Mr Demesw Wederay v Airline Cleaning Services Pty Ltd T/A Cabin Services Australia

[2017] FWC 4603

[2017] FWC 4603

FAIR WORK COMMISSION

DECISION

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

Mr Demesw Wederay
v
Airline Cleaning Services Pty Ltd T/A Cabin Services Australia
(U2017/4972)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 5 SEPTEMBER 2017

Application for an unfair dismissal remedy - jurisdictional issue raised - whether applicant resigned or was dismissed – forced resignation - dismissal harsh, unjust or unreasonable – reinstatement not appropriate - further submissions on remedy

[1] Mr Demesw Wederay has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his (alleged) dismissal by Airline Cleaning Services Pty Ltd trading as Cabin Services Australia (Cabin Services). He claims to have been unfairly dismissed on or about 19 April 2017.

[2] Cabin Services provides cleaning and restocking services to passenger aircraft at Australian airports. Mr Wederay commenced working for Cabin Services at Adelaide airport as a Driver/Cleaner in December 2015. He was employed for sixteen months as a casual employee. Commonly he worked night shifts of between five and seven hours across varying days of the week, usually commencing at 5.00pm. His employment was governed by the Broadlex Air Services Agreement 2014. Cabin Services is a subsidiary of Broadlex.

[3] Driver/Cleaners at Adelaide operate from a warehouse adjacent to the airport precinct but about 2km from the main airport complex. A Driver/Cleaner loads trucks with beverage carts and linen requirements, drives to a flight services contractor, parks trucks airside (adjacent to aircraft), cleans aircraft cabins, uses a high lift truck to load and unload aircraft stock and returns used carts and linen to the warehouse. Usually, a second employee accompanies a Driver/Cleaner on each shift and helps complete the tasks.

[4] Given the aviation context, the role requires a medium rigid or heavy rigid truck licence, an Aviation Security Identity Card and an Airside Driving Licence. Training in aviation protocols and airside security is mandatory, as is compliance with airport safety and security requirements. Timeframes for servicing aircraft, particularly on night shifts in Adelaide, are tight. Cabin Services incurs penalties imposed by airlines if timeframes are not met.

[5] Mr Wederay is of Ethiopian descent. He was tertiary educated in Ethiopia and worked in the civil service where he progressed from driving buses to becoming a parliamentary conference administrator. He migrated to Australia in 2005 and obtained permanent residency in 2007. Until employed by Cabin Services, he worked in Adelaide as a taxi driver. He is married. He has three children, two of infant age.

[6] Mr Wederay’s application was lodged within the statutorily required 21 days after his dismissal took effect.

[7] Mr Wederay seeks a finding that his dismissal was an unfair dismissal within the meaning of the FW Act, and an order for reinstatement accompanied by ancillary orders for the payment of back pay and recognition of continuing employment. In the alternative, he seeks an order for compensation.

[8] Cabin Services raises a jurisdictional issue. It contends that Mr Wederay was not dismissed but resigned his employment on 19 April. Accordingly it claims that Mr Wederay could not have been unfairly dismissed within the meaning of the FW Act. In the alternative, it contends that the dismissal was not harsh, unjust or unreasonable. It opposes any remedy, and in particular an order for reinstatement.

[9] Conciliation by the Commission on 31 May 2017 did not resolve the matter.

[10] A hearing of the jurisdictional issue, merits and remedy was jointly conducted on 20 and 21 July and 1 August 2017.

[11] Prior to the hearing, Mr Wederay sought permission under section 596 of the FW Act to be legally represented. The request was not opposed. On 17 July I granted permission on the basis that legal representation would enable Mr Wederay to better respond to the jurisdictional objection. I also considered that permission should be granted in the interests of fairness given that Cabin Services was represented by an experienced officer of an industrial association.” 1

[12] During proceedings, I granted permission for Mr Wederay to amend the employer’s name in his application from Cabin Services Australia to Airline Cleaning Services Pty Ltd trading as Cabin Services Australia. 2

[13] The hearing occupied two and a half days. Evidence and submissions on the jurisdictional matter and the merits (as well as remedy) were presented. At the hearing’s conclusion, I reserved my decision.

[14] Three issues arise for decision: first, was Mr Wederay dismissed within the meaning of the FW Act; second, if so, was the dismissal unfair within the meaning of the FW Act (that is, was it “harsh, unjust or unreasonable” having regard to the factors in section 387); and third, if so, what is the appropriate remedy?

[15] It was common ground between the parties that Mr Wederay was a person protected from unfair dismissal under the FW Act (section 382). The (alleged) dismissal was not governed by the Small Business Fair Dismissal Code (section 385(c)) nor was the termination a case of genuine redundancy (section 385(d)). On the evidence, I am satisfied this is correct.

The Requirement to have been Dismissed

[16] Under the FW Act, a person can only be “unfairly dismissed” if they have been “dismissed” (section 385(a)).

[17] Section 386 of the FW Act provides that:

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

[18] The provisions of section 386(2) and (3) do not apply in this matter.

[19] Having raised the jurisdictional issue, Cabin Services bears the legal onus of establishing that Mr Wederay was not dismissed. However in circumstances where an employee resigns but claims their resignation was, at law, a dismissal an evidentiary burden exists on the employee to establish that the termination was at the initiative of the employer or forced by the employer’s conduct. 3

[20] The jurisdictional issue falls to be determined by answering two questions: firstly, did the conduct of the parties on 19 April and in the days that followed constitute termination at the initiative of Cabin Services, or alternatively, did it constitute a resignation by Mr Wederay?; and secondly, if it constituted a resignation by Mr Wederay, was he forced to do so because of the conduct or a course of conduct engaged in by Cabin Services?

The Legal Principles

[21] The legal principles governing the application of section 386(1) are well established.

[22] Although decided under a previous Act, 4 the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd5 remains generally relevant to the consideration of section 386(1):

“In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.”

In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 6

[23] Although determined by the English Court of Appeal, the following approach taken in CF Capital PLC v Willoughby 7  is also generally consistent with that of Australian Court and Tribunals:

“37. The ‘rule’ is that a notice of resignation or dismissal (whether given orally or in writing) has effect according to the ordinary interpretation of its terms. Moreover, once such a notice is given it cannot be withdrawn except by consent. The ‘special circumstances’ exception as explained and illustrated in the authorities is, I consider, not strictly a true exception to the rule. It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be. The need for such a so-called exception to the rule is well summarised by Wood J in paragraph 31 of Kwik-Fit’s case and, as the cases show, such need will almost invariably arise in cases in which the purported notice has been given orally in the heat of the moment by words that may quickly be regretted.

