Mr Michael Glancy v Mega Admin Services Pty Ltd
[2018] FWC 1416
•13 APRIL 2018
| [2018] FWC 1416 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Glancy
v
Mega Admin Services Pty Ltd
(U2017/4954)
| Deputy President Asbury | BRISBANE, 13 APRIL 2018 |
Application for an unfair dismissal remedy – Ex parte proceedings – Dismissal found to be unfair – Reinstatement not appropriate – Compensation awarded.
BACKGROUND
This Decision concerns an application by Mr Michael Glancy (the Applicant) lodged in the Fair Work Commission (the Commission) on 10 May 2017 for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) regarding the termination of his employment from Mega Admin Services Pty Ltd (Mega Admin/the Respondent). Mr Glancy asserts that he commenced work as a truck driver on 13 January 2016. Mr Glancy further asserts that he was dismissed and that his dismissal was harsh, unjust and unreasonable.
The application has a convoluted history, mainly caused by the failure of the CEO of Mega Admin, Mr Paul Flackmorr, to respond to the application or to engage with the Commission. To further complicate matters, at some point in the proceedings, Mr Flackmorr changed his name to Paul Morrison and I will hereafter refer to him by that name. Set out below is a summary of Mr Morrison’s conduct and dealings with the Commission. In short, Mr Morrison’s attitude has been obstructive and he has failed to properly engage with the Commission to respond to the application in an appropriate manner to present his version of events. Notwithstanding this I have endeavoured to glean the facts relevant to the Respondent’s case from the limited material that Mr Morrison has provided to the Commission.
RESPONDENT’S CONDUCT
On 1 June 2017, the application was listed for conciliation but was unable to proceed on the basis that the Fair Work Commission Conciliator who was allocated the matter was unavailable. The application was relisted for conciliation on 13 June 2017 but was later cancelled due to the unavailability of Mr Morrison. On 14 June 2017 the General Manager of Mega Admin emailed a number of documents to the Commission with a request from “Paul” [who I take to be Mr Morrison] for further conciliation and a calendar showing “unavailable dates”.
A further attempt was made by the Commission to conduct a conciliation conference on 28 June 2017, one of the dates upon which it had been indicated that Mr Morrison was available. The conference was cancelled when Mr Morrison telephoned on the 22 June 2017 and stated that he did not wish to participate in conciliation and had handed the matter to his lawyers and instructed them to send a letter to the Commission to this effect.
The application was subsequently allocated to Deputy President Dean to deal with a jurisdictional issue which arose from the Form F2 Unfair Dismissal Application filed by the Applicant in which he indicated that there was confusion surrounding the effective date of his dismissal, which raised questions as to whether the application was filed within the time required in s. 394(2) of the Act.
A telephone hearing in relation to the jurisdictional issue was conducted on 4 September 2017 by Deputy President Dean. The file indicates that numerous attempts were made by the Commission to contact Mega Admin for the purposes of responding to the issue regarding the date of the Applicant’s dismissal and participating in the jurisdictional hearing. Despite the attempts, no response was received and no appearance was made by the Company at the hearing on 4 September 2017. The matter was determined in the Company’s absence, and a Decision was issued by Deputy President Dean on 5 September 2017 finding that the effective date of the Applicant’s dismissal was 21 April 2017[1] and that the application was filed within the 21 day time limit prescribed by s. 394(2)(a) of the Act.[2]
Information on the file indicates that Mr Morrison telephoned the Commission following the conclusion of the hearing on 4 September 2017 making a number of comments about the termination of the Applicant’s employment and indicating that he would speak to his local MP about the matter.
Subsequent to the decision and order made by Deputy President Dean, the matter was referred for arbitration. Directions were issued on 13 September 2017 requiring the parties to file and serve outlines of submissions and statements of witnesses to be relied on at hearing which was listed for 20 November 2017. On 4 October 2017, the Applicant filed and served his outline of submissions and a witness statement in support of his application. On 23 October 2017, the Commission sent an automated SMS to the Company as a reminder that its material was due on 24 October 2017. This was also confirmed by an email sent on 24 October 2017 stating that the Company’s material had not been received by the required date and that if an extension of time was sought a request to that effect should be made.
