[2021] FWC 3789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Lawrence
v
Metro Trains Melbourne Pty Ltd
(U2020/11779)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 8 SEPTEMBER 2021

Application for an unfair dismissal remedy – remedy.

[1] Mr Mark Lawrence (the Applicant) made an application for an unfair dismissal remedy. The matter was heard and determined and I issued a decision 1 (the Substantive Decision) in which I found that Mr Lawrence’s termination by Metro Trains Melbourne Pty Ltd (Metro Trains, the Respondent) was harsh, unjust or unreasonable. I was unable to come to a concluded view, based on the materials that were before me, on an appropriate remedy. I advised the parties that directions would be issued following my decision with respect to the filing of submissions addressing remedy.

[2] Directions were issued and the parties each filed written submissions addressing remedy. In the directions the parties were notified that I intended to determine the issue of remedy on the papers, however if either party sought a hearing they were to advise my chambers by the date set down. Neither party made a request to be heard.

Written Submissions of the Applicant

[3] Mr Lawrence’s representative makes submissions about his own personal dealings with Metro Trains in other matters before the Commission. Those submissions are not repeated here as I am not persuaded they are part of his client’s submissions as his client has not been party to those proceedings. I am also of the view those submissions do not assist the Commission in this matter.

[4] Mr Lawrence is seeking reinstatement to his former position as a full-time train driver, maintenance of continuity of employment and restoration of lost pay, which he submits are both appropriate and, in all the circumstances, fair and just. He submits it would reward the poor behaviour of Metro Trains and its officers if reinstatement was not awarded as the remedy. Mr Lawrence argues that there should be an element of specific and general deterrence in the consideration of remedies for unfair dismissal as, he submits, there is in the imposition of penalties under s.546 of the Fair Work Act 2009 (the Act) for contravention of civil remedy provisions. Mr Lawrence submits that a compensation order would be of no consequence to a big employer like Metro Trains however a reinstatement order would force it and its officers to reflect on their conduct in this matter and to rectify such conduct in dealing with disciplinary matters in the future.

[5] Mr Lawrence submits that he has essentially been branded by Metro Trains and its officers as a person who attacks and assaults members of the public for no reason, making him unemployable, particularly given his 54 years of age and the ongoing COVID-19 restrictions. He submits he has applied for more than 80 jobs without success, receiving no response in many cases. He submits he can only be meaningfully compensated by being reinstated as a train driver. He submits he can then expunge his tarnished reputation and re-establish his career. He contends that mere monetary compensation, particularly when capped at six months’ pay, is of limited value and solace.

[6] Mr Lawrence refers the Commission to the Full Bench in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter 2(Nguyen) who said:

“We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case. 3” (references omitted)

[7] Mr Lawrence submits that the Full Bench have misinterpreted the Act to impose a requirement that reinstatement must be considered ‘appropriate’ to be ordered. He submits there is no requirement that the Commission consider whether reinstatement is inappropriate or not in deciding to award the primary remedy of reinstatement. He states that on a plain reading of Division 4 of Part 3-2 of the Act it is only in s.390(3) of the Act that there is a reference to the appropriateness or otherwise of reinstatement and that subsection deals with compensation not reinstatement, providing that compensation cannot be ordered unless the Commission is satisfied that reinstatement is inappropriate and that payment of compensation is appropriate. He submits that it is only if the Commission, for whatever reason, decides not to order reinstatement that consideration must be given to whether reinstatement is inappropriate and compensation is appropriate. He submits that any other interpretation defies basic principles of statutory interpretation, and emphasises that s.391 of the Act deals with ‘reinstatement’ and there is no specific requirements in that section to consider appropriateness or otherwise.

[8] Mr Lawrence makes reference to the Full Court of the Industrial Relations Court decision in Perkins v Grace Worldwide (Aust) Pty Ltd 4 (Perkins) which considered the provisions of s.170EE of the Industrial Relations Act 1988 (IR Act). S170EE (1) provided that ‘…the Court may, if the Court considers it appropriate, in all of the circumstances of the case…’ make an order requiring the employer to reinstate the employee. Section 170EE(2) provided:

“If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170 DB or 170 DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may, if it considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay employee compensation of such amount as the Court thinks appropriate.”

[9] He submits that the Full Bench of the Australian Industrial Relations Commission in Australia Meat Holdings Pty Ltd v McLauchlan 5(Australian Meat Holdings)regarded the observations in Perkins as still relevant to whether reinstatement was appropriate or otherwise under the provisions of the then Workplace Relations Act 1996 (WR Act), which he noted still specifically used the word ‘appropriate’ in relation to the remedy of reinstatement.

[10] Mr Lawrence then submits that therefore under the then provisions of the Workplace Relations Act 1996 (WR Act), a Court was required to decide:

• Whether reinstatement is appropriate in all the circumstances

• Whether reinstatement is impractical and, if so

• Whether an order for compensation is appropriate and, if so

• What amount of compensation is appropriate

[11] Mr Lawrence then contrasts this with ss.390(3) and 391 of the Act, and submits there is nothing in those sections which specifically requires the Commission to make a decision on appropriateness when considering whether to reinstate. He says there is however a requirement in s.390(3) that to order compensation the Commission must be satisfied that reinstatement is inappropriate and an order for compensation is appropriate.

[12] Mr Lawrence submits the decision to reinstate must be based on what is fair and just in the circumstances of a particular case. He refers to s.577 of the Act and the requirement of the Commission to perform its functions and exercise its powers in a manner that is ‘fair and just’, the requirement of the Commission in performing its functions and exercising its powers to take account of the objects of the Act and any objects of the part of the Act (s.578(a), and notes that one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is ‘to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement’ (s.381(1)). He also submits that what is ‘fair and just’ should take into account the gravity of the employer’s conduct that led to a finding that the dismissal was harsh, unjust and unreasonable.

[13] Mr Lawrence submits that Metro Trains’ breaches of the Enterprise Agreement in its disciplinary process renders the dismissal void, referring the Commission to the Federal Court decision in Mawkes v State of Victoria (Department of Human Services) 6,and submits that as such, reinstatement would merely recognise the legal reality that the dismissal was unlawful and of no effect.

[14] Mr Lawrence contends that the Commission should only turn its mind to compensation and the criteria in s.390(3) only if there are factors militating against the fairness and justice of reinstatement, or if the employee does not seek reinstatement.

