Mr Henry Carrick v Life Without Barriers

[2016] FWC 4906

[2016] FWC 4906

FAIR WORK COMMISSION

DECISION

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

Mr Henry Carrick
v
Life Without Barriers
(U2014/6383)

DEPUTY PRESIDENT ASBURY BRISBANE, 20 JULY 2016

Application for unfair dismissal remedy – Assessment of compensation – Consideration of Full Bench decision in O’Connell – Impact on compensation assessment of loss of clearance to work with children – Impact on compensation of deteriorating health – Distinction between reasons for reinstatement not being awarded and calculation of compensation..

1. BACKGROUND

[1] In a Decision of 18 December 2015, and subsequent reasons for that Decision issued on 30 December 2015 1 (the Unfair Dismissal Decision), I found that Mr Henry Carrick had been unfairly dismissed from his employment with Life Without Barriers (LWB) and that he should have a remedy in respect of his unfair dismissal. I also determined that reinstatement was not appropriate, in circumstances where Mr Carrick conducted himself in an investigation into the conduct that led to his dismissal, and in the hearing of his unfair dismissal application, in a manner that destroyed the trust and confidence that LWB was required to have in him in order for Mr Carrick to perform his role as a Disability Co-ordinator. Further, I decided that it was appropriate for Mr Carrick to receive compensation for his unfair dismissal.

[2] Mr Carrick was dismissed on 20 March 2014. His application for an unfair dismissal remedy was not heard until January 2015. The case was complicated by a number of unique factors. Mr Carrick is a quadriplegic who suffers from significant health issues associated with this condition. Mr Carrick was dismissed, along with two other employees of LWB, after he was charged with production and cultivation of a dangerous drug – cannabis. All three employees made unfair dismissal applications and were represented by Mr Carrick’s mother, Ms Carolyn Unwin. The applications were scheduled to be heard together as each of the applicants was giving evidence in each case. Ultimately, the applications made by the other employees did not proceed to hearing. The charges against Mr Carrick were before the Court while his unfair dismissal application was heard and proceedings had not been concluded at the point that the matter of compensation was heard and determined. LWB was represented by its National Employee Relations Manager, Mr Justin Davis. Ms Unwin, Mr Davis and Mr Carrick had various health issues throughout the course of proceedings which necessitated adjournments and extensions of time to file and serve material.

[3] Neither of the representatives assisted the Commission. The lengths to which Ms Unwin and Mr Davis went in conducting their respective cases were extreme. No stone was left unturned and no point, however trivial, went unchallenged. Both representatives filed extensive submissions and supplemented those submissions with further material, almost at whim. Many of the submissions were repetitious save that some minor point would be amended and many of the points made in the submissions were not ultimately pressed. After the numerous mentions and directions hearings in relation to the application, one or both representatives would commence to correspond with the Commission seeking to vary outcomes or re-agitate matters that had been previously dealt with.

[4] I accept that Mr Carrick needed representation and would have been unable to conduct his own case. I also accept that Ms Unwin conducted his case to the best of her ability in very difficult circumstances. However, the closeness of the relationship between Ms Unwin and Mr Carrick impacted adversely on the efficient conduct of the case and caused Ms Unwin to contest matters and resist providing information which could have assisted in the efficient resolution of Mr Carrick’s claim. I also accept that LWB was entitled to vigorously defend Mr Carrick’s application and that Ms Unwin’s conduct in her capacity as Mr Carrick’s representative left much to be desired. However, Mr Davis is the National Employee Relations Manager of an employer with over 3000 employees, and given the nature of LWB’s business – providing support services to disabled people – some of the submissions made by LWB were surprising, given the significant disability suffered by Mr Carrick.

[5] When the Unfair Dismissal Decision was handed down – notwithstanding the voluminous material that had been filed by the parties –there was insufficient material before the Commission to deal properly with the issue of compensation and it was necessary to allow the parties a further opportunity to put further evidence and submissions before the Commission. Directions were issued for the parties to file and serve submissions and witness statements. The final determination of the matter was complicated by additional factors which LWB indicated that it wished to rely on as a basis for limiting any award of compensation to Mr Carrick including that:

• Mr Carrick obtained a Disability Support Pension during the period relevant to the assessment of compensation;
• Mr Carrick tendered as part of his material in the compensation proceedings, a Spinal Injuries Australia Report indicating that his condition had deteriorated and would continue to deteriorate; and
• Mr Carrick’s Blue Card was cancelled so that he no longer had confirmation from the Department of Child Safety, of his suitability to work with children.