38. The essence of the ‘special circumstances’ exception is therefore that, in appropriate cases, the recipient of the notice will be well advised to allow the giver what is in effect a ‘cooling off’ period before acting upon it. Kilner Brown J, in paragraph [15] of his judgment in Martin’s case understandably referred to such a period as an opportunity for the giver of the notice to recant, or to withdraw his words; and this is in practice what is likely to happen. I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.”

[24] Accordingly, the general legal principles to be applied in this case include:

1. A termination at the initiative of the employer must involve action of the employer as the principal constituting factor leading to the termination;

2. The employer must have engaged in some action that intended to bring the employment relationship to an end or had that probable result;

3. Considerable caution should be exercised in treating a resignation as other than voluntary. It is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign;

4. In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required;

5. A termination (or resignation) has effect according to its ordinary terms however in some special circumstances the Commission needs to ascertain the objective intention and consider whether it would have been reasonable to permit a retraction or clarification; and

6. Subject to the above, a dismissal or resignation, once given, cannot be unilaterally withdrawn.

The Witnesses

[25] Four witnesses gave evidence. Mr Wederay for himself and (for Cabin Services) the Adelaide Station Manager, Ms Paula Crook; the National Human Resources and Compliance Manager, Ms Daniela Armone; and the National Operations Manager, Mr Jon Priestley.

[26] The jurisdictional matter turns largely on the events at a meeting attended only by Mr Wederay and Ms Crook on 19 April. Those facts were contested, with different versions of events. Issues of credit, particularly relating to the sworn testimony of witnesses, are important in determining this matter.

[27] However, I have reservations about the reliability of certain parts of the evidence of both Mr Wederay and Ms Crook.

[28] Mr Wederay gave evidence in an open and generally calm manner. He was a talkative witness with a casual demeanour but gave the impression that he was keen to impress to the point of reconstructing some events, rather than simply recalling them. Some of his evidence was contradictory 8. He was extensively cross examined and whilst his answers strayed, he generally held ground on his version of events. Although not his primary language, he speaks English well despite being unfamiliar with some aspects of English idiom and language.

[29] Ms Crook gave evidence in a firm manner but showed significant discomfort on some matters in cross examination. Her evidence strayed between fact and opinion. She was impatient when cross examined on alternate versions of events. It was apparent from her evidence that her witness statement outlining discussions with Mr Wederay on 3 April and 19 April did not include a full narrative of what occurred during those meetings 9.

[30] Ms Armone was concise in her evidence which was of limited scope. Much of her evidence was hearsay as she had no direct dealings with Mr Wederay. She had not seen or spoken to Mr Wederay until the hearing 10. Although performing a significant role as the company’s National Human Resources and Compliance Manager, she was a part time employee. She had an air of detachment in giving her evidence which made aspects of it appear rehearsed.

[31] Mr Priestley was a forceful witness but under cross examination became argumentative and dismissive of facts or documents that might not suit the company’s case. His unwillingness to concede ground beyond the company’s stated position coloured my impression of his evidence and the extent to which I am persuaded by it.

[32] I do not consider any one of the witnesses in this matter to be generally more reliable than the other. Where there is a clash in evidence, and particularly between the evidence of Mr Wederay and Ms Crook, I make findings on the balance of probabilities on specific contested facts, objectively assessed. Based on those specific findings, I determine the legal questions concerning jurisdiction and merit.

The Events of 19 April

[33] Mr Wederay’s case is that he did not resign. His case is that the conduct of Cabin Services on 19 April constituted a dismissal on the employer’s initiative within the meaning of section 386(1)(a) of the FW Act.

[34] Cabin Services case is that Mr Wederay’s conduct on 19 April constituted a resignation and that the resignation was not a forced dismissal within the meaning of section 386(1)(b) of the FW Act.

[35] While the events of 19 April are central to both cases, Mr Wederay and Cabin Services refer to their conduct, and that of the other, in the week that followed 19 April to support their case.

[36] It was not in contention that Mr Wederay and Ms Crook met in Ms Crook’s office on 19 April shortly after Mr Wederay commenced his shift. Mr Wederay had been meaning to give Ms Crook a completed form requesting annual leave and wanted to see her for that purpose. Ms Crook had been meaning to speak to Mr Wederay about an incident involving an altercation between staff at a loading bay on 31 March which she had spoken to him by phone on 3 April. Unknown to Mr Wederay, on 7 April Ms Crook had been asked by Ms Armone to give Mr Wederay a final written warning arising from that incident, which Ms Armone had prepared. 11 Ms Crook had not found time to issue the warning in the preceding week. As she was going on leave on 20 April, she did so when his shift commenced on 19 April. As it was the start of the shift, client aircraft had to be serviced, and Ms Crook wanted the meeting to be as quick as possible.12

[37] No other person was present at the meeting.

[38] It was not in contention that after Mr Wederay gave Ms Crook his annual leave form she produced the written warning and asked him to sign it. Mr Wederay refused. He protested that the 31 March incident was minor and had been or could be sorted between staff. He wanted to know who had reported him. It is at this point versions of events differ.

[39] Mr Wederay says the following occurred:

Ms Crook said “if you do not sign you are in breach of your bosses orders”. He refused, saying he wanted to speak to more senior managers (Elvis Crook or Jon Priestley);

Ms Crook then printed another document from her office printer and asked Mr Wederay to sign it, which he refused;

Ms Crook then asked Mr Wederay to hand over his security passes “while this is getting sorted out”. Mr Wederay complied and handed over his passes;

Ms Crook told Mr Wederay to go home, which he did. 13

[40] Ms Crook says what happened was as follows:

Mr Wederay became agitated and said “I told you I was going to leave. I told you my wife doesn’t want me to leave until my claim has finished…You know Paula I don’t want to be here. I don’t like it here….This company is always going for me. I am trying hard. I am trying to get employee of the month and it does not happen for me. I am going to resign”

Ms Crook: “So you are going to resign”

Mr Wederay: “Yes I am going to resign”. He proceeded to take off his security passes

Ms Crook: “Demesw are you resigning now?”