[15] In regard to the ‘appropriateness’ of reinstatement, Mr Lawrence submits that given the primacy of the remedy of reinstatement Metro Trains bears the onus of proof in relation to any factors it may seek to assert, referring the Commission to Nguyen and the comments of the Full Bench (relying on Perkins) at [27] that ‘The onus of establishing a loss of trust and confidence rests on the party making the assertion’. 7

[16] Mr Lawrence also seeks remuneration for lost pay, and submits that in determining the quantum of remuneration lost the following factors are relevant:

• He was terminated on 18 August 2020;

• He was summarily dismissed and received no payment in lieu of notice;

• He was paid a wage of $53.7362 per hour or $106,545.00 per annum at the time of termination;

• There was a 2.5% wage increase under the Enterprise Agreement from the first full pay period on or after January 1 2021 and a further 1.0% increase is due on the first full pay period on or after July 1 2021;

• In addition to his base pay, he would have been entitled to various allowances under the Enterprise Agreement together with leave entitlements and superannuation;

• He has been unable to find work since his dismissal despite repeated efforts and so, for the purposes of ss.391(4) he has not earned any ‘remuneration … from employment of other work’ since his dismissal and he is unlikely to earn any before actual reinstatement.

[17] Mr Lawrence states he does make any specific submissions on a remedy of compensation, but notes he had more than 18 years of dedicated service with Metro Trains and its predecessors and but for his employer’s indifference to the safety of both its staff and customers, the dismissal incident of August 9 2020 would not have occurred. He submits he would have remained employed with Metro Trains until his retirement in 11 years time but given the compensation cap in s.392(5) of the Act, any compensation order would be limited to less than $60,000 being the remuneration earned in the 26 weeks preceding dismissal. He argues that this will not compensate him for the probability that he may never work again given his age and the reputational damage inflicted by Metro Trains. He also notes that an order for compensation cannot be made unless the Commission is satisfied that reinstatement is inappropriate, and submits that given the grave failing in the conduct of Metro Trains and its officers, it cannot reasonably be argued that reinstatement is ‘inappropriate’. He also submits that a capped compensation amount would be substantially dissipated in reimbursing the considerable expense he has incurred in legal costs in seeking to rectify the injustice of Metro Trains actions.

[18] Mr Lawrence argues nothing will adequately compensate him and restore his livelihood and future except an order for reinstatement plus associated orders, and submits fairness and justice demand reinstatement.

Written Submissions of the Respondent

[19] Metro Trains submits it would be inappropriate and contrary to authority to reinstate Mr Lawrence. It submits that Mr Lawrence’s trust and confidence in Metro Trains has dissolved over a number of years, arguing the employment relationship was in a critical state during this time and the events which resulted in Mr Lawrence’s dismissal have swept away any remnants of trust and confidence which he arguably may have had in the Respondent. Metro Trains argues the Commission should exercise caution and having given full consideration of the state of the relationship and to the authorities relied on, decline to reinstate Mr Lawrence as it would be inappropriate to do so.

[20] Metro Trains refers the Commission to the lengthy consideration given to the case law on appropriateness when reinstatement is being considered by the Full Bench in Nguyen, and notes the Full Bench agreed 8 with the conclusion reached by the Full Bench of the Australian Industrial Relations Commission in Australia Meat Holdings that in deciding whether to reinstate an employee, the Commission must decide if such an order is appropriate. This statement was made against the proposition that it was only necessary to consider if reinstatement was practical. Metro Trains submits that this highlights the point that while it may be practical to reinstate a person, this does not mean that it is appropriate for the person to be reinstated.

[21] Metro Trains notes that the Full Bench in Nguyen confirmed that the most common point advanced on why reinstatement would be inappropriate is a loss of trust and confidence. The corollary of that being that “it would not be feasible to re-establish the employment relationship.” 9 It states the Full Bench observed this fact and commented that it is not enough for an employer to simply assert it. Rather, the Full Bench in reference to a decision10 of the Full Court of the Industrial Relations Court agreed with the propositions that: (i) trust and confidence is needed in an employment relationship: (ii) whether there has been a loss of trust and confidence is a valid consideration in deciding whether to reinstate a person; and (iii) the loss of trust and confidence must be “soundly and rationally based.”11 The conclusion of the Full Bench was that ‘Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.’12

[22] Metro Trains also referred the Commission to the recent decision of Boyd v Glenvill Pty Ltd 13 (Boyd), in which Kelly J considered the case law of the Federal Court of Australia on appropriateness to reinstate. The case to be determined in Boyd, along with the authorities considered by Kelly J, were in the context of applications made pursuant to Part 3-1 of the Act and the application of section 545(1) of the Act, which provides ‘The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.’ Metro Trains submits that the consideration of the Court in Boyd and the cases it refers to are where an employee has made a successful General Protections application and is seeking reinstatement as a remedy, and this is strongly similar to the situation presently before the Commission. In either this case under section 390 of the Act or in the case of General Protections application and section 545 of the Act, the decision to be made is whether reinstatement is appropriate. Metro Trains submits the observations of Kelly J in Boyd are that while reinstatement is a primary remedy, courts are cautious to only grant this in the appropriate circumstances, with the on-going working relationship being a consideration.14 It also refers to the observations of Jessup J in Construction Forestry Mining Energy Union v BHP Coal (No 3)15 (BHP Coal No 3) while considering whether to order reinstatement, that it was relevant that the Applicant did not ‘have a history of problems at work, or would not accept supervision, or had done anything that was injurious or prejudicial to the ongoing relationship between employer and employee.’16 Metro Trains submits it is clear the inference is that if the person had done those listed things it would be inappropriate to re-establish the employment relationship through reinstatement.

