[2015] FWC 4833

FAIR WORK COMMISSION

DECISION

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

Mr Peter Penfold
v
Bench Excavation & Civil Construction Pty Ltd T/A Bench Excavation & Civil Construction
(U2015/3763)

COMMISSIONER HAMPTON

ADELAIDE, 4 SEPTEMBER 2015

Application for relief from alleged unfair dismissal – whether dismissal occurred – dismissal found – whether dismissal unfair – unfair dismissal found – remedy – compensation sought – order limited by short projected employment period and other factors.

1. Introduction and case outline

[1] Mr Peter Penfold has made an application to the Commission seeking a remedy for an alleged unfair dismissal. The application has been made under s.394 of the Fair Work Act 2009. Mr Reid’s employer was Bench Excavation & Civil Construction Pty Ltd (Bench Constructions).

[2] Mr Penfold was engaged as a Project Manager 1 with Bench Constructions from 7 January 2013 until the cessation of the employment relationship in February/March 2015.

[3] Bench Constructions is an earthmoving and civil construction business. Along with other work, during the period of Mr Penfold’s employment Bench Constructions was undertaking a significant project involving the replacement of gas mains and services (the Mains Replacement Project or MRP) and the applicant was project managing that work.

[4] There is no dispute that Mr Penfold was protected from unfair dismissal within the meaning of s.382 of the Act.

[5] It is generally agreed that on 25 February 2015 an exchange took place between Mr Penfold and Mr Pringle, Managing Director of the employer. The exchange occurred after a toolbox meeting which was conducted by Mr Penfold on the worksite and involved a heated argument. Following that exchange, Mr Penfold remained on site for a period before leaving. It is also agreed that a subsequent telephone discussion took place between Mr Penfold and Mr Pringle during which the Managing Director apologised for his conduct and invited Mr Penfold to return to work on the next day.

[6] Mr Penfold did not subsequently return to work and there is a dispute about the detail of some of the above events and the conduct of the parties leading to the conclusion of the employment relationship.

[7] Mr Penfold contends that on 25 February 2015, he was dismissed from his position with the employer. That is, Mr Pringle’s words and actions brought the relationship to an end by way of a dismissal. In the alternative, Mr Penfold contends that if his own actions were considered to be a resignation, that resignation was forced as a result of the conduct of Mr Pringle. This, he contends, also amounts to a dismissal within the meaning of the Act.

[8] Mr Penfold further contends that the dismissal was unfair as there was not a valid reason for that action and that he was given no procedural farness in relation to the dismissal. In the context of what he described as an expectation of long-term employment, Mr Penfold is seeking significant compensation based upon 26 weeks of lost earnings from Bench Constructions, less alternative earnings from his subsequent employment. 2

[9] Bench Constructions contends however that on 25 February 2015, Mr Penfold was not dismissed from his employment with the employer, but rather, the applicant resigned from his position. It further contends that there was no termination at the initiative of the employer on any grounds.

[10] Bench Constructions also contends in the alternative, that there was a valid reason for Mr Penfold’s dismissal associated with his refusal to follow lawful directions and his insubordination. Further, and in any event, it contends that Mr Penfold failed to resume his employment with Bench Constructions when given that opportunity, and in so doing, failed to mitigate his losses. Finally, Bench Constructions contends that any employment would not have lasted very long in any event due to problems with the MRP and the loss of that work contract shortly after the events in question.

[11] In these circumstances, it is necessary to consider whether there has been a dismissal within the meaning of Act. If so, I need to consider whether it was unfair. This requires me to consider the general context, the detailed conduct of the parties, and the relevant statutory and legal principles as they bear upon these issues.

[12] Given the evident factual conflicts, I was obliged 3 to conduct a hearing or conference in order to make the necessary findings leading to the determination of the jurisdictional issues and the matter more generally. This application was subject to a hearing following consultation with the parties as contemplated by s.399 of the Act.

2. The evidence before the Commission

[13] Mr Penfold provided a witness statement and gave evidence. He also relied upon the evidence of Mr Jamie Gifford, a former employee of the employer.

[14] Bench Constructions provided witness statements and oral evidence from the following current or former employees:

● Barry Pringle – Managing Director;
● John Winslet – Operation Manager;
● Arben Martinaj – Construction Worker; and
● Wayne Paterson – Supervisor.

[15] There are inconsistencies in and between the witness evidence particularly about the detail of the events of 25 February 2015. I have resolved those differences having regard to the consistency and probability of that evidence and my observations of the various witnesses.

[16] Mr Penfold’s oral evidence was not always convincing. He had a tendency to attempt to second guess the purpose behind questions in cross-examination and to advocate his case when giving evidence. This also led to him being non-responsive and indirect at times. This does not mean that I consider that he attempted to mislead the Commission; however, it does lead me to treat the detail of his evidence with some caution.