[6] LWB’s representative sought a range of material from Mr Carrick in relation to his capacity to work during the period relevant to the assessment of compensation and in relation to the circumstances in which he had sought and been granted a DSP. The provision of this material was resisted strenuously by Ms Unwin which necessitated several hearings. During the period in which my decision on compensation was reserved, a Full Bench of the Commission released a decision relating to the ability of an employer to continue to employ a person in work requiring contact with children, in circumstances where the person loses a statutory accreditation or clearance to undertake such work. 2 Although the case concerned the proper construction of the Child Protection (Working with Children) Act 2012 (NSW) it was relevant in the present case because LWB contended that it could not have lawfully continued to employ Mr Carrick past the date when he lost his Blue Card accreditation and that his compensation should be reduced accordingly. It was necessary to give both parties an opportunity to make submissions about the Full Bench Decision and its potential impact on the issues in dispute in this case.

[7] At the final hearing in relation to compensation, held on 31 March 2016, LWB’s representative took issue with Mr Carrick’s calculations in relation to the remuneration he would have received had he not been dismissed and sought a further period to file payroll material. This was notwithstanding that there was an email exchange between Mr Carrick’s representative and LWB’s State Human Resource Manager which appears to confirm that the calculations advanced by Mr Carrick are correct.

[8] Given the length of time which has elapsed with respect to the finalisation of this application, I informed both parties that they could have a further period of seven days each in which to file material relevant to this issue, and that no other material on any issue would be accepted by the Commission in any form and no further communication would be entered into other than the release of a Decision in relation to compensation. I note that notwithstanding the extensive opportunity that the parties have had to file material relevant to the assessment of compensation, there are gaps in the material about basic points. In the interests of not delaying the matter further, and consistent with my advice to the parties, I have filled those gaps on the basis of the evidence that is before me. This is my Decision in relation to compensation.

2. LEGISLATION

[9] For reasons set out in the Unfair Dismissal Decision, I have made the necessary findings that are prerequisite to awarding compensation. In relation to the assessment of compensation, s. 392 of the 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.

(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.”

3. CONSIDERATION

Approach to calculation of compensation

[10] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket 3. That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey4; Jetstar Airways Pty Ltd v Neeteson-Lemkes5and McCulloch v Calvary Health Care6(McCulloch).

[11] In McCulloch¸ the Full Bench considered, in some detail, the question of how a contingency discount should be applied to the calculation of the remuneration the dismissed person would have received, or would have been likely to receive, if the person had not been dismissed. The Full Bench pointed out in McCulloch that a deduction for contingencies is applied to prospective losses, or losses occasioned after the date of the hearing. The Full Bench also noted that at the time of the hearing any such impact on the earning capacity of the dismissed person between the date of dismissal and hearing will be known, and a finding can be made on the basis of whether the dismissed person’s earning capacity has in fact been affected during the relevant period.

[12] In the present case, Mr Carrick suffered a deterioration in his health related to his paraplegia and evidence about these circumstances was before the Commission. Mr Carrick’s advocate opposed any consideration of Mr Carrick’s condition in the assessment of compensation and asserted that management of LWB had contributed to the deterioration of his health and should not be allowed to rely on this matter to argue for a lesser award of compensation. Mr Carrick’s health status is relevant to the calculation of compensation and is a matter to which I have had regard. I have disregarded the submissions asserting that LWB contributed to the decline in Mr Carrick’s health status on the basis that it is not the role of the Commission to award compensation for personal or work related injury.

[13] I turn now to the particular criteria I am required to consider in deciding the amount of compensation to be awarded to Mr Carrick for his unfair dismissal.

The effect of the order on the viability of LWB – s. 392(2)(a)

[14] LWB accepts that payment of an amount of compensation to Mr Carrick of the maximum amount allowed by the Act, would not affect its viability. While I accept the submission that such a payment would divert resources from the clients that LWB is funded to support, that is not a basis for a reduction in the amount of compensation that I would otherwise have awarded to Mr Carrick.