Mr Wederay: “Yep I am going home now”. He tossed his security passes on the desk

Ms Crook: “If you are serious can you jot something down for me so I have something on paper”

Mr Wederay: “I will email tomorrow”

Ms Crook: “Demesw, if you want to talk about it, I think Elvis or Jon will be here tomorrow if you want to talk to them. Did you want to make a time?

Mr Wederay: “No I will email”

Ms Crook: “Please just wait a minute”. She then left the office to speak to a team leader to ask for an alternate driver to be used as Mr Wederay was tied up. She returned to her office

Mr Wederay: “Is that it”

Ms Crook “Unless you want to write a note about it or take a couple of minutes to think about it or come and see me tomorrow. You don’t need to do this, Demesw”

Mr Wederay: “The company doesn’t care about me. Paula, you don’t care about me…” Mr Wederay collected his annual leave form and final warning form from the desk

Ms Crook: “You don’t have to do this Demesw”. He walked away. I followed him out of the door

Ms Crook: “Demesw, you don’t have to do this”

Mr Wederay: “The company doesn’t care for me”

Ms Crook: (now at the front desk) I wished him well and told him not to be a stranger. He replied with a smirk “You don’t want to see me again” and he left. 14

The Events after the 19 April Meeting

[41] Most of the events after the 19 April meeting are not in dispute. I make the following findings.

[42] Mr Wederay had been rostered to work on 19 April, but left after his meeting with Ms Crook. An alternate driver was substituted at short notice. Ms Crook rang Ms Armone and spoke to her that evening. Ms Crook told her that Mr Wederay had resigned and asked for guidance on next steps. Ms Armone told Ms Crook “if he wants to resign, let him go” 15, or words to that effect. Ms Armone told her to complete internal termination paperwork and send it to payroll. Ms Crook then rang Mr Priestley. He did not respond. She left a voicemail. It was not until 20 April that they spoke. When they did, Ms Crook told Mr Priestley that Mr Wederay had resigned.

[43] On 19 or 20 April Ms Crook arranged for Mr Wederay’s security passes to be returned to aviation security control. At the end of her shift on 20 April she went on leave.

[44] Mr Wederay did not on 19 April, nor at any time thereafter, complete or send a written resignation.

[45] Mr Wederay received an email from airport security control on 20 April advising him that his security passes had been returned and cancelled. 16 He says he was shocked to receive that advice and became concerned he may no longer have a job. He re-read the papers he had collected from Ms Crook’s desk. He says that this was the first time he sighted a document headed “Staff Termination Form/Checklist’. I generally accept this evidence. I make findings about this matter below.

[46] On 21 April Mr Wederay went to his Union’s office to seek industrial advice but the officer he was looking for was not available 17. An appointment was made for 24 April. He then drove to Cabin Services to seek clarification of his employment status. He had access to the office which is not in the secure airport precinct. He says no one was present. The office was closed. He did not enter despite having a key (which had not been returned). He spoke to no-one and left.

[47] Prior to the events of 19 April, Mr Wederay had been rostered to work on 22 and 23 April. He did not attend for work. His evidence was he did not because he no longer had security passes to access the secure airport precinct. I accept that evidence. Cabin Services did not expect him to turn up. Before going on leave, Ms Crook made alternative arrangements for these shifts to be worked by another employee. I accept that evidence.

[48] On 24 April Mr Wederay met with his Union 18. He then again drove to Cabin Services to seek clarification. No one was present except a work colleague (Mohammed) who believed a manager, Elvis Crook, was around. Mr Wederay phoned Mr Crook. His call was not answered. He waited for 15 minutes then left.

[49] On 26 April Mr Wederay emailed another manager (Mr Priestley) seeking clarification whether he was “back at work or terminated?” 19 Mr Priestley did not reply. Mr Wederay then saw a solicitor, Mr Irvine.

[50] On 27 April Mr Irvine emailed Mr Priestley in the following terms:

“Dear Mr Priestley

I confirm that I represent Mr Wederay in relation to his workers compensation and industrial relations matter. I attach herewith my client’s signed authority allowing me to liaise directly with the employer.

Mr Wederay is concerned and confused about the nature of his current employment status with the company. He has shown me 2 documents including a Worker Warning Notice and a ‘Staff Termination Checklist. Can you please clarify whether Mr Wederay remains an employee of Cabin Services, or whether he has been terminated? If he has been terminated, what are the grounds for termination?

I look forward to your clarification…

Kind regards,

Michael Irvine 20

[51] Mr Priestley took advice from Ms Armone before he replied. Ms Armone drafted the following reply 21 which was sent by Mr Priestley five days later, on 2 May:

“Dear Michael,

On or around 3 April 2017, Demesw advised Paula Crook (Adelaide Station Manager) that he intended to resign his employment.

On 19 April 2017 Paula met with Demesw to issue him a final warning letter dated 7 April 2017. Following this meeting, Demesw advised Paula that he was resigning effective immediately. Consistent with this, Demesw returned his Aviation Security Identification Card, his Airside Drivers Licence, swipe key and truck starter token. He also collected the termination paperwork from Ms Crook.

On 22 April 2017 and 23 April 2017, consistent with his resignation, Demesw did not present for his rostered shifts.

Cabin Services Australia have accepted his resignation and we have employed someone in his position.

Regards,

Jon” 22

[52] I find that prior to sending this email, neither Ms Armone nor Mr Priestley had spoken to Mr Wederay about the events of 19 April to ascertain his version of what had occurred. Ms Crook was still on leave. Mr Priestley was relying on one voice message left on his phone by Ms Crook on the evening of 19 April and a conversation with her on 20 April. Ms Armone was relying on the phone call she had with Ms Crook on the evening of 19 April.

The Staff Termination Form/Checklist

[53] Mr Wederay’s termination is documented in an internal Cabin Services ‘Staff Termination Form/Checklist’. 23 It records that Mr Wederay resigned verbally on 19 April. It records that he returned keys and security passes. It is signed by Ms Crook and dated 19 April.

[54] Ms Crook’s evidence was that she downloaded this form and then completed it late on the evening of 19 April after taking advice from Ms Armone after Mr Wederay left the office.

[55] Exhibit A8 casts doubt about the reliability of Ms Crook’s evidence concerning the Form. A8 is an incomplete internal Cabin Services ‘Staff Termination Form/Checklist’ that was produced in evidence by Mr Wederay. It records Mr Wederay’s name in similar handwriting to that of PC9, which Ms Crook says she completed. A8 records that Mr Wederay resigned and that keys and security passes were returned. It is not signed by a company officer, nor dated.

