Mr Daniel O'Brien v The Catholic Church of the Diocese of Darwin Property Trust Inc T/A Catholic Education Northern Territory Diocese of Darwin
[2024] FWC 2612
•16 OCTOBER 2024
| [2024] FWC 2612 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel O'Brien
v
The Catholic Church of the Diocese of Darwin Property Trust Inc T/A Catholic Education Northern Territory Diocese of Darwin
(U2024/6052)
| COMMISSIONER RIORDAN | SYDNEY, 16 OCTOBER 2024 |
Application for an unfair dismissal remedy
On 28 May 2024, Mr Daniel O’Brien (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was employed by The Catholic Church of the Diocese of Darwin Property Trust Inc T/A Catholic Education Northern Territory Diocese of Darwin (the Respondent) from November 2007 until the date of his dismissal on 8 May 2024. At the time of his dismissal, the Applicant was employed by the Respondent as an Asset Officer on a part-time basis.
In its Form F3 – Employer Response, the Respondent provided that the Applicant was dismissed for serious misconduct for refusing to comply with lawful and reasonable directions.
Background
Section 372 application in C2024/1680
The Applicant lodged a ‘general protections application not involving dismissal’ (s.372) against the Respondent on 21 March 2024. This application was settled before me on 16 April 2024, part of which included the Applicant resigning from his employment. The Applicant subsequently did not sign the deed of release associated with this matter and returned to work. The facts of that application are not relevant to the current proceeding except by way of background information.
Matters leading to the Applicant’s dismissal
Following the settlement in matter C2024/1680, the Applicant returned all of the Respondent’s property on 16 April 2024, cleared his desk, left work following the conference, and did not attend work on 17 April 2024 as otherwise scheduled.
The parties exchanged correspondence on 17 and 18 April 2024 in respect of the terms of settlement agreement.
The Applicant then attended at work on Monday, 22 April 2024. The Applicant was invited to a meeting with his manager where he received instructions to leave the Respondent’s premises. The Applicant at first refused to comply with this instruction, before he eventually left the premises, claiming to be unwell.
The Applicant was given an instruction to attend a disciplinary meeting on 7 May 2024:
“29 April 2024
Re: Request to Attend Formal Disciplinary meeting
Dear Daniel,
Following my meeting with you on Monday 22 April, in the presence of Sneha Chevan, I explained that your presence at work was not required for the day. I instructed you to leave the premises and contact your lawyer who has been dealing with your complaint against the Diocese of Darwin and others. During this meeting you refused to comply with that reasonable instruction.
You subsequently left the premises stating you are feeling unwell, but not before initially refusing to comply with my instruction.
After careful consideration about your unacceptable refusal to follow reasonable instructions at the time I met with you, I have come to the conclusion that you are required and instructed to attend a disciplinary meeting on Tuesday 7 May 2024 at The Catholic Education Office School Services meeting room at 1:30 pm.
The disciplinary meeting will address your alleged unacceptable refusal and breach of our code of conduct 9.6 that provides “Employees must comply with the lawful and reasonable directions of CENT and their Principal/Manager”.
In addition, refusal to comply with a lawful and reasonable instruction or direction is defined as serious misconduct in the Fair Work Regulations.
Should unacceptable behaviour, breach of our code and/or serious misconduct be established, you may be subject to disciplinary action which may include termination of your employment without notice.
For the avoidance of doubt, you are suspended from work with pay and, apart from attending the meeting on Tuesday, you are instructed not to attend the work premises until further notice.
Please note I will have a support person present at that meeting and you have the right to have a support person present throughout the meeting. Please note that your support person is not able to advocate on your behalf. Your sup cannot be a material witness nor can that person be a member of the CEO’s leadership team for reasons of natural justice and conflict of interest.
I would like to remind you that you are to maintain confidentiality and your discussion about this letter or the issue concerned must be limited to your immediate family and support person. Any breach of confidentiality will be regarded as a refusal to comply with a reasonable direction and if proven, may also result in disciplinary action.
Daniel, you have access to our counselling support service through our EAP provider CatholicCare should you wish. This is a confidential service. Please do not hesitate to contact them on [redacted].
Yours Sincerely
Alexa Gutenberger
Chief Financial Officer”
The Applicant failed to attend the meeting on 7 May 2024 as instructed, instead sending an email approximately 1 minute before the scheduled starting time of the meeting, stating:
“Hello Alexa,
My apologies I wont make it to todays disciplinary meeting. I’ll attach the following letter as a reply to your previous letter.
I hope all is well with you.
Cheers,
Daniel”
The Applicant’s email attached a letter as follows:
“Dear Alexa,
Thankyou for the invitation to attend a disciplinary hearing today 7 May, 2024.
Rather than causing undue stress I am exerting my right of reply to firstly explain my part in proceedings.
With the failure of settlement discussions on 16 April 2024, I was of the understanding that I would be able to return to work without impediment to continue my contractual duties.
When I arrived at 7.35am on 22 April 2024, I met the CEO Director at the office entrance, he did not express any surprise regarding my arrival to work, he cordially said hello.
Similarly when I met colleagues, they were welcoming, like yourself, to my presence at work. I proceeded to continue with important responsibilities related to my role as Asset Officer, including attending to bookings and matters in progress.
