-[56] |
| • Storing the “Training to be a man” email | [57]-[61] |
II) Consideration of section 387(a) to (h) | [62]-[90] |
III) Conclusion – is the Commission satisfied that the dismissal of Lupson is harsh, unjust or unreasonable? | [91]-[94] |
Part C: Remedy | [95]-[117] |
PART A: INITIAL MATTERS TO BE CONSIDERED
Has Lupson been dismissed?
[10] A person who has been dismissed may apply to the Commission for a remedy pursuant to s.394. It is not contentious and I am satisfied that Mr Lupson was terminated at the initiative of his employer and has been dismissed within the meaning of ss.385 and 386 of the Act.
Other initial matters
[11] Section 396 of the Act sets out four matters which I am required to determine before I consider the merits of the application.
[12] There is no dispute between the parties, and I am satisfied on the evidence that:
a) Mr Lupson’s application for unfair dismissal was made within the 21 day period required by s.394(2) of the Act;
b) Mr Lupson was a person protected from unfair dismissal, as he had completed at least the minimum employment period, an enterprise agreement (the APAC Enterprise Agreement 2017) applied to his employment in accordance with s.382 of the Act;
c) the Small Business Fair Dismissal Code did not apply to Mr Lupson’s dismissal; and
d) Mr Lupson’s dismissal was not a case of genuine redundancy.
PART B: WAS THE DISMISSAL HARSH, UNJUST OR UNREASONABLE?
I) The evidence and submissions
About the employment relationship
[13] In November 2011, Mr Lupson commenced employment with Melbourne Airport as an Electrical Supply Team Member, in the Engineering Services Department, undertaking electrical works at the Melbourne Airport. 16 He worked in this role from then until his termination on 13 March 2020.
[14] The contract of employment set out the key terms and conditions of Mr Lupson’s employment. 17 Relevantly:
a) That an enterprise agreement applied to the role;
b) An express requirement not to discuss confidential material with others in an unauthorised capacity, an obligation that written material produced by Mr Lupson remains the property of the employer and a reference to the then applicable enterprise agreement “for further information”;
c) That the employment was subject to Mr Lupson meeting the requirements of the security check necessary to hold an Aviation Security Identification Card (ASIC), being a formal identification document which records the level of security clearance as an employee of Melbourne Airport which determines access to restricted areas of Melbourne Airport; and
d) A specific acceptance of the offer and confirmation that Mr Lupson would “abide by all APAC policies and procedures” during the course of his employment. 18 This was signed by Mr Lupson and dated 28 November 2011.
[15] At the time of Mr Lupson’s dismissal, the applicable enterprise agreement was the APAC Enterprise Agreement 2017 (Agreement) which included additional terms and conditions. Relevantly:
a) That Melbourne Airport’s policies and procedures supplement, but do not form part of the Agreement and continue to apply to all employees (subject to variation or to the extent of any inconsistency with the Agreement) (clause 11);
b) Personal leave including, under the heading “Returning to work after illness/injury”, that management may request a medical certificate confirming whether an employee is able to return to their pre-injury job and what if any restrictions apply, and that management reserves the right to have an employee medically assessed if they have concerns regarding the employee’s capacity to carry out their job or that there is a health risk in their current employment capacity (subclause 23.6(3));
c) That where an employee has lost their ASIC or other license specific to the ability to perform duties or is otherwise unable to perform their duties, that their employer will seek alternative duties where appropriate and possible; where alternative duties cannot be offered, the employee will use accrued leave for the period in which they are unable to perform their duties (and where there is insufficient leave, that there is no obligation to maintain an employment relationship) (clause 33);
d) Confidentiality, that employees must not disclose “confidential information” (defined as including information about the employer’s business, the employer’s client’s business, that has occurred, occurring or due to occur at Melbourne airport, that is not otherwise in the public domain) to any person other than in the performance of their duties and responsibilities (clause 36);
e) Termination of employment, including for termination without the specified notice period for “summary dismissal” (subclause 37.1(4)); and
f) A union delegates provision including that the role of union delegate will be facilitated and respected and that employees who are union delegates will not suffer disadvantage or detriment as a result of their union role (subclause 40.1(3)).
[16] The following policies and procedures were before the Commission:
a) APAC Code of Conduct;
b) ICT Security Policy – Appropriate Use;
c) Workplace Behaviour Policy;
d) Speak Up Policy;
e) Injury Management and Return to Work Policy;
f) APAC Safety Essentials;
g) APAC Safety Policy; and
h) Employee Privacy Policy.
[17] On or around May 2019, Mr Lupson took a long period of personal leave related to an injury sustained outside of work. He continued to perform his union delegate role during this time. During this period, Melbourne Airport identified alleged conduct of Mr Lupson about which it had concerns, but Ms Pollard (Industrial Relations Manager) and Mr Smallhorn (responsible for overseeing the high voltage team, of which Mr Lupson was part) had decided not to raise these matters with Mr Lupson until he returned to work. 19
[18] On 14 January 2020, Mr Lupson made a complaint to WorkSafe under his wife’s name (Mrs Julie Smith). 20
[19] On 23 January 2020, Mr Lupson attended the workplace with the intention of returning to work. His ASIC had expired. Mr Lupson was ultimately escorted from the workplace and stood down on full pay pending a disciplinary investigation.
[20] From 24 January to 12 March 2020, Melbourne Airport conducted a disciplinary investigation which involved three disciplinary meetings, held on 28 January, 30 January and 5 February 2020, attended by: Mr Lupson along with his union representative Mr McNeill (and Mr Richardson, union delegate, also attended the second and third meetings); Ms Pollard, Mr Smallhorn and Ms Ruiz (executive, responsible for human resources). Records of these meetings were created by Ms Pollard. Mr Lupson was given show cause letters on 24 January and 20 February 2020.