Length of Mr Carrick’s service – s. 392(2)(b)

[15] Mr Carrick commenced employment with LWB in 2009 when it took over operations of a predecessor organisation for which Mr Carrick had worked since June 2003. Mr Carrick therefore had a total of almost 11 years’ service with both organisations and some five years’ service with LWB. No reduction of any amount of compensation that might otherwise be awarded is justified on this basis and the length of Mr Carrick’s service.

Remuneration Mr Carrick would or would likely have received – s. 392(2)(c)

[16] Consideration of this criterion requires the Commission to decide how long a person would likely have remained in employment if that person had not been dismissed. Mr Carrick had worked directly for LWB for some five years when he was dismissed. He held a position as a Disability Services Co-ordinator, which was a position of responsibility. There was no evidence that Mr Carrick had ever had an issue raised in relation to his conduct, capacity or work performance in the entirety of his employment with LWB or its predecessor.

[17] It is necessary in considering this criterion to revisit some of the findings I made in the Unfair Dismissal Decision. For reasons set out in that Decision, I found that Mr Carrick did not engage in the misconduct on which LWB relied to dismiss him and held that there was no valid reason for his dismissal. In particular, I found that management of LWB took an erroneous view about Mr Carrick’s involvement in events that led to him being charged with producing a dangerous drug and that Mr Carrick deliberately concealed his involvement in and knowledge of these matters from management of LWB. As I have previously noted, this erroneous belief permeated the entirety of the dealings LWB had with Mr Carrick before he was dismissed.

[18] Further, I found that as a long term employee with an unblemished work record Mr Carrick should have been given the benefit of the doubt and that consideration should have been given to the fact that Mr Carrick had been subjected to some extraordinary events on the day in question and thereafter. It was also my view that while Mr Carrick did not help his case by the attitude he adopted to the allegations and by constantly changing his version of events, this was in no small part due to the shifting nature of those allegations and the manner in which LWB put them to Mr Carrick.

[19] In the Unfair Dismissal Decision I determined that reinstatement was not an appropriate remedy due to the loss of trust and confidence brought about by Mr Carrick’s conduct during the investigation leading to his dismissal and in the hearing of his unfair dismissal application. That finding was relevant to whether Mr Carrick should be reinstated and needs to be viewed in the context of the overall finding that there was no valid reason for his dismissal. My reasons for not ordering reinstatement should not be conflated with my consideration of how long Mr Carrick would likely have remained in employment had he not been dismissed, particularly in circumstances where there was no valid reason for his dismissal and the unfair manner in which LWB dealt with him, contributed significantly to the conduct which was the reason for not ordering reinstatement.

[20] In short, management of LWB leapt to wrong conclusions about Mr Carrick’s conduct and failed to give him the benefit of the doubt when a reasonable employer would have done this. Had the matters involving Mr Carrick been appropriately dealt with he may well have been able to explain the situation and remain in employment. There is no reason to believe that Mr Carrick would have engaged in any further conduct that could have put his job in jeopardy.

[21] It is also unlikely that Mr Carrick would have voluntarily left employment with LWB. Mr Carrick is a quadriplegic and LWB operates a disability support service. Mr Carrick would likely have had difficulty finding other suitable employment. There is no evidence that Mr Carrick had any plan to resign or to seek other employment. Further, there is no evidence that Mr Carrick was other than a dedicated employee of LWB. Mr Carrick did have issues with an alleged failure on the part of LWB to take steps to ensure that special resources to enable Mr Carrick to do his job were made available to him, but rather than leaving employment, Mr Carrick was endeavouring to resolve his issues with LWB in this regard.

[22] LWB submitted that there were other considerations which would lead the Commission to conclude that Mr Carrick would not have been able to continue to work for an extended period. LWB initially pointed to the fact that Mr Carrick began to receive a DSP after his dismissal and contended that this fact indicated that he could not have continued to work even if he had not been dismissed. Following considerable debate, Mr Carrick provided information in relation to the circumstances in which he applied for and was granted the DSP and in its final submissions, LWB indicated the after considering this material, it did not press this point.