It appears that following a meeting you had with Mr Dirk Botha, you called me into your office for an unscheduled meeting. You directed me to leave. I wanted to know what the reason for being directed to go home on a Monday was. You weren’t clear on any reason other than it being ‘something to (sic) with a meeting with my lawyers’.
At this meeting I was entirely unaware that you had only just returned from an arduous flight following the loss of a family member. Can you please accept my condolences regarding your loss? Had I known this, I believe my reactions at the meeting would have been different.
Clearly you were not properly informed about actions of the previous week and therefore not in an informed position to provide reason as to why my suspension was necessary. I accept that you had been placed in an unfair position to decide on this meeting.
I take umbrage at the threatening tone and inaccuracies of the reference within your April 29 2024 letter to me, which bears your signature. I take umbrage to the claim my behaviour may warrant dismissal.
Both the Commonwealth Fair Work Act (2009)(The Act), and the CENT Enterprise Agreement(2022) are quite clear that serious misconduct relates to fraudulent, dishonest or criminal behaviour.
Additionally, as a result of my complaints towards Catholic Education NT, I have lodged a Protection Order with the Fair Work Commission. This order specifically requires that no action is taken or threatened against me whilst my complaints against Catholic Education NT are ongoing.
Accordingly, whoever has drafted wording on your signed April 29 2024 letter to me has demonstrated an alarming lack of knowledge of workplace rights, they have not understood the Act. Neither have they understood the CENT EBA.
Once again Alexa, please accept my sincere condolences regarding your bereavement. I do trust that you will appreciate that my response to you is not from any intention to criticise your actions in the matter. My complaint regarding CENT NT is both serious and of a complex high level nature. I suggest all future communications related to my matter are sent by the CENT Director.
Sincerely,
Daniel O’Brien”
Ms Gutenberger responded to the Applicant’s correspondence and letter, by email, as follows:
“Dear Daniel
I acknowledge receipt of your email today and advise that I will now consider your correspondence attached to your email before finalising my decision regarding the matters that needed to be addressed in the disciplinary meeting.
Regards
AlexaAlexa Gutenberger
Chief Financial Officer”
The Respondent deemed the Applicant’s conduct in refusing to comply with lawful instructions to constitute serious misconduct, and issued the Applicant with a Termination Letter on 8 May 2024:
“Dear Daniel
I refer to your letter dated 7 May 2024 which you sent rather than comply with my lawful instruction to attend a disciplinary hearing yesterday.
As I identified in my previous letter, the purpose of the disciplinary meeting was to deal with your refusal to comply for lawful and reasonable instruction.
I draw your attention to Fair Work Regulation 1.07 which provides that the definition of serious misconduct in section 12 of the Fair Work Act includes an “employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment”.
Your conduct on Monday 22 April 2024 and your refusal to attend yesterday’s meeting fall within this regulation.
Contrary to your assertion that there was a “failure of settlement discussions on 16 April 2024” there was a binding agreement reached on this day subject to the negotiation of a settlement agreement.
At no stage until your correspondence on 7 May has there been any assertion by you or your representative that settlement negotiations had failed.
We have received no order from the Fair Work Commission specifically requiring no action to be taken whilst your “complaints are ongoing”
Without prior notice or reasonable basis you attended work on 22 April 2024 as outlined in Alexa’s letter dated 29 April 2024.
Putting to one side the inappropriate and inaccurate nature of your letter, your refusal to follow the lawful and reasonable instruction to attend work for your meeting with Alexa clearly demonstrates serious misconduct and an irretrievable breakdown of the trust and confidence that must exist in an employment relationship.
I have decided to terminate your employment with immediate effect for the reason of serious misconduct, without notice.
Your entitlements on termination will be paid by separate cover.
Also, unless we receive your advice to the contrary by no later than 4:00 PM this Friday 10 May 2024, we will assume that you have reneged on the settlement agreed on 16 April 2024, however we will take no action to enforce this settlement.
We look forward to hearing from you.
Yours sincerely,
Paul Greaves
DIRECTOR CATHOLIC EDUCATION NT
08/05/2024”
The matter was Heard in Darwin on Monday, 16 September 2024. The Applicant appeared and gave evidence on his own behalf at the Hearing. The Respondent was granted leave pursuant to s.596 of the FW Act to be represented during the Commission proceedings by Mr Martin Dunne of Catholic Employment Relations Ltd.
The following persons gave evidence for the Respondent at the Hearing:
Mr Bruce McEvoy, Manager Infrastructure;
Mr Quentin Theron, Infrastructure Officer;
Ms Alexa Gutenberger, Chief Financial Officer;
Mr Dirk Botha, Deputy Director School Services;
Mr Paul Greaves, Director; and
Ms Sneha Chavan, HR Manager.
Statutory Provisions
The relevant sections of the FW Act relating to an unfair dismissal application are:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
381 Object of this Part
(1) The object of this Part is:(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
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.
see section 388.
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.”
Applicant’s Submissions and Evidence
The Applicant filed a brief outline of submissions and supporting statement of evidence. The Applicant’s submissions and outline of evidence are summarised as follows.
The Applicant submitted that he commenced his employment with the Respondent on 1 November 2007. The Applicant submitted that throughout his tenure with the Respondent, he had held various roles and consistently met or exceeded performance expectations, and received positive evaluations from his supervisors.
