Mr Michael Siminsky v Gunlake Concrete NSW Pty Ltd T/A Gunlake Concrete NSW Pty Ltd

[2019] FWC 2429

[2019] FWC 2429

FAIR WORK COMMISSION

DECISION

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

Mr Michael Siminsky
v
Gunlake Concrete NSW Pty Ltd T/A Gunlake Concrete NSW Pty Ltd
(U2018/9683)

DEPUTY PRESIDENT BULL SYDNEY, 11 APRIL 2019

Application for an unfair dismissal remedy, unfit to work, not able to return to workplace, workers compensation claim.

[1] In this application, Mr Michael Siminsky (the applicant) claims he was unfairly dismissed by his employer Gunlake Concrete NSW Pty Ltd (the employer) on 30 August 2018. As a remedy, Mr Siminsky seeks financial compensation in lieu of reinstatement.

[2] The matter was listed for hearing on 14 January 2019. Mr Siminsky represented himself. Gunlake Concrete NSW Pty Ltd were granted permission to be represented by a solicitor, Mr Paul Macken, as per s.596(2)(a) of the Fair Work Act 2009 (the Act). On commencement of the 14 January 2019 hearing, Mr Siminsky requested an adjournment to seek legal advice. As the request was not opposed by the employer, the matter was adjourned until 6 February 2019.

[3] Mr Siminsky appeared on his own behalf at the 6 February 2019 hearing advising the Commission that he had sought advice in the intervening period.

Submissions and Evidence of Mr Siminsky

[4] Mr Siminsky commenced employment at Gunlake Concrete NSW Pty Ltd on 15 May 2017 and at the time of his dismissal on 30 August 2018 was a Concrete Truck Driver at the employer’s Silverwater plant. 1

[5] Mr Siminsky stated that on 2 May 2018 he was verbally abused by Mr Levi Mulder, who was employed in a supervisory role by the respondent at their Silverwater plant. Mr Siminsky stated that Mr Mulder used foul language and was aggressive towards him, criticising Mr Siminsky’s work performance and threatening to report him to the General Manager Mr Angus Richmond.

[6] Mr Siminsky stated that Mr Mulder’s behaviour caused him to become upset and he informed Mr Mulder that he was going to make a harassment complaint against him for his threat and behaviour. Mr Siminsky stated that Mr Mulder then mocked him due to Mr Siminsky’s intention to make a complaint. 2

[7] Mr Siminsky stated that on 9 May 2018 he had a telephone conversation with Mr Richmond, the employer’s General Manager, during which Mr Siminsky made a complaint regarding the incident with Mr Mulder on 2 May 2018.

[8] Mr Richmond advised Mr Siminsky that he would conduct an investigation into the allegations and get back to him on completion.

[9] Mr Siminsky stated that on 10 May 2018 he was invited to a meeting with Mr Richmond to discuss the result of the investigation. Mr Siminsky stated that he was not invited to bring a support person. Mr Richmond and Mr Shane Kingsley, the Fleet Manager for Gunlake Concrete, were present at the meeting.

[10] During the meeting, Mr Richmond informed Mr Siminsky that Mr Mulder admitted to some but not all of the allegations made against him by Mr Siminsky, although he was not informed which allegations were admitted to by Mr Mulder. Mr Richmond informed Mr Siminsky that Mr Mulder was prepared to join the meeting and apologise for his behaviour. Mr Siminsky declined this offer as he did not believe Mr Mulder’s apology would be genuine as Mr Mulder had not admitted to all of the allegations made against him by Mr Siminsky.

[11] Mr Siminsky stated that during the meeting Mr Kingsley made a serious allegation against him regarding a work incident which Mr Siminsky strenuously denied. Mr Kingsley accused Mr Siminsky of proceeding to a job in Burwood where there were two concrete pumps in operation and that following an instruction to go to the second pump he refused and without authorisation dumped his load at the tip. He denied the allegation and suggested Mr Kingsley check his facts. Mr Siminsky’s evidence was that Mr Kingsley never got back to him over this allegation.

[12] Mr Siminsky provided a medical certificate to Mr Richmond at the meeting stating that he was unfit for work up to and including 11 May 2018. Mr Siminsky stated that he believed the medical certificate was issued to him because he was suffering from a nervous condition that resulted directly from the incident with Mr Mulder on 2 May 2018. He advised Mr Richmond that he did not intend to make a worker’s compensation claim and wanted to put the issue behind him. When he returned to work on Monday 14 May 2018, management did not enquire about his wellbeing.