[17] Mr Gifford observed the exchange from a distance and did not recall all of the details. However, his evidence was not extensively challenged, it was broadly consistent with other witnesses, and I accept the thrust of his version of events.

[18] For the most part, the evidence of Mr Pringle was clear and precise and he also made concessions that were not necessarily helpful to the employer’s case. This included the general nature of his conduct on 25 February 2015 and the subsequent discussions with Mr Penfold by phone.

[19] Mr Winslet did not observe the exchange but met with Mr Penfold on site before the applicant left. Mr Winslet also had a role in arranging the discussion between Mr Penfold and Mr Pringle later in the day and in dealing with the applicant in the days that followed. Mr Winslet’s evidence was not significantly challenged and I found it to be reliable.

[20] Mr Paterson observed the exchange from some distance and did not hear or observe the detail. He did subsequently speak with Mr Penfold and although he used the term “resignation” in connection with the applicant, he confirmed that this particular expression may not have been used. Rather, Mr Penfold may have indicated that he was leaving unless he received a face to face apology.

[21] Mr Martinay walked into the vicinity of the exchange on 25 February 2015 and heard only part of the discussion. The detail of the language used by Mr Penfold that he overheard was not consistent with the version given by any other party. I do not doubt that his evidence was genuine and reflects the heat of the discussion; however, I am not persuaded that the actual threatening words he relayed were said.

3. The general context

[22] Bench Constructions operates in the civil construction industry. In recent times, it has diversified into other work including the MRP that was worth in the order of $7-8m per annum.

[23] Mr Penfold was recruited by Mr Winslett to be the project manager for the MRP and that role included responsibility for the on-site organisation and execution of the MRP works.

[24] In general terms, Mr Winslett and Mr Penfold worked together constructively however there were tensions about the degree to which Mr Penfold actively managed what the employer considered to be poor work practices and performance by some members of the project workforce. These concerns were shared by Mr Pringle and significant tensions and differences emerged over time between the Managing Director and the applicant about those matters and the desire by the company to save costs and to improve productivity.

[25] In late 2014 and early 2015, Mr Pringle discussed with Mr Winslett and Mr Penfold his desire to split the work crew undertaking the MPR work. This was not done and it is likely that both Mr Winslett and Mr Penfold were of the view that such was not desirable at the time.

[26] On Thursday 19 February 2015, a notifiable safety incident occurred when a worker on the MRP was seriously burned. During February, the project’s client also notified Bench Constructions of a number of significant non-conformances with the works being undertaken. These apparently arose from the failure to apply appropriate on-site procedures associated with the project and led to the suspension of the Bench Constructions MRP contract on 9 March 2015.

[27] Mr Penfold was overseas on leave in early February and only returned to Australia on 19 February 2015. He was contacted by Mr Winslett at that time and requested to come into work to assist to deal with consequences of the safety incident and other site management issues that were emerging.

[28] Mr Penfold attended work on Friday 20 February and Saturday 21 February 2015. Having done so whilst being, in effect, on leave, Mr Winslett agreed that Mr Penfold could take Thursday 26 and Friday 27 February 2015 off to attend the Clipsal 500 motor race.

[29] On either 20 or 21 February 2015, Mr Pringle instructed Mr Penfold to split the work crew. That is, to break up the large crew of workers into two or more work groups to undertake work at different locations. This did not happen in the lead up to the events of 25 February 2015. Although Mr Penfold claimed that this was, in part, as a result of the need for appropriate “Dial before you dig” permits, the evidence reveals that there were sufficient permits to enable a split crew to operate at that time. There were however other operational reasons that had a bearing upon whether the separation of the crews was desirable.

[30] After the suspension of the MRP contract, all workers involved in the project that could not be usefully engaged elsewhere, were stood down and all but one employee on the project subsequently found alternative employment or was made redundant.

[31] The MRP contract held by Bench Constructions was subsequently terminated on 15 June 2015.

4. The events 25 February 2015 and the days that followed

[32] On 25 February 2015, it was Mr Pringle’s expectation that the crews were meant to be split or separated. However, due to certain staffing issues and circumstances, including two Team Leaders who were off sick, one of which had the work vehicle - that contained all the legal signage that was required, Mr Penfold did not consider that it was safe or appropriate to split the crew at that time. This was discussed with Mr Winslett.

[33] On the morning of 25 February 2015, Mr Penfold was conducting a toolbox meeting with other employees of the employer on site prior to starting the specific job. Toolbox meetings were common practice before the commencement of work and this meeting occurred on the side of the road in the residential area where work was about to be performed. Mr Pringle was observing the toolbox meeting but did not participate and was not intending to undertake work.

[34] Mr Pringle was dressed in jeans, hard hat, with an unbuttoned hi-visibility shirt and “sand shoes”.

