Kevin Heffernan v Tabro Meat Pty Ltd
[2010] FWA 9101
•10 DECEMBER 2010
Note: An appeal pursuant to s.604 (C2010/6049) was lodged against this decision and the order arising from this decision [PR504926] - refer to Full Bench decision dated 16 March 2011 [[2011] FWAFB 1080] for result of appeal.
[2010] FWA 9101 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kevin Heffernan
v
Tabro Meat Pty Ltd
(U2010/9843)
COMMISSIONER BISSETT | MELBOURNE, 10 DECEMBER 2010 |
Application for unfair dismissal remedy - amount of compensation.
[1] On 28 October 2010 I issued a decision [[2010] FWA 8192] in which I found that the termination of Mr Heffernan’s employment was harsh and unreasonable. At the time of making the decision I did not believe I had received appropriate submissions on which I could make a decision as to compensation (having determined that reinstatement was not appropriate). I therefore sought further submissions from the parties on this question.
[2] A written submission and witness statement of Mr Heffernan was received from the Applicant and a written submission from the Respondent.
[3] This decision deals with the matter of compensation to be afforded Mr Heffernan.
[4] The Fair Work Act 2009 (the Act) provides for compensation as a remedy for unfair dismissal:
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
[5] In determining that compensation I must have regard to each of the paragraphs in s.392(2) as set out above. 1 No particular factor should be given any more weight than any other but due regard must be had to each and each ‘must be treated as a matter of significance in the decision-making process’.2
[6] Further, the statutory cap (s.392(6)) is not the starting point or maximum in compensation that I am able to consider is appropriate in the all of the circumstances. The statutory cap serves the purpose of limiting the order made. The statutory cap is a ‘ruler’ to be placed over the compensation once the decision on compensation is made. 3
[7] I now turn to consider each of the paragraphs in s.392(2) of the Act.
The effect of the order on the viability of the employer’s enterprise
[8] Neither the Applicant nor Respondent suggested that an order would adversely affect the employer’s enterprise.
The length of the person’s service with the employer
[9] Mr Heffernan had been employed by the Respondent for over 11 years.
The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[10] Mr Heffernan was a person of long service with the Respondent. Save for this incident there is no reason to believe he would not still be employed at Tabro Meat.
[11] The Respondent suggests that, had the termination of the Applicant followed the appropriate process, it is likely he would have been terminated within a number of days. As such it submits that any additional remuneration the Applicant would have received would be minimal. 4
[12] To accept such a submission of the Respondent requires that I draw a range of conclusions about what would have happened had the Respondent approached the matter in a different way. The greatest leap I have to make is that the outcome - dismissal - would still have been the result. By the same token I could conclude that cooler heads would have prevailed, the Applicant would have been given an opportunity to have his say about accusations relating to the bone-carting truck, the swearing would not have been repeated and Mr Heffernan would have been disciplined in some other manner, if at all. I do not assume either outcome.
[13] Taking into account Mr Heffernan’s long period of service, his generally unblemished record and that there are not a large number of alternative employment opportunities in the region, I have assumed that Mr Heffernan would be employed at the meat works for at least a further three years.
[14] Both the Applicant and Respondent agree that his weekly wage was $854.50 per week. 5 This equates to $44,434 per annum.
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[15] Mr Heffernan sought and gained employment from 16 July working on a farm. He had no employment for the period 11 June - 15 July 2010.
[16] Mr Heffernan’s current employment is not on-going. He has applied for a range of positions without success.
[17] The Respondent submits that Mr Heffernan has not applied for work at the Poowong Abattoir, a similar distance from his home as Tabro Meat. Mr Heffernan gave evidence in the hearing that he had not done so and the Applicant’s submissions on compensation do not indicate that he has done so.
[18] Mr Heffernan has however gained employment (although of a temporary nature) and has applied for a range of other jobs. This outweighs that he has not applied for positions that may or may not exist at one establishment.
[19] I find that the Applicant has sought to mitigate his loss caused by the dismissal.
The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[20] Mr Heffernan had no employment for a five week period following his dismissal. He then commenced working for a farmer. This job is not on-going.
[21] Mr Heffernan has been earning $20 per hour in this current job. His gross earnings are:
Period | Earnings |
16 July - 18 September 6 | $14,983 |
19 September - 5 November working approximately 60 hours per week (at $20.00 per hour = $1,200 per week) 7 | $8,400 |
6 - 13 (approx) November working 28-35 hours per week 8 | $700 |
14 November - 5 December 9 he expects to work 20-25 hours per week | $1,500 |
Total | $25,583 |
[22] The job being done by Mr Heffernan is expected to finish on or around 5 December 2010.