[56] Mr Wederay says that he first saw this incomplete form A8 at home on 20 April when he was looking through the papers he picked up from Ms Crook’s desk on 19 April. I accept that evidence and make that finding. Each of the Company witnesses said that these forms are internal only, and not provided to outgoing staff. 24 The completed form PC9 was brought into evidence by Ms Crook. Subject to my findings below, I accept her evidence that it was she who completed PC9 and sent it internally to payroll. I accept Mr Wederay’s evidence that he did not complete or sight PC9 or have access to it.

[57] Ms Crook gave evidence that she had no idea how the incomplete form A8 came into existence or how it came into Mr Wederay’s possession. Under cross examination and in questioning from me, she agreed that the writing on A8 looked very much like her handwriting 25 although she claimed there were some differences26. She became vague and distinctly uncomfortable when cross examined by counsel and questioned by me on this topic. I find her evidence on this issue evasive27 and unreliable28.

[58] Given the similarity in handwriting with PC9, the concession by Ms Crook that it appears similar to hers and based on the surrounding circumstances, I find on the balance of probabilities that the incomplete Staff Termination Form/Checklist (A8) was completed by Ms Crook.

[59] It is more difficult to determine when Ms Crook completed A8. I need not resolve that question except to deal with Mr Wederay’s contention that it is evidence of premeditation to terminate his employment. This would only be so if prepared prior to the 19 April meeting. I have found that Mr Wederay had A8 in his possession on 20 April. Thus, it was either prepared by Ms Crook before the meeting on 19 April or during that meeting. I find, on the balance of probabilities, that A8 was the document Ms Crook printed in her office and brought back to her desk during her discussion with Mr Wederay 29. This is consistent with Mr Wederay’s evidence that she took a document from her printer during their meeting.30 It is likely that she started completing the form in the presence of Mr Wederay but that events moved apace and she ultimately lost control of them, including the document. I do not make a finding of premeditation. It was inadvertence on her part to allow A8 to fall into Mr Wederay’s possession. It reflected a desire on her part to promptly record his termination whilst he was in her presence.

[60] I find, on the balance of probabilities, that when Mr Wederay collected his papers from her desk, he unwittingly collected the incomplete form. I note that Mr Priestley’s email of 2 May said, in part, “He also collected the termination paperwork from Ms Crook” 31. I find that a fresh form was downloaded by Ms Crook and then completed late on the 19 April (after speaking to Ms Armone) or was completed by her on 20 April after speaking to Mr Priestley but backdated to 19 April.

[61] A8 is not evidence of resignation or dismissal. It is evidence that Ms Crook marked the resignation box on the form, as she did on PC9. Given my finding that Ms Crook’s evidence concerning A8 is unreliable, I place no weight on the fact that she marked the resignation box. I will determine whether Mr Wederay was dismissed or resigned based on findings I make about the discussion between them on 19 April and the parties subsequent conduct, and the application of those findings to the law.

Was Mr Wederay Dismissed?

[62] My findings concerning A8 impact the creditworthiness of Ms Crook’s evidence. However, given my finding that Mr Wederay’s evidence was not wholly reliable, it does not follow that all other aspects of Ms Crook’s evidence should be disregarded. Questions about her creditworthiness do, however, lead me to treat her evidence with added caution and test it rigorously against alternative versions and surrounding circumstances before making findings.

[63] Mr Wederay’s version of events is that Ms Crook demanded his security passes, effectively suspending him from active work, while the matter of the disputed final warning was to be “sorted out” 32. I find this implausible. I consider it a reconstruction not a narrative of events. Three surrounding circumstances lead me to this conclusion.

[64] Firstly, whatever deficiency in her management style, I accept Ms Crook’s evidence that her priority was to keep the shift operating that night and service aircraft without disruption or delay. For that, she needed a driver. It was not in her interest to have Mr Wederay leave his shift without performing work, find a replacement driver at short notice and confiscate his security pass to render him unable to perform work.

[65] Secondly, she did not regard him as a wholly unsatisfactory worker. She had, only weeks prior, recommended him for a temporary relocation to Perth to do work that needed an experienced driver. 33

[66] Thirdly, I accept Ms Crook’s evidence, which is supported by documentation, 34 that Mr Wederay had on 3 April, during his phone discussion about the very same incident, indicated to her that he was thinking of resigning once his Workcover claim was finalised. The company’s written record of that interview, although never put to Mr Wederay for signing, notes this. Mr Wederay, while not accepting this exact record, claimed that he said “Paula, you are pushing me to leave this work because always you are accuse me unfairly. That’s what I said to her.”35 I also accept that Mr Wederay had on at least one previous occasion in November 2016 informed Ms Crook during a counselling session that he was in the mood to resign if wrongdoing on his part was asserted by a client: “So I told her, if any complaint comes I will resign tomorrow, that’s what I told her.”36

[67] On the balance of probabilities, I find that Mr Wederay verbally resigned to Ms Crook in her office after unexpectedly being confronted with a written warning with which he disagreed. In making this finding I reject Mr Wederay’s version of events at paragraphs 63 and 65 of his witness statement. I prefer Ms Crook’s version at paragraphs 64 to 75 of her witness statement with the caveat that hers is an incomplete record in that it omits Mr Wederay’s evidence at paragraph 64 of his statement, which I have accepted.

[68] I find that Ms Crook was taken aback that Mr Wederay resigned and then left the workplace. I do not find her actions premeditated. I find that she immediately telephoned Ms Armone and said that Mr Wederay had verbally resigned after refusing to sign his warning but had not resigned in writing. I accept Ms Armone’s evidence that Ms Crook asked for guidance on what next to do. Ms Armone told Ms Crook to “let him go” and complete the paperwork. I do not believe that Ms Crook would have told Ms Armone on 19 April and Mr Priestley on 20 April that Mr Wederay had resigned if he had not done so.

[69] I find that the discussion between Mr Wederay and Ms Crook moved quickly and unexpectedly but (in relevant respects) ended on the basis of Ms Crook telling Mr Wederay that he could speak the next day to one of two managers (Elvis Crook or Jon Priestley) before asking him again if he was sure he wanted to resign. Mr Wederay repeated that he was resigning. Ms Crook asked him to put his resignation in writing. 37 Mr Wederay said that he would do so by email the next day. These are my findings.