[23] Metro Trains submits Mr Lawrence has a history of distrust and of being aggrieved with Metro Trains, noting examples of conduct by Mr Lawrence it says demonstrate the negative views he holds of Metro Trains as an employer. This included a response he provided to the recruitment team in regard to an unsuccessful job application and views expressed around his treatment during the course of the 2019 misconduct investigation and resultant first and final warning. Metro Trains argues that despite Mr Lawrence’s misconduct and deserved final warning, a year after the event Mr Lawrence still considered himself blameless and the victim of the Respondent’s failures. It says Mr Lawrence’s views about the Respondent are long held and have proven to be unshakeable, and continued in the incident leading to his dismissal and his evidence to the Commission during the substantive hearing in this matter. It submits it is impossible to reconcile his scathing evidence about the Respondent with the notion that it would be appropriate to reinstate him to employment to an organisation against which he harbours such distrust, and the views held by Mr Lawrence are indicative of a broken employment relationship it would be inappropriate to remake. Metro Trains argues it is hard to envisage a factual context where an employment relationship is more damaged and reinstatement more inappropriate, and says the salient question is why Mr Lawrence wants to be reinstated to employment with the Respondent when he has no trust or confidence in its managers, its decision making and its policies/procedures.

[24] Metro Trains contends that this case is not simply one of an employee being slighted about their dismissal, but minded to put the ordeal behind them and return to work. It argues that from Mr Lawrence’s evidence the employment relationship between him and Metro Trains is destroyed to the extent that he thinks the Respondent is corrupt, breaches its duty of trust to him, victimises him and places compliance with policies before human life. It says Mr Lawrence’s evidence about Metro Trains is that it is a reprehensible organisation. It argues he provides no evidence on why he wants to return to employment with the Respondent, and says a reasonable reading of his evidence leads to the conclusion that Mr Lawrence does not want anything to do with the Respondent. Metro Trains submits it would not be appropriate to reinstate Mr Lawrence where his relationship with the Respondent is toxic.

[25] Metro Trains also submits it would be inappropriate to reinstate Mr Lawrence to the position of train driver based on the evidence before the Commission about Mr Lawrence’s state of health, including the impact fatalities at work have had upon his mental health. It argues Mr Lawrence would invariably be faced with situations which will pose a risk to his evident health concerns or draw him in to further physical altercations. Metro Trains also submits that from the available evidence the work fatalities have culminated, in conjunction with the threat made against Mr Lawrence in August 2020, to place him in a situation where he says he is unable to look for work and seemingly to perform work as a train driver.

[26] Metro Trains submits that train drivers are Category 1 rail safety critical workers under Rail Safety National Law and the National Standard for Health Assessment of Rail Safety Workers 2007 (the National Standard), with category 1 having the most stringent conditions. As a rail transport operator Metro Trains has a legal obligation to make sure that systems are in place to protect the safety of the public and the metropolitan train network, and paramount to discharging this duty is knowing that train drivers are fit (physically and mentally) to perform their duties safely. Metro Trains states that as Mr Lawrence has provided a medical certificate to them stating he is unfit for all duties, even if the Commission thought reinstatement was appropriate, Mr Lawrence will be required to undergo a medical assessment as required by section 5.3.3 of the National Standard which he must pass in order to resume duties as a train driver. Mr Lawrence must be assessed by Metro Train’s Chief Medical Officer in the first instance and then he may need to be referred to a specialist for further assessment. If Mr Lawrence is not fit to return to these duties then he legally cannot be allowed by the Respondent to perform driver duties.

[27] Metro Trains referred the Commission to the Full Bench decision in Cartisano v Sportsmed SA Hospitals Pty Ltd 17 and its findings that an order for reinstatement under s.391(1) of the Act cannot be conditional on a medical, risk or health and safety assessment to be made by a third party after the order has been issued, it must be made by the Commission on the basis of the evidence before it. The Full Bench stated:

“It is ultimately the Commission’s task to make any required assessment of that nature, assisted by the evidence which the parties place before the Commission and such further evidence as the Commission may require to be produced. If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then the proper course will be to find that reinstatement is not the appropriate remedy and to turn to the alternative remedy of compensation.” 18

[28] The Commission was also referred to the Federal Court decision in Dafallah v Fair Work Commission 19(Dafallah), concerning reinstatement under s.545 of the Act, in which Mortimer J stated that the Applicant ‘bears the burden of proving such a remedy [reinstatement] is appropriate and there was no evidence at all which could give the Court any basis on which to find that remedy is appropriate’.20 Metro Trains contends the situation in Dafallah is comparable to this matter where Mr Lawrence has failed to provide any evidence for the Commission to be satisfied that it would be appropriate to reinstate him because he is not fit to perform the inherent requirements of his position.

[29] Metro Trains contends that the Commission has in a general sense taken a cautious approach to reinstating employees who have notified health issues to their employment. They refer to the Full Bench decision in Read v Gordon Square Child Care Centre Inc TA Gordon Square Child Care Centre 21 (Read) in which the Full Bench found that in ‘the absence of further medical advice that her return to Gordon Square would not detrimentally impact on her health, we are satisfied that reinstatement of Ms Read is inappropriate.’22 Metro Trains says Ms Read had been employed by her employer for 21 years and had not found employment, yet the Full Bench determined that reinstatement was inappropriate without medical evidence she could return to work without detriment to her health, and that this is a clear and strong position that former employees should not be reinstated where their health may be at risk. They contend the Read case has strong similarities to the present case, with Mr Lawrence giving medical advice and evidence on the impact which his employment has had on his health and producing no evidence to prove that he is fit to work as a train driver. Metro Train say they suspect that this is because he is not fit to perform that work, and contend that reinstatement of Mr Lawrence would be inappropriate on health grounds.

[30] Metro Trains submits it would also be inappropriate to reinstate Mr Lawrence to a position which has served as a catalyst for him being involved in physical altercations on several occasions in the recent past. Metro Trains notes that the finding of the Commission in its Substantive Decision was that Mr Lawrence involved himself in a physical altercation with members of the public which he did not have to be involved in. It says Mr Lawrence explained his actions at the outset are those of someone who wanted to save a human life but does not explain why it was necessary for him to become involved in a physical altercation with members of the public. It contends it is open on Mr Lawrence’s evidence that his involvement initially may have been due in part to the PTSD which Mr Lawrence has said he has. Matters escalated to the point he was involved in the altercation. It also submits that from Mr Lawrence’s evidence of the physical altercation in 2020, it is open to interpretation that the PTSD which Mr Lawrence says he has played a part in how he reacted to the risk he felt Mr R posed to him, and that it is possible that the threat Mr Lawrence felt from Mr R was heightened because of the stress/PTSD which Mr Lawrence has explains he experiences. Metro Trains submits that these physical interactions, the overlay of Mr Lawrence’s advised anxiety condition and the requirement for Mr Lawrence to interact with the public, if he were reinstated, will have to be considered by a medical practitioner if that advice is required.

