Mr Bradley Lewis v CQ Group Australia Pty Ltd

[2014] FWC 8466

[2014] FWC 8466

FAIR WORK COMMISSION

DECISION

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

Mr Bradley Lewis
v
CQ Group Australia Pty Ltd
(U2014/1158)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 1 DECEMBER 2014

Summary: whether dismissals harsh unjust or unreasonable – allegations of drug purchasing – misuse of company credit card for the purposes of purchasing of drugs – bullying and harassment allegations.

[1] The Applicant in this matter (Mr Bradley Lewis) has made an application under s.394 of the Fair Work Act 2009 (“the Act”) through which he seeks an unfair dismissal remedy in relation to a decision by CQ Group Australia Pty Ltd (“the employer”) to terminate his employment.

[2] The Applicant had been employed at the Roy Hill mine site as a road train driver and performed some relief supervisor duties.

[3] On or about 31 March 2014, the employer terminated the employment of the Applicant, along with two other employees, Mr David Brown and Employee X, on grounds of serious misconduct. Mr David Brown also made an application for an unfair dismissal remedy, which I have determined by way of my decision in [2014] FWC 8594.

Background

[4] In March 2014, unidentified employees were said to have approached the recently appointed Bulk Haulage Manager, Mr Peter Spence, and made a complaint about the conduct of the Applicant, Mr Brown and Employee X. Mr Spence claimed that he was informed that they had made physical threats against the family of another employee, Mr John Quici, and that the three employees would disappear from site for a number of hours in the middle of their shifts. Mr Spence undertook an investigation into the allegations.

[5] In the course of so doing, Mr Spence interviewed Mr Quici in relation to the allegations. Mr Quici confirmed that the allegations were correct in that he and his family had been threatened by the three employees. Mr Spence claimed Mr Quici informed him that the three employees would harass and bully him to take the company credit card to an ATM to withdraw money so that he could purchase drugs on their behalf. Mr Quici claimed that Employee X was his immediate supervisor so he was reluctant to report the behaviour.

[6] Mr Quici provided two signed statements. Ultimately, however, he did not appear to give evidence, claiming that he was in fear of reprisals should he do so.

[7] On the documentation I have before me, Mr Quici contended that in January 2014 he had been approached by Employee X, who was his supervisor, and asked if he could purchase “ice” (or methamphetamines) for him.

[8] Employee X initially enquired of Mr Quici as to whether he knew anyone who could supply ice and when Mr Quici informed him that he did, Employee X asked him to source the product for him.

[9] Mr Quici claimed that he did “not want to do this but I was pressured by [Employee X] until [he] agreed to purchase the drugs”. Mr Quici claimed that:

“In my mind this was a one off occurrence and I had no wish to be involved in the purchasing of illicit drugs. I felt pressured to comply with the request because [Employee X] was my immediate boss.”

[10] Mr Quici claimed further that:

“After that one initial occasion I received many further requests from [Employee X] as well as from [both of the Applicants].

[11] Mr Quici went on to allege that:

“[...] between January 2014 and March 2014 I was approached by David Brown, [Employee X] and Bradley Lewis (also known as Barney) demanding that I purchase ice for them. I would have received requests to purchase ice for [Employee X], Brown and Lewis on at least ten to twelve occasions between January 2014 and March 2014. I would regularly receive text messages and telephone calls from them threatening me and my family if I did not do as they said.”

[12] Mr Quici gave further evidence that the three employees:

“[...] would often demand that I leave site at Roy Hill during work hours and travel to Port Hedland with Mr Nicholson’s company credit card and some of their personal credit cards. Under the instructions of Employee X, Brown and Lewis I would withdraw money from the company credit card and then use the money to purchase the drugs.”

[13] Mr Quici also added that on occasion Mr Lewis:

“gave me his own personal card with instructions to withdraw money from his own account and use the funds to purchase drugs for him.”

[14] Mr Quici claimed that he continued to conform with the employees’ requests to purchase drugs on their behalf because also he was told by the three employees:

“if I did not comply with their requests I would not have ongoing employment. I took those threats seriously because Employee X was in a management role with the respondent.”

[15] Mr Quici claimed that Mr Brown would “often send me text messages saying that if I did not follow their instructions I was no good to him and that he would get someone else that could.”