Events leading to dismissal
The Applicant stated that on 22 April 2024, he arrived at work as usual and was welcomed by his supervisor who proceeded to direct him to his usual tasks. The Applicant stated that despite this, later that morning, he was instructed to leave the workplace without any clear reason for this instruction. The Applicant stated that this ‘demand’ did not consider the essential facts, including his need to collect his lunch or complete any tasks he was performing at that time.
The Applicant stated that he was asked to address the events of the 22 April 2024 ‘exclusion’ at a disciplinary meeting on 7 May 2024. The Applicant stated, however, that on 7 May 2024 he provided a written explanation for his actions and submitted it via email to the Respondent “prior to the meeting deadline”. The Applicant stated that “[d]espite [his] compliance and willingness to cooperate, [his] explanation was ignored”.
The Applicant stated that he was summarily dismissed on 8 May 2024, without regard to the written submission he had made on 7 May 2024.
The Applicant submitted that his actions on 22 April 2024 were in accordance with his signed employment contract. The Applicant submitted that he had every right to be at work and perform his duties without being harassed or prevented from continuing his normal activities.
The Applicant stated that his Termination Letter of 8 May 2024 was harsh, unjust, and unfair, and that the dismissal caused serious harm to his reputation and well-being.
Failure to follow fair procedures
The Applicant submitted that the Respondent’s actions demonstrate a “clear failure to follow fair procedures as outlined in the Fair Work Act”. The Applicant submitted that he was not given an opportunity to show cause prior to his termination. Further, the Applicant submitted that he did not receive prior warning of the dismissal, nor was a reason provided as to why he was suspended from employment on 22 April 2024. The Applicant submitted that the Respondent failed to demonstrate that it had regard for his letter of 7 May 2024, which he stated was in support of his actions on 22 April 2024.
The Applicant submitted that the manner in which he was dismissed contradicts the principles of natural justice and procedural fairness. The Applicant submitted that in failing to have regard to his detailed written explanation for his actions, the Respondent demonstrated “incompetence and lack of care for their employees”.
For all of these reasons, the Applicant submitted that his dismissal on 08 May 2024 was harsh, unreasonable and unfair.
Additional matters
The Applicant stated that he is over 50 years old.
The Applicant stated that the “false allegations and the manner of [his] dismissal” have caused irreparable damage to his professional reputation which has severely impacted his ability to secure new employment.
The Applicant stated that as the primary breadwinner in his household, the loss of income has placed enormous strain on his household finances, making it difficult for him to meet basic living expenses.
Further, the Applicant stated that his dismissal has had a significant emotional and psychological impact on him.
Remedy
The Applicant has sought reinstatement, compensation and continuity of service.
Respondent’s Submissions
The Respondent submitted that, in relation to the Applicant’s application for an unfair dismissal remedy:
“(a) The Applicant bears the onus of proof to establish that the dismissal was unfair; and
(b) The maximum compensation that can be awarded is six months of the Applicant’s annual wage (approximately $22,000).”
The Respondent submitted that in a document previously filed by the Applicant titled ‘Submission to facilitate discussion on 28 June 2024 – Daniel O’Brien’ – and which the Applicant continued to rely on at the Hearing – the Applicant incorrectly referred to the Respondent having a “Reverse Onus of Proof”, which the Respondent submitted he has apparently confused with the onus that applies in a general protections claim.
The Respondent relied on the 16 April 2024 conference and resolution reached in relation to the Applicant’s previous general protections claim. The Respondent submitted that, although not directly relevant to the reason for the dismissal of the Applicant, the circumstances of the general protections claim provide relevant background to the current proceedings.
The Respondent submitted that both parties were represented at the conference in the general protections claim. The Respondent submitted that at that conference, the Applicant agreed to resolve his general protections claim by way of a settlement agreement, which included a term that he would resign from his employment with the Respondent, effective from 16 April 2024. The Respondent submitted that further to this, the Applicant returned his security pass on 16 April 2024, left work following the conference and did not attend work on 17, 18 or 19 April 2024 as otherwise scheduled.
The Respondent submitted that the parties exchanged correspondence on 17 and 18 April 2024 in respect of the terms of the settlement agreement, however the Applicant did not, and has not, responded to the email sent by the Respondent’s legal representatives on 18 April 2024, or subsequent correspondence in respect of the terms of settlement.
The Respondent submitted that at no stage until an email from the Applicant on 7 May 2024 was there any assertion by the Applicant or his representative that settlement negotiations had failed or that he would return to work.
The Respondent submitted that, without notice, the Applicant attended work on Monday 22 April 2024 and was given lawful instructions on two occasions to leave the Respondent’s premises with which he refused to comply, before he eventually left the premises.
The Respondent submitted that with the Applicant having previously left work on 16 April 2024, and handing in his security pass, it was reasonable for the Respondent to not only consider the Applicant intended that his employment had terminated but that no work would be
made available for him to perform on Monday, 22 April 2024.
The Respondent submitted that the Applicant was given a further lawful instruction to attend a disciplinary meeting on 7 May 2024 with which he refused to comply and instead emailed a letter approximately one minute before the scheduled meeting. The Respondent submitted that the Applicant gave no reason why he could not attend the meeting other than he had chosen not to attend and, in effect, refused to comply the instruction.
