Laeth Ishak v Jetstar Airlines T/A Jetstar

[2013] FWC 4794

[2013] FWC 4794 Note: An appeal pursuant to s.604 (C2013/5211) was lodged against this decision - refer to Full Bench decision dated 3 October 2013 for result of appeal.

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Laeth Ishak
v
Jetstar Airlines T/A Jetstar
(U2013/5656)

COMMISSIONER RYAN MELBOURNE, 19 JULY 2013

Termination of employment - remedy - reinstatement, continuity of service and lost remuneration discounted for misconduct.

[1] On 10 May 2013 I issued a decision, [2013] FWC 2959 in which I found that the dismissal of the Applicant was harsh, unjust or unreasonable. I advised the parties that I would hear from them further in relation to remedy. A hearing was held on 6 June 2013 to deal with the issue of remedy.

[2] At the remedy hearing the Applicant pressed its original case that a remedy should be granted and the Applicant’s preferred remedy was reinstatement. The Respondent contended that no remedy should be granted but that if a remedy was to be granted then reinstatement was inappropriate and compensation, albeit a minimal amount, would be appropriate.

[3] The Respondent introduced further evidence from Mr Carter, the Ramp Manager for the Respondent at Tullamarine, which evidence went to two separate issues: the unavailability of work at Tullamarine for the Applicant and the Respondent’s loss of trust and confidence in the Applicant.

[4] The relevant provisions of the Fair Work Act relating to remedies for unfair dismissal are s.390 - s.393

[5] The first issue for the Commission to consider is whether a remedy should be granted. S.390 is as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[6] The decision to grant or not grant a remedy is broadly discretionary. The decision of Full Bench of the former Australian Industrial Relations Commission in Vdoukakis v DJ Cussan Pty Limited t/as Royal Hotel Randwick 1 (Vdoukakis) has been relied on for the proposition that the Commission may exercise its discretion under s.390 and not grant a remedy.

[7] The decision in Vdoukakis concerned the operation of s.170CH of the former Workplace Relations Act which was in very different form to s.390 of the Fair Work Act. Relevantly s.170CH(1) and (2) of the former Act were as follows:

“170CH Remedies on arbitration

(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable.

(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and

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

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e) any other matter that the Commission considers relevant;

that the remedy ordered is appropriate.”

[8] In Vdoukakis the Full Bench said of s.170CH:

“[21] There is nothing in this section which obligates the Commission to provide for one of the remedies set out in section 170CH(3), (4) or (6) as a consequence of finding a dismissal to be harsh, unjust or unreasonable.”

[9] There is sufficient similarity in the wording of s.390(1) of the Fair Work Act and s.170CH(1) of the former Act that the same can be said of s.390(1), in which case the discretion to not grant a remedy appears to be at large. However, the discretion is not at large because of the operation of s.381 of the Act.

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

Note: The expression “fair go all round” was used by Sheldon J in Inre Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[10] In determining whether a remedy should or should not be granted the Commission must ensure that a “fair go all round” is accorded to both the Applicant and the Respondent.

[11] Whilst the concept of a “fair go all round” is readily embraced by industrial practitioners it is easily misunderstood. It pays to go back to the decision in Re Loty and Holloway v Australian Workers’ Union to understand the meaning behind that term. Relevantly Sheldon J said at 99:

“...in order to justify, in its discretion, intervention by the Commission by way of reinstatement, it must be shown in this case that the branch executive exercised its right of dismissal unfairly even though it was perfectly legal and this should be determined by standards neither more strict nor more relaxed than those applicable to any employer. I say “unfairly” because adjectival tyranny should be resisted and I believe that in modern context expressions used in the older cases such as “harsh”, “oppressive” and “unconscionable” as determinants as to whether intervention by an industrial authority is in its discretion permissible are properly interpreted on the basis simply of firstly deciding in all the circumstances, even though in the dismissal (be it summary or on notice) the employer has not exceeded his common law and/or award rights, whether the employee has received less than a fair deal.

