Michael Palibrk v XL Express XL (Personnel) Pty Ltd
[2020] FWC 5557
•19 OCTOBER 2020
| [2020] FWC 5557 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Palibrk
v
XL Express XL (Personnel) Pty Ltd
(U2020/6980)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 19 OCTOBER 2020 |
Application for an unfair dismissal remedy.
[1] Mr Michael Palibrk has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, having been dismissed from his employment with XL Express XL (Personnel) Pty Ltd (XL Express) on 15 May 2020. Mr Palibrk seeks compensation.
Procedural History
[2] Mr Palibrk lodged his Form F2 – Unfair Dismissal Application (Form F2) on 20 May 2020. A Form F3 – Employer Response to application for an Unfair Dismissal Remedy (Form F3) filed by XL Express was received by the Commission on 2 June 2020.
[3] A conciliation was held on 18 June 2020. The matter did not resolve so it was then allocated to me for further case management.
[4] I issued Directions on 24 June 2020 and convened a Telephone Mention on 30 June 2020, at which I sought the parties’ views on whether the matter should proceed by way of determinative conference or formal hearing. After consideration of the requirements of s.399(1) of the Act, I determined it would be most appropriate for the matter to be dealt with by way of a hearing. Mr Palibrk also sought permission to be represented by a paid agent pursuant to s.596 of the Act. I considered oral submissions on this issue and, having weighed the circumstances and considerations in s.596 of the Act, granted permission for Mr Palibrk to be represented by Mr Dircks.
[5] On 15 July 2020, the following material was filed and served on Mr Palibrk’s behalf:
• Applicant’s Outline of Submissions;
• Witness Statement of Mr Palibrk; and
• 13 attachments marked MP1 to MP13.
[6] On 6 August 2020, XL Express filed and served its material on response, comprising:
• Respondent’s Outline of Submissions;
• Witness Statement of Mr Clive Prescott; and
• 57 attachments marked CP01 to CP57.
[7] The hearing was conducted via Microsoft Teams on 24 August 2020. Mr Dircks appeared on behalf of Mr Palibrk and Mr Prescott appeared for XL Express.
Background
[8] Mr Palibrk commenced employment with XL Express on 11 January 2011 as the Melbourne Depot Manager. His salary at the time of his dismissal was $131,000 per year plus superannuation. He also had the use of a company car.
[9] Mr Palibrk says that when a number of staff members ended their employment with XL Express in 2017-2018, they were not replaced and this resulted in him having to take on additional duties such as moving freight, opening trucks up and warehousing functions. Mr Palibrk says that as a result, he was routinely working up to 17 hours per day, seven days a week. On 22 February 2019, Mr Palibrk was placed on a Performance Improvement Plan in response to management concerns regarding his performance and that of the Melbourne operation of XL Express. The initial interview held on 22 February 2019 was with two head office managers, Mr Mike Savill and Mr Brad Mitchell. A further meeting was held on 25 February 2019. There was subsequently a follow-up meeting on 19 March 2019 between Mr Palibrk and Mr Mitchell, the purposes of which was said to be to confirm improvements and outstanding issues. A further follow up meeting was then held on 1 April 2019 with Mr Colin Mallory and Mr Mitchell to discuss Mr Palibrk’s comments in response.
[10] Mr Prescott gave an account of these meetings based on recordings taken at each. Mr Palibrk says he was unaware that recordings were made of these meetings until the filing of them by XL Express. 1 Mr Prescott said that during these meetings, Mr Palibrk repeatedly stated that he had been working extremely long hours due to staff shortages and was not receiving adequate support from XL Express. Mr Prescott also asserts that at no time during any of these meetings did Mr Palibrk present as suffering from depression or anxiety and nor did he mention any work-related stress or anxiety.
[11] Mr Palibrk says he sustained a rotator cuff injury in April 2019 when a curtain on a truck jammed while he was opening it. He says this injury initially required two minor operations before eventually requiring a more extensive specialised capsular reconstruction approximately six weeks prior to his dismissal.
[12] On 16 April 2019, Mr Palibrk commenced extended personal leave after having a breakdown at work. He submitted sick leave applications and contemporaneous personal medical certificates from his general practitioner over the ensuing months.
[13] Mr Palibrk says that at the time of his shoulder injury, he completed an incident report and placed copies on Mr Mitchell’s desk and in the register book kept in the Melbourne depot tea room. Mr Prescott disputes this.
[14] Mr Palibrk says that he initially had no intention of making a WorkCover claim, being satisfied with using sick leave in the hope that he would recover and return to work. 2 He says he eventually made the decision to put in a WorkCover claim for both injuries because his shoulder and psychological issues worsened.3
[15] Mr Prescott says that on 19 June 2019, he first became aware that Mr Palibrk had lodged a WorkCover claim for a soft tissue injury to his right shoulder. He says that the form was dated 30 April 2019 but was not lodged until after Mr Palibrk had been on paid sick leave for medical conditions certified by his general practitioner which had not included a shoulder injury.
[16] Further, Mr Prescott says that on 2 July 2019, he became aware that Mr Palibrk had lodged a WorkCover claim for psychological illness. He says Mr Palibrk then submitted four Certificates of Capacity dated 8 July 2019 certifying work-related injury incapacity for the periods 17 April 2019 to 1 May 2019, 1 May 2019 to 28 May 2019, 28 May 2019 to 25 June 2019 and 25 June 2019 to 23 July 2019 due to an alleged injury on 5 April 2019.
[17] The claim relating to the shoulder injury was initially investigated by Allianz, the workers’ compensation insurer for XL Express. Mr Prescott had himself requested a fraud investigation. The investigation ceased when it became apparent that Mr Palibrk’s general practitioner had issued the retrospective Certificates of Capacity for the physical injury at the same time she issued them for his psychological illness.