A note on the file states that on 25 October 2017, Mr Morrison telephoned the Commission and informed a staff member that he had already wasted enough time and resources on the application and would not be making any further response. The staff member informed Mr Morrison that the matter would proceed to hearing, and that this could occur in the absence of the Company. Mr Morrison stated that he would be contacting his local Member of Parliament and that the Commission had already decided in favour of the Applicant.
On 26 October 2017 the file was allocated to me for hearing and was listed for mention by telephone on 7 November 2017. At the mention on 7 November 2017, the Applicant appeared on his own behalf. My Associate managed to make telephone contact with Mr Morrison who informed me that he refused to participate in the mention and that should I proceed to conduct a hearing, I would lose my job because Mr Morrison has close relationships with a number of politicians. Mr Morrison also stated that he had instructed a legal representative in relation to the matter.
At my direction an email was sent to Mr Morrison informing him of a number of matters including that:
- Directions requiring Mega Admin to file and serve material had not been complied with;
- There had been no contact with the Commission from any legal representative in relation to the matter;
- The hearing was listed for 20, 21 and 22 November and if the Company failed to appear it would proceed in the absence of the Company;
- An Order could be issued against the Company which would be enforceable in a Court;
- The only material received by the Commission at that point was a bundle of documents sent by the Company’s General Manager on 14 June 2017;
- By virtue of s. 674 of the Act it is an offence to insult a member of the Commission or to use words that are intended to improperly influence the Commission; and
- Threats made to me by Mr Morrison in the telephone mention on 7 November 2017 may breach s. 674 of the Act.
Appended to the email my Associate sent to Mr Morrison was a copy of the Directions issued on 13 September 2017 and the material sent to the Commission on 14 June 2017 by the General Manager of Mega Admin. Mr Morrison was requested to confirm whether the Company intended to rely on that material at hearing. On 8 November, an email was received from Mr Morrison stating that:
“Paul Flackmorr is not the owner of the business, he is the CEO.
Paul Flackmorr is now known as Paul Morrison.
Mega Admin Services Pty Ltd does not trade as Mega Energy.
Michael Glancy has been paid all entitlements due.
Please refer to supporting information attached to obtain the actual truth to this matter.
Please feel free to contact me in regards to further details if required.
Regards
Paul Morrison”
Further to the documents sent to the Commission on 14 June 2017 Mr Morrision attached a number of additional documents including a Form F3 Employer response to the application, which asserted that the Respondent is a small business and that the dismissal was consistent with the Small Business Fair Dismissal Code. I instructed my Associate to send a further e-mail to Mr Morrison on 9 November 2017 seeking confirmation as to whether the material provided would be the entirety of the material relied upon by the Respondent and that I would consider whether to accept this material, taking into account it not being in the proper form required by the Directions and being filed after the expiration of the Directions. No response was received by the Respondent.
An email was also sent by my Associate to the Applicant (copied to the Respondent) on 10 November 2017 attaching correspondence received from the Respondent and stating that as it would appear that Mega Admin Services does not trade as Mega Energy, an application to amend the unfair dismissal application with respect to the Respondent’s name would be considered, should Mr Glancy wish to make such an application.
On 13 November, Mr Glancy filed a Form F1 Application seeking to amend the name of the Respondent from Mega Admin Services Pty Ltd t/a Mega Energy to Mega Admin Services Pty Ltd. Correspondence was sent to Mega Admin seeking its views on the application to amend the name of the Respondent. No response was received to the correspondence.
Pursuant to s. 586(a) of the Act, I considered it appropriate in the circumstances to amend Mr Glancy’s unfair dismissal application to the effect that the Respondent in the application is Mega Admin Services Pty Ltd. I also considered it appropriate to reduce the number of hearing dates and on 16 November 2017 the parties were informed by email that the hearing would proceed on 21 November 2017 only. At the hearing, Mr Glancy appeared on his own behalf and gave evidence in support of his application.[3] Following numerous unsuccessful attempts to make contact with Mega Admin and Mr Morrision , the hearing proceeded in the Company’s absence consistent with advice to that effect which was provided to Mr Morrison on a number of occasions.
At the hearing on 21 November 2017 an issue emerged with respect to receipt by the Applicant of worker’s compensation payments. It was necessary for the hearing to be resumed to allow the Applicant to provide further evidence about this matter and to respond to the assertion that Mega Admin is a small business. Mr Morrison was informed of the further hearing and copied into all correspondence between the Commission and the Applicant. Consistent with past practice Mr Morrison did not respond to the correspondence and failed to attend the further hearing.
