Mr Les Collaris v Boral Window Systems Ltd T/A Dowell Windows
[2011] FWA 4046
•1 JULY 2011
[2011] FWA 4046 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Les Collaris
v
Boral Window Systems Ltd T/A Dowell Windows
(U2010/15220)
COMMISSIONER HAMPTON | ADELAIDE, 1 JULY 2011 |
Application for unfair dismissal remedy - earlier proceedings - found dismissal harsh and unreasonable - remedy - reinstatement to former position not appropriate - further proceedings conducted - compensation determined.
BACKGROUND
[1] This decision concludes consideration of an application by Mr Les Collaris (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The applicant was dismissed from his role with Boral Window Systems Ltd T/as Dowell Windows (the respondent or the employer) following a series of events culminating in an incident involving the handling of a piece of glass on 9 December 2010 without wearing the necessary personal protective equipment (PPE).
[2] The substance of the application was determined by Fair Work Australia in a decision issued on 25 May 2011 1 (the May decision). In the May decision, and without detracting from the detailed findings more generally, I found the following in relation to the actual conduct of the applicant on the day in question:
“[74] I have found that the applicant did handle and pick up a piece of glass and was not, as he claimed, merely pointing it out or sliding it along. It is relevant that this took place in the context of his training of another employee for two reasons. Firstly, given that he was not generally handling glass at that particular time, he may have been entitled to not be wearing the full glass related PPE, and there is no evidence that he was not wearing the other PPE generally required. I will return to this aspect when considering the aspect of harshness however it is clear to me from the evidence that I have seen him give that the applicant was not as such undertaking a calculated act of misconduct in not following the PPE requirements, rather he made a significant mistake in judgement and appears unwilling or unable to consistently follow the PPE requirements. However, the fact that he was training another employee and did not follow a significant aspect of safety related procedure despite being aware of those requirements, is an exacerbating feature of the conduct.”
[3] It is also pertinent to confirm that findings were also made in relation to an earlier incident where the applicant deliberately smashed a pane of glass being held by another worker 2, certain reservations about a warning given to the applicant about his compliance with medical restrictions3, and the fact that the applicant had been given a final written warning in relation to the wearing of PPE a few weeks before the incident leading to the dismissal4. Findings were also made regarding the application of the PPE and disciplinary policies more generally and specifically in relation to the nature and manner of the warnings given to the applicant.5
[4] The conclusions as to the nature of the dismissal in the May decision were summarised in the following terms:
“[106] Having regard to all of the considerations raised by s.387 and the facts of this matter, I find on balance that the dismissal of the applicant was harsh and unreasonable in all of the circumstances. Without detracting from the detailed discussion earlier in this decision, I find that there was a valid reason for the applicant’s dismissal and that the process adopted by the employer has not in this case led to unfairness. However, given the nature of the conduct as I have found it and having regard to all of the circumstances prevailing at the time, including in particular the failure to provide notice or pay in lieu of notice upon or at least immediately after termination, the dismissal was both harsh and unreasonable.
[107] As a result, I find that the applicant was unfairly dismissed within the meaning of the Act. The precise basis of that finding must however be considered as part of any consideration of the remedy in this matter.”
[5] In terms of remedy, the May decision concluded:
“[112] I have carefully weighed the various considerations relevant to this assessment. These include the nature of the conduct of the applicant, the work history, including his long and until recently satisfactory work performance and the more recent warnings and conduct, and the evident remedial benefit of reinstatement given his personal circumstances. I must of course also consider the reasonable requirements of the workplace including the integrity of the PPE requirements and the risk to the applicant and the business in that regard.
[113] I have found that the applicant is not willing or able to consistently follow the comprehensive PPE requirements in relation to the glazing work within the respondent’s factory operations. Although there is some support for the proposition that personal circumstances may have contributed to that outcome, this is only part of the answer and I am not convinced that the applicant is capable of consistently meeting those requirements to the degree necessary to undertake glazing work. The fact that the applicant has not taken full responsibility for the events that led to his dismissal is also a factor in assessing the appropriateness of reinstatement. I also accept that the loss of confidence that the respondent has experienced in relation to elements of the applicant’s conduct and capacity is objectively justified and weighs against reinstatement.