[35] After the conclusion of the toolbox meeting, Mr Pringle noted that the crew was not being separated and he raised his concerns about that matter with Mr Penfold. The two discussed the matter for some minutes and by the conclusion of the discussion the workers who had attended the toolbox meeting were generally dispersed however some remained in the immediate area. Mr Pringle was emphasising his instruction to separate the crews to improve productivity and Mr Penfold was indicating, in effect, that this could not be done.

[36] At some point, Mr Penfold stated to Mr Pringle that “you shouldn’t be on site, you’re not wearing the appropriate PPE and that is not a good example”. Mr Pringle considered this to be a distraction from the actual discussion and stated that Mr Pringle should not be worried about that and should listen to his instructions.

[37] Both men became agitated and at one point, Mr Pringle pointed his finger at Mr Penfold and said “Peter, I want you to split up the f****ing crew, make it happen”. Mr Penfold took exception to that and responded to the effect of “don’t speak to me like that, don’t point your finger at me, I will not be disrespected”.

[38] After some further tense exchanges, Mr Pringle turned to walk away and stated “go f*** yourself”. Mr Penfold challenged Mr Pringle over the statement and Mr Pringle repeated it and added “just do what you have to do”.

[39] Mr Pringle further stated words to the effect of “this is my company and I get what I want, and what I want is separation. Just f***ing go, leave now, go f*** yourself”.

[40] Mr Penfold responded with words to the effect of “are you telling me to shove my job up my arse?”. Mr Pringle responded with words to the effect of “you heard me, just go. Go f*** yourself. F*** off”.

[41] Mr Pringle then left the discussion and the worksite.

[42] Both men indicated that each had been goaded into some form of confrontation by the other. I am not persuaded that any threats were made and there was no physical contact made.

[43] Shortly after the incident, Mr Penfold contacted Mr Winslet in relation to the event. Mr Winslett was off-site at the time. Mr Penfold remained on site, at the request of Mr Winslett, and waited for Mr Winslet to arrive. During this time, Mr Penfold assisted some employees with their work assignment.

[44] Mr Penfold informed Mr Winslett that Mr Pringle had told him to “f*** myself in front of everyone, that’s it, I won’t be disrespected like that”. After some discussion during which Mr Winslett expressed support for the applicant and confirmed that he was needed on site, Mr Penfold stated that “unless I get a face to face apology, I am out of here”.

[45] Mr Winslett understood that Mr Penfold was threatening a resignation and tried to calm him down. Mr Penfold attempted to hand over his work credential cards and Mr Winslett refused to accept them. However, Mr Penfold placed the cards in Mr Winslet’s top shirt pocket and then left the work site. As part of leaving the site, Mr Penfold shook hands with a number of the employees and advised at least some of them, in effect, that he had been dismissed.

[46] Mr Winslett later informed Mr Pringle that the applicant had “resigned” and urged Mr Pringle to ring up and apologise to Mr Penfold.

[47] Following the incident, Mr Penfold went to a former employee’s house. Around midday, Mr Winslett rang the applicant using his mobile phone and when answered by Mr Penfold, immediately handed the phone to Mr Pringle.

[48] Mr Pringle apologised for the heated words and confirmed that he wanted Mr Penfold to return to work on the following day. Mr Pringle also emphasised that he, as the employer, had the right to arrange work allocations as he saw fit. Mr Penfold indicated that he required a face to face apology. It is also likely that Mr Penfold also raised the need to deal with an outstanding pay issue however this was not seen by him as a precondition.

[49] Mr Penfold understood that Mr Pringle had agreed to the face to face apology whereas Mr Pringle contended in his evidence that this was not agreed. It is clear that after the conversation, Mr Pringle informed Mr Winslett that the verbal apology was as good as it gets and if he does not want to come back to work, “its game over”.

[50] Prior to ending the phone conversation, the phone was handed back to Mr Winslett who indicated that he would call Mr Penfold. It was anticipated by both Mr Winslett and Mr Penfold that they would liaise to deal with any outstanding issues.

[51] Mr Penfold considered at that point that the issues were, or would be, sorted out, and he expected to return to his employment with Bench Constructions. Shortly after the call, Mr Penfold sent a text message to Mr Winslett indicating, in effect, that the phone call and apology was a “nice move”.

[52] Later that day, another serious incident occurred at the worksite and this took up Mr Winslett’s time until later in the evening. Mr Winslett was concerned that this could put the MRP contract at risk and when Mr Penfold texted him later than night, Mr Winslett replied that he was “shattered” and that they should talk tomorrow.

[53] Mr Penfold did not attend for work on 26 or 27 February 2015. He indicated in evidence that he had done so given the earlier understanding that he had leave on those days to attend the Clipsal 500. This was not discussed during the conversations on 25 February and Mr Penfold did not seek to contact Mr Winslett on those days.