[16] Mr Quici claimed that such was the frequency of his contact with the three employees his wife became aware of the reason for the intensity of his interactions:

“When I told David Brown about this, he became agitated and made threats of physical violence against her if she told Samsung, the principal contractor on site.”

[17] A short signed statement by Mr Quici (dated 15 May 2014) was also handed up in the course of the proceedings. That statement read as follows:

I was instructed by [Employee X] while working, to park my truck up and tell people I was working in the workshop, I was harassed and bullied and told to take credit cards to the ATM at the Shell roadhouse, withdraw cash and go and pick up drugs. On several occasions, I estimate about nine times.

I was being threatened with physical violence by [Employee X] if I did not do as he said. David Brown would often ring me while I was at home threatening me to go and get him some drugs. David Brown sent text messages threatening my family.

Brad Lewis gave me cash and bank card telling me to go and get him some drugs.

I was intimidated and treated like a dog while was at work i was often told I would be f**ked off and not have a job if I did not do as they said.

[18] The employer led evidence as to the unauthorised use of Employee X’s company credit card to withdraw cash. In this regard, Mr David Collins, the employer’s general manager, claimed that he interviewed Employee X who admitted the inappropriate use of the credit card and that he had supplied the pin number to the card to other company employees (some five in all) to enable them to withdraw cash.

[19] The transaction history on the credit card account shows that there were some 19 withdrawals of cash of amounts between $200 and $520 between January 2014 and March 2014.

[20] The employer also indicated that drug-related equipment was found in Employee X’s belongings which related to the smoking of amphetamines.

[21] Employee X’s employment was said to have been terminated for these reasons.

[22] The Applicant denied the claims made by Mr Quici.

[23] Mr Quici, as mentioned earlier, did not make himself available for purposes of cross examination. Further, no supporting documentation was provided, such as evidence of the threatening text messages he purportedly received.

Mr Lewis’s evidence

[24] Mr Lewis had performed duties as a road train driver for the employer for some 18 months before his dismissal.

[25] Mr Lewis resisted any claims that he ever left site in the course of his duties, for any reason unrelated to his duties.

What about heading into town for takeaway?---I never left the worksite to go into town and buy food.

Do you know of anyone else who did?---No, I do not.

So do you deny being gone for hours at a time?---That is false. 1

[26] Mr Lewis claimed that there were instances in which he had left the site, but that this occurred only when his role as relief supervisor required him to check on employees and to supervise a fitter who was working in the employer’s workshop some 1km from his immediate workplace.

[27] Mr Lewis’ claims in this regard were challenged by the evidence of a contractor to the mine operator, Mr Shawn Haines, who was owner and operator of SJH Heavy Haulage and who worked with Mr Lewis. Mr Haines evidence was that he had observed Mr Lewis (and Mr Brown) leaving the site. Amongst other claims made by Mr Haines (which are more directed at Mr Brown), Mr Haines stated that:

In the period leading up to [Mr Browns] dismissal, I noticed that on several occasions, [Mr Brown] would leave the Project site to travel into town to purchase McDonalds food or Chinese takeaway food.

On these occasions the worksite was left unsupervised with 12 trucks operating.

On some of these occasions he would be accompanied by Brad Lewis, who was a truck driver employed by the Respondent.

[28] Mr Lewis claims that he had at no point threatened Mr Quici or his family and was not involved in any conduct in relation to procuring illicit drugs or withdrawing cash without authorisation from a company credit card (or causing another person, such as Mr Quici, to do so).

[29] Mr Lewis did admit that he had given a credit card and cash to Mr Quici on one occasion, but that had been for an innocent purpose (to procure a torch for him) and unrelated to the accusations set out above.

[30] Mr Lewis contended that any evidence of misconduct on the part of Employee X, in relation to his credit card use, was irrelevant to his own circumstances.

[31] In regards to any threats made to Mr Quici or Mr Quici’s family, Mr Lewis states that he is unaware of any text messages which had purportedly been sent to Mr Quici, and none had been evidenced in these proceedings despite the allegations made.

[32] Mr Lewis also claims that he was targeted for dismissal by Mr Collins, the General Manager, as Mr Collins had terminated him from his employment following a physical altercation in early 2013 (Mr Lewis was then re-employed subsequently).