[31] In response to Mr Lawrence seeking an order for payment of lost pay under s.391(3) of the Act, Metro Trains argues the onus rests on Mr Lawrence to present evidence to persuade the Commission that the discretion available under s 391(3) be exercised in his favour and on the terms he requests. Metro Trains submits Mr Lawrence has not satisfied this onus, providing not even the most basic information before the Commission as evidence in support of his request for lost remuneration.

[32] Metro Trains notes that Mr Lawrence’s submission in regard to remuneration earned since his dismissal was that he was unable to find work despite repeated efforts. Metro Trains argues that this submission is from the perspective that Mr Lawrence was able to work as normal for the entire time since his dismissal and is contrary to his evidence. Metro Trains notes that the matters that must be taken into account by the Commission in determining an amount for the purposes of an order under s.391(3) include ‘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 reinstatement’ (s.391(4)(a)) and argue that in his first witness statement Mr Lawrence states he has ‘no income’, and no other evidence has been provided by him since that time about remuneration he may have earned. It submits that in the absence of evidence about Mr Lawrence’s remuneration from October 2020 to mid June 2021 the Commission has not been put in a position to take account of a matter which it must and on that basis should refuse to exercise its discretion pursuant to 391(3).

[33] Further, and in the alternative, Metro Trains submits that Mr Lawrence has presented no evidence that since he was dismissed he has at any time been fit for work. It notes Mr Lawrence submitted the Certificate which stated he was unfit to perform any duties from 12 August 2020 to 26 August 2020, and was dismissed on 18 August 2020. Metro Trains argues that Mr Lawrence’s submission that he has applied for 80 positions for employment since his dismissal is contrary to and does not explain Mr Lawrence’s evidence that he was unable to look for work due to his stress situation, and that he has lodged a WorkCover claim which he intends to pursue after it was rejected. It submits on the evidence before the Commission it must be found that Mr Lawrence has either been unfit for work since he was dismissed, or that Mr Lawrence has presented insufficient evidence to support an order for the payment of lost remuneration.

[34] Under section 391(4) the Commission must also take into account when making an order for lost pay any remuneration likely to be earned by Mr Lawrence during the period between the making of the order for reinstatement and the actual reinstatement (s.391(4)(b). Metro Trains submits that Mr Lawrence has provided evidence that he is unable to work, and in a situation where it is not clear if he was able to work to earn remuneration during the period since his dismissal the Commission cannot be satisfied about the amount of remuneration which Mr Lawrence would have earnt, as the evidence points to Mr Lawrence not being in a fit state to earn remuneration. Metro Trains state that it is possible Mr Lawrence is claiming he would have accessed his personal leave if he had continued in its employment, but that point is not made in his submissions and if this submission was to be made Metro Trains would object to it on the basis that payment for leave is not earnings as that term is defined in s 332 of the Act.

Written Submissions in Reply of the Applicant

[35] In response to Metro Trains’ submission it would be inappropriate to reinstate Mr Lawrence due to a ‘broken working relationship’, Mr Lawrence reiterates his previous submission that there is no ‘inappropriateness’ test required in relation to reinstatement under Division 4 of Part 3-2 of the Act, and contends that the test for reinstatement is whether reinstatement is fair and just.

[36] Further, Mr Lawrence submits that in circumstances where the dismissal has been found to be unjust or unreasonable because there was no valid reason for a dismissal rather than merely harsh, then fairness and justice demand reinstatement.

[37] Mr Lawrence states that Metro Trains seeks to draw a distinction between the practicality of reinstatement and the appropriateness of reinstatement with the inference being that Metro Trains sees reinstatement as practical but not appropriate.

[38] In its submissions Metro Trains states the most common point advanced on why reinstatement would be inappropriate is a loss of trust and confidence. In response Mr Lawrence argues that a claim of loss of trust and confidence is invariably a claim by the employer that it has lost trust and confidence in the employee not, as was argued by the Respondent, that the employee has lost trust and confidence in the employer. In terms of ‘trust and confidence’, Mr Lawrence refers the Commission to the following thirteen propositions:

1. It would be wrong to assume that trust and confidence is the sole criterion or even a necessary one to determine whether reinstatement is appropriate. 23

2. A claim of loss of trust and confidence must be soundly and rationally based. 24

3. It is important to carefully scrutinise the claim that reinstatement is inappropriate because of a loss of confidence in the employee. 25

4. It is appropriate to consider the rationality of any attitude taken by the employer. 26

5. It is important that a Court or Tribunal carefully scrutinise any claim by the employer of loss of confidence in order to ensure that the employee is not denied access to the primary remedy of reinstatement. 27

6. The reluctance of an employer to shift from a view, despite the Tribunal’s assessment does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged. 28

7. The fact that it is difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct is not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. 29

8. That it may be embarrassing or inconvenient to have to re-employ a person who the employer believed to have been guilty of wrongdoing but was found to have been unfairly dismissed but such problems are of the employer’s own making. 30

9. With the emergence of corporate employers, the importance of trust and confidence in the employment relationship has diminished. 31

10. Where loss of trust and confidence is relied on there must be evidence from the relevant managers holding that view. 32

11. The employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. 33

12. The onus of establishing loss of trust and confidence rests on the party making the assertion. 34

13. It is appropriate to balance employer claims of loss of trust and confidence with the impact on an applicant of not ordering reinstatement in circumstances where it was found that the misconduct resulting in termination had not been established. 35

[39] Mr Lawrence notes the Boyd decision was a case where remedies were being considered under s.545 of the Act and states that unlike s.391 of the Act, s.545 specifically uses the word ‘appropriate’. He states that as Boyd at [414] and [415] indicate, the remedy powers in s.545 are not to be hedged by limitations which do not appear expressly in the section and are to be exercised having regard to the objects of the legislation (with ss 323, 340, 552 and 545 being protective provisions which ‘are important as providing effective relief which is in addition to that which is provided by the general law’). Mr Lawrence notes the Court in Boyd also said that ‘it is long recognised to be essential that an employer convicted of an offence should not thereby benefit from ridding itself of an employee’ 36 and submits that if breach of a civil remedy provision militates in favour of reinstatement, then dismissal without a valid reason must also militate in favour of reinstatement.