A further issue emerged when my Associate contacted Mr Morrison to confirm whether there would be an attendance at the resumed hearing from the Company, and Mr Morrison said that the company had been wound up. I instructed my Associate to email Mr Morrison requesting documentary evidence of this assertion and advising Mr Morrison to attend the hearing to give evidence in relation to this assertion.
This matter was clarified to some extent when Mr Glancy provided details of his workers’ compensation payments in the form of a history report from WorkCover which indicates that Mega Admin Services Pty Ltd is in liquidation. I undertook an ASIC search and identified that on 28 February 2018, a Notification of court action relating to winding up was filed with ASIC and that the applicant for the winding up was WorkCover Queensland. ASIC reports also indicate that a court appointed liquidator was appointed on 28 February 2018.
By virtue of s. 471B of the Corporations Act 2001, while a company is being wound up in insolvency or by the Court or a provisional liquidator of a company is acting a person cannot begin or proceed with a proceeding in a court against the company or in relation to property of the company. In Smith et al v Trollope Silverwood & Beck Pty Ltd (In liquidation)[4] a Full Bench of the former Australian Industrial Relations Commission held that for the purposes of s. 471B of the Corporations Act 2001, the Commission is not a court and proceedings in the Commission are not subject to the leave requirement in that section.[5] Accordingly I have proceeded to deal with Mr Glancy’s application.
EVIDENCE
As previously noted, in a Decision issued on 5 September 2017, Deputy President Dean found that Mr Glancy was dismissed on 21 April 2017 and that his application was made within the time required by s. 394(2) of the Act. There is no evidence that the dismissal was a case of redundancy and the Respondent makes no assertion in this regard.
In its Form F3 Employer Response to Unfair Dismissal Application provided to the Commission on 8 November 2017, Mega Admin contends it is a small business, and the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC). Furthermore, Mega Admin submits in its F3 Employer Response that the Applicant commenced working for it on 29 February 2016 and was dismissed on 27 February 2017. Mega Admin also states in the Form F3 that Mr Glancy’s gross weekly salary was $1,591.00, which accords with Mr Glancy’s evidence, in the form of a payslip, indicating that his base weekly salary was $1,591.00.
Mr Glancy’s uncontested evidence was that he commenced employment on 13 January 2016[6] and that he was employed as a truck driver on a full time basis. This is supported by the payslip tendered by Mr Glancy which states that his annual salary is $82,732.00 and records accruals of annual leave and personal leave. Mr Glancy further asserts that Mega Admin had at least 18 full time employees at the time he was dismissed. Given the failure of Mega Admin to participate in the hearing of this matter or to put material to the Commission to make good its assertions, I accept the Applicant’s evidence on these points. Accordingly, I am satisfied that the Applicant is a person protected from unfair dismissal on the basis that he has completed the minimum employment period and that a modern award covers him or that his annual rate of earnings is less than the high income threshold. I also note that even if Mega Admin is a small business, Mr Glancy has completed the relevant minimum employment period.
Mr Glancy’s evidence was that he told Mr Morrison about his drink driving conviction in early January 2017. Mr Glancy said that he told Mr Morrison that it was a low range offence and he had to attend court on 7 February 2017. According to Mr Glancy, he was commended by Mr Morrison for telling the truth. It was agreed between Mr Morrison and Mr Glancy that Mr Glancy would take a period of leave for one month starting on 7 February 2017 when Mr Glancy went to Court. Mr Glancy also states that his leave commenced on 7 February 2017 and that he received payment for the first week of his leave, but was informed that he had insufficient leave accrued to receive payment for the following three weeks’ leave and was not paid for that period. Mr Glancy’s evidence in relation to this matter is supported by a leave form sent to the Commission by Mega Admin as part of a bundle of documents, which indicates that that Mr Glancy applied for annual leave from 7 February to 21 February 2017 made a further application for sick leave for the period from 22 February to 6 March 2017. That form is signed only by Mr Glancy.
