Mr Edwin De Sola v ECB Pty Ltd T/A East Coast Bullbars

[2016] FWC 2906

[2016] FWC 2906

FAIR WORK COMMISSION

DECISION

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

Mr Edwin De Sola
v
ECB Pty Ltd T/A East Coast Bullbars
(U2016/4377)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 20 MAY 2016

Unfair dismissal - 457 Visa - insubordinate conduct - untruthfulness in interview with the employer – whether valid reason for dismissal in the circumstances - application for relief from unfair dismissal

[1] This decision concerns an application by Mr Edwin De Sola under s.394 of the Fair Work Act 2009 (“the Act”), who is seeking an unfair dismissal remedy in relation to his dismissal on 28 January 2016 as a metal polisher with ECB Pty Ltd (“the employer”), which designs and manufactures automotive protection equipment and accessories.

[2] Mr De Sola’s employment was subject to a subclass 457 Visa arrangement. He had performed duties for the employer since August 2013.

[3] Mr De Sola had been subject to a written warning in relation to his work efficiency and performance on 19 January 2016. There do not appear to have been any other warnings or disciplinary actions taken in respect of Mr De Sola at any time prior to this.

[4] On 27 January 2016, Mr De Sola claimed that he worked “a normal day in the metal polishing area”. At 4:25 p.m. Mr De Sola claimed that he clocked off from work, which is 10 minutes later than his normal clock off time of 4:15 p.m.

[5] After such time as he claims to have clocked off, Mr De Sola stated that the Polishing Section Manager, Mr David Allen, called all the employees together for a “huddle” meeting, which is essentially a form of toolbox meeting.

[6] Mr De Sola contended that he had only attended two Polishing Section afternoon meetings previously, and in any event they were not held regularly. Mr De Sola held that he had missed a previous huddle, because it had been conducted after fishing time, and had been exempted by Mr Allen from attending following an informal exchange on the matter. Mr De Sola also argued that he had only worked two weeks in the Polishing Section.

[7] On the day in question (27 January 2016), Mr De Sola stated that as he had already clocked off at 4.25 pm (having observed the clock time as he exited the workplace) and that he only became aware of the huddle after he had clocked off. He also claims that he was feeling ill and was suffering from a headache which he believed to be the result of the very high temperatures and high humidity during the day.

[8] As Mr De Sola was departing the workshop property, he claims that he heard someone yelling his name, and believed it to have been Mr Allen. He claimed that because of his severe headache he did not reply, as he wanted to leave work in order to recover.

[9] He also claims that he did not hear Mr Allen articulate any direction of any kind to him prior to him being in the car park and accessing his vehicle to leave for the day.

[10] Notwithstanding this, Mr De Sola gave viva voce evidence (which I explore below) that he was aware of the requirement to attend the huddle on 27 January 2016 prior to clocking off, and had seen his co-workers assembling for that purpose. Despite this, Mr De Sola said that he left the workplace because he was in a ‘confused” state owing to his headache.

[11] The next day, 28 January 2016, Mr De Sola was invited to attend a meeting with Mr Trevor Long and Mr Andrew Webb.

[12] Mr De Sola was asked why he did not stay back for the huddle the previous day and explained that he was feeling ill and suffering from a severe headache.

[13] Mr De Sola claimed that Mr Long indicated that he did not believe that Mr De Sola was being genuine and dismissed him from his employment by saying:

“What you did is a stackable offence, and now you have been sacked. So you have lost your job right now.”

[14] When Mr De Sola was asked to respond, he indicated that he had nothing to say.

[15] Mr Long also indicated that he had contacted the Department of Immigration about the circumstances.

The employer’s evidence

[16] Mr Allen gave evidence that toolbox meetings or huddles commence generally at 7:30 a.m. in the morning and 4:10 p.m. in the afternoon. The huddles take place every day in each of the various departments and sections of the employer’s business.

