Mr Michael WildvQueensland Rail Limited
[2012] FWA 5440
•27 JUNE 2012
Note: An appeal pursuant to s.604 (C2012/4615) was lodged against this decision.
[2012] FWA 5440 |
|
FURTHER DECISION IN REGARD TO REMEDY |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Wild
v
Queensland Rail Limited
(U2010/14189)
COMMISSIONER CRIBB | MELBOURNE, 27 JUNE 2012 |
Application for unfair dismissal remedy - remedy.
[1] This decision concerns determination of the amount of compensation to be ordered by the Tribunal. It follows the decision 1 issued on 7 June 2012 in which the Tribunal found that Mr Wild had been unfairly dismissed.
[2] As there was insufficient material before the Tribunal to finally determine the amount of compensation, the parties were requested to provide further information in this regard and to make brief submissions concerning section 392(2)(g) and section 392(3) of the Fair Work Act 2009 (the Act), if desired.
SUBMISSIONS
Mr Wild
[3] Written submissions on the amount of compensation, together with an affidavit from Mr Wild, were filed on behalf of the applicant.
[4] It was submitted that, with respect to section 392(2)(b), account should also be taken of the fact that Mr Wild has spent his whole working career (38 years) in the service of Queensland Rail (QR) and has learned skills that can only be applied as an employee of the respondent. 2
[5] In terms of section 392(2)(c), it was stated that Mr Wild earned $68,713 from his employment in the financial year ending 30 June 2010. The applicant’s wage had increased by 4% on 1 October 2010. Therefore, Mr Wild lost a minimum of $70,000 (one years’ wages) up to $375,000 (five years’ wages) and $770, 000 if Mr Wild had continued to work to age 65. 3
[6] With respect to efforts to mitigate his loss, it was stated that Mr Wild is 54 years old and has worked for QR for 38 years. He has sought to mitigate his loss by becoming self-employed by cutting and selling timber products. His business is still in its infancy and, with the economy against him, he is yet to generate sufficient turnover to be profitable or to provide sufficient income to sustain him. Mr Wild was said to have taken what limited steps are open to him to mitigate his loss but has not been effective in doing so to date. 4
[7] In terms of the requirements of sections 392(e) and (f), it was indicated that Mr Wild has not earned, and is not likely to earn, income of any significance between the date of dismissal and the actual compensation. 5
[8] It was submitted that there were a number of other relevant matters (section 392(2)(g)). These were:
- The applicant has had no income since his dismissal.
- Mr Wild’s business is unlikely to generate any significant income in the next year and he is unlikely to gain further alternative employment.
- Mr Wild has lost the opportunity to work until retirement age which would have allowed him to increase his superannuation fund for his retirement.
- Mr Wild has been forced to draw on his superannuation fund to repay personal debt and to provide himself with a means of support.
- Mr Wild was previously the primary source of income for himself and his wife. Since Mr Wild's dismissal, his wife has become their primary source of income. Mr Wild's wife works as a part-time casual console operator at a service station.
- Mr Wild’s unfair dismissal and with it the loss of his income, prospects of gaining future income, superannuation and structured finances has been a calamity for him and his formerly dependent wife. 6
[9] With respect to the requirements of section 392(3), it was argued that Mr Wild’s misbehaviour occurred, at best, over a period of about nine days (4 - 12 August 2010) or at worst, six months (March - September 2010). Account was to be had of the 38 years of service that Mr Wild had given to QR together with a Royal Humane Society award for bravery and a QR Commendation. Further, in serving QR in specific roles only required by QR for this length of time, Mr Wild has been denied gaining skills that are of benefit to any other employer other than QR. Mathematically, Mr Wild’s period of good conduct contrasted with misconduct ranges proportionally from 0.043 % (best) to 1.31% (worst). 7
[10] It was argued that the catalyst for Mr Wild’s behaviour was the change to 30 years of custom and practice by the respondent. The matter escalated due to a lack of management rigour and a failure to address the issues regarding Mr Wild's attitude effectively. 8
[11] Accordingly, it was submitted that there should only be a nominal reduction of 1% in the amount of compensation payable to Mr Wild. 9