[33] Mr Lewis also suggested that there was another employee seeking his relief position, and that another employee had posted a comment on Facebook stating that Mr Lewis was a drug user. The evidence in this latter regard was particularly elusive, however.

[34] Mr Lewis gave evidence under examination that he was referred to as one of “the Chemical Brothers” in the camp. Mr Lewis was the subject of harassment from an individual who was seeking his job (presumably his relief supervisory role). Mr Lewis never took any steps to complain about these rumours and accusations and claims.

[35] Mr Lewis claimed he was not a drug user and he had only used marijuana as a teenager, to an unspecified extent or frequency.

[36] Mr Lewis further claimed that Mr Collins denied procedural fairness in respect of his dismissal as Mr Collins had indicated prior to the interview that there had been two dismissals to date “and you’re next.” Mr Collins could not be said to have come to the interview with an open mind as he had predetermined the outcome.

[37] Mr Collins, for his part, denied uttering any such words to Mr Lewis.

[38] Mr Lewis also claimed that he was otherwise denied procedural fairness in so far as his employer did not provide him with any notice of the reasons for the dismissal (having only stated that serious misconduct was involved) or give him an opportunity to respond to those reasons.

Legislative provisions

[39] Section 387 of the Act requires the Commission to determine whether a dismissal was harsh unjust or unreasonable by taking into account the following matters;

(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.

Consideration

(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

[40] In the absence of the direct evidence of Mr Quici, tested under cross examination, I cannot accept the claims as made by Mr Quici. The claims relate to serious allegations indeed and require cautious and careful consideration. I have no doubt, having heard the evidence of Mr Spence and Mr Cox that Mr Quici responded to their enquiries about the conduct of Mr Lewis in the manner in which they detailed in their witness statements.

[41] Mr Spence and Mr Cox were reasonably alarmed by Mr Quici’s claims, and in the context of what came to be known of Employee X’s conduct, they acted quickly to remove Mr Lewis from the workplace. They so acted, as Mr Cox made clear in his evidence, because the conduct of Mr Lewis threatened the reputation of his business and the very significant contract it had won at the Roy Hill Mine site.

[42] But was there a sound basis for the conclusion the employer reached regarding the conduct of Mr Lewis ?

[43] Mr Lewis called into question the genuineness of the claims made by Mr Quici against him, and Mr Quici’s evidence was unable to be tested. Nor was it possible to access the alleged threatening text messages that had been sent to Mr Quici’s mobile phone (as it appears Mr Quici had deleted these messages to shield his wife from the threats).

[44] There was other evidence against Mr Lewis garnered, so Mr Cox claimed, from other employees and supervisors, which was relied upon for the purposes of effecting the decision to terminate Mr Lewis (and Mr Brown). But Mr Cox had no evidence of any particularised kind in this regard (which was not cited in Mr Cox’s witness statement) and no wider evidence was brought to support its claims.

[45] There are inferences drawn by the employer in relation to Mr Lewis which arise from his social relationship with Employee X. In particular, inferences were drawn that Employee X must reasonably have given Mr Lewis access to his credit card which he utilised when they were off site during the night shift (or allegedly so). While there may be evidence - discussed below - as to the conduct of Mr Lewis in relation to leaving site during night shifts, the evidence does not travel further than this, or support an inference that Mr Lewis was accessing Employee X’s credit card for the purposes of purchasing drugs.

[46] There is no evidence of a sufficiently decisive kind that establishes that there was a valid reason for the dismissal of Mr Lewis.

(b) whether the person was notified of that reason

[47] Mr Lewis was given notice of the reasons for his dismissal, that being serious misconduct.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[48] Mr Lewis was not afforded an opportunity to respond to the reasons for his dismissal. Mr Lewis was dismissed without (further) explanation.

(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

[49] Given the circumstances I have set out, no opportunity arose for Mr Lewis to seek the assistance of a support person. This is not a relevant consideration in its own right, though such matters may have weight in relation to the harshness of the dismissal arising from the lack of procedural fairness extended to the Applicant.

(e) if the dismissal related to unsatisfactory performance by the person —whether the person had been warned about that unsatisfactory performance before the dismissal

[50] Mr Lewis was dismissed for conduct related reasons and not because of performance issues.

(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

[51] The employer employed some 50-60 employees directly and cannot be held to be a small business.