The Respondent submitted that the contents of the Applicant’s letter were properly considered and addressed by the Respondent.
The Respondent submitted that the Applicant’s conduct in refusing to comply with lawful instructions from the Respondent constituted serious misconduct and provided a valid reason for his termination.
Further, the Respondent submitted that the Applicant’s conduct in general following the conference in the general protections claim has demonstrated an irretrievable breakdown of the trust and confidence that must exist in an employment relationship and represents an insurmountable barrier to his re-employment with the Respondent. The Respondent submitted that re-employment of the Applicant is not appropriate in the circumstances. The Respondent submitted that this position seems to be supported by content in the Applicant’s submissions.
However, the Respondent submitted that its primary submission is that the proceedings brought by the Applicant should be dismissed because there was a valid reason for dismissal, the Applicant was provided with procedural fairness and the dismissal was not harsh, unjust or unreasonable.
Applicant’s Submissions in Reply
In his submissions in reply, the Applicant submitted that the events of 22 April 2024 and his subsequent dismissal “constitute further acts of a continued course of conduct engaged in by respondent over the last four years that are both:
a.acts of reprisal from my raising a number of workplace grievances, and
b.efforts to deny me my legal and general employment rights and protections under the Fair Work Act(2009).”
The Applicant submitted that on 12 July 2023, his representative, Mr Turner, sent the Respondent a ‘Letter of Grievance’ on the Applicant’s instructions, outlining a list of workplace grievances arising from the Respondent’s conduct towards the Applicant over the previous four years. The Applicant submitted that following a failure of the Respondent to meaningfully engage in responding to these grievances, on 20 December 2023, Mr Turner sent the Respondent a ‘Statement of Claim’ on the Applicant’s instructions, further outlining the Applicant’s grievances against the Respondent and seeking more than $700,000. The Applicant submitted that he continued to rely on the Letter of Grievance and Statement of Claim in the current proceedings, “to demonstrate the ongoing and persistent illegal actions of the Respondent against [his] interests”.
The Applicant made additional submissions to the effect that the 16 April 2024 conference, as scheduled by me in relation to his general protections application, was “an attempt by the Respondent to use the Fair Work Commission in an attempt to railroad [him] into a settlement of [his] entire grievance and constituted a denial of procedural fairness”.
The Applicant submitted that upon reflection following the conference of 16 April 2024, he notified his representative, Mr Turner, on 19 April 2024 that he did not agree to the proposed settlement and would not be signing any settlement deed:
“Fri, Apr 19, 2024 at 12:16 PM
Daniel O’Brien [email address redacted]
To: Patrick Turner [email address redacted], Rebecca Flowers [email address redacted]Hi Patrick,
I have a concern about the conduct of Tuesdays conference as follows ;
- It seemed extraordinary for the meeting to be chaired by a Commissioner.
- I believe Commissioner Riordan demonstrated bias as well as an inordinate leading.
- Commissioner Riordan was clearly not informed as to the full details of the matter
- Commissioner Riordan misrepresented my rights and entitlements under the Fair work Act.
- The meeting was not soundly based, to make decisions on the gravity of one’s entire future. I did request earlier, so hopefully you did get the message, that a review of Tuesdays meeting transcript is necessary.
- I dont intend to agree to settlement, on the basis that the conference was flawed.
On this basis, I propose to return to work at the Catholic Education Office on Monday, 22nd April, and continue to progress towards proper consideration of the matter.
Thanks again, Daniel”
(My emphasis)
The Applicant submitted that:
“Having duly notified my lawyer of my intention to return to work and not to accept the settlement proposal, and given that there was no deed formalising any settlement, I was acting under an honest belief that I was entitled to return to work the following Monday.”
The Applicant submitted that the grounds relied upon by the Respondent to seek to effect his dismissal are “embarrassing, and a misrepresentation by the Respondent of the actual reasons the Respondent hold for seeking my dismissal”. The Applicant submitted that:
“It is logically incongruent for the Respondent to claim to have been under a belief that my employment had ceased as of 16 April 2024, but then to rely upon my continued employment as a reason to require my vacation from the workplace on April 22.”
The Applicant submitted that, by seeking to rely on a purported failure by the Applicant to leave the workplace on 16 April 2024, demonstrates that the Respondent:
“a. knew that my employment was in continuance on that date,
b. was dissatisfied that the Respondent had been unable to secure the termination of my employment at the conference the previous week, and
c. was not deterred from continuing to pursue a course of conduct to deny me my employment and other legal rights as made out in the Letter of Grievances and Statement of Claim.”
The Applicant submitted that the Respondent is acting in breach of its obligations, in seeking to rely upon a failure of the parties to reach a settlement over his grievances the week following 16 April 2024 as grounds for summary dismissal. The Applicant submitted that if the Respondent was actually of the belief that his employment had ceased, then “the correct action to effect my removal from the premises would have been to seek it via a different legal remedy”.
The Applicant submitted that, by acting in the way that it did, the Respondent demonstrated an acknowledgement of his continued employment and a persistence in its actions to deny him workplace and employment rights.