A further version of the form sent to the Commission by Mega Admin has a handwritten annotation stating that Mr Glancy should be paid for the days owing for the period between 7 February and 21 February and that the request for sick leave payments to cover the period from 22 February to 6 March 2017 is refused. This form indicates that Mr Glancy was not granted sick leave for part of his absence. However there is nothing in the form to indicate that Mr Glancy did not have permission to be absent from work on a combination of paid and unpaid leave for the period from 7 February to 6 March 2017. Without any evidence to the contrary I accept that Mr Glancy was absent from the workplace for an agreed period from 7 February 2017 and was due to return to work on 7 March 2017 after his driving licence was reinstated.
Mr Glancy returned to work on 7 March 2017 and maintains that he was told by Mr Morrison that “I didn’t say you could come back to work” and was sent home.[7] In response to being sent home, Mr Glancy asked if he was being dismissed, to which Mr Morrison responded, “No, I’m not sacking you, you’ve just got to go home and I’ll let you know when you can come back”.[8] Mr Glancy states that a couple of days following this exchange, he went on a period of stress leave and applied for Workers Compensation.
Mr Glancy tendered a copy of a recording he claims that he made of his conversation with Mr Morrison on the morning of 7 March 2017. The recording evidences that Mr Glancy attempted to return to work after a period of agreed leave. Mr Morrision denies that there was an agreement about a return to work and tells Mr Glancy that he is uninsurable and therefore cannot drive Company trucks. Mr Glancy is recorded as stating that if this is the case, there is other work that he can do and asking for proof that the Company’s insurance policy does not cover him. Mr Glancy also states that he is a full time employee and the Company either has to fire him or provide him with work. Mr Morrison is recorded as stating: “Get your gear and fuck off home” and “I suggest you’re by gone by the time I get back because fuck me I will remove you myself.” At one point in the recording, Mr Morrison tells Mr Glancy that he is “full of shit” and Mr Glancy replies stating “You’re full of shit”.
Mr Glancy left the workplace on 7 March 2017 and made a claim for workers’ compensation. Mr Glancy’s evidence is that on 31 August 2017 his workers compensation claim was accepted and he received back pay from 7 March 2017. Mr Glancy tendered a copy of reasons for decision issued by a Review Officer of the Workers’ Compensation Regulator on 1 August 2017 in relation to his application for a review of an earlier decision by WorkCover Queensland to reject his application for compensation. In the decision of 1 August 2017, the Regulator determined that Mr Glancy had an entitlement to workers’ compensation on the basis that he had suffered a psychological injury arising in the course of employment that did not arise out of reasonable management action taken in a reasonable way.
The Review decision indicates that Mr Morrison (then known as Mr Flackmorr) had provided various dates on which he asserted that he had informed Mr Glancy that his employment was terminated. The decision also states that the Regulator is satisfied that Mr Morrsion repeatedly made threats against Mr Glancy and his employment and used language that was abusive and threatening. Further, the decision states that the Review Officer is satisfied that both Mr Morrison and Mr Glancy had used inappropriate words and spoken in an aggressive manner to each other and that there was a personality clash between them.
In the Form F3 Employer response filed by Mr Morrison, the following reasons for dismissal are provided:
“Michael was employed as Truck Driver. Due to his recent drink driving conviction. Our Insurance company would not insure him. Michael also mislead us in regards to his driving history. Thus he could not obtain and hold a dangerous goods licence. Also over his employment period he caused considerable damage to trucks due to his lack of care of equipment. Michael also has a problem with gambling.
Michael was dismissed firstly for the fact he was uninsurable to drive company vehicles. Lack of care and following directions, attitude to work and fellow staff. Constant causing damage to vehicles.
Michael has always had problems in his personal life which effected his work. His gambling problem caused financial problems at home and work. He bullied other staff in an attempt to come back to work. He had received several warnings in regards to his words, lack of following company policy’s and directions.”
In other material provided to the Commission it is asserted that Mr Glancy was unemployable and that he had attempted to return to work without consultation with management to undertake “self-directed labouring”. Mega Admin also tendered a letter from AEI Insurance Broking which indicates that it was sent to the Company by email at 5.48 pm on 7 March 2017. That letter is in the following terms:
“Thanks for your inquiry into the above driver and more specifically the recent DUI charge that he has had.
As you know, we do have a Duty of Disclosure with all insurance policies where we need to notify the Insurers of any instances which we are aware of which may lead to an increased risk of exposure. Clearly a DUI charge is one of those times.