[18] Mr Prescott says he initially objected to the acceptance of claim for psychological illness as a work-related injury on the basis that there had been no suggestion of a work relationship detailed in any of the Certificates of Capacity over the previous months. However, after an Independent Medical Examination (IME) found that there was a work-related component, this claim was accepted by Allianz. Mr Palibrk’s sick leave balance was credited for all the sick leave he had taken from 16 April 2019 and these payments he had received were converted to compensation payments.
[19] On 17 July 2019, Allianz advised XL Express that an IME conducted by Dr R McCartney (Occupational Physician) had resulted in a diagnosis for Mr Palibrk of a soft tissue injury from a suspected rotator cuff tear and/or bursitis, and the opinion that he had capacity to continue in his employment with restricted duties that did not involve the use of his right arm in manual work.
[20] Mrs Carolyn Davitt, HR Manager, assumed the role of Mr Palibrk’s Rehabilitation Coordinator and sent him the following email on 26 July 2019, attaching a return to work plan (RTW plan):
“Hi Michael,
Great news – the Specialist who performed the Independent Medical Examination has advised that you are fit to continue with restricted duties in the workplace provided you avoid any manual work with your right arm so Allianz requested we organise a Suitable Duties Program which I have now attached for you…”
[21] The RTW plan set out duties or tasks which included:
• Management and coordination of activities by giving directions and advice to direct reports and depot staff;
• Problem solving and sharing of advice and information to Senior Management, direct reports and depot staff as required;
• Delegation of tasks and duties to suitable/appropriate direct reports and depot staff;
• Facilitation of reports and analytical processes through information sharing and effective communications;
• Delivery of Tool Box Talks and safety briefs to Workers on Site;
• Delivery of training, coaching, mentoring activates to direct reports and depot staff as required;
• Attendance at and participation in Management, Staff and Client meetings; and
• Left handed clerical/administrative duties.
[22] The following tasks and duties were specifically excluded:
• Operation of Forklifts or any other high risk equipment;
• Riding in a passenger cage on a forklift;
• Operation of any trolley, pallet jack, pole, loading strap;
• Manual handling of any freight;
• Wrapping any pallets/freight;
• Opening, closing, locking/latching or otherwise attending to curtains/gates on vehicles;
• Climbing into/out of any truck/van; and
• Carrying any object in your hand/s when walking up or down stairs.
[23] The RTW plan also set out other activities to be avoided, which included:
• Any clerical/administrative or other activity involving use of right hand/arm;
• Opening doors with right hand/arm; and
• Opening cupboards/filing cabinets/drawers with right hand/arm.
[24] The RTW plan also proposed Mr Palibrk resume work for 45 hours a week.
[25] In response, Mr Palibrk emailed Mrs Davitt on 27 July 2019, stating:
“Hi Carolyn
it was strange to receive a email from you so late on a Friday evening. As Mike Saville would say having to work such long hours is a sign that there is no control.
I make comment that I don't enjoy weekends or weekdays due to the pain that I have in my shoulder night and day from being hurt at work with a faulty Truck Curtain. This injury has been confirmed and accepted by the IME and my Doctor.
you have stated that the
specialist :
Dr R McCartney
Occupational Physician
has said that I am fit for modified duties at XL Express after a 30 min examination.
Mr McCartney was a good man but does not know the pain my shoulder causes at the moment.
As you are in receipt of and so is Allianz a medical certificate for work cover stating that I am unfit for work until the 19.8.2019 I will have to follow the certificate so as not to aggravate it more.
My Doctor who Is a registered medical Practitioner is the person looking after my heath and well being .
As there has been no correspondence both verbal or written into my well being regarding my shoulder , I find it strange that as soon as the claim has been accepted and all my sick leave is exhausted that you write to me with a return plan.
I will speak to my doctor in regards to the letter you have said but at this point of time the pain has held me back from returning to work .
As such due to medical reasons caused by a work related injury and following the advise from my Doctor in the form of a work Cover Certificate , I will not be able to return to work on Monday on your plan which was not even discussed.
regards
Michael Palibrk”
[26] Mrs Davitt emailed Mr Palibrk a few hours later, stating:
“Dear Michael
There is obviously a disconnect here. You haven’t sent me any certificates from your doctor about your shoulder. You’ve sent me several certificates about you sick leave for your personal medical and psychological conditions to cover your absence from work since April, but nothing about any incapacity due to your hurting your shoulder on 9/4/19, and you didn’t take any time off for this before you went on sick leave on 16/4/19.
I did get a claim form for your shoulder injury and I know Allianz has accepted the claim, but you haven’t told me anything about any work incapacity due to your shoulder.
I’ll talk to Allianz next week.”
[27] Mr Palibrk says that his doctor did not approve of the RTW plan. Mr Prescott says that the RTW plan was abandoned and that Mr Palibrk was subsequently certified as having no work capacity by his general practitioner, which was accepted by Allianz and XL Express. 4
[28] Mr Prescott says that in respect of Mr Palibrk’s rehabilitation from his psychological injury, Allianz appointed Nabenet Integrated Workplace Services (Nabenet) to provide occupational rehabilitation return to work services. He recalls Mrs Davitt proposing suitable duties on 21 October 2019 and that Nabenet met with Mr Palibrk on 25 October 2019 with a draft report.
[29] A second RTW plan was provided by Nabenet on 29 October 2019. However, as Mr Palibrk continued to certify as being totally unfit for work, it could not be progressed. On 3 December 2019, Allianz advised XL Express that it would “work closely with him [Mr Palibrk] and his treaters to review his ongoing capacity and treatment.”
[30] On 30 January 2020, Allianz advised XL Express that:
• it had approved further surgery for Mr Palibrk due to a re-tear of the ligament/muscle;
• Mr Palibrk would “continue to have no capacity for work from a physical and psychological point of view”; and
• “once he has made headways with his recovery from surgery we will review re-engaging Nabenet to help facilitate his return to work, and work closely with his medical treaters.”
