Mr David Payne v Lower North Shore Community Transport Inc T/A Lower North Shore Community Transport
[2015] FWC 8145
•30 NOVEMBER 2015
| [2015] FWC 8145 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Payne
v
Lower North Shore Community Transport Inc T/A Lower North Shore Community Transport
(U2015/8524)
COMMISSIONER JOHNS | FORBES, 30 NOVEMBER 2015 |
Application for Relief of Unfair Dismissal – Jurisdictional objection – Genuine redundancy.
Introduction
[1] On 12 June 2015 David Payne (applicant) made an application pursuant to section 394 of the Fair Work Act 2009 (Act) for a remedy in respect of his dismissal by Lower North Shore Community Travel Inc (Employer/respondent).
[2] On 24 June 2015 the Employer filed a response to the unfair dismissal application. In its reply the respondent raised an objection to the Commission exercising jurisdiction in relation to the matter. The respondent claimed that the dismissal was a genuine redundancy.
[3] The applicant filed written submissions in the Fair Work Commission (Commission) on 10 August 2015. The respondent filed written submissions in the Commission on 26 August 2015. The applicant filed further material on 1 September 2015. The Commission, as presently constituted, has had regard to all that has been submitted in relation to the matter.
[4] The applicant gave evidence on his own behalf.
[5] The following witnesses gave evidence on behalf of the respondent:
a) Geoffrey Barrett – Chairperson of Respondent;
b) Steven Henderson – Executive Officer of Respondent; and
c) Barry Rutter – an employee of the Respondent employed as a part-time driver for Respondent.
Background
[6] It was common ground between the parties or otherwise not contested that:
a) On 28 May 2008 the applicant commenced in appointment with the respondent.
b) The applicant was employed on a full-time basis as the Individual Transport Manager.
c) His annual remuneration was $64,264.20.
d) In or about June 2014 the respondent engaged Realise Performance Pty Ltd (Realise Performance) to review and make recommendations to the respondent’s Management Committee aimed at increasing office efficiency.
e) In July 2014 Realise Performance interviewed staff for the purpose of writing its report.
f) In July 2014 Realise Performance delivered its report. 1 Realise Performance concluded that:
i. the two transport areas of operation (Group and Individual) be combined under one manager;
ii. the respondent could provide additional positions to focus on client needs;
iii. the new Manager could then better support the Executive Officer;
iv. the following positions be made redundant;
A. Group Transport Manager;
B. Individual Transport Manager;
C. Administrative Officer (part-time);
v. Three new positions be created:
A. Transport Manager (i.e. overseeing both Group and Individual);
B. Transport Coordinator (x 2).
g) On 19 August 2015 Realise Performance presented its report to the respondent’s Management Committee.
h) Between August 2014 and May 2015 Realise Performance undertook further consulting services in relation to the office re-structure.
i) On 7 April 2015 the respondent’s Group Transport Manager resigned.
j) At its meeting on 12 May 2015 the respondent’s Management Committee decided to implement the restructure recommended by Realise Performance. The Management Committee resolved:
... to adopt the office restructure proposal prepared by Realise Performance dated 14 July 2015 to be implemented as soon as practicably possible.
k) On 26 May 2015 the respondent abolished the position of Individual Transport Manager and terminated the employment of the applicant, it said, by reason of redundancy. The position of part-time Administrative Officer was also made redundant that day. The incumbent was offered the full-time role, but she declined that offer. Her employment also ended.
l) The applicant has had a long, blemished and satisfactory work history with the respondent.
m) On termination of his employment the applicant was paid 20 weeks redundancy pay and five weeks in lieu of notice.
n) On 9 June 2015 the former Group Transport Manager (who had resigned in April 2015) was re-employed as the new Transport Manager.
o) From on or about 29 June 2015 or 3 July 2015 one of the respondent’s permanent part-time drivers agreed to undertake higher duties until the role of Transport Services Coordinator was established (the Acting Up Role).
p) On or about 13 July 2015 the respondent hired into the full-time Administrative Officer position.
q) The second Transport Coordinator recommended by Realise Performance remains unfilled.
[7] The applicant submits he was unfairly dismissed and seeks an Order that he be reinstated or compensated.
[8] However, it is be noted that, by reason of the fact that the applicant was paid the equivalent of 25 weeks pay when his employment was terminated, at that date of this decision (23 weeks later), the applicant has not presently experienced any economic loss.
Protection from Unfair Dismissal
[9] An order for reinstatement or compensation may only be issued if the Commission is satisfied the applicant was protected from unfair dismissal at the time of the dismissal.
[10] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal.
[11] In the present matter the respondent conceded2 that:
a) the applicant is an employee who has completed a period of employment with his employer of at least the minimum employment period; and
b) the sum of the applicant’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.