Mr Commissioner Manuel in a recent case put it in a nutshell and in language readily understood in the industrial world when he conceived his duty to be to ensure “a fair go all round”. In my view, the use of the old adjectives, with overtones from other jurisdictions, tends to distort this basically simple approach in that they can be strained to mean that an employer can be less than fair in exercising his right to dismiss and yet stand outside the permissible area within which an industrial authority in its discretion may act. It is a question of emphasis rather than substance as these adjectives have frequently been used in conjunction with and as alternatives to such expressions as “unfair”, “unjust” and “unfair dealing”. The last expression was used as an alternative to “injustice” and “oppression” as far back as 1921 in the historic Bank Officers Case, and it is inconceivable that a more rigid test should be applied half a century later. The less fetters there are on the discretion the better (none appear in the Act) but it is all-important that it should be exercised soundly. The objective in these cases is always industrial justice and to this end weight must be given in varying degrees according to the requirements of each case to the importance but not the inviolability of the right of the employer to manage his business, the nature and quality of the work in question, the circumstances surrounding the dismissal and the likely practical outcome if an order of reinstatement is made. There certainly may be cases where the dismissal had many elements of unfairness but an industrial authority if it was convinced of the practical uselessness of trying to re-establish the employer-employee relationship, would not intervene at all. There may be other cases where there are reasonable prospects for the future of the relationship if clarifying conditions are imposed.”

[12] Whilst the requirements imposed by s.381(2) are readily understandable by having regard to the decision of Sheldon J, there are other requirements placed upon the Commission in the exercise of the discretion under s.390 of the Act.

[13] The authorities make it clear that the discretion must be exercised subject to reasonable constraints. The constraints are clearly identified in the decision of the High Court in House v The King as follows:

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 2

[14] More recently in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission a majority of the High Court has said:

“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (See Norbis v Norbis (1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King”  3

[15] If the Commission is to grant a remedy the Commission is required by s.390(3) to consider firstly the appropriateness or inappropriateness of reinstatement. If, and only if, the Commission considers that reinstatement is inappropriate can the Commission consider whether it is appropriate or inappropriate to grant the remedy of compensation.

[16] Where, as is the case in the present matter, the conditions precedent in s.390(1)(a) and (b) and in s.390(2) have been met then the following proposition would appear to accord with the purpose of s.390(1) of the Act. Both the requirement of s.381(2) and the principle enunciated in House v The King operate so that the Commission could only exercise its discretion to refuse to grant a remedy where the Commission considers firstly, the appropriateness or inappropriateness of reinstatement and determines that reinstatement is inappropriate, and then the Commission considers whether it is appropriate or inappropriate to grant the remedy of compensation and determines that compensation is inappropriate.

[17] I will follow this approach.

Is reinstatement appropriate or inappropriate?

[18] The Respondent contends that any remedy (including reinstatement) is inappropriate given the findings made by the Commission that the Applicant did physically assault Mr Samson through grabbing Mr Samson’s arm and that the Applicant lied to both the Respondent and the Commission about this. Whilst the Commission did not find that the Applicant’s conduct was serious misconduct the Respondent contends that the Applicant’s conduct was serious misconduct and this means that any remedy is inappropriate.

[19] The Respondent further contended that reinstatement is inappropriate because:

● Mr Samson’s evidence was that he fears the Applicant and could not work with him,
● the Respondent could not roster either or both Mr Samson and the Applicant so as to avoid the possibility of each having contact with the other,
● there is no current vacancy for the Applicant in his previous position as a GC3A due to restructuring which has occurred at the workplace
● the Respondent has no trust in the Applicant and that trust and confidence in the Applicant has been lost for good.

[20] The Respondent contended that:

“So I rely on three key features of this case that make it very clear that there is no trust, no sufficient trust, between the parties any longer. First, the assault occurred. Second, there has never been to this day any assurance from the applicant that he will not assault anyone again. Now, why is that the case? Maybe it’s because he’s always denied that there was an assault, and that is the third consideration. He has denied, he has lied to his employer and he has lied in the witness box, in the commission, under oath. He has lied, as found by the commission. Now, how on earth could a conclusion other than the employer has lost trust and confidence in the applicant, and that’s its evidence, and that that is a rational belief on the part of the employer be made? It is so rational, it is objectively understandable, it is soundly and rationally based, that decision of the employer that there is no trust. No trust. A fortiori there is no sufficient trust between the parties.” 4

[21] The Applicant contends that reinstatement is the appropriate remedy in this matter. The Applicant acknowledges the findings of the Commission that the Applicant did grab Mr Samson on the arm, and that the Commission found that the Applicant had not been truthful about this. The Applicant also noted that the Commission had made adverse findings against Mr Samson who was clearly the aggressor in the altercation and who had pushed the Applicant back. The Applicant contended that the injustice done to the Applicant, where he had been dismissed and Mr Samson had not, should only be cured by reinstating the Applicant.