When dealing with high risk freight tasks such as fuel, cattle and over-dimensional loads, the Insurers are very particular in regards to the Drivers that they will accept under the Policy and DUI’s aren’t an offence that they turn a blind eye to and for good reason.
Given the recent charge, even if we were able to have Michael approved as a Driver under your policy, it would most likely mean and increase in premium and a substantial increase in excess which would be an imposition on your business which you wouldn’t have with a Driver without that history.
If you would like us to try and have him approved, I will but best case is that there will be additional conditions imposed on him that other Drivers won’t have.”
This letter is said to establish that Mr Glancy was unable to be insured because of his drink driving charge and subsequent driver’s license suspension and that Mr Glancy could not obtain and hold a dangerous goods license. A letter to Mr Glancy dated 8 November 2016 was also forwarded to the Commission by the Company. That letter is headed “Warning Notice” and deals with allegations that Mr Glancy parked his Company vehicle illegally, left the engine running and left the door open in breach of Company policy. Further it is alleged that Mr Glancy took a route through Canungra to Nerang, which he had been repeatedly instructed not to take.
In his oral evidence to the Commission Mr Glancy said that he drove a diesel truck which does not require the holding of a dangerous goods license. Mr Glancy also said the insurance letter that the insurance company sent to the Company did not state that he was unable to be insured and that the only possible ramification of the suspended license was that the insurance policy and/or excess may increase as a result.[9] Mr Glancy also maintained that there are other employees of the Company who have drink driving convictions and who continue to drive vehicles and have not been dismissed. Further, Mr Glancy said that there is farm work that he could have performed while any issues in relation to his drivers’ licence were resolved.
Mr Glancy also said Mr Morrison did not tell him that he had been dismissed, and that consistent with the Decision of Deputy President Dean, he was not aware of his dismissal until informed by WorkCover on 21 April 2017 that his employer had stated that he had been dismissed.
LEGISLATION
In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
The employer bears the onus of establishing that there was a valid reason for a dismissal.[10] A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”[11] The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,[12] and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.[13] The Commission is not limited to the reason given by the employer in considering whether there was a valid reason for the dismissal.[14] Misconduct justifying dismissal is conduct so serious that it goes to the heart of the employment relationship[15] or evinces an intention that the employee no longer intends to be bound by the employment contract.[16]
The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.[17]
CONSIDERATION
Section 387(a) – whether there was a valid reason for the dismissal related to the person’s capacity or conduct
I am not satisfied that there was a valid reason for Mr Glancy’s dismissal. Mr Glancy’s uncontested evidence is that he drove a diesel truck which does not require that he hold a dangerous goods licence. Mr Glancy said that he has never held such a licence. I also do not accept that the letter from the Company’s insurance broker establishes that Mr Glancy was uninsurable. At best, the letter establishes that there may have been an increase in insurance premiums and that the best case scenario was that Mr Glancy would have had some special conditions placed on him. Mr Glancy also states that there was farm work that he could have performed while waiting for his insurance status to be clarified if this was required. This evidence was uncontested and I accept it.
I also note that the letter upon which Mr Morrison maintains he formed a view that Mr Glancy was “uninsurable” was received at 5.48 pm on 7 March 2017. The discussion in which Mr Morrison sent Mr Glancy home on the basis of the alleged issue with insurance occurred on the morning of 7 March 2017, before the letter from the insurance broker was received. Accordingly, Mr Morrison had not received the letter when he drew the conclusion about whether Mr Glancy could be insured. Further, there is no evidence that Mr Morrison or any manager of Mega Admin attempted to obtain insurance cover for Mr Glancy much less that there was an additional cost.
The imposition of additional costs for insurance or onerous conditions on Mr Glancy driving a truck as a result of Mr Glancy’s drink driving conviction may have been a valid reason for dismissal. However in the absence of attempts to establish either of these circumstances would have actually eventuated, I am not satisfied that there was a valid reason for dismissal. Other than making unsubstantiated statements about Mr Glancy’s conduct and work performance, there is no evidence provided by Mega Admin to establish that there were any such issues.
Section 387(b) – whether the person was notified of the reason for dismissal
I am satisfied that Mr Glancy was not notified of the reason for his dismissal. Mr Glancy was not even notified by Mega Admin that he had been dismissed much less given a reason for dismissal. Mr Glancy was informed of his dismissal by a workers’ compensation claims officer who had been informed of the dismissal in a response from the Company to a series of questions posed by WorkCover in relation to Mr Glancy’s workers’ compensation claim.
