Mr Karl Johnston v Iron Bark Logging and Earth Moving Pty Ltd T/A South Bundaberg Saw and Planing Mill
[2012] FWA 5712
•12 JULY 2012
[2012] FWA 5712 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Karl Johnston
v
Iron Bark Logging and Earth Moving Pty Ltd T/A South Bundaberg Saw and Planing Mill
(U2011/3661)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 12 JULY 2012 |
Summary: unfair dismissal - Applicant found to have been unfairly dismissed - no order in lieu of reinstatement made.
[1] This is an application under s.394 of the Fair Work Act 2009 (“the Act”), in which Mr Karl Johnston (“the Applicant”) is seeking an unfair dismissal remedy in respect of the termination of his employment on 3 November 2011 by Iron Bark Logging and Earth Moving Pty Ltd T/A South Bundaberg Saw and Planing Mill (“the Respondent”).
[2] The Applicant performed an array of duties over a period of time as a casual employee. These duties appear to have involved mechanical and other maintenance and repair responsibilities and duties as a plant operator and truck driver.
[3] The Applicant had been employed by the Respondent in a number of segmented periods over time. He was employed for a period of some three months in early 2008 before resigning following a difficulty with the then supervisor, Mr Scott Stuart. He then appears to have been reemployed in June 2009. On or about November 2009, the Applicant “move[d][ away for a little while” following a difficulty with another employee, who appeared to be the mill manager at the time (Mr Michael Saunders). The Applicant appears to have then been reemployed once more in January or February 2010, until such time as he was dismissed on 3 November 2011. 1
[4] At the outset, I indicate that this application was lodged on 7 November 2011. But following a conciliation conference conducted on 7 December 2011, the matter appears to have fallen into abeyance – for reasons that are not immediately clear – until early March 2012. At that time the Applicant agitated the status of his application with the Fair Work Australia Unfair Dismissals Team in Melbourne, which then proceeded on instruction to allocate the application for arbitration. Following the allocation in March 2012 for this purpose, the Applicant indicated that he was not available to progress his application between 27 March 2012 and 27 April 2012. Upon the Applicant being available, a directions conference was conducted on 1 May 2012, and the matter was subsequently brought on for hearing on 28 June 2012, some eight months following the dismissal taking effect.
[5] The Act provides that a person who has been unfairly dismissed may seek a remedy under s.394 of the Act. Section 385 of the Act reads as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
Small Business Fair Dismissal Code
[6] When the matter came on for hearing, the evidence led ultimately suggested that the Respondent was a small business employer the purposes of s.23 of the Act. Section 396 of the Act provides as follows:
396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[7] Section 396(c) of the Act requires me to decide whether the Applicant was dismissed in a manner consistent with the Small Business Fair Dismissal Code (“the Code”) before considering the merits of the application.
[8] The Code - which is declared under s.388 of the Act - provides, amongst other things that it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. The Code also indicates that serious misconduct includes theft, fraud, violence and the serious breaches of occupational health and safety procedures.
[9] It appears to me that the Code has limited application to the circumstances before me in this particular context.
[10] In the first place, the Applicant was not dismissed summarily in so far as the dismissal was an immediate action taken by the Respondent. The Applicant was dismissed in the recorded view of the Respondent for a number of compounding behavioural concerns, the last of which related to a failure to obey a reasonable and lawful direction by his employer (involving the movement of a large tractor).
[11] The difficulty here however is that it was common ground that the Applicant continued service to the Respondent for some 10 days after the final incident (which is discussed below) and was remunerated in the ordinary manner during this period. The Applicant was not dismissed until 3 November 2012, which was almost 3 weeks from the final incident. That is, despite the Respondent having knowledge of the Applicant’s conduct at the relevant time, the Respondent did not act to immediately dismiss the Applicant from his employment. In the absence of immediacy and in the context of the knowledge of the Respondent about the conduct, it appears to me that the summary dismissal provisions of the Code do not have application (and were not applied) to the current circumstances.
[12] That said, the Code does have provisions for dismissal in relation to other cases where summary dismissal does not apply.