[114] On balance, I find that reinstatement of the applicant to the former position is not an appropriate remedy in this matter.
[115] In relation to appointment to an alternative position, many of the above considerations are also directly applicable and may ultimately represent a barrier to that course of action. The evidence reveals that whilst all positions within the respondent’s operations have associated PPE requirements, there are some other positions that may have a less onerous requirement at least in the sense that glass products are not directly handled. These have not been specifically identified and the precise circumstances surrounding these positions would need to be considered including the precise nature of the alternative PPE requirements and whether the multi-skilling objectives of the employer would in reality militate against this approach. There is also little evidence as to the terms and conditions of these other positions as this would apply to the applicant and this aspect would need to be considered given the express requirements of s.391(1)(b) of the Act.
[116] I would also need to consider the applicant’s intentions and attitude given his historically strong concerns about working in other areas of the factory and some very mixed evidence given in this matter about his attitudes in that regard. An assessment as to the appropriateness of an appointment given his earlier conduct would need to be assessed in light of the full circumstances now evident. Further, there are considerations that may operate under s.391(3) of the Act that would need to be assessed in the event that a reinstatement order is further contemplated.
[117] There is also very little evidence going to many of the considerations established by s.392 of the Act in relation to compensation. This includes an indication of ongoing medical restrictions and there is no evidence of any payments or entitlements arising under the WRC Act since the dismissal.
[118] Importantly, it is also the case that the relatively narrow basis upon which I have found the dismissal to be unfair raises considerations under s.392 of the Act that the parties were not realistically in a position to deal with up to this point.
[119] In the circumstances, and despite my reluctance to require further proceedings, I consider that in this particular case it is appropriate to provide an opportunity for the parties to provide further submissions, and potentially evidence.”
[6] I have now received further submissions and some limited additional evidence in relation to remedy and it now falls to the Tribunal to determine the outstanding issues. 6
[7] The applicant, who has now obtained alternative employment, no longer presses for reinstatement.
THE RELEVANT STATUTORY PROVISIONS ON COMPENSATION
[8] The Act provides relevantly 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), FWA 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 FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA 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 FWA 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 FWA 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.
393 Monetary orders may be in instalments
To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
THE ADDITIONAL FACTS
[9] This decision must be read in the context of the factual and other findings set out in the May decision. There is however some additional evidence now before Fair Work Australia.
[10] The applicant has provided an affidavit and amongst other matters it confirms that he commenced employment with a different firm undertaking similar work on 13 May 2011. That work is casual but involves the equivalent of full-time work on a probationary basis and the applicant has a reasonable expectation of ongoing employment.
[11] The applicant has also confirmed that he did not have any alternative employment or receive “government” payments for the period between his dismissal in December 2010 and the new employment in May 2011. The applicant did however receive some financial and other assistance (accommodation) from his parents during that time.
[12] The applicant’s present (casual) rate of pay is $23.14 per hour and his rate of pay at the time of dismissal was $18.95 per hour as a full-time employee. Under the applicable enterprise agreement 7, that rate was due to be increased by 1.5% at 1 April 2011.
[13] The applicant did not receive any workers compensation payments (from the respondent or otherwise) whilst unemployed however he has made a claim which was rejected by the employer and is now being pursued by the applicant under the relevant legislation. 8
[14] I add that there was already some evidence before Fair Work Australia regarding the applicant’s efforts to mitigate his losses arising from the dismissal and some additional evidence was provided in that regard.
THE APPLICANT’S POSITION ON REMEDY
[15] The applicant, who continued to be represented by Ms Read, National Legal Officer with the Construction, Forestry, Mining and Energy Union, Forestry and Furniture Products Division (the CFMEU-FFPD), contended that in the circumstances, an award of compensation equivalent to the maximum available under the Act should be granted.