[17] Mr Allen stated that all employees were expected to attend the huddles, which usually lasted for 5 to 10 minutes, as they provided an opportunity to reflect upon the day’s work and to assess various processes and to discuss production and finishing issues that may arise from time to time. The huddles had been introduced for the purposes of team building and promoting efficiency across the business.

[18] Mr Trevor Long, General Manager for the employer claimed that the afternoon huddle sometimes commenced later than was intended because employees did not gather at the meeting point at the designated time (4:10 p.m.). Mr Long also stated that over the course of various site meetings held in July and August 2015, all employees were made aware that they were to claim all time worked, and that would include attendance at an afternoon huddle that went beyond the normal finishing time of 4:15 (p.m.).

[19] At around 4:15 p.m. on 27 January, Mr Allen commenced to bring the staff together for the afternoon huddle, which was running late. As the polishing staff came together Mr Allen observed that Mr De Sola was not in attendance and enquired of the other polishing employees as to where he might be.

[20] At this point he observed Mr De Sola emerging from the polishing room in his street clothes and moving towards the clock off area. At 4:20 p.m. he called out to Mr De Sola to attend the huddle. Mr Allen claimed that Mr De Sola turned and looked at Mr Allen and replied:

“It’s 4.15”.

[21] Mr De Sola was said to have continued walking off towards the clock off area.

[22] The photographic evidence (from the CCTV cameras) led through Mr Allen’s evidence shows that Mr De Sola walked towards the clock of area at 4:21:06 p.m. and clocked off at 4.21:17 (p.m.).

[23] Mr Allen was still in the vicinity of the huddle when he saw Mr De Sola walking towards the roller door which marked the exit from the premises. Mr Allen called out to Mr De Sola a second time (at 4:21 p.m.). Mr De Sola turned and looked at Mr Allen but continued to walk off without responding in any way. The photographic evidence shows Mr De Sola leaving the business at 4:21 (p.m.).

[24] Mr Allen claimed that he then followed the applicant through the doorway to outside the business and called to Mr De Sola for a third time. Mr De Sola was now crossing the front car park. Mr Allen requested Mr De Sola to attend the huddle with the rest of his colleagues. Mr De Sola was said to have again turned and looked at Mr Allen, then walked out the gates, climbing into his car and driving off without any verbal response.

[25] Mr Terry Long interviewed Mr De Sola the following day. When Mr De Sola was asked why he did not attend the huddle the previous afternoon, Mr De Sola was said by Mr Long that he had already clocked off from work and that he had a migraine. Mr Long enquired as to whether the air, noise and/or the bright lights of the polish workshop had caused any difficulties. Mr Long claimed that Mr De Sola did not reply to him in respect of that question. Mr Andrew Webb, the Operations Manager for the employer, was in attendance at the same meeting with Mr Long and Mr De Sola, and gave evidence that corroborated that of Mr Long in this regard.

[26] Mr Long claims he subsequently enquired of Mr De Sola whether he understood that he was expected to attend the huddle meetings and he replied in the affirmative. However, Mr De Sola added (as both Mr Long and Mr Webb gave evidence) that on this particular occasion he (Mr De Sola) had already clocked off from work.

[27] Mr Long asked Mr De Sola why he did not respond to Mr Allen when he sought to engage him or take the opportunity to simply inform Mr Allen that he was not feeling well. Mr De Sola, according to Mr Long and Mr Webb, provided no response to these questions either.

[28] Mr Long then gave evidence that he communicated to Mr De Sola that he did not consider Mr De Sola’s behaviour to be acceptable and that he had shown disrespect towards Mr Allen. Mr Long claimed that he provided Mr De Sola with a further opportunity to provide an explanation for his conduct, but Mr De Sola did not avail himself of the opportunity.

[29] Mr Long communicated to Mr De Sola that he believed his conduct to constitute “gross misconduct for failing to follow a lawful instruction from his manager”, and that he was terminating his employment with immediate effect.