[23] In relation to mitigation, Mr Carrick tendered a Spinal Injuries Australia Report, which outlined deterioration in his condition at the time of the Report; a deterioration which was expected to continue. The Report indicates that Mr Carrick was assessed on 17 July 2014 and that it was issued on 17 October 2014. The Report further indicates that the deterioration had been ongoing for a period of 12-18 months prior to Mr Carrick’s dismissal. LWB submits that this Report indicates that Mr Carrick has a significant decline in function and that it is highly likely that he would have been unable to continue in work due to his medical condition. 7

[24] LWB also points to the fact that on 18 August 2014, Blue Card Services, a Division of the Public Safety Business Agency, which is an arm of the Queensland Government, advised LWB that under the Working With Children (Risk Management and Screening) Act 2000 (Qld) (the WWC Act) Mr Carrick had been issued with a negative notice and his Blue Card had been cancelled. In the unfair dismissal application hearing, LWB could not produce an earlier letter of 15 July 2014, referred to in the 18 August letter. Following the final hearing in relation to compensation, LWB’s representative located the letter of 15 July 2014 and forwarded it to the Commission. That letter indicates that LWB received advice, dated 15 July 2014, that it could not employ or continue to employ Mr Carrick to perform paid or voluntary work with children or young people in the categories of employment regulated by the WWC Act.

[25] Mr Davis stated that the letter was received on 16 July 2016, and submitted that Mr Carrick could not have continued in employment after 15 July 2014 and that had Mr Carrick not been dismissed on 20 March 2014, LWB would have terminated his employment on 16 July 2014, the date it received notification that his Blue Card had been cancelled. LWB submits that it would have been entitled to dismiss Mr Carrick at that point, because he was no longer able to satisfy the condition of his employment that he continue to hold confirmation of suitability from the Department of Child Safety and clearances in relation to working with children.

[26] Further, LWB pointed to the acceptance in the Unfair Dismissal Decision of evidence to the effect that Mr Carrick could not be employed in the capacity of Disability Support Co-ordinator without being the holder of a Blue Card and that it was a condition of Mr Carrick’s continuing employment that he have confirmation of suitability from the Department of Child Safety and clearances in relation to working with children and that these be maintained.

[27] In relation to the Spinal Injuries Australia Report, Mr Carrick submits that he would have been able to work around the deterioration in his condition had he remained in employment and would also have had access to paid leave entitlements if necessary. Further, LWB would have been required to make reasonable accommodations for Mr Carrick’s condition and this is particularly so given that LWB is a disability services provider established for the purpose of providing support and assistance to disabled persons.

[28] I accept Mr Carrick’s submissions in this regard. The fact that Mr Carrick suffered a deterioration in his condition does not mean that he would not have been able to remain in employment with LWB for a reasonable period. Mr Carrick’s evidence in the unfair dismissal hearing was that under extreme difficulty, because of his quadriplegia and associated physical constraints, he had managed to work for LWB and its predecessor for almost 11 years. During this time, Mr Carrick suffered pain and discomfort due to his physical restrictions but this did not stop him from carrying out his work. It is also the case that the deterioration recorded in the Report had been occurring while Mr Carrick was employed with LWB and it does not appear to have impacted him in that time. On the basis of the evidence before me, Mr Carrick would have been able to continue in employment for the period I have assessed he would likely have remained in employment pursuant to s.392(2)(c).

[29] The fact that LWB is a disability services provided is relevant. It is to be expected that where Mr Carrick had worked for any employer for that period, despite his physical difficulties, that employer would be in a position to make some reasonable accommodation to meet his needs. It goes without saying that this would be expected of LWB.

[30] In relation to the loss of Mr Carrick’s Blue Card, contrary to the submissions of LWB, the Decision of a Full Bench of the Commission in O’Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney 8, is relevant in the present case. O’Connell involved an unfair dismissal application made by a teacher employed in “child-related work” in a School, who became a disqualified person as a result of a criminal charge. The employer in that case argued that it was prevented by the Child Protection (Working with Children) Act 2012 (NSW)from continuing to employ the teacher and that the Commission did not have jurisdiction to deal with his unfair dismissal application, on the basis that his employment was not terminated at the initiative of the employer. The legislation in that case provided “[A]n employer must not commence employing, or continue to employ, a worker in child-related work” where the employer knows, or has reasonable cause to believe that the worker does not hold appropriate clearances to undertake child-related work.