[12] Consequently, there being no dispute about this issue, the Commission, as presently constituted, is satisfied, that the applicant was protected from unfair dismissal.
[13] I will now consider if the dismissal of the applicant by the respondent was unfair within the meaning of the Act.
Was the dismissal unfair?
[14] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“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.
Was the applicant dismissed?
[15] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act.
[16] In the present matter the respondent conceded3 that the applicant was dismissed by it.
[17] Consequently, the Commission, as presently constituted, finds that the respondent dismissed the applicant.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[18] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code).
[19] In the present matter the respondent conceded4 that it was not a small business.
[20] Consequently, the Commission, as presently constituted, finds the respondent was not a small business employer within the meaning of s.23 of the Act.
Was the dismissal a genuine redundancy?
[21] The respondent submits I should dismiss the application because the dismissal was a case of genuine redundancy. Section 389 of the Act defines the meaning of genuine redundancy:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Was the applicant’s job no longer required to be performed?
[22] To be satisfied the dismissal was a case of genuine redundancy, I must be satisfied the role of Individual Transport Manager was no longer required to be performed by anyone because of operational changes to the respondent.
[23] The respondent submitted that on 12 May 2015 its Management Committee resolved to implement the organisational restructure recommended by Realise Performance. That recommendation included a recommendation to abolish the role of Individual Transport Manager.
[24] While the applicant contended that the vast majority of the duties undertaken by him as Individual Transport Manager continued to be needed to be performed after his employment was terminated, his major contention was that there was a “lack of redeployment”. 5
[25] The division of duties of one position between other roles such that, in total, all the duties continue to be performed does not mean that the position has not been made redundant. The reorganisation of duties such that the discrete position undertaken by one employee no longer exists (even if all the duties continue to exist) is still considered a redundancy of the discrete role (in this case the position of Individual Transport Manager).
Consideration
[26] Consequently, the Commission, as presently constituted, is satisfied the respondent no longer required the applicant’s job (that of Individual Transport Manager) to be performed by anyone because of changes in the operational requirements of the respondent’s enterprise, namely its desire to make its operations more efficient and to merge the Group and Individual Transport Manager roles. It was a decision within the remit of the Management Committee to make. It did so bona fide based on the report it received from Realise Performance.
Did the respondent comply with any consultation obligations?
[27] I must now consider whether the respondent was obliged by a modern award or enterprise agreement to consult with the applicant about the redundancy prior to the dismissal.
[28] At the time of the dismissal the LNSCT Employee Collective Agreement 2009 (Agreement) applied to the employment relationship.
[29] There is no express consultation provision in the Agreement. This much was conceded by the applicant.6
[30] Consequently, the respondent submitted that because there is no express provision in the Agreement it had no obligation to consult. 7
[31] However, it is arguable that clause 35(u) has some relevance. It provides as follows:
LNSCT recognises its responsibility to employees in this regard and sees the application of these redundancy provisions as being a last resort only. LNSCT will take all reasonable steps to find surplus employees an alternate position within LNSCT, within their skill and competence.
Consideration
[32] It is nonsensical to argue that an employer who has an obligation to:
a) treat redundancy as “a last resort only”; and
b) “take all reasonable steps to find surplus employees an alternate position”,
does not, at the very least, have an implied obligation to consult with the affected employee. It would not be possible for an employee to sensibly satisfy the obligations in the Agreement without consulting with the employee concerned. An employer could not determine an alternate position without discussing the same with the employees concerned.
[33] Having formed the view (erroneously in my opinion) that it had no obligation to consult the respondent did not do so. It implemented the termination of the applicant’s employment on 26 May 2015 with no consideration of alternate positions and did not, in respect of the applicant, treat redundancy as a last resort. This much was conceded by the respondent’s Executive Officer.
[34] Consequently, the Commission, as presently constituted, is not satisfied the respondent complied with the implied requirement to consult with the applicant about the redundancy prior to dismissing him. In this regard the redundancy was not a genuine redundancy.
Was redeployment reasonable in all the circumstances?
[35] Although, I am not satisfied that the consultation obligations in the Agreement were complied, in the event that I am wrong about the obligation to consult, for completeness, I will now consider if redeployment was appropriate in all the circumstances of this case.
[36] For the purposes of section 389(2) of the FW Act the following principles 8 are relevant to a consideration about whether or not redeployment is reasonable in all the circumstances:
a) First, the reasonableness of redeployment is assessed at the time of dismissal.
b) Secondly, relevant factors include any available position, the qualifications required to perform the position, the skills, qualifications and experience of the employee, the suitability of the employee for the position, the location of the position, and the remuneration offered.
c) Thirdly, a further consideration is the willingness of the employee to be redeployed.
d) Fourthly, it is necessary to identify the position or other work to which the employee could have been redeployed.