[70] In these circumstances, I do not find that Mr Wederay was dismissed on the initiative of the employer within the meaning of section 386(1)(a) of the FW Act. However, having found that Mr Wederay verbally resigned, I am required by section 386(1)(b) of the FW Act to consider whether the employee “resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”. 38 If the evidence supports that conclusion, Mr Wederay was, at law, dismissed.

[71] Mr Wederay’s verbal resignation was impulsive and made in the heat of the moment. Ms Crook herself said that Mr Wederay was “high and low” and “up and down” 39 during the conversation, one moment refusing to sign the warning, the next saying he would, the next refusing again.40 I find that he was frustrated with prior counselling and warnings given to him by Ms Crook, believing them unwarranted or concerning minor issues. Rightly or wrongly, he felt that Ms Crook had formed a negative view about him since he was injured at work in mid-2016 and had spent six months on a managed return to work plan. He had verbally foreshadowed resigning two weeks earlier. On 19 April, in the heat of the moment, the written final warning about the 31 March incident tipped him over. His previous threat became a reality. He said he was resigning and he then affirmed he was resigning. He took off his security pass, tossed it on the table, and left. In the heat of that moment, he was not open to negotiation or persuasion to another course.

[72] The law recognises that, in special circumstances, a heat of the moment resignation may not result in termination of an employment contract if an employee acts quickly to inform the employer that it was not intended and if, in the circumstances, it was unreasonable for the employer to act on the resignation. 41

[73] I find that the reality of his heat of the moment resignation hit home to Mr Wederay the following day when he realised that his employer had forwarded his security pass to airport security control, rendering him unable to work future shifts. For that to occur, he had to re-negotiate his way back into the workplace and to do that he had to engage with management. He did not turn up for his shifts on 22 or 23 April but did make two aborted visits to the office on 21 and 24 April, unsuccessfully phoned Mr Crook and Mr Priestley on 24 April, unsuccessfully emailed Mr Priestley on 26 April, sought advice from his union and then a solicitor. On his instructions, his solicitor emailed Mr Priestley on 27 April.

[74] These actions are consistent with a person who had second thoughts about his verbal resignation and was seeking to clarify whether it had been accepted. While he did not at any stage recant his verbal resignation, he did not confirm it in writing despite Ms Crook’s request that he do so and his heat of the moment promise to do so. While the evidence is that he did take progressive steps over seven days to ascertain his employment status, he did not move with speed to seek that clarification.

[75] Although I make some allowance for Mr Wederay’s casual demeanour, different cultural background and lack of specialist knowledge about employment rights, I do not consider that Mr Wederay acted with sufficient urgency or decisiveness to inform his employer that either (in his view) he had not resigned or to recant his verbal resignation. Mr Wederay’s post-resignation conduct, in isolation, is not sufficient to constitute special circumstances that would re-characterise a heat of the moment resignation as a dismissal.

[76] Section 386(1)(b) however requires the Commission to examine the conduct of the employer, and particularly whether Mr Wederay was forced to resign by the conduct or a course of conduct engaged in by the employer.

[77] I make the following findings relevant to this issue.

[78] Even though the 19 April meeting concerned a serious issue (a final written warning) it was held with no notice to Mr Wederay. Ms Crook’s evidence was that she had been carrying around the warning since 7 April but had not got around to issuing it. 42 The meeting was held at the start of the shift on 19 April simply because she was running out of time before going on leave the next day. It was timed to suit her convenience. She could have, but failed to provide notice.

[79] The meeting was rushed. Being held at the start of a shift, the focus of both Mr Wederay and Ms Crook was on that evening’s work. Both knew that his work crew were, at least initially, waiting outside for him. Ms Crook had intended the meeting to “only take a couple of minutes”. 43

[80] Ms Crook acted as a messenger not a manager, and thereby conveyed to Mr Wederay a detached attitude towards the final warning. That was the tone and content of Ms Crook’s evidence:

“I’m following an instruction from HR to give him the piece of paper and to read out the warning that has been already issued not by me.” 44

The decision to issue the final warning (as well as previous warnings) had been made in Sydney by Ms Armone, acting on Ms Crook’s investigation of the 31 March incident. Ms Armone had not spoken to Mr Wederay. She relied on an Interview Form Ms Crook prepared of her 3 April phone call with Mr Wederay 45. That document records Ms Crook’s summary of the discussion, not a record of it. I accept Mr Wederay’s evidence that he did not know of Ms Armone or that she had made the decision to issue the warning46. Ms Crook was his manager, she alone had spoken to him about the incident a fortnight earlier and as his manager she was now giving him the warning. I accept his evidence that he was operating on the belief that Ms Crook had decided to give him the warning47. I consider that a reasonably held belief. The combination of Ms Crook’s detached attitude towards the warning and Mr Wederay’s reasonable belief that she was responsible for the warning was conduct by the employer which contributed to him becoming agitated during the meeting.

[81] Ms Crook pressed Mr Wederay to sign the final warning even after he had expressed the view that it was unmerited. I accept Mr Wederay’s evidence that between the time of his previous warning and 19 April he had obtained advice from his Union that he had a right not to sign a warning 48. On 19 April he exercised that right. Ms Armone gave evidence, which I accept, that it was company policy to ask an employee to sign a warning but to not insist on a signature49. I find that Ms Crook insisted that Mr Wederay should sign the warning even after he refused to sign it50. I do not accept Ms Crook’s denial of this51. That also was conduct of the employer which contributed to Mr Wederay becoming agitated.

[82] Cabin Services did not provide Mr Wederay a realistic opportunity to question the merits of the final warning. Ms Crook and Ms Armone knew in advance of the 19 April meeting that the incident giving rise to the final warning was contested by Mr Wederay. It was reasonably foreseeable that giving a final warning in this context was likely to create a heightened degree of anxiety for Mr Wederay. I do not accept Ms Crook’s evidence that she believed Mr Wederay would just take the final warning “in his stride”. 52 I prefer Mr Wederay’s evidence (in examination in chief and in cross examination) that Ms Crook introduced the discussion about the warning with words to the effect “I think you might not be happy today…because I am giving you a last warning”53. I find that on 19 April Ms Crook was not amenable to hearing Mr Wederay’s views about the merits of the final warning. She considered the matter a formality:

“I received an email and the email just said to please issue Demesw ‘Please see attached, issue Demesw with a warning, please send it through’, so that’s what I did”. 54

I consider the failure to provide a realistic opportunity for Mr Wederay to question the merits of the final warning to be conduct of the employer which contributed to him becoming agitated.