[13] On 12 June 2018, Mr Siminsky attended a tool box meeting with other staff at the Silverwater plant. The main issues raised by management at the meeting were drivers taking too long to slump their concrete loads, wetting other drivers in slump stands and spending too long on site when delivering concrete.

[14] On 13 June 2018, Mr Siminsky was called to a meeting. Mr Richmond and Mr Kingsley were in attendance at the meeting; Mr Siminsky was not advised in advance what the meeting was about. Mr Richmond said that they had received some complaints regarding Mr Siminsky’s performance from other employees and that the previous day’s toolbox meeting was about him. Mr Siminsky rejected the allegations and stated that he had only ever had positive feedback from management regarding his performance. When asked whether he was happy at work he replied ‘no’ as the company had made him feel isolated since the incident with Mr Mulder and Mr Kingsley’s unsubstantiated allegation. He then advised Mr Richmond that Mr Kingsley’s unsubstantiated allegation was deeply upsetting and he felt it was punishment for his initial complaint against Mr Mulder.

[15] Upon asking for further details about Mr Kingsley’s allegation, Mr Kingsley stated that a number of trucks had arrived on site before Mr Siminsky, having been loaded after him, and that the customer did not want to accept Mr Siminsky’s load as the concrete was too old and the load had to be taken to the rubbish tip at the employer’s expense. Mr Siminsky said that this was a change from the original allegation.

[16] At the conclusion of the meeting, Mr Siminsky said he was upset by the allegations and requested a week’s annual leave which was agreed to by both Mr Richmond and Mr Kingsley. He was required to finish his work for the day prior to leaving work.

[17] Later that day Mr Siminsky went through his driver’s daily log sheet book and found evidence that disproved Mr Kingsley’s allegation. At around 3:00pm he approached Mr Richmond in his office and presented the evidence he claimed disproved Mr Kingsley’s allegation. Mr Siminsky told Mr Richmond that it was unprofessional and negligent for Mr Kingsley, a senior manager of the employer, to make serious allegations against him in front of Mr Richmond his General Manager without checking the facts or having any proof.

[18] Mr Siminsky telephoned Mr Richmond on 18 June 2018 to inform him that he had visited his doctor regarding his medical condition and advised Mr Richmond that his period of leave was no longer annual leave but sick leave. He stated he was being victimised for making his complaint against Mr Mulder and Mr Kingsley. Mr Richmond informed him that he would conduct an investigation into Mr Siminsky’s allegation that he was being victimised.

[19] On 26 June 2018, Mr Siminsky received an email from Mr Richmond containing the respondent’s Investigation Report (Investigation Report) into his allegations as well as an invitation to a meeting with management at the Silverwater plant on 2 July 2018. Mr Siminsky was invited to bring a support person to the meeting. The investigation had concluded that some of the allegations regarding Mr Siminsky’s poor performance were substantiated whereas Mr Siminsky’s allegation that he was being victimised by the management was unsubstantiated.

[20] Mr Siminsky replied by email on 29 June 2018 and advised that due to his medical condition he was unable to accept the invitation to the meeting on 2 July 2018.

[21] Mr Siminsky requested further information to assist in preparing his response to the Investigation Report and stated that following this process he would be in a position to have a meaningful and productive meeting. He also confirmed that he was discussing with his doctor the possibility of lodging a worker’s compensation claim. Mr Siminsky sought from the employer their workers compensation insurer’s contact details, which they provided.

[22] On 3 July 2018, Mr Siminsky sent to Mr Richmond his response to Investigation Report findings. He also requested access to certain information that he claimed would provide him with procedural fairness and allow him to prepare a final response to Gunlake Concrete. Mr Siminsky stated that despite further attempts he was not provided with any further information by his employer.

[23] On 10 July 2018, Mr Siminsky received an email from Mr Richmond which confirmed that the employer believed there was no evidence he had been subject to victimisation or harassment. Mr Siminsky stated that the email also acknowledged that the employer could have improved their communications and human resource processes.

[24] The email further stated that Mr Kingsley would like the opportunity to apologise to Mr Siminsky for the way some of the allegations regarding his work performance that were put to him and that some of the allegations were not fact checked prior to the performance meeting. Mr Richmond also suggested that Mr Siminsky meet with management and Mr Mulder to agree on a way forward to work together based on mutual respect and clear communication, as well as attending a further meeting with Mr Richmond and Mr Kingsley to discuss the Investigation Report.

