Kirkbright v K&S Freighters Pty Ltd

[2016] FWC 2743

[2016] FWC 2743

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Colin Kirkbright
v
K&S Freighters Pty Ltd T/A NTFS
(U2015/11297)
COMMISSIONER BISSETT	MELBOURNE, 4 MAY 2016
Application for relief from unfair dismissal - compensation granted.

1

[1] On 24 March 2016 I issued a decision (the initial decision) in respect to Mr Colin

Kirkbright’s application for unfair dismissal. In that decision I found that Mr Kirkbright had

been unfairly dismissed from his employment with K&S Freighters T/A NTFS (NTFS) but

that reinstatement in the circumstances was not appropriate.

[2]        Further directions were issued to the parties to make submissions on compensation.

Those submissions were received in writing with neither party indicating a wish to be further

heard on them.

[3]        This decision is therefore issued on the basis of the written material received from the

parties.

Compensation

[4]        The Act states:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the

person’s employer at the time of the dismissal pay compensation to the person in lieu

of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the

FWC must take into account all the circumstances of the case including:

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

[2016] FWC 2743

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

(b) the remuneration that the person would have received, or would have been

likely to receive, if the person had not been dismissed; and

(c) the efforts of the person (if any) to mitigate the loss suffered by the person

because of the dismissal; and

(d) 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

(e) 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

(f) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s

decision to dismiss the person, the FWC must reduce the amount it would otherwise

order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must

not include a component by way of compensation for shock, distress or humiliation, or

other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must

not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the

dismissal.

Note: subsection 392(5) indexed to $68,350 from 1 July 2015

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i)         received by the person; or

(ii)        to which the person was entitled;

[2016] FWC 2743

(whichever is higher) for any period of employment with the employer during

the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so

employed during any part of that period—the amount of remuneration taken

to have been received by the employee for the period of leave in accordance

with the regulations.

[5]        I have considered each of these matters in reaching my decisions as to compensation.

Consideration

[6]        I am satisfied that any amount I shall order will not affect the viability of NTFS

(s.392(2)(a)).

[7]        Mr Kirkbright had worked for NTFS for over 30 years at the time his employment was

terminated (s.392(2)(b)).

Calculation of lost remuneration (s.392(2)(c)&(e))

[8]        The determination of lost remuneration is not a simple exercise of determining what

the applicant would have earned to date if he was not dismissed and deducting from this what

he has earned. The determination of lost remuneration must involve some consideration of

how long the applicant for unfair dismissal would have remained in employment if the

applicant had not been dismissed. The determination of lost remuneration is then determined

in this context. This much is clear from the decision in Sprigg v Paul’s Licensed Festival

2

Supermarket.

[9]        Mr Kirkbright was dismissed from his employment on 17 August 2015.

[10]      Whilst Mr Kirkbright makes no submissions as to how long he would have remained

with NTFS had his employment not been terminated, his submissions as to lost remuneration

suggest that he considers he would have remained employed by NTFS on an on-going basis.

[11]      NTFS submits that Mr Kirkbright would have remained employed for days or perhaps

only weeks had his employment not been terminated. It makes this submission based on the

findings in the initial decision that the meeting held with Mr Kirkbright on 17 August 2015

should have been adjourned and Mr Kirkbright be given a few more days to respond. It

submits that, even if it had taken that course of action, Mr Kirkbright’s conduct would still

have resulted in the termination of his employment based on the finding that he refused to

follow a lawful direction of his employer.

[12]      In the initial decision I found that Mr Kirkbright had used a fuel card whilst on annual

leave without approval and that he had sent freight without charge and without a consignment

note and that this was a valid reason for dismissal. In that decision I found:

[104] Whilst I have found that there was a valid reason for the dismissal of Mr

Kirkbright I am nonetheless satisfied that the decision to dismiss him, in

circumstances where he was not afforded procedural fairness and in circumstances

where, had an open investigation been undertaken and had he been given an

[2016] FWC 2743

opportunity to respond an alternative penalty may have been applied and in

circumstances where he otherwise has a 30 year unblemished record is both harsh in

that it is disproportionate and unreasonable in that the totality of Mr Kirkbright’s

circumstances were not taken into account.

[13]      Had Mr Kirkbright been afforded procedural fairness it may well have been that some

other remedy would be imposed by the employer. The circumstances would have been

different. In determining compensation it would be a wrong approach to say that even if

procedural fairness had been afforded to Mr Kirkbright the outcome would have been the

same. There are many things Mr Kirkbright might have done if given the time to think about

the seriousness of what was being put to him including seeking some advice. Mr Kirkbright’s

extensive period of employment suggest that he may well have heeded the warnings given to

him although I do acknowledge that it was, in part, his long period of employment that

resulted in his view that he could continue to do what he always had with some impunity.