[31] In that case, a five member Full Bench of the Commission held that:

“…the fact that Mr O’Connell was unable to obtain a ‘Clearance’ because he was a ‘disqualified person’ does not mean that s.9 of the Child Protection Act required the Respondent to terminate his employment. That section, on its proper construction, does not prevent an employer continuing to employ a person provided that the person is not employed ‘in child-related work’. An employer could, for example, continue to employ the person on suspension, on leave or assigned to duties not involving child-related work.” 9

[32] In my view, LWB’s submission about this point is conflating my reasons for why Mr Carrick was not reinstated with consideration of how long he would likely have remained in employment. Mr Carrick sought reinstatement. The evidence from LWB’s witness about the impact of the loss of Mr Carrick’s Blue Card was directed to opposing Mr Carrick being reinstated. 10 It was not relied on by LWB as a reason for dismissal. The findings about the impact of Mr Carrick’s Blue Card being cancelled were relevant to the Commission refusing to make an Order for Mr Carrick’s reinstatement.

[33] While I accept that it was a condition of employment that Mr Carrick have the necessary clearances, it does not follow that LWB would have been entitled to dismiss Mr Carrick immediately upon the loss of his Blue Card, when it was notified of that event on 16 July 2014. The evidence was that at the time that Mr Carrick was dismissed, there were transitional arrangements in effect at LWB whereby some employees who had Yellow Cards were allowed to work for the organisation on the basis that when their Yellow Cards expired they would obtain Blue Cards. This was to avoid LWB being put to the cost of paying fees for both cards.

[34] Mr Carrick was employed as a Disability Support Co-ordinator. He was not employed to provide support to disabled persons directly. At the point his unfair dismissal application was heard, the charges against Mr Carrick had not been finalised. Even at the point that the hearing in relation to compensation was conducted, there had been no progress in the matter. Had Mr Carrick been in employment at the time his Blue Card was cancelled he may have been able to seek a review in relation to the cancellation. LWB may have been able to make some accommodation to allow him to continue in employment or he may have taken leave – either paid or unpaid – until the matter was resolved. I do not accept that LWB would have been entitled to immediately dismiss Mr Carrick at the point it was notified that his Blue Card had been cancelled.

[35] In December 2015, at the point of the Unfair Dismissal Decision finding that Mr Carrick was unfairly dismissed and refusing reinstatement was handed down, the fact that Mr Carrick’s Blue Card had been cancelled in July 2014, and had not been renewed, was a relevant consideration in relation to why reinstatement would not be ordered. The loss of the Blue Card in July 2014 is not a basis for finding that Mr Carrick would have been dismissed at that time, simply because LWB asserts that it would have done this.

[36] Further, the Decision of a five member Full Bench of the Commission in O’Connell has overtaken consideration of Mr Carrick’s case. The parties have been given an opportunity to comment on the effect of that Decision. Consistent with the views expressed in O’Connell there is no basis for finding that Mr Carrick would not have remained in employment for a further two months after LWB was notified of the cancellation of his Blue Card. LWB took nearly two months to investigate the incident that led to Mr Carrick’s dismissal and it is likely that it would have needed to undertake some process after the notification of the cancellation of Mr Carrick’s Blue Card and could not have immediately dismissed him.

[37] In all of the circumstances, I have concluded that but for his dismissal, Mr Carrick would have remained in employment for a period of at least a further six months – ie. 26 weeks – from the date of his dismissal.

[38] In relation to the remuneration that Mr Carrick would have earned in this period, Mr Carrick initially asserted that his weekly wage rate for the purposes of compensation was $1,608.77 and later asserted that it was $1,761.575. The latter amount is derived from the Employment Separation Certificate provided to Mr Carrick by LWB on termination of his employment. The Certificate states that Mr Carrick’s final payment, including leave payments, was $12,729.44. That amount included $5,177.49 for 18 days of annual leave and $704.63 for two days of long service leave.

[39] The calculation undertaken on behalf of Mr Carrick uses the two days payment for long service leave as a basis and converts the amount of $704.63 to a daily rate by dividing it by two and multiplying the resultant amount by five, resulting in the amount of $1,761.575 for a five day working week.

[40] LWB supplied a Historical Payslips Summary Report to Mr Carrick’s representative. The date range for that Report is 16/09/2013 to 22/06/14. There was an email exchange about this Report between Mr Carrick’s representative and LWB’s State Human Resources Manager in which Mr Carrick’s representative asks for confirmation that the payslips for the period 16/09/2013 to 16/03/2014 show that six months or 26 weeks’ pay, without the addition of four weeks’ pay in lieu of notice, totals $38,751.18 and that the total for the period 16/09/2013 to 22/06/2014 of $51,480.16 is 26 weeks’ pay, plus four weeks’ pay in lieu of notice and long service leave. LWB’s State Human Resources Manager confirms that this assumption is correct. This email exchange is said to support the submission on behalf of Mr Carrick that his weekly earnings were $1,761.575.