(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

[52] The employer did have access to dedicated human resource expertise, but in the circumstances as it saw it, did not utilise that resource for purposes of effecting the dismissal.

(h) any other matters that the FWC considers relevant

[53] Issues arose in relation to evidence given in these proceedings that have bearing upon the ultimate determination.

[54] There were elements of the evidence of Mr Brown and Mr Lewis that had some of the hallmarks of fabrication. Mr Brown and Mr Lewis both gave evidence they knew nothing of “ice” except for what they learned about it through the news or the media; both admitted they knew of their reputations (as “the Chemical Brothers”); and both had separate rivals for their respective positions.

[55] There is other evidence from Mr Haines that is contrary to the claims of Mr Lewis that he (and Mr Brown) never left site for non work related reasons. Mr Haines gave evidence of having seen both Mr Brown and Mr Lewis leaving the site unsupervised at night and returning later with takeaway food.

[56] Mr Haines had no demonstrable reason for giving false evidence - he had no ulterior motive that was evidenced. It was suggested that Mr Haines had a close relationship with Mr Cox - but that was not made out or pressed in any meaningful way. Mr Haines’ evidence was given in a candid manner and without contradiction. At times when his evidence was misrepresented on issues of detail, he corrected the claim.

[57] I have no reason to discount Mr Haines’ evidence and have found him to be a credible witness.

[58] The evidence of Mr Lewis then, was not without its weaknesses. Concealing his movements during night shift, as I have found him to have done, supports an inference that Mr Lewis may have been involved in activities he sought to hide from public view.

[59] There were claims made by Mr Spence that Mr Lewis spoke harshly to other subordinate employees. Mr Spence did not overcook his claim in this regard- he found the behaviour unusual in his experience, but not violent or threatening. He did not pursue the issue as he was a new employee himself at the time.

[60] The evidence is suggestive of the kind of conduct to which Mr Quici’s unsupported materials referred. But in the end, however, the evidence of Mr Spence reflected on the style of Mr Lewis in his (relief) supervisory role, but little more.

Conclusion

[61] Notwithstanding concerns about aspects of the evidence given by Mr Lewis, I nonetheless find on the whole that the circumstances warrant a finding that Mr Lewis was harshly, unjustly or unreasonably dismissed from his employment. I reach this view largely on the basis that the direct evidence was not sufficient to establish a valid reason for the dismissal and the Applicant was denied procedural fairness in the manner in which his dismissal was effected.

REMEDY

[62] Section 390 of the Act reads as follows:

Division 4—Remedies for unfair dismissal

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.

[63] Mr Lewis was a person protected from unfair dismissal for the Act’s purposes, and is a person who was unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether the Applicant can be reinstated.

[64] Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[65] I would neither reinstate (by re-appointing) the Applicant to his former position or order that he be appointed to another equivalent position with the Respondent, or any associated entity of the Respondent, on the same or any other site.

[66] This is because the Applicant himself does not request reinstatement or otherwise. The fact that an applicant does not seek to be reinstated (or otherwise) is a significant reason for not exercising the discretion to reinstate etc. Where an employee is unwilling to return to the workplace a productive and cooperative relationship is unlikely to result.

[67] Because of my findings in this regard I now turn to consider compensation.

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 person during the period between the making of the order for compensation and the actual compensation; and

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

[68] In respect of the above matters that I must take into account I find as follows:

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

[69] There is no evidence that any order I might make for compensation would in some manner affect the employer’s viability.

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

[70] The Applicant had been employed for a relatively short period of time, of some 18 months. This is not a period of time that strongly encourages the making of an order for compensation.

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

[71] There is a necessary element of speculation in such a judgement as must be made by the Commission, as was admitted in the Full Bench in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR. But the judgment must be informed by the surrounding context, as best it can be.

[72] On the evidence available to me, Mr Lewis would have been likely to have remained in employment for a period of a further 10 weeks.