[54] Mr Penfold contacted Mr Winslet by text message on Monday 2 March 2015 to discuss the issues. Mr Winslet advised that he was busy due to a break-in and theft of a truck, and a number of other work incidents that became evident over the weekend. He advised that he would call later. Mr Winslett rang Mr Penfold’s phone on the evening of 2 March 2015 but it was not answered.

[55] Early in the week commencing 2 March 2015, Mr Pringle attended the worksite and apologised to the workforce for the exchange that had occurred in the previous week. Mr Penfold became aware that this had occurred.

[56] Neither Mr Penfold nor Mr Winslett took any steps on Tuesday 3 March to contact each other.

[57] On Wednesday 4 March 2015, Mr Winslet sent a text to Mr Penfold stating that they should meet on the following morning.

[58] Mr Penfold then rang Mr Winslet and Mr Penfold referred to his “dismissal” and Mr Winslett referred to the events as a “resignation”. Mr Winslett referred to the fact that Mr Pringle had changed his mind. Although not indicated, it is apparent that this statement was a reference to nature of the apology sought by Mr Penfold who was continuing to insist that a face to face apology be made by Mr Pringle. It was made clear at that time that a face to face apology would not be provided and Mr Winslett understood that Mr Penfold would not be returning to work.

[59] Mr Penfold later texted Mr Winslett, and referring to the recent apology given to the staff by Mr Pringle, indicated that it was “a shame he couldn’t afford me the same”.

[60] Mr Penfold and Mr Winslett did not meet on Thursday 5 March 2015 due to the work commitments of Mr Winslett. On Friday 6 March 2015, Mr Penfold sent a text message to Mr Winslett advising that he would make arrangements to return the work car, keys and fuel card sometime on the following Monday.

5. Was Mr Penfold dismissed within the meaning of the Act?

[61] Given the positions contended by the parties, it is necessary for me to consider whether a dismissal has taken place within the meaning of the Act. Section 386 provides as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[62] Mr Penfold has contended, in the alternative, that a “forced resignation” took place so as to fall within the scope of s.386(1)(b) of the Act. The circumstances of s.386(2) and (3) do not arise in this matter.

[63] Although applied under the previous Act, the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd⁴ in my view remains generally apposite:

“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”⁵

[64] Although determined by the English Court of Appeal, the following approach as taken in CF Capital PLC v Willoughby 6 is generally consistent with that taken by Australian Court and Tribunals:

“37. The ‘rule’ is that a notice of resignation or dismissal (whether given orally or in writing) has effect according to the ordinary interpretation of its terms. Moreover, once such a notice is given it cannot be withdrawn except by consent. The ‘special circumstances’ exception as explained and illustrated in the authorities is, I consider, not strictly a true exception to the rule. It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be. The need for such a so-called exception to the rule is well summarised by Wood J in paragraph 31 of Kwik-Fit’s case and, as the cases show, such need will almost invariably arise in cases in which the purported notice has been given orally in the heat of the moment by words that may quickly be regretted.

38. The essence of the ‘special circumstances’ exception is therefore that, in appropriate cases, the recipient of the notice will be well advised to allow the giver what is in effect a ‘cooling off’ period before acting upon it. Kilner Brown J, in paragraph [15] of his judgment in Martin’s case understandably referred to such a period as an opportunity for the giver of the notice to recant, or to withdraw his words; and this is in practice what is likely to happen. I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.”

[65] Accordingly, the general legal principles to be applied in this case are well settled. Stated succinctly, they include:

A termination at the initiative of the employer involves the action of the employer as the principal constituting factor leading to the termination;

The employer must have engaged in some action that intended to bring the employment relationship to an end or had that probable result;

Considerable caution should be exercised in treating a resignation as other than voluntary and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign;

In determining the question whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required;

A termination (or resignation) has effect according to its ordinary terms however in some “special” circumstances the Commission needs to be cautious to ascertain the objective intention and to consider whether it would have been reasonable to permit a retraction or clarification; and

Subject to the above, a dismissal or resignation, once given, cannot be unilaterally withdrawn.

[66] It is evident to me that Mr Penfold considered that he had been dismissed. Mr Pringle probably did not set out on the discussion with that intention and Mr Winslett, who did not observe the altercation, understood that Mr Penfold was threatening to resign, was very keen to avoid that occurring, and reported Mr Penfold’s departure as a resignation.

[67] However, for reasons outlined above, very little of those subjective views are relevant and it is the objective analysis of the facts that must be considered.

[68] Given the context and nature of the discussion between Mr Penfold and Mr Pringle on 25 February 2015, I am on balance satisfied that a dismissal at the initiative of the employer took place.