[40] Mr Lawrence submits Metro Trains’ characterisation of Jessup J’s ‘observations’ in BHP Coal is somewhat misleading. Mr Lawrence notes that at [125] of that decision Jessup J states that he accepts the submission that reinstatement would be the normal consequence of a successful claim under s.346 of the Act and submits that once again there is reinforcement of the concept of a presumption in favour of reinstatement.

[41] Mr Lawrence submits that while Metro Trains contend he has lost trust and confidence in his employer, it is significant that they do not assert that it had lost trust and confidence in him. He states that if an employer claims to have lost trust and confidence in an employee – and if, consistent with the case law, it is able to show that the loss of trust and confidence is well founded and rational and supported by evidence from relevant managers – then reinstatement poses some risks for the employer in that the employee may repeat the offending conduct and such reoccurrence is essentially out of the employer’s control. When the claim is that the employee has lost trust and confidence in the employer however, he submits it is squarely within the employer’s control to regain that trust and confidence by improving its behaviour.

[42] Mr Lawrence argues it is exclusively within Metro Trains’ capacity to build trust and confidence in relation to himself and live up to its values and behaviours of ‘Zero Harm’, ‘Caring’, ‘One Team’, ‘Dependable’ and ‘Make a Difference’. He argues Metro Trains sought to blame him for the fact that he was faced with threats to kill and forced to protect his own person by restraining action, and engaged in a faux investigation which the Commission found, ‘lacked the basic principles of procedural fairness and natural justice’ and was ‘bound to support a finding that was inconsistent with the evidence’. Further, he submits the employer, contravened its own disciplinary procedure and the Enterprise Agreement and hastily dismissed him.

[43] Mr Lawrence reiterates his previous submission (at [4] above) that there should be an element of specific and general deterrence in the consideration of remedies for unfair dismissal as there is in the imposition of penalties under s.546 of Act for contravention of civil remedy provisions. Also, that a compensation order would be of no consequence to a big employer like Metro Trains however a reinstatement order would force it and its officers to reflect on their conduct in this matter and to rectify such conduct in dealing with disciplinary matters in the future. He submits such an approach would also be consistent with the reinstatement principles under s.545 discussed in Boyd and BHP Coal No 3 and unfair dismissal reinstatement principles discussed in Australian Meat Holdings and Yew v ACI Glass Packaging Pty Limited 37 (Yew).

[44] Mr Lawrence also notes that under Division 3 of Part 3-1 of the Act – and specifically s.341 - an employee has a workplace right to make a complaint or inquiry in relation to his or her employment, and submits in prosecuting a case for unfair dismissal an Applicant is entitled to draw attention to the perceived failings of the employer’s managers as noted by Asbury DP in Smith v Bank of Queensland 38. He submits a healthy workplace should be able to tolerate employees speaking their minds from time to time. He submits a responsible and reasonable employer should strive to adhere to its stated values and policies and not treat them as mere window dressing. He argues an employer brings itself into disrepute if it does not ‘walk the walk’ but just ‘talks the talk’ and adopts a ‘don’t do as we do, do as we say’ attitude.

[45] Mr Lawrence submits Metro Train’s assertions regarding the response he provided to the recruitment team in regard to an unsuccessful job application weren’t put to him at the substantive hearing and he had no opportunity to respond, and that he had acknowledged his communication was a big mistake, expressed remorse and realised and accepted his error. In regard to the views he expressed around his treatment during the course of the 2019 misconduct investigation and resultant first and final warning (2019 incident), he says paragraphs [103] – [106] of his witness statement in the substantive hearing are statements Metro Trains needs to hear and reflect on. He said it may be that some revision of its policies and procedures is warranted and desirable but unless employees are permitted without penalty to express their views Metro Trains will be none the wiser. He also notes that in his statement at [108] he said “while I accept the need to comply with Metro’s policies, in this instance the probable consequence would have been injury or even death and I placed the safety of the public first.’, acknowledging he must comply with Metro Trains’ policies and has done so ever since. He says he has apologised for the 2019 incident, accepted he breached company policies and committed to not repeating such actions. He submits there should be no concern he would again choose to breach policy should a similar situation arise.

[46] Mr Lawrence contends, in response to Metro Trains’ submissions regarding his behaviour and comments in the incident leading to his dismissal (2020 incident) and his evidence to the Commission during the substantive hearing, that the Substantive Decision is quite damning of Metro Trains’ actions and conduct and to a large degree confirms the validity of his statements and opinions. Mr Lawrence distinguishes the 2020 incident from the 2019 incident, arguing the former was wholly different in that it did not directly occur in the context of train driving, he was accosted with threats to kill and took reasonable restraining actions in self-defence and the incident would not have occurred but for the negligence of his employer.

[47] Mr Lawrence states he loves his job as a train driver and is dedicated to his job, as shown from the compliments and commendations that he has received. Mr Lawrence contends Metro Trains’ submissions against reinstatement on the basis of his fitness for work is based on speculation rather than evidence. He notes the Certificate of Capacity of August 12 2020 is almost 12 months ago. He states that under section 5.3.3 of the National Standard train drivers are required to be assessed every five years to age 50 and every two years to age 60, that he was last assessed in January 2020 and is not due for reassessment until January 2022. He contends that at the time of his January 2020 assessment, had had already faced the traumas referred to in his evidence and was certified as fit to perform the work of a train driver. He submits it was the incident on 9 August 2020 that led to him obtaining the Certificate of Capacity and lodging a workcover claim, that Metro Trains opposed and rejected the claim, its insurer refused to conciliate, and it is highly hypocritical of Metro Trains to now say he his unfit for work.

[48] Mr Lawrence submits that Metro Trains has misunderstood and misapplied what Mortimer J said in Dafallah, and what Her Honour said at [145] of that decision were made in the context of s.545(1) which provides a wide discretion to the court to make any order that it ‘considers appropriate’. He submits in that context there is arguably at least an evidentiary onus on an applicant to identify and even substantiate the specific remedies sought, somewhat tempered by decisions such as Boyd and BHP Coal No 3 which indicate that reinstatement is the normal consequence of a finding of breach of a civil remedy provision, and it is dangerous to attempt to apply a s.545 remedy decision to a s.391 remedy decision.