[30] Mr Long denied claiming that he stated that he did not believe Mr De Sola had a migraine and Mr Webb had no recollection of Mr Long having made such comment in the interview.

Legislative provisions

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.

[31] My particular considerations are as follows.

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)

[32] Mr De Sola was aware of the workplace requirement to attend the huddle meetings at the close of business His viva voce evidence (which must be approached with some care given Mr De Sola’s English language competency) supports this finding:

MR FRANKEN: You told me there was a huddle every afternoon. Right? You told me earlier this morning?

MR DE SOLA: Yes, yes.

MR FRANKEN: ….that there was a huddle every afternoon?

MR DE SOLA: Yes, yes, yes.

MR FRANKEN: So when you say you clocked off at 4.25 you knew there was going to be a huddle that afternoon?

MR DE SOLA: Yes, yes.

MR FRANKEN: You knew that?

MR DE SOLA: But unfortunately it was in my statement I – on the first

MR FRANKEN: No, just answer my question. I'll come to that?

MR DE SOLA: Yes, yes.

MR FRANKEN: You knew there was going to be a huddle that afternoon?

MR DE SOLA: Yes, they were assembling.

MR FRANKEN: They were assembling?

MR DE SOLA: Yes.

MR FRANKEN: They were assembling – they were?

MR DE SOLA: Some of the guys clocking out and some of the guys, I don't know.

MR FRANKEN: You say they were assembling. They were starting to form the huddle?

MR DE SOLA: Yes.

MR FRANKEN: Yes. You saw that? You saw that?

MR DE SOLA: Yes.

[33] Later, Mr De Sola would reinforce his responses above:

MR FRANKEN: But you already said in your earlier evidence that when you went to clock out you saw people assembling for the huddle?

MR DE SOLA: Yes, this was (indistinct).

MR FRANKEN: So you knew there was going to be a huddle that afternoon, is that correct?

MR DE SOLA: Yes, I can do that.

[34] Notwithstanding the above evidence – that he knew there was to be a huddle that afternoon and he had seen the huddle forming – Mr De Sola nonetheless contended that he had not remembered that there was a huddle that day:

MR FRANKEN: So you weren't considering going to the huddle at all that day?

MR DE SOLA: I didn't remember that there's a huddle at that time.

[35] Mr De Sola also contended that he knew he had not heard Mr Allen call a huddle as the physical distances between them were too great:

MR FRANKEN: Mr Allen says that was the time, the first time that he called out to you:

“Edwin, there's a huddle”.

And you looked at him and you walked away?

MR DE SOLA: He didn't tell me that there's a huddle and I didn't - look at the distance between us.

MR FRANKEN: I am not asking you about the distance, all I am saying to you is his testimony, he's going to tell this Commission, that (indistinct), when he called out to you and said there's a huddle?

MR DE SOLA: On this time? On this picture?

MR FRANKEN: Yes?

MR DE SOLA: If I - when you see the distance if that Mr Allen told me that there was a huddle I can hear it, but I didn't hear it. Look at how long. It's five metres distance between us and you're saying there's a huddle. No, I can hear that.

MR FRANKEN: He said you turned around and looked at him, so you must - - -?

MR DE SOLA: No, no, I just going through - - -

MR FRANKEN: I am just saying his evidence is that you turned around and looked at him?

MR DE SOLA: I don't know, I can't remember that. I just turned around and go to the clocking.

MR FRANKEN: You were going to clock out? Look at the distance between us.

[36] Mr De Sola would latter hold to the same explanation and state as follows:

MR FRANKEN: That's where Mr Allen stood and if you look towards - follow those arrows, that you were at that point, 007 and the numbers correspond with the picture numbers. So if you look at picture 7, which we discussed, that is where you were when Mr Allen says he called out to you to come to the huddle. Would you agree with me? If you don't agree with me, just tell me?

MR DE SOLA: Picture 7. No, I don't agree.

MR FRANKEN: You don't agree. Why don't you agree with it?