[13] In those circumstances, the small business employer must give the employee a reason why he or she is at risk of being dismissed, and that reason must be a valid reason based on the employee's conduct or capacity to do the job. The employee must also be warned verbally or preferably in writing that he or she risks being dismissed if there is no improvement and the small business employer must provide the employee with an opportunity to respond to the warnings and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. The Code also requires that the rectification of the problem might involve the employer providing additional training in ensuring the employee knows the employer's job expectations. These requirements are not dissimilar in any substantive way from the key provisions of s.387 of the Act.
[14] Section 387 of the Act, for its part, provides as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
Was there a valid reason for the dismissal?
[15] In effect, the Respondent contends that the Applicant’s conduct over time demonstrated that he was no longer a person in whom it could place the necessary trust and confidence to fulfil faithfully his duties as an employee. There were multiple reasons for this, according to the Respondent. The Respondent’s letter of dismissal put it this way:
We have tried very hard to work with you and your personal disputes with other employees, but we can only tolerate so much disruption within the workplace before it affects our business.
We have spoken to you on many occasions regarding these issues and tried to be fair and accommodate them by keeping you away from other employees and giving you different shift work. You have also on numerous occasions repeatedly failed to follow direct instructions resulting in additional costs to the Company and the unknown where about of employees. One of these instances resulted in the illegal movement of our equipment using our brand which is totally intolerable by itself. 2
[16] The evidentiary case in this matter was profoundly conflicted. The Applicant characterised himself as an easy-going, productive and cooperative employee who only fell into dispute with the Respondent when he began to agitate concerns in relation to underpayment of superannuation and non-payment of an alleged overtime entitlement.
[17] The Respondent’s various witnesses, however, characterised the Applicant as being largely a disruptive and aggressive employee who was disdainful of direction. No one gave evidence that the Applicant was dilatory in the performance of his duties. It was perhaps more the case that the Applicant was a driven personality type, and arguably therein resides the pivotal issue.
[18] Despite the Applicant’s self characterisation, he conceded over the course of his evidence that he had numerous heated interactions with management (such as Mr Saunders and Mr Michael Barritt, both mill managers) and a co-worker (Mr Anthony Holder) for whom he reserved a particularly intense dislike (which was directly observed in the evidentiary process). Indeed, when the Applicant informed Mr Barritt and Ms Laura Sanders – accounts manager – that he refused to work with Mr Holder he had been informed in turn that it was necessary for him to work with Mr Holder on pain of dismissal. There was more.
[19] The evidence of Mr Brett Rankin, a director and owner of the business, was that in 2009 (during the Applicant’s second period of employment) he had been given an ultimatum by the Applicant that he needed to sack the then mill manager, or that he (the Applicant) would resign his employment. It was this incident that seemingly led to the Applicant leaving his position in January 2010.
[20] This particular difficulty in the Applicant’s relationship with Mr Holder was a source of concern to the Respondent.
[21] There were numerous allegations made in the evidence in relation to the Applicant’s conduct and performance of his duties. Much of this evidence concerned the Applicant’s reckless approach to performing his duties and general disruptiveness and rudeness. It was alleged that the Applicant had damaged the Respondent’s vehicles by his lack of regard to safety and property. It is difficult to make out the precise evidentiary or probative value of these claims as they were the subject of conflicting testimony (with the Applicant claiming all of his accusers were dishonest). There was some considerable consistency amongst the witnesses, however, about the Applicant's demeanour in the workplace, and it was far from complimentary. There was - even on the Applicant's own evidence - a tendency for him to have heated or combative exchanges with his managers. 3
Now, we go on 21 June where you made another statement in reference to the witness statement on the 28th, "I would like to add that Mr Johnston would swear and say that I was doing this and - or that was right, and he would verbally abuse me and then walk out of the office." Can you explain to the Honour what was going on there?---On occasions Karl would come in and abuse me for not doing my job right.
And weren't you doing it right?---I was.
But I was not abusing you?---Yes, you were. You were very abusive.
I was talking to you very, very carefully, wasn't I?---No, you weren't.