[21] On 24 February 2020, Ms Ruiz received a complaint from Mr Kilroy (Mechanical Maintenance Manager) in relation to Mr Lupson. The complaint alleged Mr Lupson had behaved inappropriately at the funeral of a Melbourne Airport employee. 21
[22] On 3 March 2020, Mr Lupson emailed Mr Morgan (Head of Utilities and Facility Management) and Melbourne Airport’s senior leadership team in which he requested an end to “the persecution that is being perpetrated against me as a direct consequence of my role as a CPSU delegate” and also alleged that he was “the target of a campaign of victimisation and persecution” because of his union delegate role. 22 Ms Pollard responded that same day with a letter signed by Mr Morgan that refuted the allegations about his treatment being in any way related to his union delegate role.23
[23] Later on 3 March 2020, a further show cause letter was issued regarding the show cause process which contained a total of twelve allegations (including two new allegations related to Mr Kilroy’s complaint, to which Mr Lupson was invited to respond by close of business on 5 March 2020). 24 On 5 March 2020, Mr Richardson of the CPSU responded with a medical certificate and to request an extension of the time in which to respond. Mr Lupson was granted until 12pm on 13 March 2020 to respond. There was no response from the CPSU or Mr Lupson by 12pm on 13 March 2020, which Mr Lupson said was because at the time he was on personal leave due to his mental health.25 Ms Pollard’s evidence was that she made attempts to reach Mr Lupson and Mr Richardson by telephone on 13 March 2020 before Mr Lupson’s employment was terminated by letter sent to his personal email address (Termination Letter), effective immediately. Also on 13 March 2020 and after the Termination Letter was issued, a letter was sent by Mr Richardson as Mr Lupson’s representative, which responded in part to the further show cause letter and requested further time to respond on account of Mr Lupson’s health.26
The reason for the dismissal
[24] The Termination Letter detailed the following six allegations which it said Melbourne Airport had found were substantiated:
“Allegation Three
On more than one occasion, you engaged in inappropriate workplace behaviour during working hours when you sent emails containing inappropriate and unprofessional content from your Australian Pacific Airports Corporation (APAC) email account.
Allegation Eight
On 30 December 2019, without authorisation and whilst you were not deemed fit for duties, you accessed and attended at Building 219.
Allegation Nine
On 20 December 2019, you engaged in an unprofessional manner when you sent an email to David Morgan and Lorie Argus at 2.54am that contained a profanity.
Allegation Ten
On 23 January 2020, you engaged in inappropriate workplace behaviour when you told Catherine Pollard that you did not realise your ASIC had expired because you had not needed to use your ASIC for a long time.
Allegation Eleven
You engaged in inappropriate workplace behaviour when you stored inappropriate content in your work email account.
Allegation Twelve
You engaged in inappropriate behaviour at the funeral service when you:
a) approached David Morgan prior to the service and said that you could not believe he had the nerve to attend the funeral;
b) stared at David Morgan during the service and shook your head on three occasions; and
c) after the service, approached members of management including David Morgan, Linc Horton, Nicole Noor and Shane Kilroy and behaved in an aggressive manner towards them including by physically brushing hard against David, and speaking aggressively to the group.”
[25] The Termination Letter concluded that the substantiation of these six allegations constituted findings that:
a) Mr Lupson had breached the APAC Code of Conduct, the APAC Workplace Behaviour Policy and the APAC ICT Security Policy – Appropriate Use;
b) the necessary trust and confidence was undermined; and
c) when the conduct was considered “in totality”, Mr Lupson had engaged in serious misconduct justifying the termination of his employment.
[26] However, Mr Lupson contended that his dismissal was motivated by the support he provided to union members in his role as union delegate and reports made to WorkSafe, under the Speak Up Policy and to whistleblowing.com.au/yourcall.com.au.
[27] Each allegation is addressed further below.
30 December 2019 attendance at the workplace & the USB
[28] This allegation relates to Mr Lupson’s attendance at the workplace on 30 December 2019. At that time, he was on an extended period of personal leave. The evidence is that he accessed a restricted area (Building 219) and his ASIC was at that time valid by one day. 27 He remained on site from 7.54am to 11.33am.28
[29] The Termination Letter summarised the allegation as:
“On 30 December 2019, without authorisation and whilst you were not deemed fit for duties, you accessed and attended at Building 219.”
[30] The nature of the breaches were described therein as:
“Remaining at Building 219 after completion of scanning your medical certificate is considered to be a breach of the APAC Code of Conduct.
Copying your C:\Drive to your personal external device without authorisation is considered to be a breach of the APAC Code of Conduct and the APAC ICT Security Policy – Appropriate Use.”
[31] The evidence before the Commission includes the following explanations of Mr Lupson’s attendance at work and his activity whilst on site, on 30 December 2019:
a) On 28 January 2020, at the first disciplinary meeting and according to notes prepared by Ms Pollard, Mr Lupson was asked what he was doing at work on 30 December 2019 and he responded to the effect that it was because his scanner at home was not working and he was on site for a couple of hours. No other reason was offered according to those notes, and Mr Lupson does not contend having said anything more in that meeting about his activity on site. 29
b) On 30 January 2020, at the second disciplinary meeting and according to notes prepared by Ms Pollard, Mr Lupson was asked what he was doing in the three and a half hours that the system recorded him as being on site on 30 December 2019 and he responded to the effect that he had logged on to his computer, sat at his desk and spoke to his colleagues who were in the building. Mr Lupson was also asked whether he recalled taking any items and he responded that he had taken his backpack. When asked if he took any other items, he is noted as having responded: “Not sure what you mean. Nothing out of the norm.” 30
c) On 4 February 2020, following a discussion with his support person and delegate Mr McNeill, Mr Lupson emailed Ms Pollard to explain that he had “remembered that you may possibly be referring to my USB device that I took into the office with me” and that he had “backed up some material on that device – personal photos etc, as well as some other material”. 31
d) On 5 February 2020, at the third disciplinary meeting and according to notes prepared by Ms Pollard, Mr Lupson was asked about the previously undisclosed copying of files to the USB and responded that he had “answered the questions the way you have asked them” and “at no stage did you ask me about a backup”. 32 Mr Lupson confirmed this in cross examination when he said “I only answered what I was asked”.33 Mr Lupson is noted as having admitted to performing a full back up of the C Drive on his work computer and saying “when it took so long I wish I hadn’t started it”.34 Also in this meeting, Mr Lupson said that he had been directed by email from a representative of Melbourne Airport’s information technology department (ICT), a Mr Danny Francis, to back up the C Drive on his work computer. That email was extracted in the Termination Letter, it was about new equipment and relevantly included the following: “Can you please backup any files you need from your current desktop PC to your H\Drive on Monday 14th so that ICT can come early in the week and set (up) the new docks.”. The USB was voluntarily provided to Melbourne Airport by Mr Lupson during this meeting.