[25] Between 10 July 2018 and 2 August 2018, Mr Siminsky emailed Mr Richmond and subsequently Mr Simon O’Neil on several occasions again requesting information to assist in preparing a final response to the Investigation Report.

[26] On 31 July 2018 Mr Siminsky received an email from Mr O’Neil, a Director of the employer, 3 stating:

“It will take a long time to compile all of the information you have requested as it’s not readily available. We don’t have the time and the manpower to get this to you and I know it’s important to you but I would much prefer to discuss in person and work out how to get you back to work and move forward. Where we could have done things better we will gladly change our approach as we said before. We might not agree on everything but that’s okay as long as we both work towards making you feel comfortable working at gunlake and we get the right outcomes from you as an employee at gunlake. I think it’s important to move forward with the right attitude rather than dwell on what could’ve been done better. Again I apologise if you feel you’ve been treated unfairly and hope you can return to work soon. I think it’s important to let you know about the current culture at gunlake because we are proud of it and we are continually trying to improve.”

[27] Mr Siminsky replied to Mr O’Neil on 2 August 2018 stating that the information he sought was required as he believed once provided it would clear his name of the allegations regarding his performance and behaviour at work; the information would also support his claim of victimisation.

[28] On 3 August 2018, Mr O’Neil replied to Mr Siminsky via email which stated the following:

“We don’t believe you were victimised and there is no more information available than what’s previously been supplied to you on this.

With regards to clearing your name it would be far easier and preferable for us for you to come and talk with us or me how we get this done. This could be somewhere else of your choosing if that’s preferable. I don’t believe your name needs clearing and I assure you we can have you back at work without any fuss and the management staff will be a lot more supportive now of your anxiety. I will personally make sure of that.

I will try and call you later today.”

[29] On around 6 August 2018, 4 Mr Siminsky had a telephone conversation with Mr O’Neil during which Mr O’Neil asked him whether he was willing to accept a settlement offer if he didn’t think he could return to work. Mr Siminsky then said that he would need to discuss the proposition with his doctor and the direction to take that would be best for his health and wellbeing.

[30] Mr Siminsky emailed Mr Richmond on 14 August 2018 and advised that he had spoken with his doctor to get his input on which direction would be best for his health and wellbeing. Mr Siminsky’s email requested that Mr O’Neil contact him to ‘arrange finalisation of this matter’.

[31] The next day, 15 August 2018, Mr Siminsky stated that he had a telephone discussion with Mr O’Neil during which Mr Siminsky advised Mr O’Neil that his best option of a recovery from his injury was to leave and that he would consider a settlement offer. Later that day, Mr O’Neil emailed him and offered a settlement payment of $10,000 subject to the signing a Deed of Release.

[32] The email 5 from Mr O’Neil further stated:

“This is not a bargaining offer as I think it’s fair and I trust we can both move on and I sincerely wish you all the best for the future. I hope having this off your plate will help relieve your anxieties and allow you to move on to something better.”

[33] Mr Siminsky called Mr O’Neil several days later to confirm that he was unable to accept the offer as it was less than half the wages he had missed out on since his injury had prevented him from attending work. Mr O’Neil offered to increase the settlement amount to $15,000 to which Mr Siminsky replied that he was prepared to be flexible but that he didn’t think it was a fair offer. 6

[34] On 29 August 2018, Mr Siminsky emailed Mr Richmond to inform him that he had been too unwell until that day to see his doctor who reissued his medical certificate stating he was unfit for work due to his ‘nervous condition’. He advised that he had contacted Gunlake Concrete’s workers compensation insurer and advised them that it was his intention to lodge a workers compensation claim. His doctor had made an extended appointment for 3 September 2018 to start the process for him to make his workers compensation claim. 7 Mr Siminsky again requested access to further information to address the findings of the Investigation Report.

[35] The following day, 30 August 2018, Mr Siminsky received an email from Mr Richmond with a letter of termination attached. The email stated:

“As you are aware we have tried everything reasonably practicable to get you back to work, however your illness has prevented this. Therefore we have decided to terminate your employment today. Please see the termination letter attached.”

[36] The termination letter stated as follows:

“We note with regret that your medical condition apparently continues to prevent you carrying out the requirements of your employment contract. We have given careful consideration to whether it is reasonably practical to provide you with alternate employment and also whether we could modify your previous employment to accommodate your medical condition but regrettably this is not possible. In these circumstances we unfortunately have no alternative but to regard your employment with us as having come to an end effective as the date of this letter.”