MR DE SOLA: Because on this statement, (indistinct) I was nearby the roller door and Allen was in here. See the pictures over here. How can he told me that we have a huddle if that distance between here - look at the picture on the pad, that distance between two was - you can.

MR FRANKEN: No, I'm referring to picture 7?

MR DE SOLA: Yes, yes. But I'm commenting on the statement over here. You can tell me that and then there's a huddle. It's too far.

MR FRANKEN: If he shouts at your, you would hear him?

MR DE SOLA: Shout?

MR FRANKEN: Yes?

MR DE SOLA: But he not do that. Shout. But he didn't tell me there's a huddle. Look at the distance.

[37] Notwithstanding this, Mr De Sola held in his witness statement that:

“After I clocked off David Allen called all the employees over for a ‘huddle’ meeting.”

[38] When pressed as to why he argued that he could not hear Mr Allen when he was exiting the work area, yet whilst he was in the clock out area was aware that Mr Allen had “called all the employees” over for a huddle meeting, Mr De Sola contended that he had only assumed a huddle had been called because no one had followed him out after he had clocked off:

MR FRANKEN: So you knew he had called a huddle?

MR DE SOLA: On my mind - - -

MR FRANKEN: Just say yes or no. Just say yes or no?

MR DE SOLA: Yes, yes.

MR FRANKEN: You knew he had called a huddle?

MR DE SOLA: Yes.

MR FRANKEN: How did you know that?

MR DE SOLA: Because nobody's followed me to stay out.

[39] Mr De Sola had earlier explained that he knew a huddle had been formed because he had directly observed it forming as he moved to the clock out area (see above). But in responding to a question about his evidence in which he had referred to Mr Allen as having called a huddle after he clocked off, Mr De Sola resorted to an explanation for his knowledge that the huddle had formed on the basis of an “assumption” derived from having observed that no other employees had clocked off with him.

[40] This evidence I add, is given in the context that Mr De Sola had earlier indicated there were co-workers clocking off at the time as he clocked off (see paragraph [32] above).

[41] Even if allowances are made for Mr De Sola’s language skills, his explanations for his conduct in the above respects are inconsistent and unreliable.

[42] Mr De Sola was in my opinion, reasonably aware that the afternoon huddle was to take place and was reasonably placed to observe this development as staff congregated in his immediate work area. The employer’s evidence establishes that employees had been advised of the role of the huddle and a request to attend the huddle must be taken as a reasonable direction by the employer, and where the huddle runs across the ordinary finishing time, a reasonable direction to perform overtime (for a particularly short period). Such requests are not inconsistent with the applicable enterprise agreement.

[43] Contrary to Mr De Sola’s claims, the photographic material led in evidence demonstrates that he had not clocked off from work at the time the huddle was convened, but did so after such time as Mr Allen had communicated his intention to convene a meeting. I have no reason to believe the time or date stamps on the photographic material are not accurate and no case was led in this regard.

[44] It is somewhat difficult to believe that Mr De Sola could have recalled the exact time of his departure given the “confused” state that he says he was in owing to his headache and ill health (which was so extreme as to preclude him from any interaction with his employer).
[45] I prefer to rely on the time as evidenced by the photographic material (being 4.21 p.m.) rather than Mr De Sola’s asserted clocking out time of 4.25 (p.m.).

[46] Irrespective of this, Mr De Sola himself in the course of his cross examination had conceded he was aware of the huddle forming and the requirement to attend.

[47] I am not persuaded by Mr De Sola’s evidence, even taking account of his apparent, intermittent language difficulties, that he had no communication with Mr Allen on 27 January 2016. Mr Allen’s evidence was given candidly and formed part of a continuous narrative as to why he followed Mr De Sola out of the building and attempted to elicit further information from him. There was no evidence that would suggest that Mr Allen was seeking to cause a mischief or in some manner damage Mr De Sola’s employment status: no evidence was led as to any prior difficulties in the relationship between Mr Allen and Mr De Sola that might give Mr Allen a motive for fabricating his evidence.

