Mr David Brown v CQ Group Australia Pty Ltd

[2014] FWC 8594

[2014] FWC 8594

FAIR WORK COMMISSION

DECISION

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

Mr David Brown
v
CQ Group Australia Pty Ltd
(U2014/6135)

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 David Brown) 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 and performed duties at the time of his dismissal a road train haulage supervisor. Mr Brown performed these duties for some nine months before such time as his employment was terminated

[3] On or about 31 March 2014, the employer terminated the employment of the Applicant along with that of a relief supervisor/driver, Mr Bradley Lewis, and another employee, Employee X. All three employees were terminated on grounds of serious misconduct. Mr Lewis also made an application for an unfair dismissal remedy and my decision in this regard is dealt with in [2014] FWC 8466.

[4] In March 2014, unidentified employees were said to have approached the newly appointed Bulk Haulage Manager, Mr Peter Spence, and made a complaint about the conduct of the Applicant, along with that of Mr Lewis and Employee X.

[5] Mr Spence claimed that he was informed amongst other matters that the three employees 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.

[6] 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.

[7] 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.

[8] 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.

[9] 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.

[10] Mr Quici claimed that he did “not want to do this but I was pressured by [Employee X] until I 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.”

[11] 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].

[12] 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.”

[13] 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 [Employee X]’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.”

[14] Mr Quici also claimed that when he was absent from site to purchase the drugs:

“Mr Brown would [...] drive around my truck and complete the relevant paperwork so that it appeared I was still working.”

[15] Mr Quici claimed that he continued to conform with the employees’ requests to purchase drugs on their behalf because 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.”

[16] 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.”

[17] 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.”

[18] 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.

[19] 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.

[20] 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.

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

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

[23] Mr Brown denied the claims made by Mr Quici, and particularly so in relation to claims that he absented himself from the work site. He also denied any involvement in any of the activities in which Employee X was allegedly involved.

[24] Mr Quici 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 Brown’s evidence

[25] Mr Brown had performed duties uneventfully as a road train driver and a Supervisor for the employer for some 9 months, until 28 March 2014 when he was informed by Mr Spence that he was facing serious allegations.

[26] On hearing that from Mr Spence, Mr Brown contacted Mr Cox who informed him that allegations had been made that he (Mr Brown) had been purchasing drugs including methamphetamines.

[27] In response to such allegations, Mr Brown offered to undertake a drug test. Mr Brown subsequently participated in a urinalysis drug test in Port Hedland which yielded a negative result.

[28] Mr Brown subsequently was dismissed from his supervisor position. On 31 March 2014, Mr Spence was said to have given the Applicant one hour to clean up his room and to depart to Perth, and thereafter return to Queensland. Mr Brown asserted that at no stage did his employer communicate to him any reason why he was being dismissed. Mr Brown stated that he received a termination letter around 14 April 2014 (which stated that he had been dismissed for reasons of serious misconduct and breaches of company policy) but was not given any express reasons for his dismissal until such time as his claim was lodged in the Commission.

[29] Mr Brown denied claims of bullying and harassment in relation to Mr Quici. Mr Brown claimed that he was frequently required to travel to conduct site inspections with other supervisors and to observe the performance of other road trains. He also claims that as he was required to fill out a safety analysis of every job he performed and was required to sign those forms throughout the course of his shifts, it could not be argued that he was not in attendance at that time.

[30] Notwithstanding this, a contractor to the mine operator, Mr Shawn Haines, who was owner and operator of SJH Heavy Haulage and who worked closely with Mr Brown, as he claimed, gave evidence to the following effect:

In the period leading up to the Applicant’s dismissal, I noticed that on several occasions, the Applicant 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.

[31] Mr Haines also recalled Mr Brown being inattentive to his duties:

I recall that on at least one occasion during his shift, the Applicant told me that he was going to his office to which the television series “Criminal Minds” from his computer.

I recall that on at least one occasion, I was working in the shed and I could see the Applicant in his office watching a television show.

I recall on at least one occasion during his shift, the Applicant told me that he was going to his office to have a sleep during the shift.

I recall that on at least one occasion, I could see the Applicant sleeping in his office.

Based on what I saw of the Applicant’s behaviour at work, I am not surprised that his employment was terminated.

[32] Mr Haines’ evidence was contrary to that of Mr Brown as to his movements in relation to the site and, because of this, it brings into further question the credibility of the witness’ evidence in these proceedings.

[33] Mr Haines’ evidence, subject to its credibility, is also reflective on Mr Brown’s general conduct and performance.

[34] That said, Mr Brown also contended that he had never seen or received a company credit card which had been issued to Employee X.