[83] Even though the 19 April meeting was an advanced disciplinary meeting, Cabin Services took no steps to offer Mr Wederay a support person of his choice. Ms Armone’s evidence was that company policy required staff facing disciplinary processes to be offered a support person 55. Mr Wederay’s evidence was that none was offered or provided on that day or in any preceding disciplinary or counselling session56. On this point, I accept his evidence and prefer it to that of Ms Crook, which was inconsistent and vague57. In cross examination, Ms Crook claimed that she offered a Team Leader (Charmaine) to sit in on their meeting58. Charmaine was Mr Wederay’s immediate supervisor. I do not accept Ms Crook’s evidence on this point. It was not led in her witness statement. She proffered this only under pressure of questioning. In doing so, she gave the impression of conflating events to bolster the company’s case and cover her tracks. She also seems to consider that a third party witness, including a company selected manager such as Mr Priestley, would satisfy any internal requirement of a support person being made available59. In any event, even on Ms Crook’s version, Charmaine was nominated by Ms Crook, not Mr Wederay.

[84] In the context of the events of 19 April, the failure to offer Mr Wederay a support person of his choice was a failure of substance. A support person can assist an employee to assert their rights, act consistently with their rights and not act contrary to their interests. In the context of the events of 19 April, a support person would have been entitled to take a role in moderating Mr Wederay’s agitated state, give him confidence to state his objections to the written warning, assert his right not to sign the warning, counsel him against a heat of the moment resignation, ascertain his real intention and counsel him on whether a heat of the moment resignation, once expressed, should be instantaneously withdrawn. The conduct of Cabin Services in not offering Mr Wederay an opportunity to be accompanied by a support person of his choice was a significant and material failure on its part.

[85] In deciding whether a dismissal is harsh, the legislature requires specific consideration of whether an employer unreasonably refused to allow an employee a support person. That this is identified amongst a myriad of potential relevant factors suggests some importance should be attached to the role a support person can perform. Although Cabin Services did not unreasonably refuse Mr Wederay a support person, the circumstances giving rise to the presence or otherwise of a support person in this particular case are relevant to deciding whether a “fair go all round” 60 has been provided.

[86] I also have regard to the fact that Mr Wederay had been asked by Ms Crook at the 19 April meeting to confirm his resignation in writing 61. He declined to do so. She then asked him to do so62. He said he would the following day. It is uncontested evidence that he did not. There is no written resignation. Ms Armone’s evidence was that permanent employees need to resign in writing, but not casuals63. No documentary evidence of that policy was provided at the hearing. I make no finding in that regard.

[87] However, even if that is policy, Mr Wederay was specifically asked by Ms Crook to put his resignation in writing. This suggests that she had some doubts about whether the heat of the moment resignation reflected his real intention. She wanted to be sure that Mr Wederay was certain in what he was saying and doing. She went so far as to suggest that he speak to Mr Priestley or Mr Crook about it the next day 64. To Mr Wederay at least, the request for a written resignation was made by a person acting with the authority of the employer. Ms Armone made a decision that evening, after hearing that he had resigned in the heat of the moment, to “let him go”. The company chose to rely on a heat of the moment resignation instead of following up its own request for a written resignation. A written resignation, if it had been provided through a follow-up, may have conclusively confirmed the employee’s intention.

Conclusion on Jurisdictional Issue

[88] In this matter the form of the termination of employment in both fact and at law is at issue. The fact of dismissal is disputed by the employer but asserted by the employee. The fact of resignation disputed by the employee but asserted by the employer.

[89] On Mr Wederay’s case, there is no single incident that constituted a dismissal in fact or at law, rather a series of events on 19 April and following which is said to constitute termination at the initiative of the employer within the meaning of section 386(1)(a). Mr Wederay’s primary contention was not prosecuted on the basis of constructive dismissal, as he disputes the employer’s assertion that he resigned. However, as a fall-back position and in the alternative, in closing submissions his counsel contended that if the Commission found that he did in fact resign then it is contended that the conduct of the employer on 19 April and in the days following enlivened the constructive dismissal provisions of section 386(1)(b).

[90] I have not found that Mr Wederay was dismissed at the initiative of the employer. I have found that Mr Wederay resigned, orally. I have found that his resignation was made in the heat of the moment. I have found that Mr Wederay did not move with sufficient urgency or decisiveness after his resignation to make the employer’s acceptance of it unreasonable. However, I have found that the employer materially contributed, by act and by omission, to the circumstances giving rise to the resignation being made in the heat of the moment. Those circumstances are:

• The failure to provide Mr Wederay advance notice of the 19 April disciplinary meeting;

• The rushed nature of the meeting;

• The detached attitude of Ms Crook during the meeting towards the final warning she was issuing;

• Ms Crook’s insistence during the meeting that Mr Wederay sign the warning;

• The failure to provide Mr Wederay a realistic opportunity to object to the warning; and

• The failure to provide Mr Wederay an opportunity to be accompanied at the meeting by a support person of his choice.

[91] I am satisfied that the above factors, in combination, directly and materially resulted in Mr Wederay becoming agitated and his verbal resignation being made in the heat of the moment. Individually and in combination, each of these failures was avoidable. In combination, they constitute a course of conduct that resulted in Mr Wederay’s verbal resignation being forced within the meaning of section 386(1)(b) of the FW Act.

[92] As Mr Wederay’s resignation was a forced resignation, he was dismissed within the meaning of the FW Act.

[93] I now turn to consider whether Mr Wederay’s dismissal was harsh, unjust or unreasonable within the meaning of section 397 of the FW Act.

Valid reason (section 387(a))

[94] Cabin Services did not intend to dismiss Mr Wederay on 19 April. They intended to issue him a final warning. Ms Armone had concluded, on the basis of the investigation conducted by Ms Crook, that Mr Wederay’s involvement in the 31 March incident was sufficient to warrant a final warning only. As there was no intention to dismiss, there was no reason for dismissal, valid or otherwise.

Notification of the dismissal (section 387(b))

[95] As the employer did not intend to dismiss Mr Wederay on 19 April, there was no process of notification. It did however notify him of the final warning in the meeting on that day, and of the reasons for that warning.