[48] I further determine that Mr De Sola’s functional capabilities, therefore, were not so compromised as to not permit him to indicate verbally to Mr Allen initially that he was not attending the huddle because it was 4:15 (p.m.).

[49] However, subsequently, Mr De Sola refused to provide any further information to Mr Allen as to why he did not wish to join his work colleagues in the huddle, despite Mr Allen’s requests. Mr De Sola claims that he did not hear Mr Allen communicating with him, hearing only some indeterminate yelling. This does not explain why (given my finding immediately above) in his evidence, he chose to continue to exit the workplace rather than ascertain the reason for the commotion (“yelling”).

[50] I do not find it credible that Mr De Sola could not communicate productively with Mr Allen for reason that he was feeling ill.

[51] Mr De Sola in all probability was being dishonest with his employer in its interview in maintaining that he was so unwell he was unable to respond to Mr Allen, as he was in respect of his appreciation that Mr Allen’s request for him to attend the huddle and the timing of his departure from the workplace (relative to the huddle process).

[52] Mr De Sola did not respond to his Manager’s instructions when it was within his powers to do so. He has also not been truthful to his employer, in respect of two instances, during his interview with his employer in relation to why he did not attend the huddle the previous day. That is to say, contrary to Mr De Sola’s claims, he had not clocked off from work at the time his manager sought his attendance at the huddle and he was not physically incapable of responding to Mr Allen’s questions of him on 27 January 2016. In respect of the latter, if Mr De Sola was able to acknowledge Mr Allen on the first instance and indicate that it was “4:15 pm” (as I have found), then he could reasonably have stated that he was unwell and had to go home. But he did not do this.

[53] Mr De Sola’s witness evidence does not provide any information whatsoever about his ill-health over the course of the day, or at any time over the day. Mr De Sola’s witness statement simply refers to him experiencing “a normal day in the metal polishing area”. Had Mr De Sola experienced some particularly serious or debilitating physical condition that rendered him incapable of proper communication in response to a direction from his employer, it would be reasonably expected that he might have sought immediate first-aid (before taking responsibility for a motor vehicle).

[54] I add that Mr De Sola did not bring any medical evidence to attest to his condition (his headache and illness), or its severity (given it seemingly rendered him incapable of ordinary communication on the day). Nor did Mr De Sola explain why the environmental stressors that he alluded to in his written evidence as the cause of his ill health on 27 January 2016 (which were not mentioned in his interview with Mr Webb or Mr Long) were absent, seemingly, the following day, on 28 January 2016. In his viva voce evidence, Mr De Sola appeared to suggest that the effect of moving from the air-conditioned work environment to the hotter and humid outside environment may have attributed to his ill health, but it is difficult to understand what was unusual about his work day on 27 January 2016 – which may explain Mr De Sola’s reticence to Mr Long’s questions.

[55] Mr De Sola’s conduct was a public display of insubordination, exhibiting a lack of respect for the employer’s reasonable instructions and procedures and an unwillingness to be candid to his employer in its investigations into the matter.

[56] The fact that Mr De Sola missed the huddle is not important as such. The evidence demonstrated that employees who have competing requirements, such as the need to pick up school children, can have the direction to attend the huddle waived at Mr Allen’s discretion. It is worth noting that Mr De Sola had also missed an earlier huddle, but with the express consent of his manager.

[57] Mr De Sola had not conducted himself in any similar way in the past. His conduct did not include any abusive elements as such, nor any particularly disrespectful gestures or words, which might have exacerbated his employer’s concerns about his conduct and disposition towards management.

[58] Further, Mr De Sola had not previously conducted himself as he had on 27 January 2016. Though his conduct might have been insubordinate, it does not suggest that Mr De Sola was chronically so disposed.