[12] In terms of the respondent’s submissions regarding the compensation cap (section 392(6)), it was argued that the relevant period is 26 weeks prior to dismissal and not 8 weeks. It was accepted by Mr Wild that his average weekly wage for the financial year ending 30 June 2010 was $1,522.77, as submitted by QR. 10 Mr Wild has calculated his average weekly wage for the financial year ending 30 June 2011 at $2,014.78. It was accepted that there was a 4% wage increase due on 1 October 2010.11
[13] Therefore, it was submitted that the total amount of compensation due to Mr Wild is $50,386.13 less any reduction under section 392 (3). 12
Queensland Rail
Weekly wage
[14] It was submitted that, in order to calculate Mr Wild’s average weekly wage, the eight-week period prior to his being excluded from duty (from 2 August 2010 to 26 September 2010) was used. This was on the basis that, in accordance with the QR Passenger Pty Ltd Traincrew Union Collective Workplace Agreement 2009 (the Agreement), his income would have been reduced to 75% of the full flat rate. Prior to the reduction, Mr Wild’s average weekly earnings were $1522.77. 13
[15] As Mr Wild’s employment ceased on 4 November 2010 and there was an Agreement-based wage increase of 4% which took effect on 1 October 2010, 4% is to be added to the above amount. Therefore, Mr Wild's gross average weekly earnings at the time of his dismissal equated to $1583.68. 14
Section 392 (3)
[16] As the primary reason for Mr Wild’s dismissal was due to misconduct, QR requested that the Tribunal took this into consideration when determining the amount it would otherwise order by an appropriate amount on account of the misconduct. 15
[17] It was submitted that Mr Wild’s dismissal was as a result of misconduct and that the compensation ordered should be minimal. 16
Conclusions
[18] In addressing the remaining criteria of s.392 and also s.392(3), I have carefully considered the written submissions of the parties.
s.392(2)(c) - remuneration would have been likely to receive
[19] In my previous decision 17, I found that it is likely that Mr Wild would have continued with QR, in the absence of dismissal, for a period of at least 12 months. At that time, the amount of Mr Wild’s average weekly wage was not available. Therefore, it was not possible to calculate the remuneration Mr Wild would have been likely to have earned.
[20] In their written submissions, there was agreement between the parties that Mr Wild’s weekly wage was $1522.77. It was also common ground that there was an Agreement-based wage increase of 4% effective from 1 October 2010.
[21] Therefore, it was QR’s view that, as at the time of Mr Wild’s dismissal, his average weekly wage was $1583.68 (a 4% increase on $1522.77). 18 Mr Wild’s calculation was different and his was based on his PAYG summary for the period from 1 July 2010 to 4 November 2010.19 This resulted in a gross average weekly wage of $2014.78.
[22] Given the discrepancy between the two figures, I have taken Mr Wild’s payslip for the fortnight ended 24 October 2010. 20 It shows 80 hours at 100% = $2977.90 plus weekend penalty of $335.01 plus BLP/SLP worked of $260.57. The total gross pay for that fortnight was $3573.48 which equates to $1786.74 per week. This pay fortnight was after 1 October 2010 when the Agreement wage increase was due so it is assumed that the $1786.74 is inclusive of that increase.
[23] Therefore, for the year following his dismissal, Mr Wild would have earned $92,910.48.
s.392(2)(d) - efforts to mitigate the loss
[24] In his written submissions, Mr Wild outlined the steps he has taken to mitigate the loss of his employment with QR. Unfortunately, he has been unsuccessful in finding alternative employment and his business is yet to become profitable or to provide a sustainable and sufficient income.
[25] Mr Wild’s affidavit is accepted in terms of the efforts he has made to mitigate his loss. Accordingly, I am satisfied that Mr Wild has tried to mitigate his loss.
s.392(2)(e) and (f)- the amount earned between the dismissal and the making of the order and the actual compensation
[26] On the basis of Mr Wild’s affidavit, I find that Mr Wild is not likely to earn income of any significance between the date of his dismissal and the making of the Order and the actual compensation.
s.392(2)(g) - any other matters
[27] A number of other relevant matters were submitted on behalf of the applicant. Having considered the submissions of the parties, I consider, as relevant to the matter of compensation, Mr Wild’s age, that QR was his only employer during his working life and the consequential difficulties in finding alternative employment at his age and with his narrow and particular skill base. In addition, account will be taken of the severe financial repercussions of his dismissal.
s392(3) - misconduct
[28] Section 392(3) of the Act provides that:
“(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.”