[35] Mr Brown also contends that at no stage did he ever threaten Mr Quici or any member of Mr Quici's family. Mr Brown argued that he had never authorised Mr Quici or otherwise directed Mr Quici to leave the work site to purchase illicit drugs or to withdraw cash. The conduct of Employee X was also said to be irrelevant to Mr Brown’s conduct as Mr Brown did not share a close social or personal relationship with Employee X (as the employer had assumed).

[36] Mr Brown claimed that Mr Quici never made any accusation to him that he (Mr Brown) was involved in drugs. Mr Brown did state, however, that Mr Quici had once indicated that he wanted to assume his position as supervisor and that he knew a person involved in the drug scene (whom Mr Brown assumed may be called upon to assist in achieving that end).

[37] Mr Brown did concede that he had had rung Mr Quici at home and insisted that he cease making comments about him (Mr Brown) and his alleged drug connections.

[38] Mr Brown did agree under examination that he and Mr Lewis had been referred to as “the Chemical Brothers” by some employees, but he had simply disregarded the title and never inquired into its origin. Mr Brown insisted that his only experience with illicit drugs was as a teenager when he consumed marijuana.

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 Brown (and Mr Lewis and Employee X) 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 Brown (and Employee X and Mr Lewis) from the workplace. They so acted, as Mr Cox made clear in his evidence, because the conduct of the three employees threatened the reputation of the 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 Brown?

[43] Mr Brown called into question the genuineness of the claims made by Mr Quici against the three employees, 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 Brown, garnered, so Mr Cox claimed, from other employees and supervisors, which was relied upon for the purposes of effecting the decision to terminate the Applicant. 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 Brown which arise from his social relationship with Employee X. In particular, inferences were drawn that Employee X must reasonably have given Mr Brown access to his credit card, which was utilised when off site during the night shift (or allegedly so). While there may be evidence - discussed below - as to the conduct of Mr Brown in relation to leaving site during night shifts, the evidence does not travel further than this, or support an inference that Mr Brown 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 Brown. Consequently, there is no valid reason for the dismissal.

(b) whether the person was notified of that reason

[47] Mr Brown was not given notice of the reasons for his dismissal.

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

[48] Mr Brown was not afforded an opportunity to respond to the reasons for his dismissal. He was dismissed without 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 Brown 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 or lack of procedural fairness extended to the Applicant in relation to the dismissal.

(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 Brown was dismissed for alleged 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, if only for purposes of s.23 of the Act.

(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 - they both gave evidence they knew nothing of “ice” except for what they learned about it through the news or the television; both admitted they knew of their reputations (as “the Chemical Brothers”); and both had separate rivals for their positions who impugned their reputations by associating them with drug usage.

[55] There is other evidence from Mr Haines that is contrary to the claims of Mr Brown that he and Mr Lewis 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. His evidence was given in a candid manner and without contradiction. Mr Haines even acted to ensure his evidence was not misunderstood at a level of detail:

Now, do you know Mr Cox very well?---Over the years we've worked together on and off and I've contracted to him over the years; not on a full-time basis but this last project, being a big project, I – yes, since March I've been contracted to Mr Cox.

Right; and you saw him [Mr Brown] watching television in the office. Is that correct?---On the computer, yes.

Now, along with him leaving site. Correct?---Yes.

Did you ring up Mr Cox and tell him these things?---I stayed out of all of that side of it, mate, yes. It had nothing to do with me and how it was all run but when it all – when it all started happening, I did mention to Mr Cox that, yes, there was a few indiscretions that I didn't think was quite right with what was going on.

What do you mean when it all starting going on? Tell me about how - - -?---Yes; no, just talking in general how the job was going and I informed him that, yes, I didn't think things were getting done correctly.

You informed him in person. Is that correct?---What's that, mate?

You informed him in person or over the phone?---No, over the phone.

When did you make that phone call?---I couldn't tell you a specific date.

Do you want to have a crack at a month, what sort of month?---It was towards – yes, towards the end of March. I hadn't been going there all that long. I remember working under them sorts of conditions and how things should've been run and how things should've been going and I just in general asked Jason on how it all should've been going. 1

[57] I have no reason at all to discount Mr Haines’ evidence as being credible.

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

[59] There were claims made by Mr Spence that Mr Brown (and 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 the two employees in their supervisory roles, but little more.

[61] There is further evidence through Mr Haines that Mr Brown did not exercise his supervisory functions professionally (and he had communicated this to Mr Cox in late March 2014). That is, Mr Haines had witnessed (on one occasion) Mr Brown watching a preferred television series on his computer whilst on night shift and had also seen Mr Brown asleep in his office on another occasion.