[59] In my view, Mr De Sola’s conduct warranted counselling and a warning, and if repeated, a more serious response still. However, as an isolated incident, it was not conduct of a kind that was sufficient to cause a repudiatory breach of the employment contract. Mr De Sola returned to work the following day ready to continue to provide his employer with the benefit of his service.

[60] Consequently, whilst Mr De Sola’s employer might reasonably have reservations about his conduct on 27 January 2016, that conduct when considered in its full circumstantial matrix does not, in my view, provide a valid reason for Mr De Sola’s dismissal.

Whether the person was notified of that reason

[61] The evidence of Mr Long and Mr Watt was that Mr De Sola was interviewed as to why he conducted himself in the manner that he did the previous day. It would be reasonable to infer that such a discussion was sufficient to form, in Mr De Sola’s mind, the full scope of his employer’s concerns about his conduct. But does that constitute notice of the valid reason for which the employer intends to dismiss the employee? The evidence does not go so far as to indicate to me that Mr Long and Mr Watt expressly put to Mr De Sola that he faced dismissal because of the particulars of his conduct the previous day. The best finding the evidence supports is that Mr De Sola was informed of his employer’s articulated reason for dismissal when it was put to him and he was then asked to reply to that articulated reason.

[62] In my view, there was some measure of deficiency in discharging the procedural expectation in the section.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[63] The evidence as led by Mr Long and Mr Webb shows to my satisfaction that Mr De Sola was interviewed on 28 January 2016 and in the course of that interview he was provided with opportunities to address his employer’s concerns about his conduct the previous day.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[64] The circumstances in which the dismissal was effected did not present an opportunity in which the employer was in a position to refuse the attendance of a nominated support person for purposes of the dismissal discussions.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[65] Mr De Sola’s dismissal was a result of his conduct and did not reflect upon his performance as an employee.

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

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

[66] No issue was put to me that the size of the employer’s enterprise or the absence of dedicated human resource specialists was a relevant consideration for purposes of the manner in which the dismissal was effected. The matter is of neutral consequence for my wider deliberations.

Any other matters that the FWC considers relevant

[67] Mr De Sola was invited to attend a meeting with Mr Watt and Mr Long on 28 January 2016. That meeting was an investigation into the cause of his conduct the prior day and resulted in Mr De Sola’s termination. Given Mr De Sola’s circumstances, it might reasonably be expected that Mr De Sola might have been extended an opportunity to have a support person present in the course of the discussions.

[68] It was put to me that the consequences of the dismissal for Mr De Sola, whose employment is subject to a section 457 Visa, prospectively are serious and may affect his capacity to remain in Australia for purposes of building an income stream to support his family abroad and obtaining permanent residency eventually.

[69] I also take into account that Mr De Sola was dismissed summarily. I doubt that the kind of conduct exhibited by Mr De Sola was of a kind that could have reasonably caused the employer to set aside the statutory notice requirements (such as notice in lieu). Though Mr De Sola had not exhibited the respect for his managers (he had ignored Mr Allen and not been honest in his explanations for his conduct to Mr Long and Mr Webb), the true nature of that conduct was not at the egregious end of the (misconduct) spectrum.

Conclusion

[70] Mr De Sola’s employment was terminated on grounds that were both harsh and unreasonable.

[71] Because I have so found, I will now turn to consider a remedy.

REMEDY

[72] Section 390 of the Act reads as follows:

Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division (2)) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[73] Mr De Sola is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether Mr De Sola can be reinstated.

[74] Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[75] I would neither reinstate (by re-appointing) Mr De Sola to his former position nor order that he be appointed to another equivalent position with the employer, or any associated entity of the employer, on the same or any other site.

[76] Mr De Sola does not seek reinstatement or re-employment to a similar, alternative position. I very much doubt that it would be appropriate to reinstate an employee to a position or an alternative position in circumstances in which the employee no longer wishes to give service to the employer. Such an outcome would hardly be productive for the enterprise, or result in a cooperative and civil workplace.

[77] Because of my findings in this regard I now turn to consider compensation.

