Mr Robby Lankam v Federal Express (Australia) Pty Ltd T/A Fed Ex

[2011] FWA 6511

[2011] FWA 6511

FAIR WORK AUSTRALIA

DECISION

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

Mr Robby Lankam
v
Federal Express (Australia) Pty Ltd T/A Fed Ex
(U2010/14487)

COMMISSIONER DEEGAN CANBERRA, 22 SEPTEMBER 2011

Decision in relation to remedy consequent on applicant’s election following decision in [2011] FWA 6230.

[1] In my decision of 9 September 2011 1 I determined that Mr Robbie Lankam (the applicant) had been unfairly dismissed by his employer Federal Express (Australia) Pty Ltd (FedEx) and made the following determination as to remedy:

Remedy

[147] The applicant seeks reinstatement. The employer opposes reinstatement on the basis that the necessary trust in the applicant required for an employment relationship to exist has been lost. In my view there is absolutely no reason why the employer should have lost any trust in the Applicant. The only matter I find surprising is that the Applicant seems not to have lost all trust in his former employer, given the treatment afforded to him by that employer from August to November 2010.

[148] I have decided not to make an order as to remedy until I am satisfied that reinstatement continues to be sought by the Applicant. If the Applicant’s representative notify me that reinstatement remains the Applicant’s preferred option then an order for reinstatement will be made, with full continuity of service and payment of remuneration lost during the period between the termination and reinstatement.

[149] If, upon further reflection, the Applicant no longer seeks reinstatement, it is my intention to award the maximum amount of compensation available under the Act, calculated on the basis that no discount is necessary in respect of any misconduct on the part of the Applicant and that there is no reason why, had the Applicant not been unfairly dismissed, he would not have continued to work for FedEx for another 10 years. A short decision will accompany the order whether it is for reinstatement or for compensation.

[2] By correspondence dated 20 September 2011 the applicant’s representative (Mr McIntosh, a Legal Officer with the Transport Workers Union of Australia) advised that the applicant did not wish to be reinstated in his former employment and requested that I make an order for compensation in lieu of reinstatement.

[3] Sections 390, 391 and 392 of the Fair Work Act 2009 (the Act) provide for remedies for unfair dismissal.

[4] I am satisfied that the requirements of s.390 of the Act have been met such that I may order a remedy in this matter. I am also satisfied that reinstatement is inappropriate but that, in all the circumstances, an order for the payment of compensation is appropriate.

[5] In relation to the matters set out at s.392(2) I find:

• There is no evidence that any order I make will affect the viability of the respondent’s business and given the size of the company this outcome is extremely unlikely;



• The applicant was employed for a period in excess of 5 years by the respondent;



• Had the applicant remained in employment there is no reason why there would have been any reduction in his weekly remuneration;



• The applicant’s unchallenged evidence was that he did not find other employment until 14 March 2011 and received no remuneration from the date of his dismissal until that time;



• In his current position the applicant earns $126.57 per week less than he was earning with FedEx at the time of his dismissal; and



• It is likely the applicant will continue to receive wages from his current employer at the rate advised between the making of the order for compensation and the actual compensation.

[6] As noted in my earlier decision, I am not satisfied that any misconduct by the applicant contributed to the employer’s decision to dismiss the applicant.

[7] The unchallenged evidence was that applicant’s loss of remuneration from the time of his dismissal until he gained new employment was $13,545.12. He continues to receive a lesser amount of income than that which he received from FedEx. The amount of the ongoing loss until 30 September 2011 is in the region of $3,616.25. As this loss is likely to be ongoing, in all the circumstances I am satisfied that I should award the applicant the maximum amount of compensation available under s.392(5) of the Act.

[8] I intend to make an order that, on or before 30 September 2011, the respondent is to pay to the applicant the sum of $17,900.32 (an amount equivalent to the remuneration earned in his final 26 weeks of employment with the respondent) in lieu of reinstatement. The order is published separately.

COMMISSIONER

 1   [2011] FWA 6230 (Deegan C).

Printed by authority of the Commonwealth Government Printer

<Price code A, PR514871>