There was one altercation where I did tell you to behave yourself as you were just straight out lying to me, weren't you?---No. 4
[22] There were other difficulties as well. It was claimed that the Applicant had caused unreasonable and unnecessary costs for clutch repairs to a truck which the business could not afford at the time. The Applicant for his part gave evidence that he was directed to have the clutch repaired at a truck repair specialist and that he had to do so for reason that the Respondent did not possess the necessary lifting equipment to repair a clutch of the relevant weight. The Respondent claimed that the Applicant’s conduct in this regard was unauthorised, it approved no outsourced repairs, and caused it financial difficulties (with the repair bill having to be paid in instalments, it appears). 5
The Tractor Relocation Issue
[23] Apart from this there was another incident which appeared central to the decision making of the Respondent in relation to the Applicant’s dismissal. This concerned an incident in which a heavy tractor was to be removed from the Respondent's premises to an auction yard in Bundaberg. The general allegation here is that the Applicant took it upon himself to move the tractor to the auction yard in unsafe circumstances and in direct opposition to the direction of the Respondent.
[24] The Applicant, of course, rejects this general allegation. He claims that he moved the tractor on the direction of Mr Graham Myles, who had some measure of supervision over his duties, and that he moved the tractor safely and without risk.
[25] Mr Rankin gave evidence that he instructed Ms Sanders to inform others that the tractor was to be moved by a contractor as he was of the belief that the Respondent did not have the necessary equipment or skills to carry out such an exercise.
[26] Mr Barritt understood that direction. His evidence was that he contacted the Applicant firstly by telephone on 12 October 2011 and informed the Applicant that he was not to move the tractor. He also gave evidence that the following day he further informed the Applicant not to remove the tractor and that a decision had been made by Ms Sanders to move the tractor by other means.
[27] The matter would be straight forward if it rested there, as the Applicant recalled Mr Barritt’s direction on the morning of 13 October 2011. But the wider evidence demonstrates a more complex situation.
[28] Mr Myles gave evidence that whilst he was not the Applicant's supervisor, the Applicant would normally expect to be directed to carry out tasks by him, though Mr Barritt possessed more general authority around the mill. 6 The Applicant was more inclined to accept that Mr Myles held more authority in his day to day work than did Mr Barritt.
[29] Notwithstanding this, Mr Myles’ evidence was that there was a degree of informality about the chain of command that operated across the business: 7
Was there a general chain of command? - No, we just sort of - whatever had to be done, we just sort of worked it out ourselves and away we went, yes.” 8
[30] It appears from Mr Myles’ evidence that he had had a discussion with the Applicant about the requirement to move the tractor to the auction yard on the morning of 13 October 2011.
[31] Mr Myles’ evidence was that there was an expectation that the tractor should be moved, and that, “we thought we were doing it originally”. 9
[32] The discussion appears to have touched upon the need to remove a wheel so the tractor could be safely transported without the requirement for an escort vehicle. 10
[33] At another time, Mr Myles gave evidence he never asked the Applicant to relocate the tractor. 11
[34] Later that morning, Mr Myles stated that he was informed that Mr Barritt and Ms Sanders had organised for somebody else to carry out the task of transporting the tractor. Mr Myles stated:
So I just left it up to them. I said, “I’ll leave it with you, you organise it.” 12
[35] It does not appear that Mr Myles informed the Applicant of this development:
Senior Deputy President: Now, did you tell Mr Johnston that he wouldn’t be doing it?
Mr Myles: No, I didn’t. I just left it up to Mick and Laura and they could organise with him.” 13
[36] Notwithstanding this, Mr Myles also gave evidence that he had informed the Applicant that he was not to move the tractor and that Ms Sanders and Mr Barritt were organising its relocation. 14
[37] Mr Myles also gave other evidence that he just “wasn’t sure who was going to move it...” and left the matter up to Ms Sanders and Mr Barritt. 15
[38] A fair reading of the evidence of Mr Myles is that he created an expectation, at the very least that the Applicant would be responsible for relocating the tractor and did not inform the Applicant that he was not to move the tractor after such time as Mr Barritt had informed Mr Myles of the alternative plan.
[39] Largely, the balance of Mr Myles’ evidence is that he did not tell the Applicant not to relocate the tractor or that he just left it up to others to tell the Applicant. In so finding I have discounted - as is apparent - Mr Myles’ claim that he did inform the Applicant that he was not to relocate the tractor. I have done so because it was a claim that was disharmonious with both of his other related claims (that he did not inform the Applicant of the changed direction or else that he left the whole issue up for others to resolve.