[22] The very nature of a “fair go all round” requires that the Commission find the proper balance so that a fair deal or fair go is accorded to each of the employer and the employee. As Sheldon J, in Loty and Holloway said:

“The objective in these cases is always industrial justice and to this end weight must be given in varying degrees according to the requirements of each case to the importance but not the inviolability of the right of the employer to manage his business, the nature and quality of the work in question, the circumstances surrounding the dismissal and the likely practical outcome if an order of reinstatement is made.”

[23] The fact which weighs most heavily against the grant of any remedy and against the grant of a remedy of reinstatement is that the Applicant maintained throughout this entire matter that he did not grab Mr Samson on the arm. The Applicant never wavered from this denial.

[24] The Respondent has relied upon the evidence of Mr Samson in support of a contention that reinstatement is inappropriate. The Respondent in particular relies upon the uncontested evidence of Mr Samson concerning his fear of the Applicant.

[25] I place little weight on the evidence of Mr Samson. The Respondent drew to my attention the medical certificate issued by Mr Samson’s treating doctor which contains an explanation of the way in which the abrasion on Mr Samson’s arm occurred. The story told by Mr Samson to his doctor is quite different to the truth of the matter as discussed in my earlier decision. The uncontested evidence of Mr Samson that he suffers from sleeplessness and flashbacks must be considered in the context of Mr Samson giving evidence on other matters which when challenged was shown to be false.

[26] The Respondent also relies on the evidence of Mr Porter and Mr Carter that it would not be possible to roster employees at Tullamarine so as to ensure that the Applicant and Mr Samson did not have contact with each other. It would appear that a rostering arrangement that had the Applicant and Mr Samson working at different times of the day would minimize the occasions for any contact between the two while at work. The pursuit of a rostering arrangement which ensured zero possible contact between the Applicant and Mr Samson is both too extreme and is unnecessary. If Mr Samson’s evidence is accepted that he is fearful of the Applicant and given that Mr Samson advised in his interview with Mr Carter on 5 December 2012 that he did not get on with the Applicant then it is most likely that Mr Samson will not want to initiate contact with the Applicant. It is clear from the evidence in this matter and from the earlier decision that the Applicant has not been the initiator of any aggressive approach towards with Mr Samson. Given that the altercation between Mr Samson and the Applicant only occurred because of Mr Samson’s aggressive approach towards the Applicant then it would appear that if Mr Samson does not initiate contact with the Applicant there will be no further problems.

[27] The Respondent relied on the evidence of Mr Carter given at the remedy hearing to establish that there was no current vacancy for the Applicant at Tullamarine. The evidence of Mr Carter was that there had been a restructuring of operations at Tullamarine so that 22 persons employed as labour hire or contract labour were no longer needed by the Respondent. Mr Carter’s evidence was that there were no vacancies. That is a very different issue to the one which I must consider namely, could the Applicant be reinstated to the position he had immediately before the dismissal.

[28] The Applicant was employed as GC3A, a leading hand of a ground crew, and the Respondent still employs GC3A’s at Tullamarine doing the same work that was performed by the Applicant. Mr Carter’s evidence was that there were now 44 employees employed either as GC3 or GC3A. Whilst there may be no vacancies for ground crew at the Respondent’s Tullamarine site there are positions of GC3A into which the Applicant could be reinstated.