[41] LWB asserts that Mr Carrick’s payslips show that his fortnightly salary was $2,391.52 and that he received a car allowance of $461.53 in addition, totalling $2,853.05 per fortnight or $1,426.53 per week. It is contended that the long service leave payment shown on the Employment Separation Certificate given to Mr Carrick includes additional payments made in ordinary time, including an on-call allowance that was paid on occasion to Mr Carrick. It is submitted that the on-call allowance is not part of Mr Carrick’s normal remuneration and is not guaranteed. In relation to the email exchange, it is submitted that the question asked of the Human Resources Manager was not put into proper context and that the response was an error. Accordingly any compensation should be assessed on the basis that the correct rate of remuneration is $1,426.53 per week.

[42] I do not accept the submission of either party. It is well established that the term “remuneration” in s. 392(2)(c) has a wider meaning than wages. 11 The remuneration of an employee may exceed the employee’s wages or salary and has been held to include amounts such as commissions to which an employee is entitled.12 Mr Carrick was entitled to receive an on-call allowance and the payslips provided by LWB indicate that he received this allowance for most of the weeks in the period covered by the Report and that the total of this allowance in the six month period prior to his dismissal was $1,200. In my view, the on-call allowance was part of Mr Carrick’s weekly remuneration and should be taken into account in the assessment of compensation. Accordingly, for the purposes of calculating the remuneration Mr Carrick would have earned had he remained in employment, I have calculated that his weekly remuneration is $1,472.68 including car allowance and an amount for on call allowance.

[43] Accordingly, I find that had Mr Carrick remained in employment for a further period of six months he would have received, or would have been likely to receive, an amount of $38,289.68. Mr Carrick has also been deprived of superannuation contributions in respect of the earnings lost as a result of the termination of his employment. It forms an additional part of his lost remuneration. 13 

Mr Carrick’s efforts to mitigate his loss – s. 392(2)(d)

[44] Mr Carrick gave evidence of his attempts to mitigate the loss of his employment. Mr Carrick obtained casual employment in a sales call centre and applied for a position with another employer in July 2014, with his application being unsuccessful. That employer provided a statement to the effect that it did not have a position available and did not have appropriate equipment to accommodate Mr Carrick’s disability in any event. Mr Carrick also stated that he regularly accessed an on-line employment vacancy website, but was unable to find alternative employment in his field or at the rate of pay he had received while working for LWB.

[45] Mr Carrick asserts, and I accept, that the rate of unemployment in Cairns is high and that he faces additional difficulty in obtaining alternative employment because of his disability. In order to undertake clerical work, Mr Carrick requires special equipment, which the average employer does not have readily available. In addition to his other difficulties, Mr Carrick suffers from restrictions in his hand movements which make it difficult for him to dial a telephone or use a keyboard. In my view, Mr Carrick has good reason for seeking particular kinds of employment and he cannot be found to have been overly particular so that a deduction from any award of compensation is warranted because he did not seek any kind of employment. In all of the circumstances, I accept that Mr Carrick made reasonable attempts to mitigate the loss of his employment and that no deduction should be made from the compensation awarded to him on this basis.

The amount of any remuneration earned by Mr Carrick since dismissal – s. 392(2)(e)

[46] Following his dismissal, Mr Carrick obtained casual employment in a telephone sales centre for which he earned an amount of $2,404.67. Despite filing numerous, lengthy submissions in relation to compensation, the information about when this amount was earned has not been provided by Mr Carrick’s representative. Consistent with my advice to the parties, I do not intend to seek further clarification about this matter given that there have been many opportunities to provide relevant material. I have determined that it is more probable than not that this amount was earned in the six months following Mr Carrick’s dismissal and I have treated it accordingly by deducting it from the amount of compensation awarded to Mr Carrick.

The amount of any income reasonably likely to be earned by Mr Carrick during the period between the making of the order for compensation and the actual compensation – s. 392(2)(f)

[47] Given that my Order for compensation will be made after the period that I have found Mr Carrick would have likely remained in employment, this criterion does not affect my ultimate conclusions in respect of compensation. In any event, the evidence about Mr Carrick’s health status makes it improbable that he will be in a position to earn an income during this period in contrast with the period assessed pursuant to s.392(2)(c).