[40] The Applicant’s own evidence was that at mid morning, after such time as Mr Barritt had spoken to him, Mr Myles had given him a new direction to relocate the tractor (if he hears nothing to the contrary by midday). 16
[41] There are obvious difficulties in reconciling the evidence in this matter.
[42] It appears to me that the tractor relocation incident must be understood in the context in which it occurred as opposed to giving it any retrospective meaning. The only discussion that occurred between all the parties was that the tractor could only be moved if it had one or more wheels removed. What the Applicant did was check the John Deere Tractor Manual and discerned the actual width of the tractor was 3.55m, which he believed to have been below (marginally) the requirement for transportation on a public road without an escort. Having determined this, the Applicant was of the view the vehicle could be transported on a float owned by the Respondent.
[43] As might be presumed from the above, the Applicant seized the opportunity to demonstrate his alacrity in solving issues quickly where others sought more complex solutions, and he moved the tractor himself. Having consulted the John Deere Tractor Manual, the Applicant attached lights, flags and an oversized sign to the tractor and moved it himself (and seemingly with the assistance of an apprentice) on a float to the auctioneers’ sale yard.
[44] It appears to me the Applicant acted in a context in which he was aware of competing expectations about his responsibilities in respect of the tractor (but was uninterested in resolving them). Mr Barritt had informed him that he was not to remove the tractor, but Mr Myles had given him an indication later in the morning that he should do so, and did not - on his own evidence - tell the Applicant the situation had changed.
[45] I cannot take the issue much further than this. The situation was confused, and the Applicant elected to pursue a course of direct action on the basis of one manager’s direction (at the expense of the other).
[46] I have also reached this view despite having considered other evidence led by the Applicant in regard to this incident that brings his evidence in to question.
[47] The Applicant alleged that having successfully completed the movement of the tractor that his apprentice was telephoned by Ms Sanders and congratulated on the pair’s efforts. I do not believe this to be at all creditable. Mr Rankin gave evidence that he directed Ms Sanders to organise the tractor to be shifted by a contractor. Ms Sanders communicated that direction to others in the supervisory team. When it became known that the Applicant had shifted the tractor at his own initiative Ms Sanders was surprised by his actions and undertook the difficult duty of reporting his actions to Mr Rankin who was less than impressed with Ms Sanders’ inability to give effect to his direction. Ms Sanders’ evidence in this regard was compelling. It therefore makes no sense whatsoever for Ms Sanders to have telephoned the Applicant (or his apprentice) and to have congratulated them on contradicting Mr Rankin’s direction (as given to her). The Applicant's evidence in these respects was overcooked, as it were.
[48] In all, however, I do not consider the Applicant to have directly disobeyed a reasonable direction of his employer. Nor was his conduct generally of a kind that could be characterised as establishing a valid reason for his dismissal. The Applicant acted as he might have often acted and he showed no sensitivity to assisting in resolving competing directions.
[49] Further, when I consider the incident as set out to me in the context of other behavioural issues concerning the Applicant I do not necessarily discern a valid reason for the Applicant’s dismissal. The Applicant was no doubt a difficult employee over time. On his own evidence he indicated that he had berated and had had heated exchanges with Mr Barritt. On the evidence of Mr Stuart he was told by the Applicant to “get f....” when he approached him. He had a near physical confrontation with Mr Saunders, another mill manager. The Applicant also had an openly hostile relationship with Mr Holder, which was evidenced in their exchanges in cross examination. In fact many of the Respondent’s witnesses all attested to their dysfunctional relationship with the Applicant. One witness, Mr Sutton, pointedly described the Applicant as being the type of person that always needed an enemy.
[50] These and other issues might be important in a wider context, which I will consider below, but they do not in their own right establish a valid reason for the dismissal. The Respondent seems to have been prepared to largely tolerate the Applicant's conduct (though it had clearly drawn a line in the sand in relation to the Applicant's refusal to work with Mr Holder).
Notice
[51] There is no evidence led in these proceedings that the Applicant was given prior notice of the reason for his dismissal. The Applicant was informed by Ms Sanders on 3 November 2011 that there was no longer a position for him, and sometime later he received the correspondence which I cited above.