[16] The applicant’s submissions dealt with each of the considerations established by s.392 of the Act. 9
[17] The factors leading to the maximum compensation were said to be the applicant’s long period of service and the contention that the applicant’s employment could be projected forward for a period of five years. That is, the employment would not have concluded within the period immediately after the actual dismissal given all of the circumstances including the reservations with some of the earlier warnings and the role of the union in ensuring due process would be followed. In addition, it was argued that the applicant had made reasonable efforts to mitigate his loses and the fact that he was recovering from a work related injury at the time of the dismissal, the personal circumstances of the applicant, and the timing of the dismissal, should all be taken into account in that regard.
[18] The applicant argues that the payment made after his dismissal, the four weeks wages said to be pay in lieu of notice, should not be “set off” by the Tribunal. That is, the applicant contends that this payment is a component of severance pay that became due upon termination and that it was not appropriate to take such into account in terms of the present jurisdiction. 10
[19] The applicant contended that his present employment related income was outside of the appropriate consideration of Fair Work Australia given the time since dismissal, however if it was to be considered, the uncertain nature of that employment should involve a deduction for contingencies based upon the prospective element of that income alone. 11
[20] In terms of s.392(3) of the Act, the applicant contended that his conduct should not be considered to be misconduct for present purposes given the findings in the May decision.
[21] The applicant has also argued that the failure of the respondent leading to the delay in required payment of the notice, and what was said to be the employer’s capricious conduct in now rejecting the applicant’s workers compensation claim given its approach in this matter, were other factors that should be taken into account pursuant to s.392(2)(g) of the Act.
THE RESPONDENT’S POSITION ON REMEDY
[22] The respondent, which continued to be represented with permission by Mr Chadwick of Chadwick Workplace Law, contended that any award of compensation should be at the “lower end of the scale”. This was said to be appropriate as Fair Work Australia had found that the dismissal was for a valid reason and that there was no unfairness in relation to procedure.
[23] The respondent’s submissions dealt with each of the considerations established by s.392 of the Act. 12
[24] The respondent argued that any order of compensation would have an adverse financial impact upon the business.
[25] Whilst acknowledging the applicant’s long service, the respondent contended that in light of the earlier findings of Fair Work Australia this should have little bearing upon the extent of compensation in this matter.
[26] The respondent further argued that the applicant’s dismissal was inevitable given his poor adherence to OHS policy and the history of warnings set out in the May decision. In that light, it was contended that the applicant’s employment would have extended by no more than four weeks beyond the termination date.
[27] In terms of the mitigation of loss, the respondent contends that the applicant failed to properly do so given that he admitted to not attending an earlier interview with the employer that he is now employed by.
[28] Finally, the respondent referred to the apparent emphasis in the May decision upon the failure to make a payment in lieu of notice combined with what it contended was a view that the applicant’s conduct was found not to be intentional or deliberate. In that light, the respondent argued that these considerations in particular should be relied upon pursuant to s.392(2)(g) of the Act to limit the compensation to be paid.
CONSIDERATION
[29] In light of the revised position on remedy adopted by the applicant, and in particular having regard to my earlier findings in this matter, I find that reinstatement in any position with the respondent would not be an appropriate remedy.
[30] As a result of these findings and the operation of the Act, I must, having regard to the considerations established by s.392, determine whether compensation in lieu of reinstatement is appropriate and if so, to what extent.
[31] Section 392(2) requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). These factors include in ss.(g) any other relevant considerations. Without detracting from the overall assessment required by the Act, it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.
The effect of the order on the viability of the employer’s enterprise
[32] The respondent asserts that any compensation payable would have an adverse financial impact however there is no assertion, and more importantly no evidence, that the nature of the compensation permissible under the Act would have a meaningful effect upon the viability of the business.
The length of the person’s service with the employer
[33] The applicant had some 20 years of service with the respondent and he was generally regarded as a diligent worker. Subject to the consideration of the other circumstances impacting upon the nature of that service, particularly in relation to the incidents in 2010 leading to the dismissal, that long service must be taken into account including in relation to the assessment of the other considerations established by s.392(2)(c) of the Act.