I note the observation of Gray J in Chelvarajah v Global Protection Pty Ltd where he said:

“It is therefore easy to accept that there may be many cases in which an employer may be required to create the position to which it is ordered to appoint a dismissed employee. Such cases will be those in which the employer continues to conduct the same, or a similar, business to that conducted at the time of the termination of employment. They will be cases in which the position created will have attached to it duties on the employee to perform work, provided that there is no impediment to the employee performing work.” 5

[29] The Respondent relies on the evidence of Mr Carter and Mr Porter to support a contention that the Respondent no longer has any trust and confidence in the Applicant.

[30] At the remedy hearing Mr Carter gave the following evidence:

“Mr Tracey: Mr Carter, the question is this, as of today, with the benefit of the knowledge you have of the investigation into the applicant’s conduct, the circumstances leading up to the dismissal and then the decision of the commission, which you say you’ve read, what is the company’s position so far as trust and confidence is concerned in the applicant?---

Mr Carter: The discussion that’s been had amongst the key stakeholders, which is the decision-maker Garry Porter, our HR business partner Melissa Mendola and her boss Kylie Gardner and Garry Porter’s boss Mike Cooper is that there is concern that the appellant continues to claim that the incident did not occur and that continues to worry the business around trust and confidence between the relationship of the employee and the employer being broken.

Mr Tracey: In relation to that what does the company say? Is it broken or is it not broken?

Mr Carter:---The company maintains that the relationship between the employer and the employee is broken and in particular, due to the nature of our operation, being a 22-hour operation, often during the hours of the night with personnel being unsupervised and being responsible for the safe conduct of the operation for carrying millions of passengers from the public every year is that trust and confidence has to be implicit and always in existence and never threatened in our workplace.” 6

[31] In Perkins v Grace Worldwide (Aust) Pty Ltd, (1997) IRCA 15 a Full Court of the Industrial Relations Court of Australia set out the principles applicable to a consideration of the issue of loss of trust and confidence in relation to a possible remedy of reinstatement:

“ii) Principles

Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell [1933] HCA 8; (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. (emphasis added)”

[32] I adopt the observation made by a Full bench of the Australian Industrial Relations Commission in McVinish v Flight West Airlines:

“[28]Emphasised in that way, the passage is a reflection of what we consider to be the essential ingredient of the principles applied by the Court in Perkins in assessment of the practicality of reinstatement against a consideration of loss of trust or confidence by the employer in the employee, or by either the employer or the employee in the employment relationship.”  7

[33] I accept that there is a sound and rational basis for the Respondent to hold a position that “the relationship between the employer and the employee is broken” but it appears that Mr Carter’s evidence that “trust and confidence has to be implicit and always in existence and never threatened in our workplace” is not supported by the conduct of the Respondent.

[34] The altercation between Mr Samson and the Applicant occurred on 3 December 2012. Whilst the Respondent’s internal investigations concluded that the Applicant initiated the confrontation and assaulted Mr Samson it was clear by 9 May 2013 that Mr Samson had initiated the confrontation and used abusive language towards the Applicant and had assaulted the Applicant and had lied about this.

[35] Therefore in the case of Mr Samson the findings made on 9 May 2013 and the evidence given on 6 and 7 May 2013 mean that the Respondent’s requirement that “trust and confidence has to be implicit and always in existence and never threatened in our workplace” would no longer hold true in relation to Mr Samson.

[36] By 6 June 2013 the position of the Respondent in relation to Mr Samson was expressed by Mr Tracey for the Respondent as follows:

“As a matter from the bar table, there’s currently a confidential investigation being undertaken in relation to Mr Samson in light of the commission’s decision. Now, that is undertaken - it’s going through its course at the moment. Mr Samson has been given the same natural justice that the applicant was given.” 8

[37] The Respondent contended that the conduct of the Applicant in grabbing Mr Samson by the arm and lying about the incident constituted serious misconduct. Therefore it would appear that the Respondent would also characterize the conduct of Mr Samson as serious misconduct. In both cases the Respondent proceeded to deal with the matter through an internal investigation process. The clear difference between the Applicant and Mr Samson is that in the case of Mr Samson there was a wealth of sworn evidence before the Commission and there were the findings made by the Commission adverse to Mr Samson. Yet the Respondent’s only response was to initiate an internal investigation against Mr Samson.