[31] On 4 February 2020, Nabenet advised XL Express that Mr Palibrk’s treating psychologist, Dr Matthews, had advised it in the following terms:
• “…we need to give Michael a period to undergo treatment and recovery without trying to address his RTW date as this exacerbates his [psychological symptoms]”; and that
• “Allianz is supportive of Mr Palibrk’s Original Employer Services (OES) file closing, and to be reviewed at a more appropriate time post-operation.”
[32] Mr Prescott says he adopted this advice.
[33] In March 2020, Mr Palibrk was scheduled to have an IME on 1 May 2020 for his shoulder injury and a further IME on 13 May 2020 for his psychological injury. These were subsequently postponed due to COVID-19 restrictions.
Show cause
[34] On 18 April 2020, Mr Prescott says that as Mr Palibrk had been on weekly benefits for 12 months, he requested that Allianz confirm it would be taking over paying superannuation contributions and that it would provide copies of Mr Palibrk’s Certificates of Capacity and advice as to the current estimate of the duration of his total incapacity.
[35] On 22 April 2020 Allianz replied, advising “…this will continue for the foreseeable future as he is still in receipt of psych treatment and recently had surgery.”
[36] Mr Prescott says that by this time, Mr Palibrk’s position had been temporarily filled for over 12 months and that XL Express needed to permanently fill the position of Depot Manager in order to give stability to the depot’s operation and management team.
[37] At 12.36pm on 1 May 2020, Mr Palibrk put in a request for payment of five weeks’ annual leave but says XL Express only made payment for one week. Mr Prescott replied at 12.44pm, stating that he had not received Mr Palibrk’s new WorkCover certificates of capacity. Mr Palibrk responded to this at 1.04pm, stating:
“Hi Clive
All certificates have been sent to Allianz as I have done as directed by them.
The both certificates are to the 28.05.2020
As you are aware that I am allowed to claim annual leave as well as per the legislation for Work Cover.
Would still like to talk one day as no one has even spoken to me from XL”
[38] At 4.11pm on 1 May 2020, Mr Prescott requested the XL Express HR Manager, Ms Kylie Oliver, to send a Show Cause Notice to Mr Palibrk.
[39] Ms Oliver sent a letter to Mr Palibrk dated 5 May 2020 which stated as follows:
“Dear Michael,
Show Cause Notice (inability to perform inherent requirements of role)
XL Express maintains a high commitment to the rehabilitation and ongoing management of injured workers to maximise their ability to return to the work environment and contribute positively to the business.
We write to advise you of our ongoing concerns in relation to your inability or unwillingness to advise us of when you may likely be able to, or intend to, return to pre-injury duties, or advise us of when you may likely be able to, or intend to, undertake any suitable duties that you might be able to safely undertake, and your inability or unwillingness to collaboratively work with us to facilitate a return to work.
You are directed to Show Cause as to why your employment should not be terminated on the basis of there being no reasonable prospect of you being able to perform the inherent requirements of your role within a reasonable time frame.
This is based on:
• your continued inability to return to work,
• your continued inability or unwillingness to collaboratively work with us to identify any suitable duties,
• your continued inability or unwillingness to provide an indication of when you might likely be fit to return to pre-injury duties, and
• our need to permanently fill the position of Depot Manager.
Given your continued absence from the workplace, you are required to provide your response in writing. You have seven days in which to respond to this Show Cause Notice. Your response is to be sent by email to [email address redacted] by no later than 5pm Wednesday 13 May 2020.
Michael, this is your opportunity to provide us with a response as to why we should not terminate your employment. A decision regarding your ongoing employment will be made after 5pm Wednesday 13 May 2020, and will be informed by the information in our possession at the time, including any response you make. We encouraged you to respond so that our decision can be informed by your views.”
[40] Mr Palibrk submitted a written response on 13 May 2020 as follows:
“Dear Kylie
I am in receipt of your tetter to “show cause” dated 5th may 2020.
I must respond to the uninformed or misinformed statements that you have made in the email.
At no time have I been “unwilling” or to “work collaboratively” with XL Express or Management, on numerous occasions I have asked to speak to HR and also Clive Prescott with no response other than to be advised by HR that “it would not be prudent to talk to me” and no response to a conversation at all with Cleve Prescott.
I am unable to advise you of when I can return to my pre injury duties or modified duties due to the major operation performed only 5 weeks ago and my Doctors not supplying clearance both medically and Phycology wise.
I am still suffering severe pain from the operation and undergoing Physiotherapy and Phycology treatment with little results at the moment.
You have stated that you need to fill the position of Depot Manager (my pre injury employment). This was filled many many months ago by Brenda Mallory, as he has personally stated this to numerous current and departed employees to which have advised me of this.
I must also advise at no time have I had assistance from HR or XL Express in the transition to recovery of my injury or assistance to return to work.
Kylie, I wish you luck in your position of HR Manager, but ask that going forward people are treated in a professional way after a work place injury, not as I have been.
I await your response to the results of your meeting with Management in regard’s to your decision.”
[41] On 15 May 2020, Mr Palibrk received the termination letter, which said:
“Dear Michael,
Outcome of Show Cause Notice (inability to perform inherent requirements of role)
We acknowledge receipt of your email dated 13th May 2020, as your response to our notice for you to Show Cause, as to why your employment should not be terminated on the basis of there being no reasonable prospect of you being able to perform the inherent requirements of your role within a reasonable time frame.
We have taken the time to consider your response and note that you are unable to advise when you will be able to perform your pre injury duties or modified duties and that your doctors have not given a clearance for either your physical or psychology injuries. This confirms the advice we received from your workers’ compensation case manager on 22nd April 2020 that your total incapacity for work will continue for the foreseeable future as you are still in receipt of psych treatment and recently had surgery.
Regrettably, the decision has been taken today to terminate your employment terminated with immediate effect due to your inability to perform the inherent requirements of your role within a reasonable time frame.