[32] During the course of the arbitration, a copy of the USB was provided to the Commission as well as an index of its contents (comprising some 49 pages) and a partial list of the files contained on it (comprising some 122 pages). More than 30,000 files were downloaded from Mr Lupson’s C Drive on his work computer to the personal USB on 30 December 2019. 35
[33] Mr Lupson asked the Commission to find that there was nothing inappropriate about his attendance at the workplace on 30 December 2019 or his copying the C Drive to a personal USB, that there was no breach of the APAC Code of Conduct as alleged and this is not a valid reason for the termination of his employment. Specifically, that he had attended the workplace for the legitimate purpose of scanning a medical certificate to provide Melbourne Airport in relation to his injury, and then remained on the premises to create a back up of the C Drive on his work computer. He said that he had not received a direction from Melbourne Airport not to attend the workplace whilst on approved personal leave, and indeed relied on the evidence of Mr Smallhorn in cross examination that it was somewhat common practice. 36 He acknowledged that he had not obtained medical certification that he was “one hundred percent” fit for duties at that time, however maintained that the nature of his shoulder injury and certified fitness for some duties did not present any risk to attending the workplace for this purpose.37 Mr Lupson said it is relevant that he voluntarily provided the USB to Melbourne Airport for its inspection. Mr Lupson contended that there was no sensitive or confidential information on the USB, that he exercised mature judgement and that there was no basis to Melbourne Airport’s claim that this was a breach of its Code of Conduct.
[34] Melbourne Airport asked the Commission to find that Mr Lupson was initially dishonest in his reason for being on site for three and a half hours on 30 December 2019. 38 It said that the real reason for the length of time Mr Lupson spent on site was that he was downloading the contents of his work computer onto the USB device, which he subsequently took with him that day.39 Melbourne Airport disputed the claim that ICT had in any way authorised or directed the back up of Mr Lupson’s work computer files onto a personal device or for that information to be retained in an insecure environment. It argued that the email from Mr Francis, sent over two months prior, asked employees to back up to the H:\Drive and not a personal device. Of the documents downloaded, Melbourne Airport was particularly concerned with the Melbourne Airport Emergency Plan which it argued is a document of particular sensitivity, given that it discloses airport emergency responses, airport entry and exit intelligence, agency activities and agency contacts. It said this would be a major security risk if it fell into the wrong hands. Further, that the many other documents copied included technical standards; minutes of consultative committee meeting(s); and details of capital projects which were provided to Mr Lupson for the purpose of doing his job.40 It contended Mr Lupson’s initial failure to disclose the USB copying exercise in the disciplinary meeting on 28 January 2020 cast considerable doubt on what he was in fact intending to do with the documents, why he attended the workplace that day and his motives for acting as he did. It further argued that this conduct is destructive of the necessary trust and confidence in the employment relationship.
[35] Mr Lupson argued that technical standards documents are made available to all contractors on the Melbourne Airport web page (provided after registering via email); the consultative committee meeting was in his role as union delegate and not confidential; details of capital projects were provided to all high voltage team members for the purposes of logging time; and the Melbourne Airport Emergency Plan is required to be widely known or else it would be ineffective and further is not secure and not subject to “confidential controls”. 41 Melbourne Airport strongly refuted that its emergency plan is publicly available and, in cross examination, Mr Lupson ultimately accepted that it is not available to a member of the general public.42
23 January 2020 – attendance at the workplace
[36] This allegation relates to Mr Lupson’s decision to attend the workplace on 23 January 2020, for the purposes of returning to work. At this time, his ASIC had expired.
[37] The Termination Letter summarised the allegation as:
“On 23 January 2020, you engaged in inappropriate workplace behaviour when you told Catherine Pollard that you did not realise your ASIC had expired because you had not needed to use your ASIC for a long time.”
[38] The nature of the breach was described as:
“Your attendance at an APAC workplace on 23 January 2020 without a valid ASIC is considered to be a breach of the APAC Code of Conduct.”
[39] It is not contentious that an ASIC pass is an important security requirement and required to access certain areas of the Melbourne Airport in which Mr Lupson worked. There are different levels of security restriction for “airside” and “landside”. The Federal aviation laws strictly do not permit access to airside areas without a valid ASIC or in some cases an escort, and permit access to landside areas without a valid ASIC. Building 219 is considered landside. Melbourne Airport has arrangements in place for visitors to access certain areas (such as a visitor’s book in Building 219) and a temporary pass system (a temporary pass may be provided to employees in some circumstances). However, Melbourne Airport maintained that it is a condition of employment with Melbourne Airport that all employees hold a valid ASIC when at work, anywhere within the airport precinct. Further, that a temporary pass was absolutely not appropriate in this instance. 43
[40] On 22 January 2020, Mr Lupson had received a medical certificate from his surgeon certifying his “one hundred percent” fitness for work. He said he believed that he had previously notified his human resources contact that, as soon as he had such certification, he would return to work the very next day. Mr Lupson acknowledged that he had not made specific arrangements for his return to work with human resources or Mr Smallhorn after receiving the medical certificate on 22 January 2020, but claimed to have telephoned his team leader about this (a Mr Scott Evans, who did not give evidence at the hearing). 44 He said the issue with his expired ASIC was an inadvertent error on his part, as he did not realise that his ASIC had expired because he had not needed to use one in a long time. Initially he told his employer that the boomgate let him in to the car park and he parked as normal. In cross examination, Mr Lupson gave evidence that he was not alerted to the expired ASIC on entering the carpark because he had “tailgated” another employee into the Melbourne Airport carpark rather than swipe his ASIC pass (he said this was “common practice” amongst employees).45 He then entered the building with another employee rather than swiping his ASIC and claimed to still be unaware the ASIC was not working. Further, he said that he did not strictly need an ASIC to access Building 219 and given his lengthy absence it was human resources’ responsibility to alert him of the expiry of his ASIC pass.46 In any event he argued that the approach taken was unfair and inconsistent, in that he was not offered a temporary employee pass but rather was escorted out. He argued that this cannot form the basis of a valid reason for his dismissal.