The Applicant submitted that, in any event, his presence in the workplace did not constitute an act of serious misconduct as defined by the FW Act, and there was no lawful reason for the Respondent to require his departure from the workplace on 22 April 2024. The Applicant submitted that his presence in the workplace on 22 April 2024 was momentary, and that he left by his own volition within a reasonable period of time and immediately following an opportunity of the legal representatives to confer between themselves and their respective clients.
The Applicant submitted that the actions of the Respondent to attempt to construe the incident of Monday 22 April 2024 as serious misconduct demonstrate:
“a. the Respondent’s frustration its lack of success in securing a settlement to the dispute the previous week, and
b. a continuation of the Respondent’s attempt to deny me my attempts to secure justice for Respondents unlawful actions against me over the preceding four years.”
The Applicant submitted that the actual reason for him not attending work on 17 April 2024 was due to his need to consider the draft settlement deed, following the 16 April 2024 conference. The Applicant submitted that he was in a state of distress and would not have been in the appropriate mindset to continue his duties productively that day.
Response to the Witness Statement of Mr Paul Greaves
The Applicant submitted that:
“It seems clear that the due Fair Work process has been omitted from Paul Greaves letter of my dismissal on 08 May 2024.”
The Applicant submitted that when he returned to work on the morning of 22 April 2024, he met Mr Greaves upon his arrival at the workplace, and that Mr Greaves greeted him and allowed him to continue with his duties. The Applicant submitted that at that time, Mr Greaves gave him no reason to believe that his presence at the workplace was not desired by the Respondent.
The Applicant maintained that he was not afforded the opportunity to show cause prior to being dismissed. The Applicant submitted that the “process of being requested to file a General Protections Claim F8c was a ruse to expedite the termination of my employment.”
The Applicant submitted that, in his Witness Statement, Mr Greaves provides that he understood the general protections matter was settled on 16 April 2024. The Applicant submitted that Mr Greaves appears to be unaware that the matter had not been finalized, and that no final agreement had occurred or been signed off on that day.
Response to the Witness Statement of Ms Alexa Gutenberger
The Applicant submitted that Ms Gutenberger requested that he attend an “unscheduled meeting” with her on 22 April 2024. The Applicant submitted that Ms Gutenberger had requested that he leave for the day and that he should discuss with his lawyer the reason for the request. The Applicant submitted that he promptly called his representative, Mr Turner, and following a brief discussion, he “discreetly left the workplace”.
The Applicant submitted that, being asked to leave work without reasons had left him feeling shocked and nauseous. The Applicant submitted that he was still feeling queasy about the situation the next day.
Response to the Witness Statement of Mr Quentin Theron
The Applicant submitted that on his return to work on 22 April 2024, Mr Quentin Theron was also there. The Applicant submitted that Mr Theron expressed no reservation concerning his attendance to continue with his duties. The Applicant submitted that they continued to liaise and work on tasks together as a team that morning.
The Applicant submitted that Mr Theron’s Witness Statement talks about him hearing of a telephone conversation between the Applicant and Mr Turner. The Applicant submitted that this refers to the conversation he had with his lawyer subsequent to the meeting with Ms Gutenberger on 22 April 2024. The Applicant submitted that at no time did he waive his legal privilege, and that in reconstructing the discussions between the Applicant and his legal representative on that day, Mr Theron has breached the Applicant’s rights.
Response to the Witness Statement of Mr Bruce McEvoy
The Applicant submitted that, on returning to the office at 8am on 22 April 2024, he telephoned Mr Bruce McEvoy, the Applicant’s manager. The Applicant submitted that he informed Mr McEvoy that he wished to continue with his duties, and that Mr McEvoy replied that he had no problem with this, and that if the Applicant had any issues he could report to Ms Gutenberger.
Response to Respondent’s Submissions
The Applicant denied that he had acted in any way other than in a professional and trustworthy manner with the Respondent. The Applicant submitted that he has simply sought to continue with his duties.
The Applicant submitted that Mr Dunne makes a claim that the dismissal was neither harsh, unreasonable or unjust. The Applicant submitted, however, that the actions of the Respondent in seeking his dismissal following nearly 12 months of acting in good faith to resolve his dispute with the Respondent in accordance with due legal processes “was particularly unjust and deserving of exemplary damages”.
Response to the Witness Statement of Mr Dirk Botha
The Applicant welcomed Mr Dirk Botha’s reference to earlier matters, submitting that these are matters which remain subject to litigation. The Applicant submitted that Mr Botha has referenced the subject of previous complaints lodged by the Applicant, which are referenced in the 12 July 2023 ‘Letter of Grievance’ from Maurice Blackburn.
Consideration
I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.
It is not in dispute, and I find, that the Applicant is protected from unfair dismissal, submitted his application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.
When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[1] is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[2] held:
“The above extract is authority for the proposition that a termination of employment may be:
· unjust, because the employee was not guilty of the misconduct on which the employer acted;
· unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.
Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[3] said:
“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination”.
.
I now turn to the criteria for considering harshness as provided in s.387 of the FW Act.
Section 387(a) - Valid Reason
The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[4]
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”.