As you are still in possession of a company vehicle, you are required to cease using the vehicle effective immediately. We will arrange for the vehicle (plus any other company equipment and information in your possession or control which we ask you to lock in the boot of the vehicle) to be picked up from your home by a tow truck to be taken for disposal. Please ensure that the vehicle is parked on the street or in some other easily accessible location to allow flatbed pickup.
You will be paid your unused annual leave and any long service leave entitlements up to the date of your termination in the next pay run after the return of all company equipment and information). You are not entitled to payment in lieu of notice. Allianz will continue to pay your weekly benefits and superannuation.
We refer you the attached and the below links for information regarding your rights upon termination, including termination while on workers’ compensation.”
Initial matters to be considered
[42] There is no dispute between the parties, and I am satisfied, in relation to the four matters referred to in ss.396(a)-(d) of the Act, as follows.
[43] Firstly, Mr Palibrk’s application was made within the 21-day period required by s.394(2) of the Act (s.396(a) of the Act).
[44] Secondly, there is no dispute that Mr Palibrk is a person protected from unfair dismissal as defined by s.382 of the Act in that he is an employee who has completed a period of employment of at least the minimum employment period, and the sum of his annual rate of earnings and such other amounts is less than the high income threshold (s.396(b) of the Act).
[45] Thirdly, as to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute and I find that XL Express is not a small business employer within the meaning of s.23 of the Act, having had 15 or more employees at the relevant time. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.
[46] Fourthly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy and I find this to be the case (s.396(d)) of the Act).
Section 385 – Was Mr Palibrk’s dismissal unfair?
[47] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Section 385(a) – Was Mr Palibrk dismissed?
[48] There was no dispute, and I am satisfied, that Mr Palibrk was dismissed within the meaning of s.386(1) of the Act.
Section 385(c) – Small Business Fair Dismissal Code
[49] As outlined in paragraph [45] above, s.385(c) of the Act does not apply.
Section 385(d) – Genuine redundancy
[50] As outlined in paragraph [46] above, s.385(d) of the Act does not apply.
Section 385(b) – Harsh, unjust or unreasonable
[51] The criteria I must take into account when required to assess whether a dismissal was harsh, unjust or unreasonable, within the meaning of s.385(b) of the Act, are set out in s.387 of the Act.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[52] I am under a duty to consider each of these criteria in reaching my conclusion and will do so below. 5
Was there a valid reason for dismissal relating to Mr Palibrk’s capacity or conduct? (s.387(a))
[53] In considering whether the dismissal of Mr Palibrk was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees).
[54] A valid reason need not be the reason given to Mr Palibrk at the time of the dismissal. 6 The reason or reasons should be “sound, defensible and well founded”7 and should not be “capricious, fanciful, spiteful or prejudiced”.8
[55] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 9 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).
[56] The reason for the dismissal that was given to Mr Palibrk in the letter of termination dated 15 May 2020 was his inability to perform the inherent requirements of his role within a reasonable time frame. This is therefore a case in which it is asserted that there was a valid reason for Mr Palibrk’s dismissal related to his capacity.
[57] In the Form F3, XL Express set out the basis for its decision, as follows:
“• Mr Palibrk’s longstanding and ongoing incapacity to perform the inherent requirements of his role;
• the workers’ compensation certificates and the Case Manager’s statement;
• Mr Palibrk’s Show Cause response;
• the absence of medical or anecdotal evidence indicating a foreseeable return to work in any capacity;
• the nature of Mr Palibrk’s physical and psychological conditions and the demanding nature of the role of Depot Manager;
• the expiry of the obligation to provide pre-injury and/or suitable employment after the 52 week workers’ compensation ‘employment obligation period’; and
• the need to permanently fill the position of Depot Manager after more than 12 months.” 10
[58] Mr Prescott says he considered various certificates that had been issued by Mr Palibrk’s Certificates of Capacity issued by his general practitioner from 23 April 2019 to 24 April 2020 which covered his total incapacity up to 28 May 2020, the lack of progress in the resolution of Mr Palibrk’s medical conditions, the advice of Allianz dated 22 April 2020, and Mr Palibrk’s Show Cause response on 13 May 2020. Additionally, Mr Prescott gave the following evidence:
• With regards the progress of the Applicant’s psychological illness treatment as per section 5 of the successive CoCs, I noted from the certificate covering his total incapacity from 03/04/2020 to 01/05/2020 (CP35) that he was prescribed antidepressants (10mg escitalopram) on 22/07/2019 and after three months the dosage was increased on 08/11/2019, and from the certificate covering his total incapacity from 01/05/2020 to 28/05/2020 (CP55) that this medication was ineffective and a change of medication to sertraline was prescribed.”
• With regards the progress of the Applicant’s physical injury treatment as per section 5 of the successive CoCs, I noted from the certificate covering his total incapacity from 03/04/2020 to 01/05/2020 (CP22) that after corticosteroid injection had been ineffective and after arthroscopic repairs of his supraspinatus and bicep tendons, he had ongoing pain and a further arthroscopy had demonstrated irreparable tendon and an anterior capsular repair had been performed on 13/03/2020, and his ongoing treatment plan remained unchanged.”
• I noted that none of Dr Middleton’s CoCs gave an ‘estimated timeframe for return to work’ as provided for on the form or specified the expected duration of the Applicant’s incapacity as required by s.167(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).”
• I noted his workers’ compensation case manager’s advice (CP50) that the incapacity would continue for the foreseeable future as he was still in receipt of psych treatment and recently had surgery and in the context of Dr Mathews’ advice … that the Applicant was still suffering “severe pain” as at 13/05/2020.”
• I noted that there was no contrary evidence or indication that the Applicant might be able to return to work in any capacity in the foreseeable future.”