Any other matter that the FWC considers relevant – s. 392(2)(g)

[48] Given the lapse of time between the dismissal and the hearing, and in the circumstances of this case, it is not appropriate to make a deduction for contingencies. Mr Carrick was paid four weeks’ wages in lieu of notice, and this amount will be deducted from the compensation award. I note that despite filing three submissions in relation to compensation, LWB has not stated anywhere the amount of the four weeks wages in lieu of notice it paid to Mr Carrick. Accordingly I have calculated that amount based on the amount that LWB contends represents Mr Carrick’s normal weekly rate of pay - $1,426.53 – and find that payment in lieu of notice of $5,706.12 was made to Mr Carrick on termination of his employment. I do not consider there are any other relevant matters to be taken into account in my assessment of an award of compensation.

Deduction for misconduct

[49] I do not intend to make a deduction for misconduct. While I found that Mr Carrick’s conduct during the investigation of events that led to his dismissal and in the hearing of his unfair dismissal application, brought about a loss of trust and confidence in him, the fact remains that Mr Carrick was not guilty of the misconduct on which LWB relied to dismiss him. Mr Carrick has paid a high price for his conduct by losing his longstanding and secure employment in circumstances where his disability and associated complications mean it is improbable that he will ever obtain any employment at all much less employment that is commensurate with the position he formerly held. Mr Carrick has also not succeeded in obtaining an order for compensation which is what he consistently sought in pursuing his unfair dismissal application.

[50] Mr Carrick was unfairly dismissed in circumstances where he should have been given the benefit of the doubt and it is not appropriate in those circumstances to penalise Mr Carrick further by making a deduction from his compensation award.

4. CONCLUSION

[51] I conclude as follows:

1. An order for the payment of compensation in the amount below would not affect the viability of LWB’s business.
2. Mr Carrick had a relatively lengthy period of employment and no deduction from compensation should be made on this basis.
3. But for the dismissal, Mr Carrick would likely have earned an amount of $38,289.68.
4. I make no deduction for contingencies.
5. I make no deduction for failing to mitigate loss.
6. I deduct the amount of $2,404.67 earned by Mr Carrick after his dismissal and a further amount of $5,706.12 in relation to the payment in lieu of notice made by LWB to Mr Carrick.
7. I make no deduction for income likely to be earned during the period between the making of my order and the actual compensation.
8. This leaves an amount of compensation of $30,178.89;
9. I make no deduction in respect of misconduct.
10. The amount of compensation is less than the compensation cap calculated in accordance with s. 392(5) and s. 392(6).

[52] In all of the circumstances of this case I consider that it is appropriate that I make an Order for compensation. The Order will issue with this Decision and will require LWB to pay compensation to Mr Carrick in lieu of reinstatement of a gross amount of $30,178.89, plus superannuation applicable to earnings at that level. The compensation ordered will be subject to the deduction of taxation required by law. The order will require the payment to be made by no later than 10 August 2016.

DEPUTY PRESIDENT

Appearances:

Ms. C Unwin for the Applicant.

Mr. J Davis for the Respondent.

Hearing details:

2016.

Brisbane (by phone).

31 March.

2015.

Brisbane to Cairns and Sydney (by video).

18 December.

Final written submissions:

17 April 2016, Applicant.

7 April 2016, Respondent.

 1   Carrick v Life Without Barriers [2015] FWC 8980.

 2   O’Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney [2016] FWCFB 1752.

 3 (1998) 88 IR 21.

 4   [2013] FWCFB 431.

 5   [2014] FWCFB 8683.

 6   [2015] FWCFB 2267.

 7   Outline of Submissions for the Respondent flied on 6 August 2015.

 8   [2016] FWCFB 1752.

 9 Ibid at [58].

 10   [2015] FWC 8980 at [75].

 11   Condon v G James Extrusion Company (1997) 74 IR 283 at 286.

 12   Davis v Portseal Ltd (1997) 72 IR 414 at 417.

 13   Frawley v Australian Carpet Cleaning Services P/L T/A Australian Carpet Cleaning Services[2013] FWC 545; Tabro Meat Pty Ltd v Kevin Heffernan [2011] FWAFB 1080 at [21].

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