[49] Mr Lawrence states reinstatement is the first and foremost remedy in unfair dismissal cases, and it is only after reinstatement has been determined to be inappropriate that the matter of compensation can be considered. He contends it is palpably false to suggest that in unfair dismissal cases there is an onus on an applicant to prove that reinstatement is appropriate – and as a corollary, an onus on an applicant to prove that he or she is fit for work, arguing such an onus falls on the party opposing reinstatement. He submits that in the same way the onus of establishing a loss of trust and confidence rests on the party making the assertion, the onus of establishing incapacity rests with the party asserting it. He contends that if capacity was to be elevated as a key issue for reinstatement in any unfair dismissal proceeding and an applicant had an onus to establish capacity, then employers could raise capacity as a mere supposition as a tactical ploy aimed at defeating a remedy of reinstatement.

[50] Mr Lawrence contends that while is not open to the Commission to make a reinstatement order conditional on a medical assessment, it is not beyond power for the Commission to reinstate him as a train driver even though he may subsequently be required to undergo some form of medical assessment (a development the legitimacy of which he says is not conceded and would depend on the legal, medical and industrial relations basis for such an assessment). He also referred the Commission to the Full Bench decision in Smith v Moore Paragon Australia Ltd 39 and the considerations the Full Bench said are to be applied when deciding whether reinstatement is appropriate for an employee who has an ongoing incapacity from illness or injury. He submits that it is definitely not the case that incapacity per se makes reinstatement of an injured employee inappropriate.

[51] In regard to an order for lost pay, Mr Lawrence states it involves a simple calculation of what remuneration an applicant would have received had they remained in employment and not been dismissed, and the factors set out above at [16] are relevant to that calculation. He submits the only matters required by the Act to be taken into account are those set out in s.391(4), it is not a situation involving the application of a ‘Sprigg’ formula. He says s.391(4) only requires remuneration earned or likely to be earned from employment to be taken into account, and he has not earned and is not likely to earn any remuneration from employment from the time of dismissal until the time of reinstatement. He also noted that even under the ‘Sprigg’ formula, Centrelink payments, unlike workers compensation payments, are generally not deducted.

[52] Mr Lawrence’s position on compensation is outlined above at paragraphs [17]-[18]. He seeks a remedy of reinstatement as the only remedy which will rectify the parlous position his dismissal has placed him in financially, reputationally and otherwise and enable him to work again.

[53] Finally, in his reply submissions Mr Lawrence provided further information to substantiate his submission that he has applied for more than 80 jobs, providing a list of some of the positions he had applied for and noting some of the positions he had received a response to but was unsuccessful. He states he loves his job as a train driver and is ready, willing and available to return to work.

Consideration

[54] The Fair Work Act 2009 (Cth) (the Act) provides the following with respect to remedy:

“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.”

Reinstatement

[55] Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is not appropriate, and that it considers an order for the payment of compensation to be appropriate in all the circumstances of the case.

[56] The question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. 40 The grant of a remedy for an unfair dismissal is not automatic or a right.41

[57] The Commission must determine if reinstatement is appropriate before considering any other remedy. It is not until the Commission is satisfied that reinstatement is inappropriate that compensation can be considered. 42 Reinstatement might be inappropriate in a range of circumstances, such as where there has been a loss of trust and confidence such that it would not be feasible to reestablish the employment relationship43 or if an employee is incapacitated because of illness or injury. The weight to be accorded to ongoing incapacity when considering whether reinstatement is appropriate will depend upon all of the circumstances of the case.44

[58] Determining the question of whether reinstatement is appropriate involves the exercise of discretion and the balancing of relevant considerations based on the evidence. A loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, that is providing the loss of trust and confidence is soundly and rationally based. 45

[59] In Nguyen 46the Full Bench conveniently summarised the approach required as follows:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” [footnotes omitted]

[60] If a loss of trust and confidence does exist, it is not necessarily conclusive that reinstatement would be inappropriate. A loss of trust and confidence is only relevant where it is soundly and rationally based, otherwise it is irrelevant to whether reinstatement is appropriate.

[61] Metro Trains argues that Mr Lawrence should not be reinstated because he has lost trust and confidence in his employer and the working relationship is broken. In support of its argument that Mr Lawrence has lost trust and confidence in his employer Metro Trains rely on an incident that occurred in September 2017. The incident occurred when Mr Lawrence’s application for a role he had applied for was unsuccessful. Mr Lawrence responded to the notification that he had been unsuccessful by writing to the recruitment team stating amongst other things that they were useless, the process was corrupt and being run by children. Metro Trains submit that Mr Lawrence did not withdraw his negative views he expressed about Metro Trains or the recruitment process.

[62] Although Metro Trains considered, and I agree, the communication was inappropriate, as a consequence of having the matter brought to his attention by Mr Ryan Martin, Acting Depot Train Driver Manager-Southern Group, Mr Lawrence apologised to the recipients of his email admitting he had made a “big mistake” and he had dealt with the rejection of his application in the wrong way. Mr Lawrence sent a message by text to the recipient of his email expressing his remorse and apologising for his outburst. Mr Martin considered that Mr Lawrence had realised and accepted his error and sought the opportunity to correct his mistake. Mr Martin directed Mr Lawrence to have a conversation with the recipient of the email to explore the “right path to move forward” which Metro Trains acknowledges did occur.

[63] The incident relied on occurred in 2017, Mr Lawrence expressed to Mr Martin that he was angry with the system and not the individual. Mr Lawrence has since apologised and expressed remorse for his actions and there is no evidence of a repeat occurrence. I am not persuaded by Metro Trains’ submission that the email Mr Lawrence sent is “momentous” in providing an insight into how Mr Lawrence currently views Metro Trains. I am also not persuaded that an event that occurred three years prior to an employee’s dismissal, involving an employee becoming frustrated at not being considered for an internal role because they held a belief at the time that they weren’t being genuinely considered, is sufficient enough to establish that the relationship with his employer has broken down to the extent that it would present as a barrier to reinstatement.

[64] Metro Trains also rely on an incident that occurred in September 2019 which resulted in Mr Lawrence being issued with a first and final warning. I addressed the events as described on that day in the Substantive Decision and do not intend to repeat them here. It was accepted by Metro Trains that Mr Lawrence made a genuine apology for his actions that led to the first and final warning. Metro Trains quarrel with the view expressed by Mr Lawrence at paragraph [103] to [106] of his witness statement filed in the substantive proceedings in which he states;

“[103] What upsets me is that I got a first and final warning for breaking policies and procedures but it is obvious that if the station assistant had called for help earlier then Metrol [i.e. the train controller] could have put out an emergency call to all the trains in the vicinity of Carnegie station to stop and this all could have been avoided.