• I took into account that the Applicant was receiving workers’ compensation at the determined rate and would continue to do so for the foreseeable future.”
• I had no regard to whether the Applicant had been unwilling to work collaboratively with the company or management or whether the Applicant had displayed a belligerent attitude towards the company and its senior management or a breakdown of the employment relationship through his attitude regarding the payment of annual leave on short notice after previously having been advised what was expected.”
• I concluded … that the Applicant was incapable of returning to work and was therefore unable to perform the inherent requirements of his position and I determined his employment should be terminated.”
[59] In response to the reasons set out by XL Express in its termination letter dated 15 May 2020 and its Form F3, Mr Palibrk submits as follows:
• XL Express relied on advice from a case manager of 22 April 2020, which had not been previously put to Mr Palibrk; 11
• XL Express treated Mr Palibrk harshly and unreasonably in claiming that he was not entitled to any payment in lieu of notice in circumstances where his employment contract stated that he was entitled to eight weeks’ notice of termination; 12
• The expiry of Mr Palibrk’s workers’ compensation obligation period is not a valid reason for dismissal related to conduct or capacity; 13
• The inherent requirements that Mr Palibrk allegedly can no longer perform have not been identified; 14
• Mr Palibrk could have possibly performed some of the identified requirements set out in the return to work plan proposed by XL Express, however, its failure to propose a plan that would enable Mr Palibrk to return to work gradually (instead of requiring an immediate return to a 45 hour week/9 hour day) rendered him unable to demonstrate that he could perform the requirements; 15
• If the return to work plan implicitly identified the inherent requirements, then there is no evidence of a medical nature that demonstrates Mr Palibrk could not perform them; 16 and
• XL Express’ reliance on Mr Palibrk’s response to the show cause letter was faulty as the process was precipitous and did not realistically permit him to marshal a case against dismissal in that short week, particularly in circumstances where Mr Prescott already believed that the employment relationship had broken down irretrievably. 17
[60] Mr Palibrk further submits that no examination of the inherent requirements of his job was undertaken and nor was there evidence that he could not perform the requirements of it. He submits that there was no medical evidence and the reliance on the certificates of capacity “demeans the approach that ought to apply.” 18
[61] For these reasons, Mr Palibrk submits that the reasons for dismissal advanced by XL Express are not valid reasons for dismissal, particularly if the Commission concludes that the real reason for the dismissal was the breakdown of the employment relationship, which does not go to his capacity or the inherent requirements of the role. 19
[62] XL Express submits that the medical evidence available to it at the time demonstrated that Mr Palibrk was incapable of returning to work in any capacity for the foreseeable future. Moreover, it asserted that conjecturally at any time, Mr Palibrk was incapable of returning to work without significant weight lifting and arm movement restrictions due to his shoulder injury. It submits that there was no conflicting medical evidence at the time it determined to terminate Mr Palibrk’s employment. 20
[63] On this basis, XL Express submits that at the time of his dismissal, Mr Palibrk was inarguably unfit to return to work and was therefore incapable of performing the inherent requirements of his role, amounting to a valid reason for his dismissal relating to capacity. Furthermore, it contends that the ongoing certifications of total incapacity for both his physical injury and psychological illness since his dismissal support the conclusion that Mr Palibrk would remain unfit to return to work in the foreseeable future as being a sound, defensible or well-founded one. 21
[64] It is further submitted by XL Express that Mr Palibrk’s dismissal was not prohibited by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) or otherwise unlawful following the expiry of the “employment obligation period”, during which it had an obligation to provide pre-injury and/or suitable employment pursuant to s.103 after 52 weeks. 22
[65] In CSL Limited T/A CSL Behring v Chris Papaioannou, 23 the Full Bench of the Commission held that when considering a dismissal relating to a person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of the dismissal, the Applicant suffered from the alleged incapacity based on the relevant medical or other evidence before the Commission.24
[66] As to the evidence before me:
a) On 3 December 20219, Allianz advised XL Express that Mr Palibrk was incapacitated for work from both a physical and psychological point of view;
b) On 30 January 2020, Allianz advised XL Express that it had approved a further arthroscopy and possible cuff repair surgery for Mr Palibrk due to a re-tear of the ligament/muscle, which meant he would “continue to have no capacity for work from a physical and psychological point of view” and once he had made headways with his recovery from surgery, it would review re-engaging Nabenet to help facilitate Mr Palibrk’s return to work, working closely with his medical treaters;
c) On 5 February 2020, Nabenet advised that Mr Palibrk would be undergoing a second shoulder surgery and conveyed advice given by his treating Psychologist, Dr Matthews “…we need to give Michael a period to undergo treatment and recovery without trying to assess his RTW date as this exacerbates his [psychological symptoms]”;
d) On 22 April 2020, Allianz forwarded XL Express certificates of capacity for both claims and advised Mr Palibrk’s incapacity would “…continue for the foreseeable future as he is still in receipt of psych treatment and recently had surgery.”
e) There are Certificates of Capacity as follows:
Period of Incapacity | Claim 09190001508 | Claim 21180095346 |
3/4/20 - 1/5/20 | Certificate dated 27/3/20 25 | Certificate dated 27/3/20 26 |
1/5/20 - 28/5/20 | Certificate dated 24/4/20 27 | NIL |
29/5/20 - 26/6/20 | NIL | NIL |
27/6/20 – 25/7/20 | Certificate dated 19/6/20 28 | Certificate dated 19/6/20 29 |
26/7/20 – 23/8/20 | Certificate dated [?]/7/20 30 | Certificate dated 14/7/20 31 |
23/8/20 -20/9/20 | Certificate dated 11/8/20 32 | Certificate date unknown 33 |
[67] At the time of his dismissal and in the four months following until 20 September 2020, Mr Palibrk was certified as having no capacity for employment. I note that the Certificates of Capacity also provide alternative options to an individual being certified as having no capacity for suitable employment, being a capacity for pre-injury employment or a capacity for suitable employment. There is no evidence before me that suggests that at any time Mr Palibrk was certified as having either of these capacities. I note there was no medical or other evidence from Mr Palibrk suggesting otherwise and am not persuaded by Mr Palibrk’s submissions that the inherent requirements that he allegedly can no longer perform have not been identified and that he could have possibly performed some of the identified requirements set out in the RTW plan proposed by XL Express in late July 2019. The consistent advice from his treating practitioners both at the time of his dismissal and in the first four months since has been that Mr Palibrk has had no capacity at all for employment. No prognosis for a return to work has been indicated either.