Section 387(c) – whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
If there were reasons for dismissal associated with Mr Glancy’s capacity or conduct, I am not satisfied that Mr Glancy was given an opportunity to respond to those reasons. While an increase in insurance premiums or the imposition of conditions on Mr Glancy driving vehicles may have been a valid reason for dismissal, he should have had an opportunity to respond to such matters including suggesting an alternative to dismissal.
Section 387(d) – whether there was any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
There were no discussions relating to the dismissal and no refusal, unreasonable or otherwise, of a support person.
Section 387(e) – if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
There is evidence that Mr Glancy had been warned about a range of matters that could constitute unsatisfactory performance, before the dismissal. However, there is no evidence to substantiate that those matters were unsatisfactory performance or that there had been any repetition of the alleged conduct.
Section 387(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
In its F3 Employer Response, the Respondent contends it is a small business and had 12 employees at the time that Mr Glancy was dismissed. Mr Glancy asserts that there were at least 18 full time employees. While I am not satisfied that Mega Admin is a small business for the purposes of the Small Business Fair Dismissal Code, I have taken the size of the employer’s enterprise into account.
Section 387(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
No evidence was given in relation to this matter. I assume from the manner in which Mr Morrison dealt with Mr Glancy that he did not have access to dedicated human resource management specialists as undoubtedly they would have advised against the course of action Mr Morrison took.
Section 387(h) – any other matters that the FWC considers relevant
I also consider it relevant that there was a period between 7 March 2017 and 21 April 2017 when he was effectively left in limbo and was not advised of the status of his employment. Mr Glancy had no income for that period, had not been informed that he had been dismissed and then waited for a further period while his claim for workers’ compensation was processed before he had any income.
Conclusion in relation to whether Mr Glancy’s dismissal was unfair
On balance I have concluded that Mr Glancy’s dismissal was unfair. Mr Glancy contends that he did not require a dangerous goods licence and that other employees with similar driving records remain employed by the Respondent. While there may have been an issue associated with Mr Glancy’s drink driving conviction and his ability to perform his duties as a truck driver, the manner in which this issue was dealt with and the failure on the part of the Company to establish that it took any steps to clarify the position with respect to Mr Glancy’s insurance status, renders the dismissal unfair. Further, Mr Glancy contends that there was other work he could have performed while any issues with him driving vehicles were considered and dealt with. I accept this evidence on the basis that it was not contested.
The fact that Mr Glancy was sent home without any communication about his employment status and only became aware that he had been dismissed because a statement to that effect was made by his employer in response to questions from WorkCover, adds to the unfairness with which Mr Glancy was treated. While Mr Glancy has been compensated for a work related injury on the basis of the abusive and threatening manner in which Mr Morrison spoke to him, such conduct is also relevant to the unfairness of Mr Glancy’s dismissal.
REMEDY
Given that I have found that Mr Glancy’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s. 390 of the Act, I am satisfied that Mr Glancy was protected from unfair dismissal and that he was unfairly dismissed. I am also of the view that Mr Glancy should have a remedy for his unfair dismissal. Mr Glancy did not seek reinstatement. In my view reinstatement is not appropriate in circumstances where Mega Admin is in liquidation. 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.”
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.[18] 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 Ottrey;[19] Jetstar Airways Pty Ltd v Neeteson-Lemkes[20] and McCulloch v Calvary Health Care (McCulloch).[21]
I now turn to the particular criteria I am required to consider in deciding the amount of compensation to be awarded to Mr Glancy for his unfair dismissal.
The effect of the order on the viability of Mega Admin – S. 392(2)(a)
Mega Admin is in liquidation. Given the disregard with which Mega Admin has treated proceedings in the Commission I have no evidence about this matter from the Company. However, any order I make in relation to this matter will probably not affect the Company’s viability at this stage and Mr Glancy will no doubt have to join with other creditors.
Length of Mr Glancy’s service – s. 392(2)(b)
Mr Glancy was employed from 27 January 2016 until 21 April 2017. He was not at work from 7 March 2017. However, Mr Glancy’s payslip evidences that he was a full time employee on an annual salary and the length of his service needs to be considered in light of this.