[41] Melbourne Airport said Mr Lupson’s attendance on 23 January 2020 was “unannounced” because he had not notified the appropriate persons (human resources or Mr Smallhorn) of the full medical clearance obtained on 22 January 2020 or of his intentions to present at work on 23 January 2020 and accordingly there was no plan in place. When he was asked to leave the site, Melbourne Airport contended that he initially refused the oral direction and insisted on having something in writing. Mr Mifsud gave direct and unwavering evidence of his recollection in response to Mr Lupson’s questioning. 47 It also said Mr Lupson’s account about the expired ASIC could not be accepted because, among other things: he was on notice his ASIC had expired, the expiry date being clearly marked on the pass itself and having been emailed notifications about the expiry of his ASIC (and he was plainly checking his emails, as he had received the October notification from ICT about equipment updates);48 he was familiar with the renewal process as he had done so more than once previously; he had changed his story since the first disciplinary meeting, and had subsequently admitted to having entered the workplace by tailgating another employee under the carpark gate;49 and it is not plausible that, by the time Ms Pollard asked the question of him (as escorting him from the workplace on 23 January 2020), he did not know that his ASIC had expired.50
24 February 2020 – behaviour at the funeral service
[42] This allegation relates to the funeral of Mr Lupson’s late colleague and former employee of Melbourne Airport, held on 24 February 2020. A number of employees of Melbourne Airport attended the service.
[43] The Termination Letter summarised the allegation as:
“You engaged in inappropriate behaviour at the funeral service when you:
a) approached David Morgan prior to the service and said that you could not believe he had the nerve to attend the funeral;
b) started at David Morgan during the service and shook your head on three occasions; and
c) after the service, approached members of management including David Morgan, Linc Horton, Nicole Noor and Shane Kilroy and behaved in an aggressive manner towards them including by physically brushing hard against David, and speaking aggressively to the group.”
[44] The Termination Letter stated that Melbourne Airport accepted that Mr Lupson’s conduct at the funeral was mitigated by his distress at the death of a friend and other matters raised by Mr Richardson, and had been assessed “in that light” but nonetheless Mr Lupson’s “behaviour at the funeral is considered to be in breach of the APAC Code of Conduct and the APAC Workplace Behaviour Policy”.
[45] Mr Lupson acknowledged in his materials that he said the following, before the service started: “I cannot believe you have the nerve to attend the funeral after what you did to him Giulio and what you are doing to me” and “I did shake my head in disappointment at how weak David was for not stopping Murray victimising me and others” and that he had asked Mr Kilroy “what he was doing at the funeral”. 51 However, Mr Lupson denied any aggression, said he behaved civilly and did not accept that there was anything inappropriate about his behaviour at the funeral.
[46] Melbourne Airport’s evidence included that Mr Kilroy, Mr Morgan and Ms Noor chaperoned each other to their respective vehicles after the funeral, given their concern about Mr Lupson’s behaviour which they perceived to be aggressive and hostile. 52 Melbourne Airport contended that the alleged conduct was mostly admitted by Mr Lupson, by his own evidence in these proceedings. It argued that whether the service had started or not, the conduct of Mr Lupson even by his own admission is inexcusable. Managers also gave evidence that Mr Lupson was physically aggressive by forcefully shoving Mr Morgan with his shoulder, an allegation that Mr Lupson sought to discredit.
20 December 2019 - “Standing up” email
[47] This allegation relates to an email, sent by Mr Lupson to two senior managers at 2.54am on 20 December 2019. The email was titled “Standing up” and included a link to a law firm newsletter on industrial manslaughter. The email said:
“I’m so discussed in the way a corporation can treat an individual.
A corporation is made up of individuals.
People know right from wrong.
Individuals stand up in times of need.
I can’t fucking sleep because I’m so angry and worried for Micks health.” 53
[48] The Termination Letter summarised the allegation as: “On 20 December 2019, you engaged in an unprofessional manner when you sent an email to David Morgan and Lorie Argus at 2.54am that contained a profanity.” This was described as a breach of the APAC Code of Conduct and the APAC ICT Security Policy – Appropriate Use.
[49] In the first disciplinary meeting on 28 January 2020, Mr Lupson acknowledged that the email was inappropriate and said that he regretted having sent the email. Also during that meeting, Mr Lupson apologised and guaranteed that it would not happen again. 54
[50] Mr Lupson sought to explain the context in which the email was sent in terms of his distressed and highly agitated state after his friend and colleague, Mr Michael Philippou, was terminated. Mr Lupson had apologised for this. He argued that, in this context, the 20 December 2019 email cannot form a valid reason for the termination of his employment.
[51] Melbourne Airport maintained that the email is offensive in its message and language, the use of the profanity in the last line is insulting and unnecessary. The link conveys an inference of criminal wrongdoing. By the recipients of the email, being Mr Morgan (then an executive manager) and Ms Argus (Chief of Landside Access), Melbourne Airport asked the Commission to distinguish this from a communication with friends and to find that there was intent to intimidate and disturb the reader which cannot simply be dismissed as “late night musings of no consequence”. It said that Mr Lupson could have raised concerns about the health of his friend and former colleague in a professional manner.
Sending inappropriate and unprofessional emails
[52] This allegation relates to five emails that Mr Lupson sent to others, between July 2017 and November 2019. One such email was forwarded to a work colleague on 11 January 2019 and is titled “Overweight people are found to have smaller brains” and attached a link to an article; to which his colleague responded with “Thank you for the positive motivational words you cunt of a man. You took away my spark I will cry myself to sleep tonight. LOL.” Another related to an email exchange between Mr Lupson and his wife, which ends with Mr Lupson writing “I’m happy to send you a photo of my extension”. 55
[53] The Termination Letter summarised the allegation as:
“On more than one occasion, you engaged in inappropriate workplace behaviour during working hours when you sent emails containing inappropriate and unprofessional content from your Australian Pacific Airports Corporation (APAC) email account.”
[54] In each case, described as a breach of the APAC Code of Conduct and the APAC ICT Security Policy – Appropriate Use.
[55] Mr Lupson sought to explain the five emails as innocuous, light hearted and satirical. He relied on the absence of a complaint or any evidence of the recipients having been upset or hurt, as proof that no offence was caused. Mr Lupson invited the Commission to find that Melbourne Airport only raised these emails in an effort to bolster its case for dismissal as there was no satisfactory explanation given by Melbourne Airport as to why it raised these “historical emails”, “en masse”, years after they were sent.