Whether given the opportunity to respond
[52] Given that the Applicant did not receive any notice of the reasons for his dismissal prior to being dismissed, the Applicant was demonstrably provided no opportunity to respond to the concerns which were ultimately to motivate his employer to terminate his employment. Ms Sanders argued that she had no time to explain the situation to the Applicant once she had informed him of his dismissal as the Applicant adopted an aggressive tone and the telephone call was terminated. But while this may have been the case, the Applicant’s behaviour only arose after he was told he no longer had a position with the Respondent.
Role of support person
[53] To the extent that it is necessary, no issue in respect of a support person arose in the circumstances relating to the dismissal of the Applicant.
Unsatisfactory performance
[54] To the extent to which it is relevant, the concerns which led to the Applicant’s dismissal were related to his conduct and not the performance of his duties. Consequently, no issue arises as to whether or not the Applicant was provided with an opportunity to rectify any performance issues or was given warnings about his performance.
Respondent’s size and HR resources
[55] To the extent it is relevant, the Respondent claimed that it was a small business employer for the purposes of s.23 of the Act and that it had limited HR resources. Ms Sanders, as accounts manager, appears to have carried out HR type functions. It is likely that the small size and limited resources of the Respondent affected the manner in which the dismissal was given effect. I have described above how in my view the evidence suggested the Respondent had complained of the Applicant’s conduct (within its own supervisory or management ranks) but had never taken steps to manage him formally. In so doing it tolerated his conduct until it reached a point at which it could do so no longer. A more sizeable business or one with dedicated HR skills might have adopted a different approach.
Other matters
[56] By the time of his dismissal, the Applicant had established a uniformly negative profile amongst many of his co-workers and former managers. I have set out above some (only) of the various allegations in this regard.
[57] Equally, however, the Applicant in or about the same month that he was dismissed had made a series of complaints (seemingly to the Fair Work Ombudsman) concerning overtime to which he was entitled as a casual employee, and had also raised concerns officially about unsafe practices in the Respondent’s business (which had led to a number of safety notices being given). The Applicant is of the view that his employment was terminated for reasons of his agitation of issues around his entitlements and safety. The deterioration in the relationship between the Applicant and his employer was also for other reasons: in the same period the Applicant had requested not to work with Mr Holder, and there were other were allegations made about the Applicant's conduct (in relation to unauthorised clutch repairs, damage to an excavator, driving B-double trucks on non-rated roads and disregarding Mr Barritt’s direction not to move the tractor). Clearly, there were numerous sources of tension in the employment relationship by November 2011.
CONCLUSION
[58] On balance, I am of the view that the Applicant’s employment was terminated harshly, unjustly or unreasonably.
REMEDY
[59] The Applicant’s closing words in his closing statement were as follows:
They’re a disgusting firm that have ever worked for. I'm glad I'm that far away from them it's not funny. (sic) 17
[60] The gist of this is that the Applicant is ill-disposed towards the Respondent. Reinstatement or re-employment to a commensurate position was not sought by the Applicant, perhaps unsurprisingly. In any event, reinstatement or re-employment to a commensurate position would hardly, in all the circumstances, provide for a productive outcome. It is therefore not appropriate to consider such options for the Applicant.
[61] Having so concluded it is necessary for me to consider whether I should make an order for payment of compensation to the Applicant under s.392 of the Act.
[62] For purposes of determining any amount to be paid to the Applicant in lieu of reinstatement a number of criteria must be taken into account.
Effect of an order on the viability of the employer’s enterprise
[63] The first of these concerns the effect of any order on the viability of the Respondent's enterprise. Given Mr Rankin's evidence in these proceedings an order of any significant quantum arguably may affect the viability of the Respondent's enterprise in its current state. But the evidence never took me in any substantive detail as to any cash reserves held by the Respondent. So far as some employees are remaining in employment (see below) it may be inferred the Respondent has access to some undefined cash reserves.
[64] I should add that some time was spent in adducing evidence from the Respondent, through Mr Rankin principally, as to its current business and financial circumstances. It appears as though the mill business has effectively closed with a number of residual jobs being completed and the facility transitioning towards closure. The trucking business has ceased to operate. Plant and other equipment are in the process of being auctioned off.
Length of service
[65] The second of these concerns the length of the Applicant's service with the Respondent. I set out the periods of the Applicant’s service with the Respondent earlier. The Applicant was employed as a casual employee, over three separate periods and in his final period of employment was employed for a period of about 18 months.