In Rode v Burwood Mitsubishi,[5] a Full Bench of the Australian Industrial Relations
Commission held:
“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
In Qantas Airways Ltd v Cornwall (Cornwall)[6] the Full Court of the Federal Court of Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
(My emphasis)
The Applicant acknowledged that he did not comply with a legal direction by initially refusing to leave his workplace on 22 April 2024:
“MR DUNNE: You were told when you attended work on 22 April, by Alexa Gutenberger - you were given an instruction to go home, weren't you? That's correct.
You refused to follow that instruction? That's correct.
…
In any event, you left, did you not, because you say you weren't feeling well? I wasn't feeling well and feeling nauseous, correct.So you didn't leave work because you were complying with the instruction to leave work, you left work for another reason; is that right? I wouldn't say entirely. I would have said that I wished to be compliant with my supervisor's instructions.
Well, why didn't you leave when you were told to leave? I felt it was right to be at work.”[7]
I have taken this into account.
I have taken into account that the Applicant had received two warnings in 2020 and 2021 for failing to follow a reasonable direction. I note that the 2021 warning was a written warning.
My long-held view is that warnings have a shelf life of around 12 months. It is obvious that the Applicant took notice of his warnings that he received in 2020 and 2021, improving his performance and attitude. There are no criticisms of the Applicant’s performance or attitude in 2022 or 2023. I have taken this into account.
There is no suggestion that the Applicant was abusive or violent when he refused the direction from Ms Gutenberger. The Respondent did not advise me that they called the police because the Applicant was trespassing or threatening his former colleagues. The Applicant simply returned to his desk to resume work and called his solicitor as advised by Ms Gutenberger. Thankfully, his solicitor was able to convince the Applicant to leave work even though he told the Respondent that he was going home because he was unwell. I have taken this into account.
The Applicant wrote to his solicitor on Friday, 19 April 2024 (refer to paragraph [46] above), to advise him that he was going to withdraw from the settlement of his general protections application and return to work. The Applicant testified that he asked his solicitor to advise the Respondent. In response to a question from me, the Applicant stated that this advice was implied in his email:
“THE COMMISSIONER: Yes. So that – I accept that, but you said – your submission is that you instructed your lawyer Mr Turner to advise the employer that you were going to return to work.
MR O'BRIEN: Yes.
THE COMMISSIONER: And they have asked you a question, where does it say that.
MR O'BRIEN: Thank you, Commissioner. It's only implied in that letter.”[8]
I cannot find any such implication in this email, however, I accept that the Applicant could have had an expectation that his solicitor would contact the Respondent on the basis that his solicitor had been involved in the ongoing negotiations in relation to the settlement of his general protections application. I have taken this into account.
The Applicant remains of the view that the direction to go home was a breach of his rights under the FW Act. Under cross-examination, the Applicant testified:
“Well, why didn't you leave when you were told to leave? I felt it was right to be at work.
Your right to be at work? Yes.
Why is that? I believe that employees have a right to be at work.
And do you believe employees have an obligation to follow a lawful instruction? That is correct.
You were told to leave work and you were told you were going to be paid; correct? I would even say the instruction was potentially unlawful.
Why was it unlawful? Because the employee has the right to be at work.
Where do you have this understanding, Mr O'Brien? Section 340 of the Fair Work Act.
That does not give an employee a right to be at work and to - 340 is a general protections provision, a workplace right? I dispute that.”[9]
I do not agree with the Applicant’s view but the interpretation of the general protections provisions of the FW Act is a matter for the Court, not the Commission. I have taken this into account.
Throughout this process, the Applicant has struggled to differentiate between his general protections application under s.372 of the FW Act and his unfair dismissal application under s.394 of the FW Act. The Applicant even submitted what he stated was a “statement of claim” for his ongoing Court application. Under cross-examination, the Applicant admitted that it was a draft statement of claim only. Further, despite the Applicant claiming that his general protections claim is ongoing and before the Court, the Applicant did not submit any evidence to support this assertion. I have taken this into account.
For an employer to have a valid reason to dismiss an employee, it must have a reason which is ‘sound, defensible or well founded’ and not one which is ‘capricious, fanciful, spiteful or prejudiced’.[10] In this case, the Respondent is relying on the fact that the Applicant refused to leave work when instructed. I accept that the Respondent did not want the Applicant at work. The Respondent submitted that the Applicant had agreed to resign, and in fact had resigned the week before in a conference before the Commission. Further, the Applicant had advised his supervisor, Mr McEvoy, that he was resigning, had removed his personal items from his workstation and had handed in his security fob. In his witness statement, Mr McEvoy stated:
“The events after he told me had had (sic) decided to resign are as follows:
(a)Daniel claimed that although he enjoyed working in infrastructure, resigning from his position was the best decision.
(b)We then discussed what roles he would like to move into in the private sector, mainly in construction was his focus.
(c)I offered Daniel the opportunity to go home early if he preferred.
(d)Daniel then packed his remaining personal items.
(e)Daniel then handed his security pass directly to myself.
(f)I then escorted Daniel from the building.”
However, the Applicant then refused to sign the Deed of Release. As a result, the Applicant was of the view that his resignation was not binding and that he could simply return to work. I have taken this into account.