[56] Melbourne Airport plainly took a different view of these emails. It maintained that these are relatively recent examples of inappropriate content being stored on Mr Lupson’s work computer and work email. It contended the sending of these emails was “an error of judgement” on the part of Mr Lupson. As I understand the position, Melbourne Airport sought to defend the delay in raising the emails at least in part because they were unaware of them until late 2019 and in part because they decided to wait until Mr Lupson returned from leave to raise these matters.
Storing the “Training to be a man” email
[57] This allegation relates to an email that Mr Lupson was sent, and had not deleted, between 19 March 2012 to 2019. It was titled “Training to be a man”. It said “If you don’t send this to a few old friends there will be fewer people laughing in the world today…” and contained a series of images of children (for example, a young child urinating on the wheel of a car, two children looking at each other’s body parts and a child in a highchair reaching for a glass of beer). 56
[58] The Termination Letter summarised the allegation as:
“You engaged in inappropriate workplace behaviour when you stored inappropriate content in your work email account.”
[59] The nature of the breach is described as:
“The storage of inappropriate images of children in your work email account is considered to be a breach of the APAC Code of Conduct, the APAC Workplace Behaviour Policy and the APAC ICT Security Policy – Appropriate Use.”
[60] Mr Lupson was adamant that he was shown another email in the disciplinary meeting of 5 February 2020 which he believed constituted child pornography. Mr Richardson, his representative in that meeting, said he was of the impression by the behaviour and language of the employer representatives that the material contained “child pornography” which he described as meaning sexually explicit images of children. 57 Mr Lupson and his support person said the emails were quickly “fanned” at them during the meeting and they were not given copies of the emails at that time.58 Mr Lupson said the suggestion that he was storing child pornography caused him distress and embarrassment. He reported the matter to the Victoria Police whose investigation found that the “Training to be a man” email did not amount to child pornography. He also emphasised the lapse of time since the email was sent to him and when it was raised with him. Further that he never sent it on to another person and did not deliberately “store” the “Training to be a man” email on his computer.
[61] Melbourne Airport denied that this allegation related to, or that the email shown to Mr Lupson in the meeting of 5 February 2020 was in fact, any email other than the “Training to be a man” email that was produced to the Commission in this matter. Melbourne Airport did not contend that the “Training to be a man” email constituted child pornography or that any criminal offence had been committed. However, Ms Pollard and Ms Ruiz gave evidence of their disgust and personal offence taken at the “Training to be a man” email. 59 Ms Pollard said this email was not discovered until after the 30 January 2020 meeting. It submitted that the issue was with Mr Lupson’s retention of the email (that it was not deleted). Further, that Mr Lupson’s response in the show cause process was “dismissive”, having said words to the effect that he could not recall receiving the email and has no control over what emails are sent to him.60 Also that, by his response in involving the police and seeking a ruling on whether the email constituted child pornography, Mr Lupson made the issue bigger than it ever needed to be.
II) Consideration of section 387(a) to (h)
[62] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) in considering whether Mr Lupson’s dismissal was harsh, unjust and/or unreasonable. I turn now to consider each of the matters at s.387 in turn below.
[63] Some initial observations about the evidence. First, there was a contest about the accuracy of Ms Pollard’s notes and whether the meetings were recorded. Mr Lupson contended that, at least in the third disciplinary meeting on 5 February 2020, Ms Pollard’s notes were not taken during the course of the meeting, whereas she insisted that they were taken “contemporaneously” on each occasion and that the meetings were not otherwise recorded. 61 I accept Ms Pollard’s evidence in this respect and have received these notes as contemporaneous records which reflect Ms Pollard’s notes of those meetings. Second, I observed that Mr Lupson’s approach to answering questions about contentious matters was cautious and lacked the candour that was present in his responses at other less critical moments. This impacted my assessment of his credibility on some of the more contentious evidentiary disputes.
Section 387(a) – Was there a valid reason for the dismissal related to the capacity or conduct of Lupson (including its effect on the safety and welfare of other employees)?
[64] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. A valid reason is one that is “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced”. 62
[65] 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. 63 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees), in the sense that it was both a good reason and a substantiated reason.
[66] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.
[67] The Act requires consideration of whether there was “a” valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. 64 It is also well established that a valid reason need not necessarily be the one relied upon by the employer.65
[68] The Termination Letter describes “the reason” for Mr Lupson’s dismissal as being due to Melbourne Airport’s consideration that his conduct with reference to the six allegations it found were substantiated, “in totality”, amounted to serious misconduct. 66 Having examined each of those allegations, I am persuaded that some of Mr Lupson’s conduct on 30 December 2019 and on 23 January 2020 constitutes a valid reason for his dismissal.
[69] It was not disputed that the contract of employment applied to Mr Lupson’s employment. The contract is relatively short, refers to an enterprise agreement being applicable (at the time of dismissal, the Agreement) and includes an express confidentiality provision, reinforced in the APAC Code of Conduct which requires protection and prevention of non-authorised personnel from accessing information and data, to “keep sensitive information safe” and to never leave sensitive information unsecured. It also provides that the employment is conditional on meeting the ASIC security requirements, reinforced in the APAC Code of Conduct which requires a valid ASIC to be displayed at all times while in the secure area of the airport and to never avoid any security controls or protocols. The contract was signed by Mr Lupson whereby he confirmed his understanding and acceptance of its contents and to abide by all policies and procedures during the course of his employment.
[70] Although not initially disclosed, it is not ultimately contentious that Mr Lupson attended the workplace whilst on an extended period of personal leave and copied the contents of the C Drive on his work computer to a personal USB which he then removed from the workplace. This conduct was not authorised by Melbourne Airport. It is simply not plausible to suggest, and I do not accept, that the email of Mr Francis in any way authorised such action by Mr Lupson. At least one document that Mr Lupson copied to the USB and removed from the workplace (the Melbourne Airport Emergency Plan) has been identified by Melbourne Airport as highly sensitive and confidential and I accept this evidence. Despite his efforts to the contrary, Mr Lupson did not establish that this document is “in the public domain” and ultimately conceded that it is not within reach of the general public. He offered no reasonable or acceptable explanation for his actions in removing and keeping Melbourne Airport’s confidential information unsecure, and his insistence to the contrary challenged his credibility as to its use. This of itself is a breach of the specific confidentiality provision in the Agreement and the contract that applied to Mr Lupson’s employment. Of the many thousands of documents that were copied, there are a range of business documents which Mr Lupson was provided for the purposes of doing his job and was also obliged, by the Agreement and his contract of employment, to keep confidential and use only in the proper performance of his duties. In his submissions and evidence before the Commission, Mr Lupson presented as completely lacking in insight and awareness of the gravity of this issue.