[37] Mr Siminsky’s workers compensation claim was subsequently accepted by the insurer on 27 September 2018. 8 On that same day, Mr Siminsky telephoned Mr Richmond to enquire whether he was required to return Gunlake Concrete’s property that he had in his possession. Mr Richmond asked Mr Siminsky if he didn’t intend coming back to work, to which Mr Siminsky replied that he had been fired. Mr Siminsky stated that Mr Richmond then said he wasn’t required to return any property and that he had set the company up for a worker’s compensation claim.

[38] Mr Siminsky’s evidence was that reinstatement was not a viable option for recovery of his work-related injury nor would it be a viable long-term solution. 9

[39] Mr Siminsky stated that he had lodged a complaint with the State Insurance Regulatory Authority for being unlawfully dismissed whilst being covered by an active and ongoing workers compensation claim. He also submitted that Gunlake were legally obligated to report his injury to their workers compensation insurer but had neglected to do so.

[40] In conclusion Mr Siminsky stated that:

“I can't go back to Gunlake Concrete, and the case of my dismissal, which was unfair, is quite simple. I was unable to go to work due to a work-related injury. I did make substantial efforts to try to work with the company to clear my name against the allegations and prove that I'd been victimised. The documents I provided show that I was willing to cooperate as long as the cooperation was reciprocal. That didn't happen. During this period, it worsened my condition and I was eventually terminated because of my work-related injury, and that's why I say it's unfair, and because of the actions of Gunlake Concrete NSW Pty Ltd, apart from the injury I've received, and which is ongoing, I have suffered financial loss.” 10

Gunlake Concrete’s evidence and submissions

[41] It was put on behalf of Gunlake that they were given a very clear impression from the applicant that he had no intention of returning to employment with Gunlake. The employer attempted to resolve the issue on an amicable basis, however this was unsuccessful. Gunlake took what was reasonable action in acknowledging the employment contract with Mr Siminsky as having come to an end.

[42] Gunlake disputed that there had been any breach of the workers compensation legislation.

Evidence of Mr Angus Richmond

[43] Mr Richmond provided a witness statement 11 stating that Mr Siminsky had commenced work with Gunlake on 15 May 2017. He was dismissed on the basis that he was unable return to work despite all reasonable attempts by Gunlake to encourage him to return. He was paid his accrued entitlements and two weeks’ notice as per his employment contract.

[44] Mr Siminsky’s last working day was 13 June 2018; he was terminated on 30 August 2018. During this period Mr Siminsky supplied Gunlake with weekly medical certificates stating that he had a nervous condition or an anxious neurosis and was unfit to work.

[45] During his employment he had alleged that he was bullied and victimised at work, however an internal investigation did not support these allegations.

[46] On 26 June 2018, Mr Richmond sent an invitation request to Mr Siminsky to attend a meeting on 2 July 2018 to discuss the outcome of the investigation. Mr Siminsky advised on 29 June 2018 that he was unable to attend the meeting due to his medical condition. On 30 June 2018, Mr Richmond sent an email to Mr Siminsky in which he stated:

“My understanding is that you believe that working at Gunlake caused you anxiety. I felt surprised and saddened that any employee could feel this way working for Gunlake and have investigated the alleged causes and responded to you as requested.

We would like to resolve this matter ASAP so that you can achieve a full recovery.”

[47] Mr Richmond stated that he sent emails to Mr Siminsky on 5 and 10 July 2018 enquiring about his health and asking him to return to work and offering solutions to his concerns. 12

[48] Mr Richmond stated that on 30 July 2018 he emailed the applicant to enquire about his health and in the email noted that Gunlake looked forward to him returning to work; no reply was received.

[49] On 14 August 2018, Mr Siminsky contacted Mr Richmond at the suggestion of his medical practitioner to meet with Mr O’Neil to discuss a resolution.

[50] Mr Richmond’s evidence was that at no time prior to Mr Siminsky’s dismissal was a workers compensation claim filed by Mr Siminsky. It wasn’t until after Mr Siminsky’s dismissal that their workers compensation insurer phoned on 31 August 2018 and advised Mr Richmond that Mr Siminsky intended to lodge a claim. 13

[51] Mr Richmond stated that at all times Gunlake had been willing to have Mr Siminsky return to work including following his dismissal, however Mr Siminsky made it clear that he did not wish to return to his employment with Gunlake.

[52] Mr Richmond submitted that Mr Siminsky’s dismissal could hardly be described as unfair when he no longer wishes to work for the company.