[29] QR argued that, as the primary reason for Mr Wild’s dismissal was misconduct, account should be taken of this so that the compensation ordered should be minimal.
[30] On the other hand, it was submitted on behalf of the applicant that the misconduct amounted to a very small proportion of his 38 years of service with QR. Therefore, a deduction of 1% would be appropriate.
[31] As the conduct of Mr Wild in not keeping the cabin door closed on 4 and 12 August 2010 and his behaviour towards his supervisor constituted a valid reason for his dismissal, an adjustment of 20% of the provisional figure should be made to reflect this.
[32] Therefore, the provisional figure of $92,910.48 is reduced by $18,582.10. This results in a total of $74,328.38.
Contingencies
[33] With respect to contingencies, I propose to make a small adjustment as time has elapsed since Mr Wild’s dismissal. There, therefore, are very few “unknowns”. The adjustment will be 5% which is $3716.42. The provisional amount is $70,611.96.
Section 392(4)
[34] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Wild.
Sections 392(5) and (6)
[35] Sections 392(5) and (6) are as follows:
“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.
Note: Subsection 392(5) indexed to $59,050 from 1 July 2011.
(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.”
[36] The provisional amount of compensation is $70,611.96. The requirement under section 392(5) is that the amount ordered must not exceed the lesser of the total remuneration during the 26 weeks immediately before the dismissal (s.392(5)(a)) and half the high income threshold (s.392(5)(b)).
[37] At the relevant time, half the high income threshold was $59,050 (s.392(5)(b)).
[38] With respect to the total amount of remuneration received by Mr Wild or to which he was entitled in the 26 weeks immediately prior to his dismissal (s.392(6)), the relevant period is from 4 May 2010 to 4 November 2010. It was agreed between the parties that, for the financial year ending on 30 June 2010, Mr Wild’s average weekly earnings were $1522.77. Therefore, from 4 May 2010 to 30 June 2010, Mr Wild’s remuneration was 8 weeks x $1522.77 = $12,182.16.
[39] In paragraph 22 above, it was found that Mr Wild’s average weekly earnings from 1 July 2010 to 4 November 2010 were $1786.74. There are 18 weeks during that period x $1786.74 = $32,161.32. Therefore, for the 26 weeks prior to his dismissal, the remuneration received by Mr Wild was $44,343.48 (s.392(6)).
[40] In accordance with s.392(5), the compensation cap is the lesser of s.392(5)(a) and s.392(5)(b), namely, $44,343.48 ($44,343.48 compared with $59,050).
[41] As the provisional amount of $70,611.96 is more than the compensation cap contained in s.392(5) of the Act, the compensation cap therefore applies.
[42] Accordingly, I determine that Queensland Rail is to pay to Mr Wild the amount of $44,343.48 as compensation, taxed according to law, within 14 days of this decision.
[43] An Order 21 to this effect will be issued separately.
COMMISSIONER
1 [2012] FWA 3908
2 Applicant's outline of argument on compensation due date 21 June 2012 at paragraph 8 and Affidavit of Michael Wild dated
21 June 2012 at paragraphs 1 and 2
3 Ibid at paragraphs 14 - 16
4 Ibid at paragraphs 19 - 23 and Affidavit of Michael Wild dated 21 June 2012 at paragraphs 4 - 12
5 Ibid at paragraph 24
6 Ibid at paragraphs 25-35 and Affidavit of Michael Wild dated 21 June 2012 at paragraphs 13 - 26
7 Ibid at paragraphs 36 - 40
8 Ibid at paragraphs 42 - 43
9 Ibid at paragraph 44
10 Ibid at paragraph 47 and Affidavit of Michael Wild dated 21 June 2012 at paragraph 40
11 Ibid at paragraphs 45 - 49
12 Ibid at paragraph 50
13 Respondent's submissions in relation to remedy-compensation dated 21 June 2012 at paragraphs 3 - 4
14 Ibid at paragraphs 5 - 6
15 Ibid at paragraphs 7 - 8
16 Ibid at paragraph 9
17 [2012] FWA 3908 at [258]
18 Respondent's submissions in relation to remedy-compensation dated 21 June 2012 at paragraphs 5 - 6
19 Affidavit of Michael Wild dated 21 June 2012 at Attachment F
20 Ibid at Attachment C
21 PR524831
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