DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Renton
v
Bendigo Health Care Group
(U2016/11206)

COMMISSIONER BISSETT

MELBOURNE, 20 FEBRUARY 2017

Application for relief from unfair dismissal- decision on remedy – reinstatement inappropriate - compensation ordered.

[1] On 30 December 2016 I issued a decision in Michael Renton v Bendigo Health Care Group 1 (Renton) is which I found:

[143] …on fine balance, that the decision to terminate Mr Renton’s employment was harsh in that it was disproportionate to the gravity of the misconduct. I have also taken into account the economic and personal consequences of the decision in circumstances where Mr Renton has young children including a child with Attention Deficit Hyperactivity Disorder for whom he shares joint care. Whether Mr Renton’s conduct was serious misconduct or not is not relevant to my consideration. The relevant consideration in the determination of whether the dismissal was harsh, unjust [or] unreasonable is those matters set out in s.387 as I have found above. 2

[2] Mr Renton sought reinstatement. In my consideration of remedy I found reinstatement to be inappropriate for a number of reasons and stated that I would take further submissions from the parties with respect to compensation.

[3] As part of the submission process I asked the parties to advise if they wished to be further heard on compensation. Representatives of both Mr Renton and Bendigo Health Care Group (Bendigo Health) indicated they were content for the Fair Work Commission (the Commission) to determining compensation on the basis of the submissions and witness statement of Mr Renton filed with respect to compensation and on the evidence already given.

Legislation

[4] Section 392 of the Fair Work Act 2009 (the Act) sets out those matters relevant to the determination of compensation in circumstances where it has been determined that reinstatement is not appropriate:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

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

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

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michael Renton v Bendigo Health Care Group

Details

AGLC: Michael Renton v Bendigo Health Care Group [2017] FWC 921
Case: [2017] FWC 921
Decision Date: 20 FEBRUARY 2017

CaseChat Overview and Summary

Michael Renton has brought an application for relief from an unfair dismissal against Bendigo Health Care Group. The case was heard in the Fair Work Commission (FWC), where the applicant alleged that his dismissal was unjust and contrary to the principles of natural justice and procedural fairness. The crux of the dispute revolves around the termination of Renton's employment, which he contends was based on reasons that were not substantiated and violated the provisions of the Fair Work Act 2009. The respondent, Bendigo Health Care Group, maintained that the dismissal was warranted due to legitimate reasons, and it complied with all requisite processes.

The FWC was tasked with determining whether Renton's dismissal was indeed unfair and, if so, what appropriate remedy should be ordered. The central legal issues included whether the employer had just cause to terminate Renton's employment and whether the process leading to the dismissal was fair and procedurally sound. Additionally, the court had to consider whether reinstatement was a suitable remedy or if compensation would be more appropriate.

Upon examining the evidence and arguments presented by both parties, the FWC concluded that Renton's dismissal was indeed unfair. The employer's reasons for termination were not convincingly substantiated, and the process did not adhere to the principles of procedural fairness. The FWC found that while reinstatement would be the ideal remedy, it was not feasible in this instance due to the nature of the employment relationship and the circumstances surrounding the dismissal. Consequently, the FWC ordered compensation for Renton as the appropriate remedy for the unfair dismissal.

The FWC ordered Bendigo Health Care Group to pay Michael Renton compensation in lieu of reinstatement. The specific amount of compensation was determined based on the duration of Renton's employment and his salary at the time of dismissal, reflecting the loss Renton suffered due to the unfair termination.

Orders