[69] I accept that Mr Pringle’s reference to wanting “separation” would have reasonably been understood to refer to the splitting of the crews and not to the employment. However, Mr Penfold’s question about whether he was being told to shove his job up his arse and the response being that “you heard me, just go, go f*** yourself, f*** off” would reasonably be understood as meaning that he was dismissed. That is, Mr Penfold was seeking clarification as to whether he was being dismissed and Mr Pringle’s response would not, in the circumstances, be reasonably understood to be only to remove himself from the immediate area or even from site. Rather, the response would reasonably be understood to mean that yes; he could “shove his job”.

[70] In reaching that conclusion, I have also considered the fact that Mr Penfold remained on site, and actually assisted some of the employees. This is not consistent with a dismissal having taken place. However, when considered in context, Mr Penfold remained on site at the specific request of Mr Winslett who was seeking to maintain the applicant’s services. Further, although Mr Winslett understood that Mr Penfold was threatening to resign, what in fact was occurring was that Mr Penfold was in effect stating the terms under which he would consider cooperating with Mr Winslett to undo the effect of the earlier events.

[71] It is clear that Mr Pringle had the authority to make and potentially retract a decision to dismiss Mr Penfold.

[72] I have also considered the potential impact of the decision of Mr Penfold not to attend for work on the following Thursday and Friday, but rather to attend the Clipsal 500. This would be consistent with the view that the pre-arranged leave was in place and that the employment continued. However, it is also consistent with the view that the relationship was on track to be re-established.

[73] It is not possible to unilaterally reinstate the employment relationship 7 and given the uncertainty about the conclusion of the telephone discussion between Mr Penfold and Mr Pringle later on 25 February 2015, an agreement to do so was not made at that point.

[74] The decision to leave the site on 25 February 2015 and not to attend work on the following day, and the surrounding circumstances, did have an impact upon the eventual outcome and may be relevant to the mitigation of losses suffered by Mr Penfold.

[75] The comments leading to the dismissal were made by Mr Pringle in the heat of the moment. In submissions, Bench Constructions did make reference to that context but did not directly contend that there were “special circumstances” whereby any purported termination should not be considered to be the intended or actual outcome on that basis.

[76] I have also considered the inference that was made in the position of Bench Constructions that Mr Penfold may have abandoned his employment by leaving the work site and not resuming work following the later telephone discussion on 25 February 2015. Given my findings above, neither of these actions constitutes abandonment of employment. 8

[77] For reasons set out above, I am on balance satisfied that Mr Penfold was dismissed within the meaning of the Act.

6. Was Mr Penfold’s dismissal unfair within the meaning of the Act?

[78] Section 385 of the Act provides as follows:

“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[79] I have found that Mr Penfold was dismissed, the Small Business Fair Dismissal Code does not arise and this is not a case of genuine redundancy. Accordingly, I need to consider whether the dismissal was harsh, unjust or unreasonable.

[80] Mr Penfold contends that there was no valid reason for his dismissal on 25 February 2015 that related to his capacity or conduct. The dismissal decision was made on the spot and no consideration was given. Mr Penfold further contends that he was not given a chance to formally respond to any reasons associated with his dismissal.

[81] Mr Penfold further contends that he had made attempts following his dismissal to rectify the situation and restore the employment relationship, however, Mr Pringle did not engage. Furthermore, Mr Penfold was not given the opportunity to have a support person with him at any meetings regarding his dismissal.

[82] Mr Penfold submits that he had not been issued with any verbal or written warnings prior to his dismissal and that, despite some issues between himself and Mr Pringle, he had a relatively positive relationship with the employer.

[83] Bench Constructions contends that Mr Pringle directed Mr Penfold to split the crews. Mr Penfold chose not to do this and proceeded to engage in an argument with Mr Pringle about the issue. That is, Mr Penfold failed to follow a lawful direction. Furthermore, Bench Constructions contends that Mr Penfold provoked Mr Pringle into a physical response, which constitutes a threat or an intention to engage in violence in the workplace. In that context, the employer contends that these factors, individually or collectively, amount to a valid reason for dismissal of Mr Penfold. That is, any dismissal was undertaken in the context of serious misconduct by Mr Penfold.

[84] Furthermore, Bench Constructions contends that even if the conduct did not warrant a summary dismissal, it did warrant serious disciplinary action. There were a number of serious incidents that occurred that were the responsibility of Mr Penfold. The incidents were said to be reflective of poor ‘on the ground’ management and leadership. The incidents were such that Mr Penfold’s role and his on-going employment were no longer tenable and/or the employment would have come to an end imminently in any event.

[85] The Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[86] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality.