[68] As such, having regard the evidence before me, I am satisfied that at the time of his dismissal, Mr Palibrk had no capacity for any employment at all with XL Express and no prognosis for a return to work, factors which have been confirmed in the first four months following his termination. I am satisfied there was a valid reason for the termination of Mr Palibrk’s employment relating to his capacity.
Notification of the valid reason (s.398(b))
[69] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 34 in explicit terms,35 and in plain and clear terms.36 In Crozier v Palazzo Corporation Pty Ltd37 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[70] While Mr Palibrk’s position is that there was no valid reason for dismissal and therefore this factor is not relevant, he submits that if the Commission finds there was a valid reason for his dismissal, none of the reasons were put to him in the requisite manner before the decision was made to terminate him. 38
[71] XL Express submits that Mr Palibrk was notified of the reason for his dismissal in the Show Cause letter and Outcome of Show Cause letter. 39
[72] In its letter dated 5 May 2020, XL Express gave notice that Mr Palibrk’s employment might be terminated on the basis of there being no reasonable prospect of him being able to perform the inherent requirements of his role within a reasonable time frame. The letter provided Mr Palibrk with the opportunity to submit a response and placed him on notice that a potential outcome of the process could be the termination of his employment. It stated that any decision regarding his ongoing employment would be made after 5pm on 13 May 2020 and that it would be informed by the information in XL Express’ possession at the time, including any response Mr Palibrk made.
[73] Therefore, on the basis of the evidence before me, I am satisfied Mr Palibrk was notified of the reason for the termination of his employment before the decision was made.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
[74] Ordinarily, an employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 40
[75] Mr Palibrk submits he was not given an adequate opportunity to respond to the reasons relied upon for his dismissal. 41
[76] XL Express submits that Mr Palibrk was provided the Show Cause Notice by the HR Manager, Ms Kylie Oliver, with whom he had had no prior dealings and no valid apprehended bias. Furthermore, it contends that Mr Palibrk was encouraged to respond, had done so ahead of time, did not make any queries and did not request an extension of time to respond. XL Express also asserts that there was no basis for conjecturing that an IME would differ from the ongoing certifications of Dr Middleton. 42
[77] I am satisfied Mr Palibrk was given an opportunity to respond and note that his response addressed his capacity and prognosis at that time and the suggestion that he had been unable or unwilling to collaboratively work with XL Express. Mr Palibrk also asserted in his response that the position of Depot Manager had already been permanently filled.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[78] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[79] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 43
[80] This consideration is irrelevant in this case. There was no unreasonable refusal by XL Express to allow Mr Palibrk a support person at discussions relating to his dismissal. As noted, there were no discussions at all.
Warnings regarding unsatisfactory performance – s.387(e)
[81] As Mr Palibrk was not terminated on the basis of unsatisfactory performance, this factor is not a relevant consideration in this case.
Impact of the size of the Respondent on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[82] Mr Palibrk submits that XL Express has both human resources specialists and legal staff. Moreover, he contends that XL Express is not a small employer.
[83] I do not consider the size of XL Express to have been a relevant factor in this case (s.387(f)) and have noted that XL Express has an in-house legal and Human Resource Management specialists, such that s.387(g) of the Act does not apply.
Other relevant matters – s.387(h)
[84] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[85] Mr Palibrk submits that XL Express did not treat him in a “good and considerate manner”, rendering his dismissal harsh and unreasonable. In particular, he asserts that XL Express acted aggressively towards him during the entire period of his absence, during which it also acted unreasonably and concluded that the employment relationship had broken down before dismissing him for other reasons. 44
[86] I have noted that on 14 May 202, Mr Palibrk and Mr Prescott had an ill-tempered exchange of emails flowing from a request from Mr Palibrk for the payment of annual leave. Mr Palibrk’s correspondence indicated he was aggrieved and that he considers he was receiving particular treatment from XL Express and its management simply because he had been injured at work. Both Mr Palibrk and Mr Prescott laced their emails that day with sarcasm and Mr Palibrk relies in particular on the statement “Your first email was unnecessary, and your second simply confirms your belligerent attitude towards XL and its senior management and the total breakdown of the employment relationship” in the email Mr Prescott sent him at 11.40am that day in support of his submission that the “total breakdown of the employment relationship” was the real reason for his dismissal.