[23] I find that Mr Heffernan’s earnings since his employment was terminated, including an estimate of anticipated income until his current employment concludes, are $25,583. He has been unable to secure further employment post the anticipated cessation of his current job.
[24] The level of Mr Heffernan’s earnings in the period since the termination of his employment will not continue and it would be wrong to assume that the level of earnings achieved by Mr Heffernan since the time of his dismissal is indicative of his likely earnings in any future job. It would, in any event, be wrong to determine any decision of compensation based on earnings in a 60 hour working week. That Mr Heffernan has taken on a job - even though time limited - and been prepared to work the hours he has is to his credit. It demonstrates a willingness to get on with finding work and securing an income. If the additional hours Mr Heffernan has been working over and above 38 hours per week were excluded, his ‘ordinary time earnings’ would be, at most, $14,360 up until the anticipated end of his existing employment.
[25] The actual earnings of Mr Heffernan (which I calculate at $25,583) in the period since the termination of his employment, as is pointed out by the Respondent, exceeds what he would have earned for six months had he remained at Tabro Meat.
[26] Mr Heffernan continues to seek employment.
The amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation
[27] I have considered this matter above.
Contingencies
[28] Whilst no submissions were put before me with respect to contingencies, it is a component of earnings that I should consider. The determination of contingencies was considered in Ellawala v Australian Postal Commission. 10 I do not intend to repeat that decision here but I have had note of it.
[29] I have determined to deduct an amount for contingencies of 15 per cent. I do accept that there are unforeseen occurrences which would have impacted on Mr Heffernan’s future working period at Tabro Meat.
Any other matter that FWA considers relevant
[30] I have taken into account those matters as are relevant to this consideration from the decision in Heffernan v Tabro Meat Pty Ltd.
Deductions and statutory cap
Reduction for misconduct
[31] Section 392(3) requires that if I am satisfied that the Applicant’s misconduct contributed to the employer’s decision to dismiss him, I must reduce the amount payable by an appropriate amount on account of the misconduct.
[32] The decision in Heffernan v Tabro Meat Pty Ltd clearly indicates that the driving of the forklift in an unsafe manner was a valid reason for the termination of Mr Heffernan’s employment. 11 I did find that the swearing was not a valid reason.
[33] Despite this there is no question that, as harsh and unreasonable as it may have been, Mr Heffernan’s misconduct did contribute to the decision of the employer to dismiss him.
[34] I have reduced the amount of compensation accordingly.
Statutory cap
[35] Section 392(5) states that the amount I may order is, relevantly, equivalent to what Mr Heffernan was entitled to or did receive (whichever is greater) in the 26 weeks prior to the termination of his employment.
[36] The amount I have decided to award does not exceed the statutory cap.
Conclusion
[37] As is evident from my findings above and Mr Heffernan’s precarious employment outlook, Mr Heffernan is, in my view, entitled to compensation in lieu of reinstatement. I have reduced the amount to take account of his misconduct and for contingencies.
[38] I therefore determine that Mr Heffernan be paid an amount of $17,437 (gross) in compensation in lieu of reinstatement. This amount is to be paid within 14 days of the order being issued.
[39] An order to this effect will be issued today.
COMMISSIONER
Final written submissions:
Applicant: 12 November 2010.
Respondent: 19 November 2010.
1 Smith v Grand Hyatt Hotel, PR904136 (14 May 2001) at [37].
2 Edwards v Giudice (2000) 169 ALR 89, 92.
3 Sprigg v Paul’s Licensed Festival Supermarket, Print R0235 (24 December 1998) at [35].
4 In support of this the Respondent refers to Gary Bermingham v Kings Transport & Logistics(Aust) Pty Ltd[2010] FWA 1116 at [7].
5 See Applicant submissions at [9] and Respondent submissions at [6].
6 Exhibit A3.
7 Witness statement of Mr Heffernan, paragraph 10.
8 Witness statement of Mr Heffernan, paragraph 11.
9 The Respondent’s submissions incorrectly state that Mr Heffernan’s statement indicates that the work will continue for three months - in fact Mr Heffernan’s statement says three weeks at paragraph 13.
10 Print S5109, AIRC (17 April 2000) (footnotes omitted).
11 At [40]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR504364>
3
3
0