Mr Con Perry v Hillsbus Co. Pty Ltd

[2016] FWC 6516

[2016] FWC 6516

FAIR WORK COMMISSION

DECISION

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

Mr Con Perry
v
Hillsbus Co. Pty Ltd.
(U2015/15130)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 12 SEPTEMBER 2016

Application for relief from unfair dismissal.

Background

[1] I issued a decision 1 on 20 May 2016 as a result of which Mr Perry was reinstated to his employment with Hillsbus Co. Pty Ltd (Hillsbus).

[2] The parties were asked to confer and consider whether agreement could be reached regarding the quantum of compensation arising from the loss of Mr Perry’s remuneration from the date of termination of his employment until reinstatement. The parties conferred but were unable to agree.

[3] I subsequently listed the application for further hearing on 30 June 2016 to determine the outstanding question. At that listing, after hearing submissions from parties, I was advised that the quantum of compensation had been resolved and the hearing was therefore vacated.

[4] I have since been informed that the parties could not agree on the terms to be entered into to affect that resolution. The parties have requested that I issue an Order on the submissions and the material already before me.

Conclusion

[5] Mr Perry’s employment was terminated by Hillsbus on 5 November 2015.

[6] Following my decision Hillsbus advised Mr Perry that he could recommence work at Hillsbus Dural from Monday, 30 May 2016. Mr Perry declined this offer as he wanted to provide his then employer, Transdev, with four weeks notice.

[7] Mr Perry was obliged by the Transdev enterprise agreement to give Transdev one weeks notice.

[8] Hillsbus agreed that Mr Perry could recommence employment on Monday, 27 June 2016, which he did.

[9] Hillsbus submitted that Mr Perry could have recommenced employment on 6 June 2016 and should have done so. If he had resumed work on 6 June 2016 would have been absent from Hillsbus for 30 weeks.

[10] Hillsbus further submitted that the three weeks payment made by it to Mr Perry in lieu of notice should be deducted from the period for which compensation is due, leaving a period of 27 weeks as the period for which compensation should be considered.

[11] Mr Perry produced a payslip setting out his year-to-date gross earnings at Transdev as $32,276.83.

[12] Hillsbus set out the criteria to be taken into account pursuant to section 391 of the Act when calculating the compensation payable to Mr Perry. It’s submission is set out below:

“15. On 2 June 2016, the Applicant produced a pay slip to the Respondent of his pay from Transdev, which included a year to date figure of $32,276.83 (gross). [see Tab 5 of the Hearing Folder for a copy of this pay slip]

16. Pursuant to the s.391(4)(a) of the FW Act, the Respondent submits that over the period from the Applicant’s commencement of employment with Transdev to the end date of the pay slip, the Respondent earned $32,276.83 (gross).

17. In determining the amount likely to be earned by the Applicant in the Relevant Period had his employment continued with the Respondent, the Respondent:

(a) Determined the Applicant’s actual hours of work over the last 6 months of employment with the Respondent (from 4 May 2015 to 8 November 2015); and

(b) Applied the current rate ($33.04) to the Applicant’s pattern of work for ordinary hours, weekend shifts worked (including his fortnightly Sunday shift), overtime worked and any applicable penalties (such as the broken shift penalty and public holidays) over the 27 week period. [see Tab 6 of the Hearing Folder, a table of calculations performed by the Respondent].

18. On account of the above calculations, the respondent determined that the amount the Applicant was likely to have earned with it over the Relevant Period would be $39,214.25.

19. In addition to the above, the Respondent has also proposed an adjustment to the 3 week payment in lieu previously provided. In the Respondent’s calculations it has applied the current Enterprise Agreement rate ($33.04), weekend shifts worked (including two fortnightly Sunday shifts), overtime worked and any applicable penalties (such as the broken shift penalty) and determined there was a difference of $1,296.97, between the amount he received in lieu of notice ($2,964) and the amount he was likely to have received had he worked those 3 weeks ($4,260.97). With this difference added to the amount set out in the paragraph above, the Respondent submits that the remuneration reasonably likely to be earned by the Applicant in employment with the Respondent is increased to $40,511.22.

20. The Respondent respectfully submits that the remuneration likely to be earned by the Applicant between the date of his termination and reinstatement ($40,511.22), less the amount he actually earned in his employment with Transdev ($32,276), would be $8,234.39.

21. On 28 June 2016, the Respondent wrote to the Applicant indicating it was prepared to pay the Applicant the above amount.

22. On 29 June 2016, the Applicant rejected this offer without providing any reasons.

23. The Respondent respectfully submits to the Commission making an order for the Respondent to pay the Applicant, within 7 days of the making of this order, the amount of $8,234.39 (less applicable taxes).”

[13] The areas of dispute between the parties were:

● the ordinary hours worked by the applicant;
● the hours of overtime worked by the applicant and,
● a Sunday shift that occurred on a fortnightly basis.

[14] The solicitor for Hillsbus submitted that it had examined Mr Perry’s employment from May 2015 to November 2015. He had then identified the number of hours that Mr Perry worked and his pattern of work , and had used that information to calculate the amount due to Mr Perry for the 27 week. It was this figure that Hillsbus offered to Mr Perry prior to the hearing.

[15] Mr Row, who was appearing for Mr Perry, disputed this calculation because he submitted that Hillsbus had miscalculated the overtime worked by Mr Perry.

[16] I questioned Mr Row regarding his method of calculating Mr Perry’s loss. Mr Row submitted that it was not appropriate to look at the six months prior to Mr Perry’s termination of employment because bus driving is not a 38 hour week job. I suggested to Mr Row that shifts come and go. Mr Perry was performing a different shift every day before his employment was terminated and, although he took on a permanent shift three weeks before he was dismissed , that also might have varied as part of the ebb and flow of work at the depot. Mr Row conceded that shifts at the depot had moved five times in the past 12 months. There were some exchanges in transcript regarding that issue.

[17] I am satisfied that a method of calculation which uses a prior period of employment to average the earnings of a worker such as Mr Perry is a satisfactory method of calculation, taking into account variables in allocation of shifts and methods of rostering.

[18] I am not prepared to order Hillsbus to pay compensation for a period for which Mr Perry elected give greater notice than that which his then employer was entitled to. He may have acted that way for good reason, but it is not a matter that Hillsbus should pay for.

[19] Mr Perry’s gross weekly income for the six months prior to termination of his employment $1,356.63.
[20] Calculated on the new rates applicable during Mr Perry’s absence, the gross weekly earnings would have been $1,397.72. I intend to treat that gross weekly income as the income Mr Perry would have earned had his employment continued with Hillsbus.

[21] Mr Perry’s gross average weekly earnings at Transdev was $1,248.28.

[22] The difference in gross weekly earnings was $149.44 over a period of 27 weeks. This is a total of $4,034.88.

[23] Hillsbus calculated the difference in the amount that the applicant would have earned had he worked for the three weeks paid in lieu upon termination of employment as $1,296.97

[24] I am satisfied that these two amounts are the amounts due to Mr Perry in compensation for the period of his absence from work between termination of employment and reinstatement. The total due to him in compensation is therefore $5,331.85.

[25] An Order to this effect will issue.

SENIOR DEPUTY PRESIDENT

 1   [2016 ] FWC 1901

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