Evidence of Mr Simon O’Neil

[53] Mr O’Neil, a Director and owner of Gunlake Concrete, stated  14 that on 27 June 2018 he asked Mr Siminsky what he wanted in order to return to work. Mr Siminsky did not offer any suggestions leaving Mr O’Neil with the impression that Mr Siminsky did not wish to return to work. During cross examination, Mr O’Neil accepted that the date of 27 June 2018 was not correct.15

[54] On 15 August 2018, Mr O’Neil spoke to Mr Siminsky in a telephone conversation about returning to work during which Mr Siminsky made it clear that he did not want to return to work. Under cross examination, Mr O’Neil’s evidence was:

“I offered you my personal undertaking to have you return to work. I extended that to say that I will personally see that you're well looked after and I understood your concerns, and I – I can't recall the details of – the specific details of other things that I offered you but I gave you my personal undertaking to make sure that if you returned to work you would be well looked after and cared for. And it was clear to me, and it was my opinion that despite that, you did not want to return to work.” 16

[55] Mr O’Neil stated that a discussion was then held with Mr Siminsky about reaching an agreement on ending the employment relationship. Mr O’Neil agreed in cross examination that Mr Siminsky had stated to him that after consultation with his doctor he thought the best option for a quicker recovery from his injury was to leave and that he would consider a settlement offer. 17

[56] Mr O’Neil confirmed that despite discussions no settlement agreement was reached. 18

Conclusion

Relevant Legislation

[57] Section 387 of the Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:

“Section 387 Criteria for considering harshness

(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.”

[58] I will now consider these factors where relevant.

Whether there was a valid reason related to capacity or conduct for the dismissal

[59] In determining whether a valid reason exists the Commission must consider whether the reason for the dismissal was sound, defensible or well founded. The reason should not be ‘capricious, fanciful, spiteful or prejudiced.’ 19 This approach to determining whether a valid reason exists has been, and continues to be, applied by the Commission in unfair dismissal matters.

[60] Mr Siminsky stated during his evidence and in presenting his case, that it was his doctor’s opinion that it would be best for his recovery if he did not return to work and that he should consider a settlement for a quicker recovery from his medical condition. 20 The evidence shows that at no stage did Mr Siminsky indicate that he wished to return to work, a position he stills maintains.21 He had in fact made it clear to the employer that he was not going to return to the workplace.22 Mr Siminsky’s evidence included that he declined an offer by the employer to return to work23 and that he couldn’t return to work.24

[61] Mr Siminsky stated during the hearing:

“ … to date nobody knows when I’ll be fit to go back to work” 25

and that he had told Mr O’Neil that his doctor thought it best for a quick recovery from his ‘injury’ that he leave his employment with Gunlake and consider a settlement offer. 26

[62] Mr Siminsky had been absent from work since 13 June 2018 until his dismissal on 30 August 2018. During this period he made it clear to his employer that on his doctor’s advice he was not intending to return to work and although a settlement was discussed, agreement could not be reached. As stated by Mr Siminsky:

“I’d just like to mention that I had no clearance to ever go back to work, and still don’t (k)now.” 27

[63] A Full Bench in CSL Limited t/a CSL Behring v Chris Papaioannou 28considered the approach to be considered in capacity related dismissal cases, concluding at [77] that:

“…In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.”

[64] In Smith and Kimball v Moore Paragon Australia Ltd²⁹ a Full Bench of the Australian Industrial Relations Commission held that ongoing incapacity arising from illness or injury can constitute a valid reason for termination of employment.

[65] I am satisfied that on the basis that Mr Siminsky had not attended work for a period of some two and one half months, and indicated he did not wish to or was not able to return on medical advice he had received, the employer had a valid reason to terminate his employment.

[66] This is not a case of Mr Siminsky being fit to do alternate or reduced work and the employer not making reasonable efforts to enable this to occur. Mr Siminsky was unfortunately unfit due to his medical condition to perform any work for the employer. There was no suggestion that he was likely to return in the near future.

Whether Mr Siminsky was notified of the reason for his dismissal and was given an opportunity to respond to any reason related to his capacity or conduct

[67] The reason for Mr Siminsky’s dismissal was made clear in the employer’s correspondence of 30 August 2018 being that his medical condition prevented him from attending work. There had been a number of telephone discussions and emails between the parties regarding Mr Siminsky’s medical condition and his inability to return to work and the medical advice that it would be best for Mr Siminsky’s wellbeing that he not return to work at Gunlake. An amicable resolution to end the employment relationship was discussed but agreement could not be reached. It does not appear, however, that Mr Siminsky was put on notice that his employment would be terminated if a settlement agreement could not be reached.