The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[34] This involves in part a consideration of the likely duration of the applicant’s employment in the absence of what I found to have been an unfair dismissal. His gross remuneration at the time was $720.10 per week. 13
[35] In my view, given the conduct of the applicant and the circumstances of the employer, it would not be appropriate to consider that this employment would have continued indefinitely. Indeed, I have already found that the dismissal was for a valid reason and that it became harsh and unreasonable principally (but not solely) due to the failure to provide notice or pay in lieu of notice upon or at least immediately after termination, given the particular circumstances of the conduct and the applicant at the time.
[36] I have also found that the applicant’s conduct could partly be explained by the circumstances surrounding his father but that he was unable or unwilling to comply with the reasonable PPE requirements of the employer in relation to the handling of glass and that the respondent’s loss of confidence in the applicant was largely objectively justified. 14
[37] Having regard to all of the circumstances, it is likely that if not dismissed the applicant would have continued in his role for no more than twelve weeks from the point of dismissal and this projection is also reasonable in my view having regard to the applicant’s conduct and the other circumstances applying at the time. I add that this includes the applicant’s long period of prior service.
[38] The remuneration that the applicant would have received but for the termination was therefore $7,641.00. 15
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[39] The applicant provided evidence about his efforts to mitigate (reduce) the loss suffered as a result of his dismissal. I do have some reservations about the extent to which he actively pursued the employment that he subsequently obtained however there are other considerations affecting his conduct and it would be unsafe to assume that that employment would have been immediately available given the state of the evidence.
[40] In all of the circumstances, and particularly given the extent of projected employment and compensation being considered in this particular matter, no discount on the final compensation is warranted on this count.
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
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
[41] The applicant was ultimately paid the equivalent of four weeks wages on 22 February 2011 by the respondent and this was said to be the pay in lieu of the notice that should have been provided earlier. I consider that this payment should be taken into account for present purposes. That is, the payment was remuneration earned by the applicant from his employment and, in this case, paid between the time of dismissal and the order for compensation. In so finding, I would also note that the authorities relied upon by the applicant do not stand for the contrary proposition. 16
[42] The applicant commenced his new employment on 13 May 2011 (over four months after his dismissal) and his earnings from that employment have been in the order of $900.00 per week depending upon the extent of additional hours worked.
[43] Based upon the information before Fair Work Australia it is reasonable to infer that remuneration of this nature would be received between the making of the order and the actual compensation being paid.
[44] However, given the basis upon which the compensation is being considered in this particular case, and in particular the relatively limited projected employment, I do not consider it necessary or reasonable to make a specific deduction in respect of the remuneration received or likely to be received from the new employment.
Any other matter that FWA considers relevant and the remaining statutory parameters
[45] Given the short period over which I have projected the probable duration of employment, and the fact that losses over that period have in fact occurred, no specific discount for general contingencies is warranted in this case. 17
[46] There is relevant misconduct that should reduce the amount otherwise payable as compensation, as provided by s.392(3) of the Act. That is, although the conduct of the applicant was not misconduct that warranted dismissal without notice, there was some misconduct found by the Tribunal. In all of the circumstances a moderate deduction is warranted, particularly given the nature of that misconduct and the extent of projected future employment. I have made a deduction of fifteen percent. 18
[47] The difficulties created for the applicant by the delayed payment of the notice that was due, are relevant considerations in this particular matter. Indeed, the absence of the notice or pay in lieu was a critical element in the findings as to the characterisation of the dismissal and was not simply technical breach as implied by the respondent. The consequences of that action include those associated with the timing of the dismissal relative to the Christmas/New Year period and the immediate loss of income for someone in the circumstances of the applicant. In this case, these considerations are in my view adequately addressed by the compensation that I have otherwise determined in applying the express statutory criteria.
[48] The disputed worker compensation claim is a relevant consideration. However there have been no payments made and although the applicant may potentially be successful in the review of the employer’s decision, it is not appropriate for me to speculate. In terms of what is alleged to be the employer’s capricious conduct in rejecting the claim, there is some tension between an element of that decision and the respondent’s approach in this matter, but that is ultimately a matter for the Workers Compensation Tribunal of South Australia.