[73] I reach this judgment in relation to Mr Lewis for the reasons that the evidence revealed the following:

• Mr Lewis had only been employed for a period of 18 months and could not be described as an established or long term employee;



• Mr Lewis had difficulties in his relationships with a number of co-workers which was manifested in rumour and innuendo about drug use and being one of the “Chemical Brothers” (if only in the camp), and reasonably would have destabilised his workplace relationships over time. Mr Lewis, for example, claimed he was “harassed” and felt “annoyed” and was “bothered” by the allegations (but did nothing about them);



• Mr Lewis’s communication with his co-workers had fallen into question by the new Bulk Haulage Supervisor;



• Employees had made complaints about Mr Lewis’ conduct to the new Bulk Haulage Manager, who instigated an inquiry (which gave rise to Mr Quici’s interview);



• Mr Lewis had made efforts to conceal from his employer his conduct in leaving the site during night shift work during which he was a relief supervisor, which reveals an approach to his workplace responsibilities that would have jeopardised his longer term employment;



• Mr Lewis made various accusations about his employer regarding breaches of regulatory obligations (regarding overloading, safe driving hours and operating interstate without a permit) (which were all denied by the employer) - this was not suggestive of an employment relationship with a strong foundation;



• Mr Lewis was ill-disposed towards Mr Collins. This was because Mr Lewis believed that Mr Collins “did not wish to retain [his] employment and has sought to remove from CQ Group since he terminated [his] employment back in early 2013.” Mr Lewis held a view, therefore, that his supervisor (Mr Collins) had been seeking to have him dismissed since 2013. This is not indicative of a stable workplace relationship.

[74] Different weight, of course, applies to these various considerations.

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

[75] Mr Lewis applied for six jobs in Western Australia over the 5 week period following his dismissal and before his re-employment.

[76] Mr Lewis made no applications for work in the first week following his dismissal.

[77] There is no compelling reason why Mr Lewis could not have made more applications than this and why he should have limited his applications to his preferred location of work, as he did.

[78] Because Mr Lewis did not make efforts of sufficient intensity or scope to mitigate the losses he suffered because of the dismissal, I will discount Mr Lewis’ payment in lieu of notice by 20% (or two weeks).

(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.

[79] This is not a relevant consideration in relation to the application before me.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation.

[80] This is not a matter that requires any further consideration.

(g) any other matter that the FWC considers relevant

[81] There are no other matters that I consider relevant.

[82] Section 392(3) of the Act provides as follows:

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

[83] The relevant misconduct which I have found to be made out concerns the absence of Mr Lewis (and Mr Brown) from site during night shift. It was the claims in these regards that gave credence to the narrative promoted by Mr Quici to Mr Spence and Mr Cox.

[84] That said, I do not intend to rely on this misconduct for the purposes of reducing the amount that would otherwise be paid to the Applicant. This is because I have already taken this matter into account for the purposes of determining the period of continuing employment, or the anticipated period of further employment. That is, the conduct of the Applicant in concealing his activities from his employer taken with other factors suggest that Mr Lewis would not have been likely to be a long term employee. It seems to me to misapply the Act’s provisions to utilise the same matter twice for the purposes of effectively reducing the compensation to be paid to an employee.

[85] Section 392(4) of the Act provides as follows:

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

[86] My order for compensation makes no allowance for the above proscribed matters or considerations.

[87] Section 392(5) of the Act provides as follows:

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

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

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

[88] Section 392(6) of the Act provides as follows:

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[89] The order that I propose to make does not need to take into account the statutory cap.

[90] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[91] The Respondent has made no application to pay any amount I may order to be paid as compensation in instalments.

CONCLUSION IN RELATION TO REMEDY

[92] The amount to be paid to Mr Lewis in lieu of reinstatement is an amount equivalent to 8 weeks salary. The first five week component of this eight week period is to be paid at the rates of pay the Applicant enjoyed as an employee of the employer, inclusive of superannuation (subject to ordinary taxation).

[93] The remaining three weeks is to be paid at a rate reflective of the differential between his rate of earnings with the employer and his rate of earnings with the new employer. The parties had access to the particulars in these regards and it is not necessary for me to quantify the amounts as a consequence. Should an issue arise as to the proper determination of the amount to be paid, the parties may seek a supplementary decision to dispose of this matter.

[94] The amount to be paid to Mr Lewis must be paid with 14 calendar days of the date of the order issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr G. Pinchen, for the Applicant

Ms H. Blattman, instructed by Macrossan & Amiet Solicitors

Hearing details:

Brisbane

2014

24 November

 1   Transcript of proceedings dated 24 November 2014 at PN518-520.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558240>