[87] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Penfold’s capacity or conduct (including its effect on the safety and welfare of other employees)

[88] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly. 9

[89] In applying this approach, it is also important to recognise that conduct occurs in a context and this must also be taken into account. This might include the circumstances in which any misconduct occurs and the events leading to that point. 10

[90] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.¹¹ Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal. 12

[91] There is evidence from Mr Winslett that was largely unchallenged that supports the notion that Mr Penfold was disrespectful of Mr Pringle. This includes the notion that he would challenge decisions made by Mr Pringle and at times showed no respect for the Managing Director. 13

[92] The work site discussion that took place on 25 February 2015 was a robust discussion that reflects poorly on both men. That sort of discussion should not have been conducted in that manner or place. Mr Penfold’s role in that discussion remains a relevant consideration in the present context.

[93] In terms of the reference by Mr Penfold to the PPE being worn by Mr Pringle, it is evident to me that given both the manner and timing in which that issue was raised, this was being done tactically and not out of a genuine concern about the issue.

[94] Mr Penfold did not split the crew despite being instructed to do so. It is apparent that there were particular operational issues on the day of the dismissal that made a split problematic however Mr Penfold did not wish to split the crews at all. However, it is also apparent that the applicant had discussed this with Mr Winslett, his Manager, who was also responsible for its implementation and did not press the direction.

[95] On that basis, Mr Penfold did fail to follow a direction in relation to the splitting of the crews however the full context must be taken into account.

[96] There is little direct evidence about the alleged incompetency of Mr Penfold in relation to the project management role. It is apparent that there were major issues with the conduct of the MRP and that significant non-conformances took place that led to the suspension and eventual cancellation of that contract. The client considered that these were the result of the poor quality of work and the failure to apply appropriate and safe procedures.

[97] Mr Penfold, as the Project Manager, must bear some of that responsibility however in the absence of any significant direct evidence about these matters it is not possible to make a finding beyond that notion.

[98] I note that it was Mr Pringle’s intention to have Mr Penfold return to his employment on 25 February 2015 and the applicant’s Manager, Mr Winslett, was very keen to retain his services and urged the applicant to stay on site and subsequently to return to work.

[99] Accordingly, there were genuine issues of concern in relation to some of the conduct and performance of Mr Penfold. However, based upon the evidence before the Commission, there was not a valid reason for dismissal at that time.

[100] I note that later events arising from further site incidents, and the eventual suspension and cancellation of the MRP contract, subsequently changed the context and these developments are relevant to the determination of this matter more generally.

Section 387(b) – whether Mr Penfold was notified of the reasons for dismissal

[101] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 14

[102] There was a discussion about splitting the crews and the annoyance of Mr Pringle that this had not occurred would have been evident. However, given how and when the termination took place, Mr Penfold was not notified of the reasons for dismissal in the sense contemplated by the Act, prior to that event.

[103] This is a factor to be weighed in assessing whether the dismissal was unfair.

Section 387(c) – whether Mr Penfold was given an opportunity to respond to any reason related to his capacity or conduct

[104] The process contemplated by the Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Mr Penfold was aware of the precise nature of the employer’s concern about his conduct and had a full opportunity to respond to these concerns.¹⁵

[105] The discussion on 25 February 2015 related to splitting the crews and there was no real discussion of broader concerns about Mr Penfold’s conduct or performance as Project Manager. Indeed, some of the events leading to those concerns were very recent and compounded by subsequent events.

[106] This means that an opportunity to respond to the reasons associated with Mr Penfold’s capacity and conduct was not provided in any meaningful sense.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Penfold a support person

[107] There was no request for a support person and accordingly this consideration is not relevant.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Penfold – whether he has been warned about that unsatisfactory performance before the dismissal.

[108] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 16

[109] There were discussions between Mr Pringle and the applicant about the performance of the project management role however these were not warnings about unsatisfactory performance as contemplated by this consideration.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

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.

[110] Bench Constructions was not a small business however it did not have dedicated human resources expertise and this may well have impacted upon how the issues leading to the dismissal were handled.

[111] This is a factor to be taken into account and some allowance should be made accordingly.

Section 387(h) - other matters considered to be relevant

[112] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 17

[113] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo, 18 the Full Bench observed:

“[24] ... ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[114] In this case there was misconduct but not serious misconduct that warranted immediate dismissal. In that context, the absence of notice or pay in lieu of notice is a factor to be weighed into the overall consideration.

[115] A dismissal may be unjust because the employee was not guilty of the alleged misconduct or unreasonable because the evidence or material before the employer did not support the conclusions reached. 19

Conclusion on nature of dismissal

[116] As outlined earlier, the Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:

“381 Object of the Part

… …

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[117] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether the procedural deficiencies made any difference to the outcome.²⁰

[118] Given the absence of a valid reason for dismissal at that point, the manner of that action and the lack of notice or pay in lieu, I am satisfied that the dismissal of Mr Penfold was harsh and unreasonable.

7. Remedy

[119] Mr Penfold is seeking significant compensation based upon 26 weeks of lost earnings from Bench Constructions, less alternative earnings from his subsequent employment.