392 Remedy — compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

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

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

[78] I firstly indicate that I consider that it is appropriate to make a remedy in this matter by way of an order for compensation having taken into account the above criteria. Any order that I may make is unlikely to affect the viability of the employer’s enterprise. Mr De Sola had been employed with the employer since August 2013. Mr De Sola is far from being a long-standing employee of the employer, but his period of employment does not militate strongly against a finding that a compensation remedy would be appropriate. It appears to me that the period of time Mr De Sola would have remained in employment but for his dismissal is a period of time that warrants compensation.

[79] Mr De Sola’s efforts to mitigate his losses (in his particular circumstances) support a conclusion that a remedy by way of compensation is appropriate in the circumstances.

[80] The amount of remuneration earned by Mr De Sola does not militate against the making of an order for compensation, nor does any issue relating to the amount of any income reasonably likely to be earned by Mr De Sola between the making of the order for compensation and the actual compensation itself. There are no other matters that I consider militate against the making of an order for compensation.

[81] I must now take into account the same matters as I have above in relation to determining the amount of compensation that I will order,

The effect of the order on the viability of the employer’s enterprise

[82] There is no evidence that any order I might make for compensation would in some manner affect the employer’s viability.

The length of the person’s service with the employer

[83] As I said above, Mr De Sola was not a long-standing employee but he did have a period of continuous employment over an approximate three year period.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[84] There is a necessary element of speculation in such a judgement as must be made by the Commission, as was admitted in the Full Bench in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR. The judgement cannot be avoided, however, and must be informed by any relevant circumstances known at the time.

[85] Mr De Sola had been subject to a productivity warning on 19 January 2016, for falling “well below” the efficiency target, and on 27 January his conduct again fell into question for the reasons given above.

[86] Mr De Sola has not expressed any misgivings in relation to his conduct, nor apologised for his behaviour. Mr De Sola seems not have assimilated the lesson from his experience in cooperating honestly with his employer. Mr De Sola’s evidence in these proceedings demonstrates continuing tendency towards intentional obfuscation. I have commented above on the evidence given by Mr De Sola.

[87] When account is had for such circumstances, and the likely impact of these on Mr De Sola’s capacity to maintain continuity of employment, as a matter of informed judgement having heard the entirety of the matter, I consider that Mr De Sola would have been likely to remain an employee of the employer for a further four month period.

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

[88] Mr De Sola has taken steps to mitigate his losses within the limitations imposed by his visa.

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.

[89] Mr De Sola has earned no income from employment since his dismissal.

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

[90] This is not a matter that requires any further consideration in the circumstances.

Any other matter that the FWC considers relevant

[91] Section 392(3) of the Act provides as follows:

Misconduct reduces amount

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.

[92] Mr De Sola’s dismissal was the result exclusively of his own conduct. There were no intervening variables. I have set the details out as to Mr De Sola’s conduct out above in some detail. I consider that the amount that Mr De Sola would have been ordered under subsection (1) above be reduced by 50%.

[93] Section 392(4) of the Act provides as follows:

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

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

[95] Section 392(5) of the Act provides as follows:

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[96] Section 392(6) of the Act provides as follows:

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

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

[98] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[99] The employer has made no application to pay any amount I may order to be paid as compensation in instalments.

Conclusion In Relation To Remedy

[100] By order issued along with this decision, I order that the employer pay to Mr De Sola the amount that is the equivalent of eight weeks’ pay (two months), the basis of which I understand to be uncontested (with Mr De Sola having earned $1067.66 per week gross).This amounts to $8, 541.28 (gross).

[101] Payment to Mr De Sola must be made in full within 14 calendar days. The amount in question is to be subject to ordinary taxation.

[102] The parties may re-apply in the event there is a dispute in relation to the calculation of the compensation order.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Blundell-Thornton, of the AMWU, for the applicant.

Mr Franken, paid agent for the respondent.

Hearing details:

10am

13 May 2016

Brisbane

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