[62] This is evidence that may reflect on Mr Brown’s professionalism and the trust vested in him to perform his supervisory role, but it is not telling in relation to whether the dismissal was harsh, unjust or unfair.

Conclusion

[63] Notwithstanding concerns about aspects of the evidence given by Mr Brown (and Mr Lewis) along with other issues relating to his commitment to his duties, I nonetheless find on the whole that the circumstances warrant a finding that Mr Brown was harshly, unjustly or unreasonably dismissed from his employment. I reach this finding largely on the basis that the direct evidence was not sufficient to establish a valid reason for the dismissal and that Mr Brown was denied procedural fairness in the manner in which the dismissal was effected.

REMEDY

[64] 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.

[65] Mr Brown was a person protected from unfair dismissal for the Act’s purposes, and was unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether he should be reinstated.

[66] 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.

[67] I would neither reinstate (by re-appointing) Mr Brown to his former positions 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.

[68] This is because Mr Brown 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.

[69] 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.

[70] 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

[71] 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

[72] Mr Brown was employed for a relatively short period of time, of some 9 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

[73] 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.

[74] On the evidence available to me, Mr Brown would have remained an employee for a period of no more than eight weeks. I reach this view for the following reasons:

• Mr Brown had had been employed for a period of some 9 months and was not an established or long term employee (which would preclude speculation that he would necessarily have been employed for a longer period of time);



• Mr Brown experienced persistent issues with co workers over the course of his relatively short period of employment;



• Mr Brown had been the subject of rumour and innuendo (and was referred to as one of “the Chemical Brothers”) and specific allegations had been made about him by another employee which would have served to destabilise his working relationships;



• Co-worker animosity arose because of ill-feeling arising from complaints Mr Brown had made about certain employees conduct and professionalism late in 2013;



• Mr Brown had been “constantly told by other co-workers that [he] did not deserve to be supervisor”, and it had “got to the point” where had complained about this, and indicated at one point he “could no longer cope with people constantly telling him [he] did not deserve the role”;



• Mr Brown was told by Mr Quici that he (Mr Quici) “intended to take [Mr Brown’s] job off [him]” and would use a drug contact to effect that end;



• There had been complaints about Mr Brown’s conduct made by employees to the new Bulk Haulage Manager, who had instigated an inquiry (which led to Mr Quici’s interview);



• Mr Brown had made various accusations against his employer, which included that he had been directed to falsify his diary in order to travel longer distances in shorter than legally permissible time periods (which was denied by his employer), and had been required to drive overloaded trucks and operated interstate without permits;



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



• Mr Brown had made efforts to conceal from his employer his conduct in leaving the site during night shift work in which he held supervisory responsibilities;



• Whilst holding a position as supervisor, Mr Brown was less than professional in the conduct of his duties (as revealed through the evidence of Mr Haines and as had been reported to Mr Cox).

[75] Equal weight cannot be attributed to all these matters, but they do suggest when taken together that Mr Brown would not have remained in his employment for more than a further two month or eight week period

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

[76] Mr Brown’s efforts to mitigate his losses amounted to making two applications during the eight-week period following his dismissal but before such time as he was re-employed.

[77] Mr Brown sought new employment on the day of his dismissal and had high confidence of obtaining a position at a subsequent point in time. He made only one other job application in the eight week period before he obtained new employment.

[78] Mr Brown did not mitigate his losses sufficiently. His efforts in this regard were extremely limited.

[79] I will discount the amount of compensation to be ordered by 3 weeks for that reason.

(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.

[80] 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.

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

(g) any other matter that the FWC considers relevant

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

[83] 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.

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

[85] That said, I do not intend to rely on this misconduct for the purposes of reducing the amount that would otherwise be paid to Mr Brown. 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 Mr Brown in concealing his activities from his employer taken with other factors suggest that Mr Brown 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.

[86] 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.

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

[88] 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.

[89] 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.

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

[91] 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.

[92] 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

[93] The amount be paid to Mr Brown in lieu of reinstatement is an amount equivalent to 5 weeks pay at the applicable rates Mr Brown was paid whilst an employee of the employer, inclusive of superannuation and subject to taxation.

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

[95] The parties can apply for the purposes of a supplementary decision in the event there is a disagreement over the relevant rates of pay for the purposes of the calculation of the amount to be paid to Mr Brown - though I note Mr Brown’s paid agent has provided some detailed materials in this regard.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr G. Pinchen, for the Applicant

Ms H. Blattman of Counsel, instructed by Macrossan & Amiet Solicitors

Hearing details:

Brisbane

2014

24 November

 1   Transcript of proceedings dated 24 November 2014 at PN1107-1115.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558403>