The Applicant did not attend the disciplinary interview on 7 May 2024. Instead, the Applicant sent an email, 1 minute before the start of the meeting, explaining why he was not in attendance and the reasons why his direction to leave work was illegal. Under cross-examination, the Applicant testified:
“- - - your email was sent at 1.29 saying:
I won't make it to today's disciplinary proceeding. I attach the following letter.
Is that correct? Yes.
One minute before? Correct.
Why one minute before? I had missed the bus. I had to get my writing through. I wasn't feeling great, so I just sent the email.
I'm sorry? So I didn't have any transport to get to the meeting.
Why didn't you say that in your email? Well, I felt at the time that I just needed to address the issues. The issues of transport weren't tangential to the issue at the time.
You were instructed to attend a meeting and you do not give any reason that you missed the bus in that email; is that correct? That's correct.
Can I suggest to you that in the submissions that you filed and the evidence that you filed in these proceedings, you have not referred to you not attending this meeting because you missed the bus? That is correct.
You said that you clearly understood the invitation to the disciplinary meeting, the instruction - to the instruction. In that letter it's referred to that your refusal to follow a reasonable and lawful instruction is serious misconduct and you didn't think it was important to give a reason why you didn't attend the meeting? No.”[11]
I am satisfied and find that the Applicant had no intention of ever attending the disciplinary interview. I have taken this into account.
I am not satisfied that the refusal to follow a lawful and reasonable direction provided the Respondent with a valid reason to terminate the Applicant for serious misconduct in this circumstance. I note that there were no safety implications to any of the Respondent’s employees as a result of the Applicant’s actions. I have no doubt that the Respondent was shocked and probably disappointed at the Applicant’s return to work but to summarily dismiss him for this issue, in my view, is unjustifiable.
Section 387(b) - Notified of the Reason
It is not in dispute that the Applicant was notified of the reason for his termination by way of correspondence dated 8 May 2024. I have taken this into account.
Section 387(c) - Opportunity to Respond
The Applicant acknowledged under cross-examination that he regarded the disciplinary meeting, which he did not attend, as his opportunity to respond. The Applicant also indicated that he was not given any allegation in writing. Whilst the process that the Respondent followed was not best practice, it is obvious that the Applicant was aware of the possible outcomes of the disciplinary meeting and made a conscious decision not to attend. I have taken this into account.
Section 387(d) - Any refusal of a support person
It is not in dispute that there was no refusal of a support person by the Respondent. The Applicant did not attend any in-person meetings. I have taken this into account.
Section 387(e) - Unsatisfactory performance
The Applicant was not dismissed for unsatisfactory performance. I have taken this into account.
Section 387(f) - Size of Employer
The Respondent is a large employer with appropriate HR policies and procedures. I have taken this into account.
Section 387(g) - Dedicated HR specialists
The Respondent has a dedicated HR team, who were actively involved in the process leading up to the Applicant’s termination. I have taken this into account.
Section 387(h) - Any other matter
This application is quite unique for a number of reasons. I do not accept the conspiracy theories espoused by the Applicant that his termination was a contrived or sinister plot to remove him from the workplace. Further, I have never witnessed an employer keeping a substantial settlement offer on the table after it had summarily dismissed an employee.
Whilst I have found that the Respondent did not have a valid reason to summarily dismiss the Applicant, it is obvious that the Applicant has a difficulty in following lawful and reasonable directions from his Employer. This behaviour trait is unsatisfactory and cannot be condoned in any workplace. I am of the view that the Respondent had a valid reason to terminate the Applicant, but not summarily. I have taken this into account.
Conclusion
I accept that the Applicant partially complied with the direction from Ms Gutenberger. Ms Gutenberger recommended that the Applicant call his solicitor. The Applicant did this when he returned to his workstation, albeit on loud speaker. It would appear that the Applicant’s lawyer suggested that the Applicant comply with the direction and leave the workplace. The Applicant obviously accepted this advice, however, he then lied to the Respondent by saying that he was going home because he felt ill. Therefore, the compliance with the direction was belated, but it did occur. However, the Applicant telling a deliberate lie highlights the lack of trust in the employment relationship.
I have previously found that the Respondent did not have a valid reason to summarily dismiss the Applicant, and there are no issues in the consideration above (s.387(b)-(h)) that would warrant an alteration to that finding.
As a result of the above, I find that the Respondent’s decision to summarily dismiss the Applicant was harsh.
Remedy
Having found that the Applicant’s termination was harsh, I now turn to the issue of an appropriate remedy.
The relevant provisions of the FW Act in relation to a remedy for an unfair dismissal are:
“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.”
“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.
Order to restore lost pay
(3) 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 cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
“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.
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.
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.
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.
(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.”
The Applicant seeks reinstatement, compensation for lost wages and continuity of service.
Both parties acknowledge that there needs to be the capacity to re-establish trust and confidence for an employment relationship to be tenable. The Applicant stated:
“…I acknowledge the importance of trust and confidence in any employment relationship. Such trust and confidence really must be mutual but given the raft of unsolved issues I have raised with Catholic NT over the last four years, and their reluctance to competently investigate them, I contend that it's actually Catholic education who has broken this trust. Nevertheless, I am prepared to return to work if required.”[12]
I have taken this into account.
The Respondent strongly opposed the Applicant being reinstated on the basis that “it makes it difficult to continue to employ someone who is not going to follow lawful instructions”.[13] I have taken this into account.