[71] It is also not contentious that Mr Lupson sought to return to work on 23 January 2020, proceeded to tailgate his way into the carpark without using his ASIC pass; then followed a co-worker into the building - again without using his ASIC pass. His ASIC was not current. Whether the Federal aviation or any other law strictly required a valid ASIC to access the areas that Mr Lupson did on that day is beside the point – Melbourne Airport does not accuse Mr Lupson of breaching anything other than his employment obligations. The requirement to hold a valid ASIC is a basic and fundamental condition of Mr Lupson’s employment with Melbourne Airport, as he expressly accepted when he signed the contract of employment and as he properly accepted before the Commission in these proceedings. I accept that Mr Lupson may have had nothing to gain from failing to renew his ASIC pass but that does not justify his decision to attend and enter the workplace, to perform his duties, without a valid ASIC in breach of his contract of employment. I find no reasonable justification for his actions in manoeuvring into the workplace without using his ASIC pass as Melbourne Airport’s systems require. That it may have been possible (or, on one view of the Agreement, even desirable) for the employer to facilitate a temporary ASIC pass does not change or justify Mr Lupson’s own conduct. Whether it was appropriate to facilitate a temporary pass is a matter for the employer to decide in managing its business undertaking and various regulatory obligations, consistent with the Agreement.
[72] I am satisfied on the evidence adduced that, in both instances, Mr Lupson’s conduct amounted to a serious breach of the conditions of his employment with Melbourne Airport.
[73] I have not identified any evidentiary basis for the claim that the real reason for the dismissal was Mr Lupson’s role as a union delegate and/or complaints made. The evidence reflects the contrary, including that Melbourne Airport respected and facilitated his union delegate role for example by allowing Mr Lupson to continue to actively perform that role whilst absent from work (on personal leave). Further, I accept the evidence of Melbourne Airport that WorkSafe did not disclose to them that Mr Lupson’s wife, Mrs Smith, had made a complaint nor was it aware of this WorkSafe complaint until at the earliest when Mr Lupson disclosed it on 3 March 2020. The sequence of events reflects that the allegations Mr Lupson made in this respect, whilst employed, came after the disciplinary process had commenced and might be viewed in that light.
[74] As I am satisfied that that there was a valid reason arising from my findings on the conduct of 30 December 2019 and 23 January 2020, it is unnecessary to have regard to every allegation that Melbourne Airport relied upon. However, I do not consider the remaining allegations to properly substantiate a valid reason. The relevance of some aspects of those other allegations to the question of whether the dismissal was harsh, unjust or unreasonable are considered further at s.387(h).
[75] For the reasons given, there was a valid reason for Mr Lupson’s dismissal within the meaning of s.387(a) of the Act.
Section 387(b) and (c) - Was Lupson notified of that reason and given an opportunity to respond to any reason related to his capacity or conduct?
[76] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 67 and in explicit68 and plain and clear terms.69
[77] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 70
[78] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 71 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.72
[79] Having regard to the evidence before the Commission, I am satisfied that Mr Lupson was notified of, and afforded opportunity to respond to, the matters which I have found to constitute a valid reason for the dismissal as follows:
a) The allegation related to Mr Lupson’s conduct in copying the C Drive from his work computer to a personal USB without authorisation on 30 December 2019 was first put to him for a response after his disclosure of 4 February 2020, in the third disciplinary meeting on 5 February 2020. There was then a further show cause letter; and
b) The allegation related to the expired ASIC was first put to Mr Lupson in the first disciplinary meeting on 28 January 2020. There were then a further two meetings and three show cause letters.
[80] I acknowledge that Mr Lupson desired more time to respond to the further show cause letter of 3 March 2020, which contained new allegations about the funeral. It is unfortunate that such communication was received after the already extended time had expired and the Termination Letter had issued. However, by this time, Mr Lupson was aware of the precise nature of the matters which I have found to constitute a valid reason and had been afforded full opportunity to respond to those matters.
[81] Having regard to the matters referred to above, I find that Mr Lupson was notified of and given an opportunity to respond to the conduct which I have found to comprise a valid reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Section 387(d) – Was there any unreasonable refusal by Melbourne Airport to allow Lupson to have a support person present to assist at any discussions related to the dismissal (s.387(d))?
[82] It is not contentious and I find that there was no unreasonable refusal to allow Mr Lupson to have a support person present at the discussions relating to the dismissal on 28 January, 30 January and 5 February 2020.
Section 387(e) - If the dismissal related to unsatisfactory performance, was Lupson warned of the unsatisfactory performance before the dismissal?
[83] Mr Lupson was not dismissed for unsatisfactory performance. As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
Section 387(f) and (g) - The degree to which the size of the respondent’s enterprise, and the absence of dedicated human resources management specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal?
[84] It is not disputed and I find that neither the size of the enterprise or any absence of in-house human resources expertise likely impacted on the procedures followed in effecting Mr Lupson’s dismissal.
Section 387(h) - Any other matters that the Commission considers relevant?
[85] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.
[86] Mr Lupson asked the Commission to have regard to his eight years’ service with Melbourne Airport, his unique and specialised skills in high voltage, the personal and economic effect that the termination has had on him in light of the prevailing economic conditions and what was described as the “significant deficiencies” in Melbourne Airport’s investigation process including its failure to provide evidence in support of its allegations and decision to “prosecute historical allegations of an unserious kind, in the absence of any reason to do so”.
[87] The following matters are most pertinent to this case and may be taken into consideration for the purposes of s.387(h) of the Act.
[88] I have not found there to be a “pattern of behaviour” as Melbourne Airport contended. Whilst Melbourne Airport’s investigation process was adequate in terms of the requirements at ss.387(b) and (c) of the Act (as these factors relate to the matters I have identified as constituting a valid reason), I consider its investigation process was problematic in an important respect. As is evident in the materials before the Commission, the employer in its own words “framed” a total of twelve allegations which evolved over the course of the disciplinary process. In my view, it was a retrospective “kitchen sink” type approach aimed at justifying the termination of employment. I consider these factors weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.