[49] Consistent with the express requirements of s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the manner of the dismissal.
[50] The amount of compensation that I assess as appropriate is far less than the maximum prescribed by s.392(5) of the Act as applied in this matter.
[51] The respondent has not sought a payment by instalments as contemplated by s.393 of the Act.
COnCLUSIONS AND ORDERS
[52] I have found that reinstatement in any position with the respondent is not appropriate. I am satisfied that compensation in lieu of reinstatement is appropriate in this case.
[53] Having regard to all of the circumstances of this case, including the considerations established by s.392 of the Act, I find that compensation in lieu of reinstatement should be paid as follows (using only whole dollars):
• Projected employment income | $8,641.00 |
• Less payments made after dismissal | ($2,880.00) |
• Less discount for misconduct (15%) | ($ 864.00) |
• Total compensation | $4,897.00 |
[54] The compensation is to be paid by the respondent to the applicant, with any necessary deduction for taxation, within 14 days of this decision.
[55] An order 19 giving effect to the above has been issued in conjunction with this decision.
COMMISSIONER
Appearances:
R. Read of the Construction, Forestry, Mining and Energy Union, Forestry and Furniture Products Division for the applicant.
N. Chadwick of Chadwick Workplace Law with permission for the respondent.
Written submissions on remedy:
2011
15, 24 and 29 June.
1 Les Collaris v Boral Window Systems Ltd T/A Dowell Windows[2011] FWA 2376.
2 May decision at paras [33] to [37] and [88].
3 May decision at paras [89] and [90].
4 May decision at paras [44] to [46].
5 May decision at paras [59] to [61] and [86] to [88].
6 Neither party sought a further hearing and the issues have been determined based upon the written submissions, the applicant’s further affidavit and the evidence already before Fair Work Australia.
7 Boral Window Systems Limited (Elizabeth) Agreement 2010.
8 The workers compensation claim was rejected by the respondent on the grounds that he was allegedly no longer suffering any ongoing incapacity and that he had breached “mutuality” under the Workers Rehabilitation and Compensation Act 1986 (SA). That rejection is apparently presently subject to review under that Act.
9 I have considered but not attempted to summarise all of those submissions.
10 The applicant relied upon the AIRC Full Bench in Southcorp Wines Pty Ltd v G MacDonald, PR917245, 2 May 2002 per McIntyre VP, Lacy SDP and Holmes C at par[30] and Smith v Moore Paragon, PR926979, 23 January 2003, per Lacy SDP .
11 Sprigg v Pauls Licensed Festival Supermarket, AIRC Print R0235, 24 December 1998 per Munro J, Duncan DP and Jones C.
12 I have considered but not attempted to summarise all of those submissions.
13 This has been calculated by using the hourly rate paid to the applicant at the point of dismissal taken over a 38 hour ordinary working week.
14 See the May decision including at pars [33], [34], [74] and [113].
15 I have used only whole dollars for this purpose and ignored the increase to the rate of pay provided by the relevant Enterprise Agreement as from 1 April 2011 and this falls outside of the projected period.
16 The Full Bench in SouthCorp was dealing with, and rejected, an argument that because redundancy and severance payments had been made no compensation order should be made. It did not deal with whether these payments should be deducted from the compensation otherwise calculated due to the application of the statutory cap (see paras [30] and [50]). On appeal, the Full Bench in Moore Paragon set off the severance pay in awarding lost remuneration (see PR942856 at par [71]). See also Chand v Refined Sugar Services Pty Ltd AIRC PR973043, 23 June 2006 per Lawler VP, Acton SDP and Lewin C.
17 See the discussion of contingencies in Ellawala v Australian Postal Corporation AIRC Print S5109, 17 April 2000 per Ross VP, Williams SDP and Gay C and in Enhance Systems Pty Ltd v James Cox AIRC PR910779, 31 October 2001 per Williams SDP, Acton SDP and Gay C.
18 See the discussion in Tabro Meat Pty Ltd v Heffernan[2011] FWAFB 1080, 16 March 2011 per Acton SDP, Hamilton DP and Cribb C at par [32].
19 PR510899
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