[87] Moreover, Mr Palibrk contends that XL Express’ failure to comply with the basic contractual obligations of notice should be taken into consideration, given that he could have expected to receive approximately $20,000 in lieu of the eight weeks’ notice. Mr Palibrk asserts the failure to pay notice has been found to be a contributing factor in a finding of harsh, unjust and unreasonable. 45
[88] Mr Palibrk also submits he had significant service with XL Express and that his dismissal has placed him and his family at risk of significant personal hardship. 46
[89] Mr Palibrk ultimately submits that his dismissal was unreasonable as the evidence or material before XL Express did not support the conclusion and was harsh due to his economic and personal consequences resulting from the dismissal. 47
[90] XL Express submits that Mr Palibrk was receiving workers’ compensation at the time of his dismissal, and will continue to do so for the foreseeable future. 48 Furthermore, it contends that the “fair go” principle also applies to it and that the Commission should give weight to the lengthy period of over 12 months in which it kept Mr Palibrk’s senior management position open. It also submits that at all times, it conducted a procedurally fair process and acted professionally and proportionately.49
[91] As to Mr Palibrk’s notice period, XL Express submits that as he was totally incapacitated, there was no question that he should be required to serve out the notice period as provided for under the terms of his employment contract, and as he would continue to receive the weekly compensation payments during the notice period, there was no loss of wages for which compensation by way of a lump sum payment in lieu of notice was due. On this basis, XL Express contends that pay in lieu of notice in addition to the weekly payments of compensation would constitute “double dipping” and would otherwise be an unfair impost on it. 50
[92] Upon Mr Palibrk having made his workers’ compensation claims, Mr Prescott adopted an approach towards him that commenced with suspicion, morphed into irritation and culminated in antagonism. By the time of Mr Palibrk’s termination, Mr Prescott seemed to be taking matters of process associated with the management of Mr Palibrk’s employment personally. However, while I consider all of this was unnecessary and lacking in empathy, I do not accept the submission that the breakdown of the employment relationship was the motive for the decision to terminate Mr Palibrk’s employment. XL Express terminated Mr Palibrk’s employment when it did because over twelve months had passed since his injuries and he had no capacity for employment.
[93] Nonetheless, I note that Mr Palibrk’s contract of employment was expressed to be subject to the terms of the National Transport Operations Pty Ltd Certified Agreement 2002 51 (the Agreement) which remains in operation. Clause 2.3(4)(b) of the Agreement provides that XL Express could terminate Mr Palibrk’s employment by the giving of notice or by payment in lieu at the employee’s ordinary rate of pay. Mr Palibrk’s contract of employment provided that notwithstanding the notice period specified in Clause 2.3(4) of the Agreement, he was entitled to 8 weeks’ notice. When Mr Palibrk’s employment was terminated on 15 May 2020 with immediate effect, he was neither afforded 8 weeks’ notice, nor was he paid 8 weeks at his ordinary rate of pay in lieu of notice by XL Express. I reject the submissions made by XL Express in relation to the notice period and pay in lieu. Regardless of being absent on workers’ compensation payments at the time of his dismissal, Mr Palibrk had an entitlement to notice of termination of his employment. I consider the failure of XL Express to provide Mr Palibrk with notice renders his dismissal unfair.
Remedy
[94] In the circumstances where I have found Mr Palibrk was protected from unfair dismissal at the time of being dismissed and that he has been unfairly dismissed, s.390 of the Act prescribes that a remedy is available. Accordingly, I am required to determine whether to order the reinstatement of Mr Palibrk or, if I am satisfied reinstatement is inappropriate, to order the payment of compensation if I am satisfied that such an order is appropriate in all the circumstances. 52
[95] The primary remedy under the Act is reinstatement, however Mr Palibrk does not seek reinstatement. Having regard to this and the circumstances of this case, I am satisfied it is inappropriate to order reinstatement (s.390(3)(a)).
[96] I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s.390(3)(b)).
[97] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered.
[98] In considering each of the criteria in s.392 of the Act, it is useful to refer to the helpful restatement of principles to be applied in the assessment of compensation in Johnson v North West Supermarkets T/A Castlemaine IGA: 53
“[9] The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:
“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”
[10]The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic,’ but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide, ‘while the task of determining an anticipated period of employment can be difficult, it must be done.’
[11]Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.” (My emphasis - references omitted)
[99] The Sprigg formula was discussed and refined in Ellawala v Australian Postal Corporation 54as follows:
“[31] The principles applicable to determining an amount to be ordered in lieu of reinstatement are dealt with in Sprigg. In that case the Full Bench endorsed the following approach:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
[32] Any amount provisionally arrived at by application of these steps is subject to whether offsetting weight is given to other circumstances, including those that need now to be taken into account under paragraphs 170CH(7)(a), (b) and (c). The legislative cap on the amount able to be ordered is then applied pursuant to ss.170CH(8) and (9).
[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
“...we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.”
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.
[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination - that is $36,000 - is deducted from the Commission's estimate of the applicant's lost remuneration. Monies earned after the end of the "anticipated period of employment", 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.
[36] The next step is to discount the remaining amount for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which the applicant was subject might have brought about some change in earning capacity or earnings.
…
[45] In relation to the fourth step set out in Sprigg we note that the usual practice is to settle a gross amount and leave taxation for determination.” (my emphasis, references omitted)
[100] In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, 55 the Full Bench stated that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. The Full Bench also proffered that the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.
[101] I will assess compensation having regard to these matters.
Remuneration that would have been received if the dismissal had not occurred – s.392(2)(c)
[102] The agreed position at the hearing was that Mr Palibrk’s gross earnings were $131,000 per annum which was paid by XL Express at the rate of $2,519.25 per week, together with an additional weekly payment in relation to his entitlement to a motor vehicle equating to $97.58 per week. 56 The combined total is $2,616.83 gross per week. Additionally, Mr Palibrk’s evidence was that at the time of his dismissal he was receiving $2,080 gross per week in workers’ compensation payments.
[103] Mr Palibrk was aged 62 years at the time of his dismissal. He submits his employment would have continued indefinitely or for at least a further three years to come.
[104] XL Express submits the probability is that Mr Palibrk’s performance would not have improved to the standard required by management and that he would have resigned or “self-selected” for termination within one or two months.
[105] Having regard to the certificates of capacity during and following Mr Palibrk’s employment and the lack of prognosis suggesting a return to work, I am not satisfied that Mr Palibrk would have remained in employment with XL Express for a further period beyond the eight week notice period to which he was entitled, had it been honoured. Based on the rate of earnings Mr Palibrk was receiving at the date of his dismissal, the remuneration he would have received during that period would have been $16,640.00 (gross). This is the starting point.