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

[68] On leaving the workplace on 13 June 2018 Mr Siminsky continually provided medical certification that he was unfit to work. Since his departure from the workplace all discussions concerning his employment were conducted by either telephone or email. There was no evidence that Mr Siminsky was refused the assistance of a support person at any discussion. On 26 June 2018, Mr Siminsky was invited to attend a face to face meeting with a support person to be held on 2 July 2018, but declined “due to his medical condition” 30.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[69] The employer has stated that it has 100 employees,  31 and has conceded that it is at least arguable that its processes could have been conducted differently.32 Mr Richmond’s evidence was that Gunlake had received advice on Mr Siminsky’s termination of employment; where this advice was obtained was not revealed. There was no evidence that Gunlake possessed its own human resource expertise.

Any other relevant matters

[70] Having found that there is a valid reason for termination does not mean that a dismissal cannot be harsh, unjust or unreasonable within the meaning of s.387 of the Act. However in this instance, there are no other factors which persuade the Commission to find that Mr Siminsky’s dismissal was harsh, unjust or unreasonable. He is unable to return to the workplace and has an ongoing workers compensation claim relating to a workplace injury. The parties attempted to reach a mutual agreeable termination arrangement but were unsuccessful.

[71] It appeared to the Commission during the course of the proceedings that Mr Siminsky’s grievance related to how his employer handled the complaint he made on 9 May 2018 regarding Mr Mulder’s conduct towards him and an allegation made by Mr Kingsley on 10 May 2018 which have not been resolved to his satisfaction. While these matters led to his workers compensation claim they were not considerations of the employer in determining that the employment contract should come to an end. The respondent’s dismissal decision related solely to Mr Siminsky being unfit to work since 13 June 2018 with no likelihood of being able to return in the foreseeable future.

[72] While Mr Siminsky argues that he has lost income due to his work related injury he has received workers compensation payments since 13 June 2018 33 being the day he left the workplace. It is unknown when he will return to the workforce due to his injury.34 The compensation sought is calculated to include the loss between his workers compensation payment and his pre injury earnings.35

[73] The Act provides that where a dismissal is held to be unfair the Commission may award compensation (subject to certain conditions and limitations) based on the remuneration the employee would have received had they not been dismissed.  36 It is therefore difficult to see what remuneration Mr Siminsky has lost as per the Act. Had he not been dismissed, the remuneration he would have received would still have only included his workers compensation payments.  

[74] For the above reasons the dismissal of Mr Siminsky has not been found to be harsh, unjust or unreasonable, and the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M Siminsky on his own behalf

Mr P Macken solicitorfor the respondent

Hearing details:

Sydney

2019

14 January

6 February

Printed by authority of the Commonwealth Government Printer

<PR706772>

 1   Applicant’s witness statement at [2]

 2   Applicant’s witness statement at [5]

 3   Contained in Exhibit A4 second bundle

 4   Witness Statement at [34] Exhibit A2

 5   Witness Statement at [38] Exhibit A2 and contained in A4 second bundle

 6   Witness Statement at [41] Exhibit A2

 7   Witness Statement at [46] Exhibit A2

 8   Letter from insurer EML to Mr Siminsky dated 15 November 2018 in Mr Siminsky’s third bundle of documents – Exhibit A4.

 9   Witness Statement at [43] Exhibit A2

 10   PN1248 Transcript of Hearing on 6 February 2019

 11   Witness Statement Exhibit R2

 12   Witness Statement Exhibit R2 at [8] and [9]

 13   Witness Statement Exhibit R2 at [15]

 14   Witness Statement Exhibit R2

 15   PN433

 16   PN526

 17   PN527

 18   Witness Statement R1 at [2]

 19   Northrop J in Selvachandran v Petron Plastics Pty Ltd, in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework, the below comments of Northrop J remain applicable under the Fair Work Act 2009:

 20   PN533-538

 21   PN183-185, PN559-60

 22   PN275

 23   PN206

 24   PN377

 25   PN355

 26   PN527, PN538

 27   PN1243

 28   [2018] FWCFB 1005

29 [2004] PR942856 at [44]

 30   Email of 29 June 2018 to Mr Richmond

 31 F3 at 1.7

 32   PN1253

 33   PN1294-5

 34   PN50

 35   Exhibit A3

 36   s.392(2)(c)