In relation to the issue of ‘trust’, the Respondent submitted:
“The applicant may well state that but in his submissions he referred to his own broken trust which of course, he said he prepared – he prepared for – to – to fix. But there's broken trust on both sides. And simply saying at this stage, 'Oh, no, I can put all that behind me', is really contrary to the evidence and the submissions which the applicant has filed in these proceedings. In fact, in his – I'm sorry. On page 3, in his outline of submissions, there are reference there about in – the manner of the dismissal has caused irreparable damage to my professional representation – oh, sorry. My professional reputation. That's just not outside. That's something that affects how you work for someone within an organisation. He talks about a sense of betrayal in paragraph 10 where he talks about what has happened.
It's clear that no matter what the representations by the applicant that he can put that all behind him and resume work are difficult to believe. The word betrayal is a significant word. Irreparable is a significant word and that is on the applicant's side from the – employer's side. Here is an employee who the employer believed had entered into an agreement, who turned up, who – and more importantly than that, handed in his card, taken his books and belongings and left. And then without any notice, turns up for work unscheduled. Yes, Monday would normally have been a work – a day of work. Not when you have handed in your card. Not when you have taken your belongings and not when you have given no notice, but the settlement has ended or that he intended – or even that he intended coming back to work.
The earliest of which could possibly have occurred at 8 o'clock in the morning to someone who was away and to whom no further representation was made. Then to refuse the instruction to go home. This relationship as an employment relationship cannot be restored with the greatest respect. It is not appropriate to consider reinstatement on any – on any basis.”[14]
I have taken this into account.
The employment relationship was strained and the Applicant’s attitude in the workplace was poor. By not following a lawful and reasonable direction to leave the workplace, the Applicant blatantly defied his manager. This defiance is of such significance that the employment contract has been breached. Further, the Applicant is prone to misrepresenting the truth to his manager. When leaving work on 22 April 2024 the Applicant claimed that he was going home because he felt sick, not to comply with the direction of Ms Gutenberger. At the Hearing, the Applicant said that it was both. Secondly, the excuse that he missed the bus on 7 May 2024 also only came to light at the Hearing. Knowing the seriousness of the disciplinary meeting, the Applicant should have apologised for not attending and advised Ms Gutenberger that he had missed the bus. I am satisfied and find that the Applicant is loose with the truth. I have taken this into account.
Even though reinstatement is the primary remedy under the FW Act, I am satisfied and find, for the reasons stated above, that the required level of trust and confidence cannot be restored in this circumstance.
Compensation
I now turn to the factors to be considered in relation to any award of compensation.
Section 392(2)(a) – effect of order on employer’s viability
Any order of compensation will not have any effect on the viability of the Employer’s business. I have taken this into account.
Section 392(2)(b) – length of service
The Applicant was employed by the Respondent for a period of over 16 years. This is not an insignificant period of time. I have taken this into account.
Section 392(2)(c) – remuneration received if not dismissed
This matter is not relevant to my conclusion. I have taken this into account.
Section 392(2)(d) – effort to mitigate loss
The Applicant advised that he has unsuccessful in gaining alternative employment since his termination.
Section 392(2)(e) – amount of remuneration received by the Applicant
The Applicant has received no remuneration since the date of his dismissal. I have taken this into account.
Section 392(2)(f) – amount likely to be earned
This matter is not relevant to my conclusion. I have taken this into account.
Section 392(2)(g) – any other matter
I note that the Applicant is over 45 years of age. I have taken this into account.
I am also required to have regard for the criteria known as the ‘Sprigg formula’ which emanates from the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket.[15] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.[16]
The approach in Sprigg is as follows:
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. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
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.
In Hanson Construction Materials v Pericich,[17] a Full Bench of the Commission held that:
“[39]...Sprigg is a useful servant, but is not to be applied in a rigid determinative manner. In deciding the amount of a compensation order the Act directs that the Commission ‘must take into account all of the circumstances of the case’ including the particular matters set out at s.392(2)(a)to(g).”
I have taken this into account.
Conclusion
If the Respondent had merely dismissed the Applicant, and not summarily dismissed him, the Applicant would have received 5 weeks’ pay in lieu of notice for his termination in accordance with the Clerks - Private Sector Award 2020.
Whilst I cannot order the Respondent to pay notice, I am satisfied, taking into account the provisions of s.392 of the FW Act and the Sprigg formula, that the 5 weeks’ notice that the Applicant was entitled to be paid is an appropriate level of compensation.
I order that the Respondent pay to the Applicant 5 weeks’ pay plus superannuation.
I so Order.
COMMISSIONER
[1] (1995) 185 CLR 410.
[2] (1998) 84 IR 1.
[3] [2000] AIRC 1019.
[4] (1995) 62 IR 371.
[5] PR4471.
[6] (1998) 84 FCR 483.
[7] Transcript at PN140-141, 144-146.
[8] Transcript at PN891-894.
[9] Transcript at PN146-153.
[10] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].
[11] Transcript at PN205-214.
[12] Transcript at PN904.
[13] Transcript at PN943.
[14] Transcript at PN946-948.
[15] (1998) 88 IR 21.
[16] [2012] FWCFB 431.
[17] [2018] FWCFB 5960.
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