[89] Mr Lupson’s age, the fact that he had completed eight years’ service at Melbourne Airport, his specialist skills in high voltage and his career prospects are also relevant matters to which I have had regard in Mr Lupson’s favour.
[90] I have taken into account Mr Lupson’s behaviour at the funeral of his late colleague and friend, which even on his own account and having regard to his grief was unnecessary, entirely inappropriate and reflective of a poor attitude towards his managers. Mr Lupson was also lacking insight in terms of this conduct and its impact on others. There was no contrition. Whilst these facts of themselves did not substantiate a valid reason for the dismissal, in the circumstances of this case they are relevant to an overall assessment of whether the dismissal was harsh, unjust or unreasonable. Further, there is Mr Lupson’s lack of candour and attempts to justify his conduct which at times did not withstand scrutiny. In addition to the findings at s.387(a) in this respect, I do not accept that Mr Lupson was truthful when he told Ms Pollard (upon being escorted from the premises on 23 January 2020) that he was unaware his ASIC had expired. I find these factors weigh against a finding of harshness but do not sufficiently outweigh the other matters as to result in a finding that the dismissal was not unfair.
IV) Conclusion – is the Commission satisfied that the dismissal of Lupson was harsh, unjust or unreasonable?
[91] I have made findings in relation to each matter specified in s.387 of the Act as relevant.
[92] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 73
[93] I am satisfied there was a valid reason for the dismissal of which Mr Lupson was properly notified and afforded adequate opportunity to respond. There was no unreasonable refusal of a support person in discussions related to the dismissal. The dismissal was not for unsatisfactory performance. The absence of an established pattern of conduct and the approach to the investigation are paramount to my consideration that summary dismissal was disproportionate to the conduct. The circumstances weighing against a conclusion that the dismissal was harsh are significant, but not sufficient to alter my conclusion.
[94] Taking into account all of the circumstances and the considerations in s.387, I consider that the dismissal of Mr Lupson was harsh, unjust or unreasonable and that accordingly his dismissal was unfair.
PART C: REMEDY
[95] Having found that Mr Lupson was protected from unfair dismissal, and that his dismissal was harsh, unjust or unreasonable, it is necessary to consider what, if any, remedy should be granted to him. Melbourne Airport contended that the remedy of reinstatement is inappropriate because there has been a complete loss of trust and confidence. It emphasised the matters of dishonesty and the behaviour of Mr Lupson toward managers at the funeral. I consider that Mr Lupson’s conduct at the funeral (the conduct he admitted to engaging in) is reflective of a significant deterioration and breakdown in the necessary trust and confidence. My findings above about Mr Lupson’s honesty further contribute to this view. Further, I consider that Mr Lupson’s lack of insight and appreciation of the matters I have found to constitute a valid reason for his dismissal represents a serious safety and security risk. I am satisfied that it would be inappropriate to reinstate Mr Lupson. As a result, I need to consider whether compensation is appropriate.
[96] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 74
[97] Having regard to all the circumstances of the case, including the fact that Mr Lupson has suffered some financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.
[98] In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases. 75 The approach to calculating compensation in accordance with these authorities 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 (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration Lupson would have received, or would have been likely to receive, if he had not been dismissed (s 392(2)(c))
[99] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.
[100] On the evidence including of Mr Lupson’s age and the fact that he had worked for Melbourne Airport for more than eight years with an otherwise good employment record, I accept that he intended to remain working for Melbourne Airport for at least another few years. However, having regard to the evidence and my finding that there was a valid reason for his termination, I do not consider that Melbourne Airport would have continued to employ Mr Lupson.
[101] Had Mr Lupson been terminated on notice in accordance with the Agreement, he would have received five weeks’ notice (including the additional year for a person over 45 years, pursuant to clause 37.1 of the Agreement). Mr Lupson’s pay was $96,889.52 gross per annum excluding superannuation. 76 That equates to $1,863.26 gross per week excluding superannuation. It follows that, had Mr Lupson been dismissed on notice, Mr Lupson would have received a further five weeks’ remuneration at $9,316.30 gross excluding superannuation.
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))
[102] From around 15 June 2020 and as at the conclusion of the hearing (18 September 2020), Mr Lupson had sourced and remained in alternative employment on a casual basis at the rate of $68.05 per hour. 77 He was working around 40 hours per week however, by its casual nature, the role and income likely to be earned going forward is uncertain. In the circumstances, no deduction is applied on this ground.
Viability (s.392(2)(a))
[103] There is no evidence that any particular amount of compensation would affect the viability of the business of Melbourne Airport. No adjustment will be made on this account.
Length of service (s.392(2)(b))
[104] Mr Lupson’s length of service supports the making of an order for compensation. It is not a circumstance that warrants any diminution of the amount of compensation that might otherwise be determined as justified.
Mitigation efforts (s.392(2)(d))
[105] I accept that Mr Lupson has made efforts to mitigate his loss. In all the circumstances, I do not consider it appropriate to reduce the compensation on this account.
Any other relevant matter (s.392(2)(g))
[106] It is necessary to consider whether to discount the remaining amount for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Lupson was subject might have brought about some change in earning capacity or earnings. Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
[107] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision.
[108] Because I am looking in this matter at an anticipated period of employment (being to the conclusion of the relevant notice period) of five weeks, which has already passed, there is no uncertainty about Mr Lupson’s earnings, capacity or any other matters during that period of time.
[109] In all the circumstances I have decided that it is not appropriate to discount or increase the figure of $9,316.30 gross plus superannuation for contingencies.
[110] Save for the matters referred to in this decision, there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s.392(1) of the Act.
[111] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.
Misconduct (s.392(3))
[112] As I have found Mr Lupson to have committed some misconduct and this contributed to the employer’s decision to terminate his employment, I am required to reduce the amount I would otherwise order. I consider it appropriate to reduce the amount of $9,316.30 gross by fifteen percent (that is, a reduction of $931.63 = $8,384.67 gross plus applicable superannuation). 78
Shock, distress or humiliation, or other analogous hurt (s.392(4))
[113] I note that in accordance with s.392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap (s.392(5)-(6))
[114] The amount of $8,384.67 gross plus applicable superannuation is less than the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Lupson was entitled in his employment with Melbourne Airport during the 26 weeks immediately before his dismissal. In those circumstances, I am satisfied that there is no basis to reduce the amount of $8,384.67 gross plus applicable superannuation by reason of s.392(5) of the Act.