[37] The applicant submits redeployment was appropriate in the circumstances because, at the date of termination, he could have been redeployed into any of the newly created roles, namely:
a) Transport Manager (i.e. overseeing both Group and Individual);
b) Transport Coordinator (x 2); and
c) Full-time Administrative Officer role.
[38] The respondent initially submitted that redeployment was not appropriate. However, the evidence of the Executive Officer was devastating for the respondent’s case in this regard. Mr Henderson conceded that on the day that the applicant’s employment was terminated there were 3 vacant positions and none of them were offered to the applicant. 9 Further, the Executive Officer accepted “the inherent unfairness and indecency of [how the applicant was treated]”.10
[39] In the circumstances and, in particular, having regard to the refreshingly honest evidence of the respondent’s Executive Officer, the Commission, as presently constituted, is satisfied that it would have been reasonable for the applicant to be redeployed within the respondent’s enterprise.
[40] Consequently, the Commission, as presently constituted, finds that the dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
Harsh, unjust or unreasonable
[41] Having dismissed the respondent’s jurisdictional objection of genuine redundancy, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
“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.”
[42] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
.... 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.
[43] The Commission is under a duty to consider each of these criteria in reaching my conclusion.11 Accordingly, I will now consider each of the criteria at s.387 of the Act separately.
Valid reason - s.387(a)
[44] The respondent must have a valid reason for the dismissal of the applicant, although it need not be the reason given to the applicant at the time of the dismissal.12 The reasons should be “sound, defensible and well founded”13 and should not be “capricious, fanciful, spiteful or prejudiced.”14
[45] Noting my earlier finding that the respondent no longer required the applicant’s job (that of Individual Transport Manager) to be performed by anyone because of changes in the operational requirements of the respondent’s enterprise, the Commission, as presently constituted, finds that there was a valid reason for the dismissal.
[46] The applicant conceded the same.15
Notification of the valid reason - s.387(b)
[47] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,16 in explicit terms17 and in plain and clear terms.18
[48] In the present matter it is common ground between the parties and, as such, the Commission, as presently constituted, finds the applicant was notified of the reason for the dismissal.
Opportunity to respond - s.387(c)
[49] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.19
[50] In the present matter the termination of the applicant’s employment was not related to his conduct or his capacity. This was conceded by the respondent. 20
[51] The Commission, as presently constituted, finds that s.387(c) is not a relevant consideration.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[52] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[53] However, in the present matter no opportunity to attend with a support person was offered and, as such, section 387(d) is not a relevant consideration in determining whether the termination of the applicant’s employment was unfair.
Warnings regarding unsatisfactory performance - s.387(e)
[54] The termination of the applicant’s employment was not associated with unsatisfactory performance. This was conceded by the respondent. 21 Accordingly, section 387(e) is not a relevant consideration in determining whether the termination of the applicant’s employment was unfair.
Impact of the size of the respondent on procedures followed - s.387(f)
[55] The size of the respondent’s enterprise may have impacted on the procedures followed by the respondent in effecting the dismissal. In the present matter the respondent is not a small business, but rather a not for profit enterprise. At the relevant time it employed around 22 employees.
[56] The Commission, as presently constituted, finds the size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[57] The absence of dedicated human resource management or expertise in the respondent’s enterprise may have impacted on the procedures followed by the respondent in effecting the dismissal.
[58] As stated above, at the relevant time the respondent employed around 22 employees. It is not a small business but rather a not-for-profit enterprise. It has no dedicated human resources function. However the respondent did engage the services of Realise Performance Pty Ltd to provide professional human resources services to it.
[59] Consequently, the Commission, as presently constituted, finds that the absence of any such management or expertise did not impact on the procedures followed by the respondent in effecting the dismissal.
Other relevant matters - s.387(h)
[60] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of the applicant was harsh, unjust or unreasonable:
a) the length of the applicant’s employment;
b) his loyalty to the organisation;
c) his unblemished record of employment;
d) the conceded availability of positions into which the applicant could have been redeployed on the date his employment was terminated;
e) the failure of the respondent to consider professional development opportunities which would have improved his skills and ability to perform new roles in the organisational structure;
f) the evidence of the applicant that, notwithstanding some difficulty in the relationship between him and Mr Henderson, he believes that grown adults can work with each other and move forward. 22
Conclusion
[61] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied the dismissal of the applicant was harsh, unjust or unreasonable. Accordingly, the Commission, as presently constituted, finds the applicant’s dismissal was unfair.
Remedy
[62] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[63] I have already dealt with the issues at s.390(1)(a)–(b) above. The Commission, as presently constituted, is satisfied the applicant was protected from unfair dismissal pursuant to s.382 of the Act and the applicant was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if the Commission, as presently constituted, is satisfied such an order is appropriate in all the circumstances.