Opportunity to respond (section 387(c))

[96] On 3 April Cabin Services gave Mr Wederay an opportunity, by phone, to tell Ms Crook his version of the 31 March incident. However, I have found that Cabin Services failed to provide Mr Wederay a realistic opportunity to object to the warning at the meeting on 19 April.

Opportunity for support person (section 387(d))

[97] I have found that Cabin Services failed to provide Mr Wederay an opportunity to be accompanied at the 19 April meeting by a support person of his choice. In doing so, it failed to apply its stated policy concerning disciplinary meetings and support persons.

Warnings concerning performance (section 387(e))

[98] Mr Wederay received three written warnings and one formal verbal counselling in his sixteen months of work: July 2016 (Final Warning concerning an altercation with a staff member); November 2016 (Verbal Counselling concerning non reporting of an airside near miss); December 2016 (First Warning concerning negligent driving) and the April 2017 Final Warning.

[99] Mr Wederay’s case was that these prior warnings and counselling concerned minor issues. Cabin Services contend that they were warranted, proportionate and only decided upon after investigation.

[100] I heard evidence on the circumstances of each of the incidents, the process of investigation and the warnings and counselling decided upon.

[101] I am satisfied that Mr Wederay had been trained in and knew of the relevant company policies and procedures. I am satisfied that Cabin Services made decisions to issue a warning or counselling only after investigation and inquiry. On the occasion of each warning, Mr Wederay was provided an opportunity to put forward his point of view about the relevant incident prior to the warning being issued.

[102] I do not consider the warnings to have been unreasonable management action. Each concerned a discrete incident where Mr Wederay’s conduct was found to be contrary to policy or required standards of behaviour. While Mr Wederay may consider that verbal or physical altercations with workers can be sorted between staff, it is not unreasonable for an employer to impose disciplinary processes to curb unacceptable workplace conduct. Mr Wederay’s claims that others were at fault or instigated the altercations giving rise to the July 2016 warning and the April 2017 warning were considered by the employer in its investigation of the matters and in deciding whether the conduct warranted formal warning. I do not consider they were minor infractions, nor do I consider that Mr Wederay was singled out for disciplinary response. Nor do I consider the circumstances leading to the December 2016 warning minor. Mr Wederay reversed his truck without due care and in circumstances where he had available the assistance of an employee to guide his driving, which he failed to utilise.

Size of employer’s enterprise (section 387(f))

[103] Cabin Services is a significant employer of approximately 700 employees on a national basis. It operates from multiple sites. Much of the work done is performed on premises controlled by aviation authorities and under strict procedures and protocols concerning aviation security and conduct in and around aircraft. Liaison with and between staff and contractors from other organisations is inherent in the work. In these circumstances, I do not consider that the relative size of Cabin Services provides any basis for a less than rigorous approach to the application and enforcement of its standards for employee conduct in the workplace.

Human resource capability (section 387(g))

[104] Cabin Services has a human resource capability. Somewhat surprisingly for an employer of its size, the employer’s National Human Resources and Compliance Manager is a part time role. Nonetheless, managers are able to access the support, advice and services of its human resources specialists and internal human resource systems. In this matter, Ms Crook had that access, and used it. The failures by Ms Crook identified in this decision cannot be explained or excused by a lack of human resource support or the size of the business. They were avoidable.

[105] I make a similar finding concerning the failure by Mr Crook and Mr Priestley to return Mr Wederay’s calls in the following week, and to then take five days before responding to Mr Wederay’s solicitor’s request for information. They demonstrated an indifference to his contact, preferring to allow his heat of the moment resignation to stand. I also find that the employer failed to follow-up its own request that the resignation be provided in writing, and failed to respond or promptly respond to contact by Mr Wederay. Given the existence of human resources capability, these were collective failures of both operational management and human resources management.

Other matters (section 387(h))

[106] There are no other matters arising from the evidence that are relevant, beyond those already considered.

Conclusion on Merits

[107] There was no valid reason for dismissal. By 3 April, Mr Wederay’s conduct had reached a point of warranting final disciplinary action short of dismissal. Had the employer not failed to provide Mr Wederay ‘a fair go all round’ on 3 April and in the days that followed, continuing employment on a final written warning would have been the outcome. Ms Crook’s evidence was clear on that point. 65

[108] As dismissal was not intended let alone warranted, I find that the dismissal was harsh, unjust or unreasonable.

Remedy

[109] Mr Wederay seeks reinstatement to his former position, or in the alternative compensation. Cabin Services oppose orders for reinstatement and for compensation. Cabin Services contends that the employment relationship has deteriorated to such a point that reinstatement would not be an appropriate remedy. In closing submissions, counsel for Mr Wederay acknowledged that reinstatement may no longer be realistic. 66

[110] I agree. It is apparent from the evidence that reinstatement would not be an appropriate remedy. The trust and mutual respect necessary to restore an employment relationship in an industry where conduct and behaviour must conform to not only the norms of the employer’s workplace but also the norms of aviation authorities, airlines and contractors has been significantly eroded. The conflicting versions of events at trial between Mr Wederay and Ms Crook as well as the strained relationships emerging from the evidence, especially Mr Priestley’s evidence that he would not even have recommended Mr Wederay for the Perth posting 67, leads me to safely conclude that the relationship is now irretrievably damaged.

[111] In accordance with section 390(3) of the FW Act I find that reinstatement is inappropriate. I now turn to the question of compensation.

[112] In considering whether compensation should be ordered, section 390(3) of the FW Act provides that an order for the payment of compensation should not be made unless it is appropriate to do so in all of the circumstance of the case.

[113] Mr Wederay contends that he has been financially disadvantaged as a result of the employer’s conduct. He had to resume casual taxi driving earning what is claimed to be substantially less income. He has two infant children to support. He claims his termination has placed pressure on his marriage. He had to cancel a trip overseas to attend a wedding of a family member. He claims to now suffer a psychological injury caused by the alleged unfair and unreasonable termination of his employment. He has made an associated WorkCover claim. 68 He says he now takes medication for anxiety, and suffers adverse side-effects. His counsel argues that the employers conduct has been egregious, and that punitive damages should be awarded.

[114] Cabin Services submits that Mr Wederay largely contributed to the circumstances he finds himself in, by engaging in conduct that warranted warnings and by resigning in circumstances where he could have simply accepted the final warning and continued working. It says that Mr Wederay’s employment was casual, was only of a relatively short duration and was likely to have been of a limited duration having regard to his disciplinary record. It says he has an obligation to mitigate his loss by taking available work in the open labour market, including taxi driving.