Remuneration earned – s.392(2)(e) and income reasonably likely to be earned – s.392(2)(f) and (g)
[106] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is also, to be taken into account (under s.392(2)(f) of the Act). Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula. 57
[107] Mr Palibrk has not earned any additional remuneration but has continued to be paid workers’ compensation payments. He has therefore earned approximately $2,080.00 gross per week in the 22 weeks since termination and this means he has earned $45,760.00 in the period from the date of his dismissal to date.
[108] As to the consideration in s.392(2)(f) of the Act, there is no evidence suggesting Mr Palibrk is not reasonably likely to continue to earn $2,080 gross per week during the period between now and the date upon which I would order that the compensation be payable (21 days).
[109] However, as stated by the Full Bench in Ellawala v Australian Postal Corporation: 58
“Monies earned after the end of the "anticipated period of employment" … are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.”
[110] This means in mathematical terms, the actual income for Mr Palibrk in the 8-week period from the date of his dismissal ($16,640.00 gross)) equates to the amount calculated for the purpose of s.392(2)(c) ($16,640), 59 leaving zero compensation.
Length of service – s.392(2)(b) and any other matters – s.392(2)(g)
[111] Mr Palibrk had been employed full time for nine years and 4 months at the time of his dismissal. He was dismissed without notice nor payment in lieu for what would otherwise have been his entitlement of eight weeks’ notice. It is appropriate to consider and take into account Mr Palibrk’s length of service and his contractual entitlement to notice under s.392(2)(b) and/or as a relevant matter under s.392(2)(g). 60 In this matter, I consider it is appropriate for Mr Palibrk to be compensated for not having been afforded his contractual entitlement to notice, the denial of which he suffered because of his unfair dismissal. The quantum of eight weeks’ pay at Mr Palibrk’s ordinary rate of pay of $2,616.83 per week produces a total of $20,934.64 gross.
[112] I do not consider there is any basis for any deduction for contingencies in this matter and it will be left to XL Express to deduct taxation required by law.
Viability – s.392(2)(a)
[113] There was no evidence before me that would support a finding that an order for compensation will affect the viability of XL Express in any material way and there will be no deduction made having regard to this factor.
Mitigation efforts – s.392(2)(d)
[114] In considering whether Mr Palibrk has taken steps to mitigate the loss suffered as a result of the dismissal, I note he was going to be consulting with a pain specialist and attending follow-up with the surgeon who operated on his shoulder. There will be no adjustment on account of this factor.
Misconduct – s.392(3)
[115] This factor does not arise in the case.
Compensation cap – s.392(5)&(6)
[116] The amount of compensation I order must not exceed the lesser of:
1) the amount Mr Palibrk received or was entitled to receive during the 26 weeks immediately prior to his dismissal (in this case $2,616.83 gross x 26 weeks = $68,037.58); 61 and
2) half the amount of the high income threshold immediately before the dismissal (in this case $148,7000 ÷ 2 = $74,350.00). 62
[117] As such, the compensation cap in this matter is $68,037.58 gross and the amount of compensation proposed is below this.
Instalments – s.393
[118] I do not consider that there is any reason for compensation to be made by way of instalments.
Shock, Distress – s.392(4)
[119] The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to Mr Palibrk by the manner of his dismissal.
Conclusion
[120] I am satisfied that Mr Palibrk was protected from unfair dismissal, that the dismissal was unfair and that order for compensation is an appropriate remedy in all the circumstances. The overarching requirement in assessing compensation is to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case. 63 In this case, I consider the appropriate amount of compensation to be awarded to Mr Palibrk equates to $20,934.64, less taxation as required by law.
[121] An order requiring the payment of this amount within 21 days will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
G Dircks for the Applicant.
C Prescott for the Respondent.
Hearing details:
2020.
Melbourne (via video on Microsoft Teams):
August 24.
Printed by authority of the Commonwealth Government Printer
<PR723655>
1 Transcript at PN107.
2 Transcript at PN119.
3 Transcript at PN111.
4 Transcript at PN357.
5 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498.
6 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
7 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
8 Ibid.
9 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
10 DCB at p51.
11 DCB at p11 (para 23).
12 Ibid.
13 DCB at p12 (para 28).
14 DCB at p12 (para 30).
15 DCB at p12 (para 29).
16 Ibid.
17 DCB at p13 (paras 34-35).
18 Transcript PN 386.
19 DCB at p14 (para 42).
20 DCB at p72 (para 7).
21 Ibid (para 8).
22 Ibid (para 9).
23 [2018] FWCFB 1005.
24 Ibid at [50] and [77].
25 DCB atp272.
26 DCB at p61.
27 DCB at p278.
28 DCB at p266.
29 DCB at p269.
30 DCB at p263.
31 DCB at p259.
32 Exhibit R2.
33 Exhibit R3.
34 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
35 Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
36 Ibid.
37 (2000) 98 IR 137, 151.
38 DCB at p14 (paras 44-45).
39 DCB at p73 (para 11).
40 RMIT v Asher (2010) 194 IR 1, 14-15.
41 DCB at p14 (para 47).
42 DCB at p73 (para 12).
43 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
44 DCB at p15 (paras 52-53).
45 DCB at p16 (paras 54-55).
46 DCB at p16 (para 56).
47 DCB at pp16-17 (para 57).
48 DCB at p74 (para 17).
49 Ibid (para 18).
50 Ibid (para 19).
51 PR913428.
52 Section 390(3) of the Act.
53 [2018] FWC 679.
54 Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000).
55 [2017] FWCFB 429 at [43].
56 Transcript PN222.
57 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [31].
58 Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000).
59 See above at paragraph [105].
60 Double N Equipment Hire Pty Ltd t/a A1 Distributors v Alan Humphries[2016] FWCFB 7206 at [34].
61 Fair Work Act 2009, s.392(6)(a)(ii).
62 Fair Work Act 2009, s.392(5)(b).
63 McCulloch v Calvary Health Care Adelaide[2015] FWCFB 873 at [29].
0
12
0