Likely remuneration if no dismissal
[66] Thirdly, I must take into account the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed. In my view, in light of the evidence adduced over the course of these proceedings, the Applicant’s period of employment would not have continued to any meaningful time beyond the date on which he was dismissed. It follows that the remuneration lost because of the dismissal would have been negligible, if anything. My reasons for so concluding are as follows.
[67] The Applicant had difficult relationships with many of his co-workers and managers and he himself exhibited disdain for his employer. The Applicant had indicated to his employer that he did not wish to work with a co-worker and had been warned that he would be dismissed if he refused to do so. In response, the Applicant had been looking for alternative employment:
But you were looking for other employment, were you?---Yes. Because I could not work with Mr Holder who was continuously running to the office, writing little tittle-tattles all the time and just really setting me up properly. In that time I did get set up very nicely with Mr Holder as he damaged an excavator and sent the photos into the office. I've never been able to see the time of when he did that damage. I would still like to see that ---
This all occurred in October 2011?---Yes. 18
[68] The Applicant's evidence was that he would not work with Mr Holder and was seeking alternative employment. The wider evidence is that he had been informed he would be dismissed if he refused to work with Mr Holder.
[69] It would appear to me in all the circumstances that the Applicant’s employment relationship with the Respondent had reached a point - in October-November 2011 - beyond which it would go no further. The Applicant had reached two such points (to which I have referred to above) previously in his employment history with the Respondent.
[70] Consequently, there is no remuneration of any measurable quantum that the Applicant would have received or would have been likely to have received if the Applicant had not been dismissed by the Respondent (because - on the balance of probability - his employment would have come to a conclusion at around the same time for other reasons).
Efforts to mitigate loss
[71] Fourthly, I have taken into account the Applicant’s efforts to mitigate the loss suffered because of the dismissal. It would appear that the Applicant was re-employed relatively soon after the dismissal in November 2011, albeit on a part time basis initially. I add that the Applicant did note that that employment relationship at his new place of employment collapsed in March 2012 when his employer punched him in the eye following an altercation. 19 The Applicant appears to be in paid employment once again at this time, and is optimistic about his circumstances.
[72] None of the other requirements under s.392(2) of the Act need to be taken into account given my earlier observations and my conclusions as will follow.
Conclusion on Remedy
[73] In my view, in light of my findings set out above, I do not consider that it is appropriate in the circumstances to make an order for compensation in lieu of reinstatement to the Applicant in this matter.
[74] If s.392 of the Act were to be construed positively to obligate Fair Work Australia to make an order for payment of compensation, then I would make an order that the Applicant be paid $0.00 in lieu of reinstatement.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr K. Johnston for Himself
Ms H. Blattmam, Counsel for the Respondent
Hearing details:
2012.
28 June.
Bundaberg.
1 Transcript of proceedings dated 28 June 2012 at PNS 94-138.
2 Exhibit R10 - termination of employment letter.
3 Transcript of proceedings dated 28 June 2012 at PNS 1190-1194, 1209, 1121 and 1458.
4 Transcript of proceedings dated 28 June 2012 at PNS 1190-1194.
5 Exhibit R13 - Statement of Mr Michael John Barritt at PN 17.
6 Transcript of proceedings dated 28 June 2012 at PNS 201 and 225-226.
7 Transcript of proceedings dated 28 June 2012 at PNS 596, 654 and 658.
8 Transcript of proceedings dated 28 June 2012 at PN 658.
9 Transcript of proceedings dated 28 June 2012 at PN 608.
10 Transcript of proceedings dated 28 June 2012 at PN 609.
11 Transcript of proceedings dated 28 June 2012 at PN 593.
12 Transcript of proceedings dated 28 June 2012 at PNS 612 and 630.
13 Transcript of proceedings dated 28 June 2012 at PN 614.
14 Transcript of proceedings dated 28 June 2012 at PNS 618-619.
15 Transcript of proceedings dated 28 June 2012 at PNS 623 and 625.
16 Transcript of proceedings dated 28 June 2012 at PN 203.
17 Transcript of proceedings dated 28 June 2012 at PN 1468.
18 Transcript of proceedings dated 28 June 2012 at PNS 164-165.
19 Transcript of proceedings dated 28 June 2012 at PN 462.
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