Reinstatement
[64] The applicant seeks reinstatement or, in the alternative, compensation as the primary remedy. Regardless of the remedy sought by the applicant, s.390 of the Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.
[65] The applicant submits that he could be reinstated either into the Transport Coordinator Role or into a driver role.
Consideration
[66] In Regional Express Holdings Ltd T/A Rex Airlines23 a Full Bench of Fair Work Australia considered what factors may be taken into account when considering if reinstatement is inappropriate under s.390(3)(a) of the Act:
“[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there is a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust.”24
[67] At the date of termination the respondent had resolved to implement the restructure recommended by Realise Performance. The restructure included two positions for a Transport Coordinator. The Management Committee decided that it would wait until the new financial year to create those roles. In the interim (i.e. between 26 May 2015 and 1 July 2015) one of the respondent’s permanent part-time drivers undertook higher duties (effectively undertaking the role of Transport Coordinator). As at the date of the hearing the Transport Coordinator role, which the Management Committee resolved to create had not been filled on a substantive basis. It is a role beneath that formally filled by the applicant as the Individual Transport Manager but, nonetheless it was a role that he had the skills, qualifications and experience to perform.
[68] Accordingly, in the circumstances the Commission, as presently constituted, is satisfied that an order for reinstatement is not inappropriate and that the applicant should be reinstated (reemployed into) the role of Transport Coordinator.
[69] Having decided reinstatement is not inappropriate in this case, I must decide the terms in which an order may be made.
[70] Section 391 of the Act provides:
“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.”
[71] I will now consider each aspect of the order for reinstatement.
[72] As discussed in my consideration of the appropriateness of reinstatement, there is a position vacant in the respondent’s enterprise with terms and conditions that the applicant is willing to accept. Consequently, I will make an order requiring the applicant to be reinstated into the position of Transport Coordinator within 21 days of the date of this decision.
Continuity of employment
[73] Section 390(2) of the Act provides a discretion to the Commission to determine if it is appropriate for an order maintaining the applicant’s continuity of employment and continuous service with the respondent.
[74] I consider it appropriate to make an order maintaining the continuity of the applicant’s employment and continuous service with the respondent from the date that his employment was terminated to the date he recommences employment.
Restoration of lost pay
[75] Section 390(3) of the Act provides the Commission with a discretion to determine if it is appropriate to make an order causing the respondent to pay the applicant an amount for the remuneration lost, or likely to be lost, by the applicant because of the dismissal.
[76] Pursuant to s.391(4) I must take into account any remuneration earned from employment or other work by the applicant since the dismissal and the making of the order for reinstatement and any remuneration to be earned from employment or other work by the applicant between the time of the making of the order and the actual reinstatement.
[77] Noting that the applicant has not incurred any economic loss to date (by virtue of the payment made to him on termination) I consider it inappropriate to make an order restoring remuneration lost, or reasonably likely to be lost, by the applicant because of the dismissal. In fact it seems likely that if the applicant is re-employed before 21 days of the date of this decision, he may have to make a re-payment to the respondent. I expect that the parties can resolve this matter between themselves, but, if not, they are at liberty to make application to me about the same.
Conclusion
[78] The Commission, as presently constituted, is satisfied that the applicant was protected from unfair dismissal, that the dismissal was unfair and a remedy of reinstatement is appropriate.
[79] And the Commission, as presently constituted orders that:
a) the applicant be reinstated into the position of Transport Coordinator within 21 days of the date of this decision;
b) the applicant’s continuity of employment between 26 May 2015 and the date that his is reinstated be maintained; and
c) there be no order for the restoration of lost pay.
COMMISSIONER
Appearances:
D. Payne on his own behalf.
D. Goodenough for the respondent.
Hearing Details:
2015.
16, September
Sydney.
1 Exhibit “L1” to the witness statement of Geoffrey Barrett (exhibit “R8”).
2 Transcript PN9.
3 Transcript PN11.
4 Transcript PN13.
5 Transcript PN16-21.
6 Transcript PN25.
7 Transcript PN27.
8 Ulan Coal Mines v Honeysett[2010] FWAFB 7578, TAFE Commission v Pykett[2014] FWCFB 714.
9 Transcript PN256-PN282.
10 Transcript PN320.
11 Sayer v Melsteel[2011] FWAFB 7498.
12 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
13 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
14 Ibid.
15 Transcript PN524.
16 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
17 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
18 Previsic v Australian Quarantine Inspection Services Print Q3730.
19 RMIT v Asher (2010) 194 IR 1, 14-15.
20 Transcript PN527.
21 Transcript PN530.
22 Transcript PN536.
23 [2010] FWAFB 8753.
24 Ibid at [26].
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