[14]      I have balanced the competing submissions and my findings in the initial decision. I

have concluded that Mr Kirkbright, had his employment not been terminated, would have

remained in employment for longer than a few days or weeks. I am satisfied that he would

have remained in employment for a further six months – that is, until 25 February 2016.

[15]      I have reached this conclusion because I am not convinced Mr Kirkbright would have

settled into the changed arrangements at NTFS in the long term with its apparent increased

accountability of employees. I have taken into account that NTFS has not long changed

ownership at the time of the dismissal. This view is not inconsistent with my findings that Mr

Kirkbright displayed an attitude that he could keep doing things as he has always had and that

he had disregard for a direction given to him.

[16]      At the time his employment was terminated Mr Kirkbright was earning $1586.77 per

week. His lost remuneration is therefore $39,669.25 (26 weeks at $1586.77/week) plus

superannuation.

[17]      Since his employment was terminated Mr Kirkbright earned $173.18 for a day’s work

with White Label Innovations.

[18]      Since 15 October 2015 he has been working at Roofmaster as a truck driver where he

is earning $29.44 per hour. In the period from the commencement of his employment with

Roofmaster until 25 February 2016 he earned $20,122.32 plus superannuation.

[19]      His total earning since he was dismissed for the period he would have remained in

employment is therefore $20,295.50.

[20]      Mr Kirkbright’s lost remuneration is therefore $19,373.75 ($39,669.25 - $20,295.50)

plus 9.5% superannuation.

[21]      I have not reduced this amount for contingencies as Mr Kirkbright has been employed

for a substantial part of the period I have taken into account since his dismissal. Further

economic loss is therefore not relevant given my decision on the period he would have

remained in employment with NTFS.

[2016] FWC 2743

Mitigation (s.392(2)(d))

[22]      I am satisfied that Mr Kirkbright took positive steps upon his dismissal to seek further

employment. He says he sought work with 21 different employers.

[23]      NTFS does not challenge this.

[24]      I therefore accept that Mr Kirkbright took positive steps to mitigate his loss and will

not deduct any amount for a failure to mitigate.

Any other matter (s.392(2)(g))

[25]      Mr Kirkbright says that he does not accrue annual and personal leave in his current

employment, that his job is insecure and that this should be taken into account in making any

decision as to compensation.

[26]      NTFS says that Mr Kirkbright’s payslips from Roofmaster indicate that he does accrue

annual leave and has taken annual leave, personal leave and been paid for public holidays.

[27]      I agree with the submission of NTFS on this matter. In any event, because of my

finding with respect to the period Mr Kirkbright would have remained in employment with

NTFS I am fully aware of his earnings and therefore lost earnings had he not been dismissed.

[28]      I have not had regard to any other matters.

Deduction for misconduct (s.392(3))

[29]      Mr Kirkbright submits that a deduction of 20% for misconduct is reasonable,

accepting that the Commission found a valid reason for dismissal.

[30]      NTFS that it would be appropriate to deduct an amount of 50%.

[31] I am satisfied that deduction of 40% for misconduct is appropriate in the

circumstances. Mr Kirkbright did deliberately disregard a direction given to him with respect

to the fuel card and he disregarded well established process of the business to provide

consignment notes for all freight, regardless of whether it is being charged or not. Further, he

sent freight without charge in breach of the policies of NTFS. These were serious matters and

cannot be ignored in determining remedy. His conduct provided a valid reason for his

dismissal. I have balance this however against his otherwise unblemished record.

[32]      This reduces the amount of compensation to $11,624.25 ($19,373.75 less 40%).

Compensation cap (s.392(5))

[33] The amount I have decided to order in compensation does not exceed the

compensation cap. [2016] FWC 2743

Conclusion

[34]      For the reasons given above I have decided to award an amount of $11,624.25 gross,

taxed according to law plus 9.5% superannuation to Mr Kirkbright. This does not include any

amount for shock, distress etc.

[35]      NTFS will be required to pay this amount within 21 days of the making of the order.

[36]      An order reflecting this decision will be issued.

COMMISSIONER

Final written submissions:

Applicant, 8 April 2016

Respondent, 22 April 2016

1

[2016] FWC 1555.

2

(1998) 88 IR 21.

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