Remuneration Mr Glancy would have or would likely have received – s. 392(2)(c)
Notwithstanding the failure of Mega Admin to participate in proceedings in the Commission, I am unable to find that Mr Glancy’s employment would have continued for any significant period. The decision of the Review Officer who undertook review of Mr Glancy’s workers’ compensation claim, tendered by Mr Glancy, sets out at some length conclusions about the poor relationship between Mr Morrison and Mr Glancy. Further, the tape recording provided to the Commission by Mr Glancy evidences that relationship left much to be desired on both sides.
It is also the case that Mr Glancy’s conviction for driving under the influence of alcohol may have affected his ability to perform work as a truck driver in the medium to long term. Doing the best that I can I have determined that Mr Glancy would not have remained in employment for longer than a period of one month after the date of the termination of his employment.
The income that Mr Glancy would have earned in that period is $6,364.00.
Mr Glancy’s efforts to mitigate loss – s. 392(2)(d)
Mr Glancy was suffering from a work related injury for the period from 7 March 2017 until he was cleared to return to work on suitable duties from 16 February 2018. Accordingly Mr Glancy was not capable of mitigating his loss by seeking alternative employment. He has also had personal issues related to the serious illness of his son.
The amount of any remuneration earned since dismissal – s. 392(2)(e)
Mr Glancy earned an amount of $61,317.00 in the period from the commencement of workers’ compensation payments on 7 March 2017 and the cessation of those payments on 8 March 2018. However Mr Glancy states that he did not receive any payments until August 2017 and was without income in the period from 14 February 2017 (when his accrued annual leave ran out) until his claim for compensation was accepted. In circumstances where Mr Glancy was without income for a considerable period while he waited for workers’ compensation payments to be made and had no information about the status of his employment for the period from 7 March until 21 April 2017, I do not consider it appropriate to make any deduction for the backdated workers compensation payments received by Mr Glancy covering the period in respect of which I intend to award compensation to him.
The amount of any income reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation – s. 392(2)(f)
Mr Glancy’s medical clearance indicates that he is only able to work on restricted duties. He advises that he has had some personal issues to attend to which have prevented him from seeking work. I consider it unlikely that Mr Glancy will earn income in the period between the making of the order for compensation and the actual compensation.
Any other matter that the FWC considers relevant – s. 392(2)(g)
I consider it relevant that Mr Glancy has been dealt with in an unfair manner by Mega Admin, through the conduct of Mr Morrison. Mr Glancy has suffered a work related injury as a result of that conduct, for which he has been compensated by workers’ compensation payments. However, those payments do not compensate Mr Glancy for the unfairness of his treatment and in particular the fact that he was left without any information about the status of his employment by Mr Morrison after an exchange in which he was verbally abused by Mr Morrison.
Deduction for misconduct – s. 392(3)
Mr Glancy has not engaged in misconduct and I make no deduction on this basis.
Compensation cap – s. 392(5)
The compensation cap is not relevant in the present case.
CONCLUSION
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 Mega Admin to pay compensation to Mr Glancy in lieu of reinstatement of a gross amount of $6,364.00. The compensation ordered will be subject to the deduction of taxation as required by law. The order will require the payment to be made by no later than 14 days from the date of the release of this Decision. A copy of the Decision and Order will be provided to the court appointed liquidator.
DEPUTY PRESIDENT
Appearances:
Mr M. Glancy appeared on his own behalf.
Hearing details:
2017.
Brisbane.
20 November.
<PR601029>
[1] [2017] FWC 4587.
[2] PR595855.
[3] Exhibit A1 – Bundle of documents including Applicant’s document list; payslip; Statement of Evidence; Outline of Arguments and Workers’ Compensation document.
[4] PR940508.
[5] Ibid at [20].
[6] Transcript of proceedings on 21 November 2017 at PN28.
[7] Ibid at PN43.
[8] Ibid.
[9] Ibid at PN53.
[10] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
[11] Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[12] Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
[13] Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
[14] Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.
[15] Culpeper v Intercontinental Ship Management (2004) 134 IR 243; [2004] AIRC 261; Print RP 944547.
[16] North v Television Corporation Ltd (1976) 11 ALR 599.
[17] Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
[18] (1998) 88 IR 21.
[19] [2013] FWCFB 431.
[20] [2014] FWCFB 8683.
[21] [2015] FWCFB 2267.
Printed by authority of the Commonwealth Government Printer
0
13
0