[104] This is especially so given the fact the station assistant told me that the young guy threatening self-harm was well known to him and Metro. But I was the one who had to wear the blame and punishment.

[105] It is quite apparent that Metro believes that following its hard and fast policies is more important than saving a life.

[106] I asked management about what a driver should do if they saw a female being assaulted on a platform late at night when no one else was around? Following their procedures, we would be expected to stay inside our train cabs and watch, without intervening as a person is attacked. The same policy would apply if a wheelchair-bound person accidentally fell of the platform and fell into the pit. This has happened several times over the past year. We are told that under no circumstances would we be allowed to offer assistance without first contacting the train controller, which usually can take up to seven or more minutes for them to respond. All the while, the injured passenger could receive no help from a driver because the driver would be fearful of losing his job because he didn’t follow a restrictive and flawed internal policy.”

[65] Metro Trains submit that paragraph’s [103] to [106] of Mr Lawrence’s statement confirm that Mr Lawrence’s view is that he should not have been issued with the final warning. I do not share Metro Trains’ interpretation of Mr Lawrence’s submission. Mr Lawrence is clearly expressing a view that Metro Trains may at some time wish to consider. Mr Lawrence does not state that he is against Metro Trains or that he would not comply with its policies or procedures in the future. Mr Lawrence simply expresses a view that the policies have been written in terms that when applied may see the practical outcome at times lead to further harm or injury occurring.

[66] Mr Lawrence did not consider himself blameless. Mr Lawrence prevented a suicide from occurring and in doing so he acknowledged he was in breach of Metro Trains’ policies. Mr Lawrence simply states that whilst he accepts the need to comply with Metro Trains’ policies, he made the decision on that occasion to prevent the death of a member of the public which resulted in a breach of policy for which he received a first and final warning. At the time, Mr Lawrence held the view that in saving the member of the public’s life a breach of policy was unavoidable in the circumstances and the policy doesn’t fully contemplate circumstance of the kind he was confronted with on that day. Mr Lawrence accepted the first and final warning.

[67] Policies and procedures are often written by persons who have knowledge or experience of either the legislative requirements or the work performed in the specific field to which that policy or procedure applies. Policies and procedures are written to provide a set of rules or principles that govern or direct the behaviour and conduct of employees and others that they apply to. Whilst those policies and procedures are generally technically correct, rarely do organisations engage suitably qualified behavioural experts to ensure that the policies once implemented will produce the desired outcome. Whilst I do not suggest that this is the case at Metro Trains, it would be ominous for the Commission to encourage a circumstance that would lead to the silencing of an employee’s view about the practical effect, failings or success of any procedure or policy. If an employee from the field cannot provide feedback on the practical application of a policy or procedure, then an employer may in some circumstances be unaware of the policy or procedure’s potential failings.

[68] I am not satisfied that the statements made in the substantive proceedings by Mr Lawrence establish that there has been a loss of trust and confidence in the employment relationship that would lead to a finding that reinstatement would be inappropriate in the circumstances.

[69] Given Mr Lawrence’s past experience with a disciplinary investigation into his conduct it is unsurprising that once he was notified that he had been stood-down he proceeded to vigorously defend himself. In doing so Mr Lawrence wrote to the General Manager of Operations, Mr Wegert. Metro Trains take particular issue with the point that Mr Lawrence finds it “appalling that Metro management constantly informs us of their corporate policies that ‘Safety and Zero harm to its employees is Number One when it is blatantly obvious that this is just meaningless jargon to appease the Fair Work Act and nothing else”. It submits that the statements of Mr Lawrence are fatal to any assertion which Mr Lawrence might make about having trust and confidence in Metro Trains.

[70] Regardless of Mr Lawrence’s views about some of Metro Trains managers’ ability to perform their duties or otherwise, I have considered Mr Lawrence’s statement in the context of the situation and taking into account the Substantive Decision in which I found that there was no valid reason for Mr Lawrence’s dismissal. I am not satisfied that Mr Lawrence’s views at the time he was defending himself against potential disciplinary action and his subsequent application, in which he was successful, are sufficient reasons to rely on and do not demonstrate a loss of trust and confidence in the terms proposed by Metro Trains.

[71] Metro Trains submit Mr Lawrence is not fit to return to work because train drivers are rail safety critical workers and as a transport operator Metro Trains has a legal obligation to make sure that there are systems in place to protect the safety of the public and the metropolitan train network. Part of that responsibility is knowing that train drivers are fit (physically and mentally) to perform their duties safely. Metro Trains submit that Mr Lawrence provided a medical certificate which states that he was unfit for duties between 12 to 26 August 2020 and has provided statements as to the impact of the fatalities on his mental fitness. Further, Metro Trains submit Mr Lawrence has made a WorkCover claim which he may continue to pursue. It submits from the available evidence he is seemingly not fit to perform work as a train driver.

[72] The medical evidence before me is that Mr Lawrence was unfit for duty from 12 August 2020 up to and including 26 August 2020. There is no evidence before me that satisfies me that Mr Lawrence is still medically unfit. Mr Lawrence, as with any applicant who has been dismissed from their employment and during the course of defending a claim, felt stressed and upset by the circumstances that occurred. However, there is no medical evidence before me that the stress experienced by Mr Lawrence presents a barrier to being reinstated. Further, I note that although Mr Lawrence gave evidence about the impact of the deaths he experienced whilst performing his duties, Mr Lawrence remained employed and continued to perform his normal duties after those events. I am not persuaded that Metro Trains can rely on Mr Lawrence’s rejected WorkCover claim, which it opposed, as a reason Mr Lawrence would not be fit to return to his normal duties.

[73] There is no medical or other evidence before me that satisfies me that Mr Lawrence is unable to perform the inherent requirements of his former position. Metro Trains relies on submissions that Mr Lawrence has lost trust and confidence in Metro. Metro Trains has not succeeded in persuading me that Mr Lawrence has lost total trust and confidence in Metro Trains so as to have an effect on the likelihood of a productive working relationship. Mr Lawrence acknowledges he had previously breached Metro policies and it is likely any further breach would result in Mr Lawrence being dismissed. Upon being reinstated Mr Lawrence must understand that adverse behaviours or conduct towards his employer may also result in further disciplinary action. I am satisfied that an order for reinstatement is appropriate in the circumstances and will now consider if it is appropriate to make an order for the remuneration lost.