Instalments (s.393)
[115] No application was made by Melbourne Airport for any amount of compensation awarded to be paid in the form of instalments.
Conclusion on compensation
[116] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, there is no basis for me to reassess the assumptions made in reaching the amount of $8,384.67 gross plus applicable superannuation. 79
[117] For the reasons I have given, I am satisfied that a remedy of compensation in the sum of $8,384.67 gross plus applicable superannuation (less taxation as required by law) in favour of Mr Lupson is appropriate in the circumstances of this case. I will issue an order to that effect.
DEPUTY PRESIDENT
Appearances:
Mr J. Lupson for himself.
Mr R. Millar for the Respondent.
Hearing details:
2020.
Melbourne (by video).
August 4, 5, 26 and September 18.
Printed by authority of the Commonwealth Government Printer
<PR725402>
1 Applicant’s Outline of Submissions, Exhibit A2; Closing Submissions of Applicant filed on 7 September 2020; Supporting Documents, Exhibit A3; Two Redacted Payslips dated 23/06/2020 and 18/08/2020; Witness Statement of John Joseph Lupson, Exhibit A1; and Supplementary Witness Statement of John Lupson Exhibit A11, respectively.
2 Witness Statement of Gregory Michael Dubowik, Exhibit A4.
3 Statement of Russell Watters, Exhibit A10.
4 Statement of Michael Philippou, Exhibit A7; Second statement of Michael Philippou, Exhibit A8.
5 Statement of Simon Quigley, Exhibit A9.
6 Statement of Matt MacLeod, Exhibit A6.
7 Statement of Tonia Massimo, Exhibit A5.
8 By orders issued on 29 July 2020, respectively.
9 Witness statement of Catherine Mary Pollard Exhibit R1; Supplementary Witness statement of Catherine Mary Pollard, Exhibit R2.
10 Witness Statement of Linc Horton, Exhibit R8.
11 Statement of Shane Kilroy, Exhibit R7.
12 Statement of Stephen Mifsud, Exhibit R6.
13 Witness Statement of David Morgan, Exhibit R3.
14 Statement of Murray Smallhorn Exhibit R4; Supplementary Statement of Murray Smallhorn, Exhibit R5.
15 Witness Statement of Mari Ruiz, Exhibit R9.
16 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-1.
17 Ibid.
18 Ibid.
19 Witness Statement of Catherine Mary Pollard, Exhibit R1 at 26.
20 Witness Statement of John Joseph Lupson Exhibit A1 at 17; Transcript of Hearing at PN2178.
21 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-20.
22 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-25.
23 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-26.
24 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-27.
25 John Joseph Lupson on Transcript of Hearing at PN666-674.
26 Witness Statement of Catherine Mary Pollard, Exhibit R1 at 58-59; Witness Statement of John Joseph Lupson Exhibit A1 at JL 21.39.
27 Witness Statement of Catherine Mary Pollard, Exhibit R1 at 9 and CMP-13.
28 Statement of Murray Smallhorn, Exhibit R4 at 26 and MS-5.
29 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-7.
30 Witness Statement of Catherine Mary Pollard, Exhibit R1 at 30 and CMP-9.
31 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-12; Witness Statement of John Joseph Lupson, Exhibit A1 at JL 21.12.
32 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-13.
33 John Joseph Lupson on Transcript of Hearing at PN401.
34 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-13.
35 Transcript of Hearing at PN1944-1948.
36 Murray Smallhorn on Transcript of Hearing at PN2464.
37 Witness Statement of John Joseph Lupson, Exhibit A1 at 18.
38 Statement of Murray Smallhorn, Exhibit R4 at 26 and MS-5.
39 Statement of Murray Smallhorn, Exhibit R4 at 49 - 66.
40 Supplementary Witness statement of Catherine Mary Pollard, Exhibit R2 at 8.
41 Applicant’s Response to Supplementary Witness Statement of Catherine Mary Pollard at paragraph 9; John Joseph Lupson on Transcript of Hearing at PN2117.
42 John Joseph Lupson on Transcript of Hearing at PN2115-2116.
43 Murray Smallhorn on Transcript at PN2313.
44 Witness Statement of John Joseph Lupson, Exhibit A1 at 18.
45 John Joseph Lupson on Transcript at PN258.
46 Witness Statement of John Joseph Lupson, Exhibit A1 at JL21.6.
47 Transcript of Hearing at PN2764-2768.
48 Witness Statement of Catherine Mary Pollard, Exhibit R1 at 13.
49 John Joseph Lupson on Transcript of Hearing at PN262-270.
50 Witness Statement of Catherine Mary Pollard, Exhibit R1 at 22.
51 Witness Statement of John Joseph Lupson, Exhibit A1 at JL 21.6.
52 For example, see Supplementary Statement of Murray Smallhorn, Exhibit R3 at 32 - 35.
53 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-2.
54 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-7.
55 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-15.
56 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-14.
57 Daniel Richardson on Transcript of Hearing at PN732 to PN733.
58 Transcript of Hearing at PN890, PN945, and PN730.
59 Witness Statement of Catherine Mary Pollard, Exhibit R1 at 36; Witness Statement of Mari Ruiz Exhibit R9, at 25; Transcript of Hearing at PN2996.
60 Witness Statement of Catherine Mary Pollard, Exhibit R1 at 36.
61 See for example, Catherine Mary Pollard on Transcript of Hearing at PN1097.
62 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at [373].
63 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685].
64 Hatwell and Another v Esso [2018] FWC 2398 at [76].
65 Ibid.
66 Witness Statement of Catherine Mary Pollard, Exhibit R1 at CMP-1.
67 Crozier v Palazzo Corporation Pty Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [73].
68 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
69 Ibid.
70 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [75].
71 RMIT v Asher (2010) 194 IR 1, 14-15.
72 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
73 Telstra Corporation v Streeter [2008] AIRCFB 15 at [27].
74 Kable v Bozelle [2015] FWCFB 3512 at [17].
75 (1998) 88 IR 21; Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431.
76 Form F3.
77 Two Redacted Payslips dated 23/06/2020 and 18/08/2020.
78 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080.
79 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].
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