[38] I make these observations not as a criticism of the Respondent in relation to the way in which it wants to deal with Mr Samson, but rather to put the evidence of Mr Carter in perspective.

[39] Clearly the relationship between the Respondent and its employees is not as stark as Mr Carter asserts. I conclude that the Respondent can and does tolerate ripples and even waves on the surface of the employment relationship.

[40] There was no evidence that the Applicant had been engaged in any other physical confrontations with other employees nor was there any suggestion that the Applicant was predisposed to physical confrontations with anyone. The altercation on 3 December 2012 was a one off incident. There is nothing to suggest that there would ever be a repeat of this behaviour by the Applicant.

[41] The fact that the Applicant lied about the incident on 3 December 2012 and maintained the lie throughout the proceedings before the Commission is troubling but not necessarily fatal to the Applicant’s claim for reinstatement. It is clear from the evidence in this matter that the Applicant cannot express himself as well as others and certainly nowhere as well as Mr Samson. The very fact that the Applicant was not open and honest at all times with the Respondent was a very clear case of utter foolishness. As is often the case once the first evasion occurs it leads inevitably to more evasion and ultimately to lying. Having had the benefit of listening to the Applicant give his evidence I do not accept that the Applicant would not be truthful in future.

[42] I conclude that the employment relationship between the Applicant and the Respondent can be re-established and can be made both viable and productive. But should the employment relationship be re-established through reinstatement!

[43] In the House v King sense, would a decision to reinstate the Applicant be considered “upon the facts” to be “unreasonable or plainly unjust”.

[44] In all of the circumstances of this matter, involving as it does two employees who had an altercation where each assaulted the other and each lied about the matter and where the Applicant was dismissed but the other employee who initiated the altercation wasn’t, it appears that upon the facts a decision to reinstate the Applicant would neither be unreasonable nor plainly unjust.

[45] I determine that reinstatement is appropriate.

[46] Having reached this conclusion I will exercise the discretion to grant a remedy and the appropriate remedy is an order for reinstatement.

[47] The Applicant has also sought an order to maintain continuity of employment and service and an order to restore lost pay. The language of both s.391(2) and (3) makes clear that the Commission has a discretion to grant or not grant an order under either provision. The discretion has to be exercised separately in relation to each of s391(2) and (3).

[48] An order for continuity of employment and service will protect the Applicant’s previous service for the purposes of leave accrual matters. In all of the circumstances of this matter and having regard to requirement to ensure a “fair go all round” I consider it appropriate to exercise the discretion to grant an order under s.391(2) and I will do so.

[49] An order for restoration of lost pay would put the Applicant into the position that he would have suffered no loss of his ordinary time wages by reason of the dismissal. The amount of lost remuneration is substantial in this matter given that the Applicant has only worked for a short period since the dismissal.

[50] An order for reinstatement together with an order to maintain continuous employment and service and an order to restore all lost remuneration would effectively reward the Applicant for his conduct. Whilst I am prepared to grant an order of reinstatement and an order to maintain continuous employment and service I am not prepared to grant an order to restore all lost remuneration.

[51] In my view it is appropriate for the Applicant to suffer a loss of remuneration in recognition of his misconduct in both grabbing Mr Samson on the arm, using abusive language and then not being open and honest about the matter. It would be appropriate and in accord with the requirement to ensure a “fair go all round” for the Applicant to bear half of the lost remuneration since the dismissal. An appropriate order under s.391(3) would be that the Respondent pay to the Applicant half of the amount of the remuneration lost by the Applicant since the dismissal.

[52] The orders to give effect to this decision are issued separately.

COMMISSIONER

Appearances:

B. Baarini, Transport Workers Union, for the Applicant

J. Tracey of Counsel for the Respondent

Hearing details:

2013.

Melbourne:

May 6, 9

June 6

 1   PR949780

 2   House v R. (1936) 55 CLR 499, at 404 - 405

 3 (2000) 203 CLR 194 at 205

 4   Transcript at PN4349

 5 [2004] FCA 1661 at paragraph 37

 6   Transcript at PN4167-PN4168

 7   Print R9672

 8   Transcript at PN4146

Printed by authority of the Commonwealth Government Printer

<Price code A, PR539051>