[74] I have considered Mr Lawrence’s length of service and I am satisfied that continuity of service should be ordered. I am also satisfied that the period should count towards Mr Lawrence’s continuous service.

[75] Mr Lawrence’s evidence is that he has applied for over 80 positions however he has been unable to obtain alternative employment. Mr Lawrence submits consequently he has not received any other income since he was dismissed from his employment by Metro Trains.

[76] As set out at [2] above, the parties were directed to provide submissions addressing remedy. In response Mr Lawrence has provided material to substantiate his efforts to apply for jobs, commencing from 12 January 2021. There is no material before me of any efforts prior to that date. I note in his witness statement of 21 October 2021, affirmed on the first day of hearing on 23 November 2021, Mr Lawrence states amongst other things that he could not look for employment due to his present stress situation. I also note Mr Lawrence remained unfit for work up until 26 August 2020 and on the material before me commenced applying for other employment on 12 January 2021. Mr Lawrence provided evidence of some of the roles he has applied for since 12 January 2021 and submits although he has applied for more roles he is unable to provide evidence because the data for those roles is automatically removed after a few months.

[77] There is no evidence before me to suggest Mr Lawrence was unfit for work during the period from 26 August 2020 to the 12 January 2021. Further there is no evidence before me that Mr Lawrence has made a reasonable effort to obtain other employment during the period from his dismissal to 12 January 2021.

[78] Metro Trains submit that Mr Lawrence lodged and intends to pursue his WorkCover claim and submits that, if his claim is accepted and he is paid weekly payments under that scheme, these will be amounts which are counted as remuneration by the Commission. It submits that if this potentiality is not built into any order for compensation by the Commission then Mr Lawrence could receive a windfall by being paid both by Metro Trains and its WorkCover insurer for the same time period. Metro Trains submit any order for compensation should take into account any payments made to Mr Lawrence should his WorkCover claim be accepted.

[79] Having considered that reinstatement is appropriate I exercise my discretion under s.391(3) and order that Metro is to pay Mr Lawrence an amount of remuneration lost, or likely to have been lost by Mr Lawrence because of his dismissal. Mr Lawrence has lodged a WorkCover claim. If it transpires that Mr Lawrence is found to have been unfit due to a work related injury in the period following his dismissal and he receives compensation, then Mr Lawrence would be double dipping if he were to be paid compensation for the same period for which I make an order to restore lost pay. Therefore, an order to restore lost pay could not relevantly arise for a period during which Mr Lawrence is paid compensation for a work related injury.

Conclusion

[80] Mr Lawrence is to be reinstated to the position he held immediately before the dismissal. The reappointment should occur within 30 days of the date of the order giving effect to this decision.

[81] Having considered it appropriate to restore Mr Lawrence’s lost remuneration, Metro Trains is to pay Mr Lawrence his lost pay for the period from 12 January 2021 (inclusive) to the date of his reinstatement, subject to applicable taxes and inclusive of appropriate superannuation to be paid to Mr Lawrence’s nominated superannuation account. I have determined the amount of pay should be limited to that period, having regard to the reasonable efforts that should have been taken to obtain other employment during the period from Mr Lawrence’s dismissal to 12 January 2021. Any payments on termination of accrued by untaken annual leave will also need to be taken into account. The outcome of the WorkCover claim, which is not known at the time of issuing this decision will also need to be considered and taken into account. Should Mr Lawrence have proceeded with his claim and been successful, any compensation paid to Mr Lawrence is to be offset against the amount Mr Lawrence is otherwise to be paid for lost remuneration.

[82] An order 47 reflecting this decision will be issued with this decision.

COMMISSIONER

Written submissions:

Applicant: 11 June 2021
Respondent: 23 June 2021
Applicant reply: 30 June 2021

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 1078

2 [2014] FWCFB 7198

3 Ibid at [10]

4 [1997] IRCA 15

5 Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 14]

6 (2006) 161 IR 34

7 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [27]

8 Ibid at [15]

9 Ibid at [20]

10 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191

11 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [22]

12 Ibid at [28]

13 [2021] FCCA 265

14 Ibid at [418]

15 [2012] FCA 1218

16 Ibid at [126]

17 [2015] FWCFB 1523 at [46]

18 Ibid

19 [2014] FCA 328

20 Ibid at [145]

21 [2013] FWCFB 762

22 Ibid at [65]

23 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198

24 Ibid and Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

25 Ibid and ibid

26 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014]

27 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

28 Ibid and Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198

29 Ibid and ibid

30 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

31 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 and Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd (O’Connor) [2000] FCA 627

32 Colson v Barwon Health [2013] FWC 8734 and Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198

33 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 and Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198

34 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198

35 Yew v ACI Glass Packaging Pty Limited (1996) 71 IR 201 and Australian Meat Holdings Pty Ltd v McLauchlan Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 18]

36 Boyd v Glenvill Pty Ltd [2021] FCCA 265 at [415]

37 (1996) 71 IR 201

38 [2021] FWC 2060 at [42]

39 (2004) 130 IR 446 at [51] and [54]

40 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9]

41 Rushiti v Australian Postal Corporation T/A Australia Post[2012] FWA 5012 at [4], citing Ellawala v Australian Postal Corporation Print S5109 (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [24]

42 See discussion of Fair Work Act s.390(3) in Holcim (Australia) Pty Ltd v Serafini [2011] FWAFB 7794 (Drake SDP, Sams DP, Cloghan C, 10 November 2011) at [24], [(2011) 216 IR 1]; see also Hatwell v Esso Australia Pty Ltd[2019] FWC 931 (Colman DP, 13 February 2019)

43 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [19] - [20]

44 See for example Cartisano v Sportsmed SA Hospitals Pty Ltd[2015] FWCFB 1523; See generally Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [48]-[54]

45 Lee v Superior Wood Pty Ltd[2020] FWCFB 1301

46 [2014] FWCFB 7198

47 PR729913

Mark Lawrence v Metro Trains Melbourne Pty Ltd

[2021] FWC 3789

8 SEPTEMBER 2021

DECISION