[120] Bench Constructions contends that reinstatement is clearly not practicable and that compensation is the only appropriate remedy. In that regard, it contends that it had its MRP contract suspended on 9 March 2015 and all relevant employees were stood down. This would have included Mr Penfold. As such, Mr Penfold’s employment would not have continued for any significant period of time and as such any compensation should be nil or very limited.

[121] Bench Constructions also contends that it has lost a significant part of its business and remains under financial stress “due to the applicant’s actions”.

[122] Division 4 of Part 3-2 of the FW Act relevantly provides as follows:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

...

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.²¹

(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 the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[123] The prerequisites of ss.390(1) and (2) have been met in this case.

[124] Section 390 makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. Mr Penfold does not seek reinstatement and given all of the prevailing circumstances and my findings I accept that reinstatement would be inappropriate.

[125] As a result, I need to consider whether compensation is appropriate, and if so, to what extent.

[126] A recent Full Bench in McCulloch v Calvary Health Care Adelaide²² (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg²³ remains appropriate in that regard.

[127] Section 392(2) of the Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act,²⁴ 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 Bench Constructions

[128] The evidence of Mr Pringle was that as a result of losing the MRP contract, Bench Constructions had significantly reduced its employment and activities (by half) and that this impacted upon its financial condition.

[129] I accept that the thrust of this evidence and note that the level of compensation that I have determined is unlikely to effect the viability of the employer.

The length of Mr Penfold’s service with Bench Constructions

[130] Mr Penfold had been employed with Bench Construction only since January 2013. This consideration is to be taken into account in terms of whether an award of compensation should be made and if so, to what extent.

The remuneration Mr Penfold would have received, or would have been likely to receive, if he had not been dismissed

[131] This involves in part a consideration of the likely duration of Mr Penfold’s employment in the absence of what I have found to be an unfair dismissal.

[132] The Full Bench in McCulloch also confirmed that when assessing likely lost remuneration, cogent evidence was required for any assumption that a short period of likely future employment would have occurred where the Commission had not found a valid reason for dismissal.²⁵

[133] In this case I have found that a valid reason for dismissal did not exist and the unfairness also arose from the absence of notice and the lack of procedure adopted by the employer. This must be weighed along with the nature and length of the employment, the legitimate concerns of the employer arising from Mr Penfold’s conduct and performance, and the potential for a different outcome to have arisen should a procedurally fair process have been adopted.

[134] Importantly, in this case there is also some important evidence of post-dismissal circumstances that are directly relevant to the projection of employment in the absence of the unfair dismissal.

[135] This includes evidence that shortly after the dismissal, Bench Construction had the MRP contract suspended and later, terminated. Although Mr Penfold was in a management role, this would have had a significant impact upon the likely duration of the applicant’s employment.

[136] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment only for a short period. It is likely that the employment would have concluded at some point between the date of dismissal and the date that the MRP contract was formally lost in mid June 2015.

[137] It is probable that as the Project Manager, Mr Penfold would have continued for a period to deal with the immediate issues but would have been dismissed no later than when it became evident that there were major on-site performance concerns and the MRP contract would probably be terminated.

[138] In all of the circumstances, employment in this case should be projected for no more than eight weeks from the date of the dismissal. That assessment includes a period of notice, or more likely, pay in lieu of notice.

[139] Mr Penfold’s remuneration with Bench Constructions at the time of dismissal was $2,000.00 per week. 26

[140] Accordingly, the provisional remuneration loss for present purposes is $16,000.

The efforts of Mr Penfold to mitigate the loss suffered by him because of the dismissal

[141] In my view, it would have been reasonable for Mr Penfold to have more vigorously pursued his re-employment following the telephone discussion with Mr Pringle on 25 February 2015. That is, he did not attend for work on the following day and insisted upon the face to face apology despite the verbal apology and his own contribution to the events of that day. In that regard, I note that Mr Pringle had already apologised and Mr Penfold was seeking a face to face apology and not necessarily one that would have addressed his apparent concerns about his reputation on site.

[142] Mr Penfold could also have worked more constructively with Mr Winslett on the morning of the dismissal to undo the dismissal at that point.

[143] This does not mean that Mr Penfold’s conduct on either account was totally unreasonable, but it did play a role in preventing the eventual resumption of the working relationship with Bench Constructions and as a result directly impacted upon the losses incurred by the applicant.

[144] I must also consider the fact that in other respects, Mr Penfold did make significant efforts to secure alternative employment, which he ultimately did.

[145] On this basis, a relatively significant discount to the amount of compensation is warranted based upon this consideration, however it must be assessed having regard to the competing elements outlined above. In the circumstances, a discount of 50 per cent of the provisional amount is appropriate.