[115] I am satisfied that, in all of the circumstances, it is appropriate to make an order for compensation. Mr Wederay has indeed contributed to his circumstances, but the factors that have led me to find that he was dismissed and that his dismissal was harsh, unjust or unreasonable were also avoidable had the employer taken a more considered approach. For example, had Ms Crook followed what she described as “standard procedure” 69 to have a witness present at staff disciplinary meetings, a third party may have been able to corroborate either her version or Mr Wederay’s version of what occurred. In determining quantum I will be guided by the provisions of section 392 of the FW Act and the principles governing the application of this section set out in established authorities of the Commission.70

[116] Section 392 of the FW Act provides as follows:

“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. 71

(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.”

[117] I note that neither section 392 nor the established authorities provide any basis for punitive damages. Compensation for non-economic loss is expressly excluded by statute. Indeed, the statute provides a basis for appropriate discounting of economic loss having regard to income earned, likely to be earned or which could have been reasonably earned since dismissal, as well as discounting for any employee contribution to the events giving rise to dismissal. In any event, there is a statutory cap on compensation.

[118] Although I have received some evidence and submissions on remedy, I am not satisfied that sufficient material is before me to enable an order to be made that takes into account all relevant elements of section 392 of the FW Act. In particular, I have not been provided with details of actual earnings Mr Wederay has received as a taxi driver, for whom he is working as a taxi driver and whether he is working all of the hours reasonably available to him within his capacity.

[119] I consider it appropriate to provide both Mr Wederay and Cabin Services a short opportunity to submit further evidence and submissions in writing on the quantum of compensation. Mr Wederay is directed to do so within seven days of this decision; Cabin Services is directed to do so within a further seven days. I will then deliver a decision on remedy and issue appropriate Orders.

[120] The parties have liberty to apply regarding these directions.

DEPUTY PRESIDENT

Appearances:

Mr M. Irvine, for the Applicant.

Mr D. Miller and Ms T. O’Connor, for the Respondent.

Hearing details:

2017.

Adelaide.

20, 21 July and 1 August.

 1   Decision on Representation, 17 July 2017

 2   PN 9, 1 August 2017

 3   Australian Hearing v Peary (2009) 185 IR 359 at [30]

 4   Workplace Relations Act 1996 (Clth)

 5   (2006) 58 AILR 100

 6   Ibid at [23]

 7   Court of Appeal (Civil Division) per Rimer LJ [2011] EWCA 1115. See also Gunnedah Shire Council v Grout (1995) 134 ALR 145

 8   For example, whether his potential temporary relocation to Perth was discussed with Ms Crook on 19 April, see PN 1189 in contrast to PN 1293-1296 and PN 1298-1299

 9   For example, PN 1853-1858; PN 2085-2089

 10   PN 2537

 11   Armone Witness Statement Exhibit R2 Attachment DA10

 12   Crook Witness Statement Exhibit R1 paragraph 78; PN 1866 “I was conscious we had an operation ongoing and we had timeframes to meet also.”

 13   Wederay Witness Statement Exhibit A1 paragraphs 62-66

 14   Crook Exhibit R1 Witness Statement paragraphs 62-75

 15   Armone Witness Statement Exhibit R2 paragraph 35; PN 2694

 16   This is confirmed by the receipt dated 20.4.17, Exhibit A9

 17   PN 410

 18   PN 1505

 19   Wederay Witness Statement Exhibit A1 Attachment DW2

 20   Wederay Witness Statement Exhibit A1 Attachment DW3

 21   PN 2464

 22   Priestley Witness Statement Exhibit R3 Attachment JP3

 23   Crook Witness Statement Exhibit R1 Attachment PC9

 24   PN 2662-2666

 25   PN 1914, 2337, 2339, 2349

 26   PN 2338, 2369

 27   For example, PN 2350 “It may or may not have been on my desk at that time”

 28   PN 2334-2353

 29   A proposition supported, for example, by Mr Wederay’s evidence at PN 1348-1413

 30   Wederay Witness Statement Exhibit A1 paragraph 64

 31   Priestley Witness Statement Exhibit R3 Attachment JP3 paragraph 3

 32   PC 1321; Wederay Witness Statement Exhibit A1 paragraph 65

 33   PC 1187

 34   Crook Witness Statement Exhibit R1 Attachment PC8

 35   PN 1268

 36   PN 1073; see also Crook at PN 2383

 37   PN 2300, 2302

 38 Section 386(1)(b) FW Act

 39   PN 1873, 2281

 40   PN 2296; Crook Witness Statement Exhibit R1 paragraph 65

 41   CF Capital PLC v Willoughby Court of Appeal (Civil Division) per Rimer LJ [2011] EWCA 1115; see also Gunnedah Shire Council v Grout (1995) 134 ALR 145 and Kwik-Fit (GB) Ltd v Lineham (1992) ICR 183

 42   Crook Witness Statement Exhibit R1 paragraph 53; PN 2396

 43   PN 2052, 2250

 44   PN 2062; see also PN 2008-2012

 45   Attachment PC8 to Crook Witness Statement Exhibit R1

 46   PN 746, 749, 775-778, 1010, 1197

 47   PN 1318

 48   PN 1334, 1776

 49   PN 2643

 50   PN 1769

 51   At PN 1884-1887

 52   PN 2398

 53   PN 317, 1193

 54   PN 2404

 55   PN 2618-2633

 56   PN 1727-1733

 57   For example, PN 2403-2420 contrasted with PN 2040-2041

 58   PN 2052-2053

 59   For example, PN 2403

 60 Section 381(2) FW Act

 61   PN 2300, 2302

 62   PN 1893 “I did ask Demesw to give me some written form of his resignation.”

 63   PN 2757

 64   PN 2392-2393

 65   PN 1878-1880

 66   PN 507, 1 August 2017

 67   PN 2999-3022

 68   Exhibit A7

 69   PN 2047; PN 2077

 70   Bowden v Ottrey Homes Cobram and District Retirement Village [2013] FWCFB 431; Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21; Ellawala v Australian Postal Corporation 17 April 2000Print S5109

 71   Subsection 392(5)(b) indexed amount is $71,000 from 1 July 2017

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<Price code C, PR595842>