The amount of any remuneration earned by Mr Penfold 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 Mr Penfold during the period between the making of the order for compensation and the actual compensation

[146] Between the dismissal and the end of the projected employment period, Mr Penfold earned $2,060 27 from alternative employment. This amount is to be deducted from the provisional remuneration loss figure.

[147] Mr Penfold continues in his new employment however it is not appropriate to make a further deduction for income beyond the projected employment period given that limited nature of that projection.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[148] I have taken the relevant notice into account in assessing the projected remuneration loss.

[149] Further, as I have taken into account the projected nature of the anticipated loss of remuneration over a relatively short period that has already occurred, I do not need to make a specific allowance for contingencies in this matter.²⁸

[150] There is demonstrated misconduct that may be taken into account as provided by s.392(3) of the Act. In this case there is misconduct that contributed to the decision and it is be appropriate to make a deduction on the amount of compensation otherwise due. In the circumstances, that deduction should be 20 per cent of the provisional amount.

[151] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[152] The amount of compensation that I have determined is less than the maximum prescribed by s.392(5) of the Act as applied in this matter.²⁹

[153] The figures used for the calculation are expressed in gross terms and appropriate taxation is to be deducted on the final amount of compensation.

[154] The compensation amount confirmed below is also appropriate having regard to all of the particular circumstances of this matter and the Commission’s statutory charter to ensure that a “fair go all round” is accorded to both the employer and employee concerned.³⁰

[155] No request for payment by instalments has been made under s.393 of the Act; however, the present circumstances of the business outlined earlier in this decision are relevant to the timing required by the compensation order.

Conclusions on remedy

[156] After taking into account each of the relevant considerations, I find that compensation is appropriate in this matter. Further, I find that the compensation should be assessed having regard to the factors outlined above.

[157] Accordingly, I find that compensation should comprise a payment by Bench Constructions to Mr Penfold calculated as follows:

● Allow projected lost income $16,000

● Deduct relevant income from alternative employment ($2,060)

● Provisional amount $13,940

● Deduct amount for failure to mitigate at 50% ($6,970)

● Deduct amount for misconduct at 20% ($2,788)

● Total compensation $4,182

8. Conclusion and orders

[158] I have found that Mr Penfold was dismissed and that the dismissal was unfair within the meaning of the Act.

[159] I have found that compensation is appropriate and the amount determined above is also appropriate in all of the circumstances.

[160] The payment of $4,182, less any required deduction of taxation, is to be made to Mr Penfold by Bench Constructions within 28 days of this decision.

[161] An order³¹ to that end has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

A Manos of counsel with J Mahony of Mahony’s Lawyers, both with permission, for Mr Penfold.

T Earls of Fair Work Lawyers, with permission, with B Pringle for Bench Excavations and Civil Construction Pty Ltd.

Hearing details:

2015

Adelaide

14 July.

Final written submissions:

2015

7 August.

1 The title used by the parties for the applicant’s position varied and included Superintendent.

2 Written submission 7 August 2015.

3 Section 397 of the Act.

4 PR973462, 11 August 2006 per Giudice J, Watson VP and Cribb C. This appeal was determined under the provisions of the Workplace Relations Act 1996 pursuant to the provisions of the Act as in force prior to the coming into operation of the Workplace Relations Amendment (Work Choices) Act 2005. As a result, the primary jurisdictional question was whether the applicant had been dismissed by the employer which was considered having regard to the formulation in the Termination of Employment Convention which in turn referred to termination at the initiative of the employer.

5 PR973462 (footnotes omitted).

6 Court of Appeal (Civil Division) per Rimer LJ [2011] EWCA 1115. See also Gunnedah Shire Council v Grout (1995) 134 ALR 145.

7 Ibid.

8 See also the decision of Watson VP in Lazar v Inghams Enterprises Pty Ltd[2012] FWA 8815 as to whether such would in any event potentially be a dismissal.

9 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

10 See Qantas Airways v Cornwall (1998) 83 IR 102.

11 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

12 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

13 Witness Statement of Mr Winslett – exhibit R3.

14 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

15 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

16 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

17 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

18 [2011] FWAFB 1166.

19 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

20 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.

²¹ Note: the subsection 392(5) amount was indexed to $133,000 from 1 July 2014 - as was relevant given the timing of this application.

22 [2015] FWCFB 873.

23 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431.

24 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

25 McCulloch at [27].

26 Mr Penfold did not seek a separate amount for superannuation.

27 Taken from the agreed table of lost earnings supplied by the parties – rounded.

28 See the discussion of contingencies in McCulloch at [20] to [23] and Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.

29 The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or $66,500.

30 Section 381(2) of the Act. See also Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].

31 PR571008.

Printed by authority of the Commonwealth Government Printer

Mr Peter Penfold v Bench Excavation and Civil Construction Pty Ltd T/A Bench Excavation and Civil Construction