Mr Shah Ahmed v Southern Cross Care WA (Inc)

[2017] FWC 370

[2017] FWC 370

FAIR WORK COMMISSION

DECISION

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

Mr Shah Ahmed
v
Southern Cross Care WA (Inc)
(U2016/7500)

DEPUTY PRESIDENT BINET PERTH, 18 JANUARY 2017

Application for relief from unfair dismissal – procedurally unfair – consideration of reinstatement – consideration of compensation – no remedy awarded.

[1] Mr Shah Jabed Ahmed (Mr Ahmed) made an application (Application) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by Southern Cross Care WA (Inc) (Southern Cross Care).

[2] The Application could not be resolved by conciliation and was consequently listed for hearing. Taking into account the parties circumstances, and their wishes, it was determined that a Determinative Conference rather than a Hearing would be the most effective and efficient way to determine the Application.

[3] In accordance with Directions issued on 30 September 2016 (Directions), the parties filed and served outlines of submissions, witness statements and documentary evidence in relation to the Application and submissions in relation to permission to be represented.

[4] Southern Cross Care sought permission to be represented at the Determinative Conference by a lawyer. This was opposed by Mr Ahmed.

[5] Section 596 of the FW Actprovides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

…”

[6] Southern Cross Care sought leave to be represented by Ms Elizabeth Moran, of DLA Piper. Southern Cross Care’s grounds for doing so were that the Application would be more efficiently dealt with if Southern Cross Care were represented by a legally qualified representative who specialised in employment law, because the factual matrix of the Application was complex and the Application involved the interpretation of applicable legal authorities in relation to remedy. Southern Cross Care also submitted that leave to be represented should be granted because it does not have any in-house legal expertise.

[7] Mr Ahmed, who was unrepresented, opposed leave being granted on the grounds that Southern Cross Care is a large employer who has in excess of 1200 employees and an internal human resource department headed by Mr Geoff Weaver (Mr Weaver) who has had the carriage of this matter from the outset and the capacity to effectively represent Southern Cross Care.

[8] In Warrell v Walton,¹ the Federal Court held as follows:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterized as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”

[9] Having considered the submissions of the parties, leave for Southern Cross Care to be represented by a lawyer was denied. To grant leave for Southern Cross Care to be represented in circumstances where Mr Ahmed was not represented would create unfairness. The only matter in contest between the parties is remedy and the factual matrix is relatively simple. The officers of Southern Cross Care available to represent Southern Cross Care include Mr Weaver. Mr Weaver holds a senior human resource role overseeing a HR Department with seven employees for an organisation with more than 1200 employees and has experience in appearing in conferences before the Fair Work Commission (Commission) as well as instructing counsel in hearings. Satisfied that Southern Cross Care could be effectively represented by its officers, leave was refused and Southern Cross Care was represented at the hearing by the Southern Cross Care Head of Resources, Mr Weaver and Ms Tamara Wheatcroft, ‎Southern Cross Care Senior HR Business Partner.

Background

[10] Mr Ahmed commenced employment with Southern Cross Care in its Community Options Program as a Support Worker (Supervisor) on 4 February 2011. 2

[11] On 21 January 2016, Mr Ahmed’s then line manager, Ms Amy Farrell (Ms Farrell), informed Ms Filomena Tobiolo (Ms Tobiolo), Southern Cross Care’s Senior Human Resources Business Partner, that a staff member, Ms Ruiha Welfare (Ms Welfare), had reported to her than Mr Ahmed and his colleague were going home during their night shift. 3

[12] On 27 January 2016 Ms Tobiolo interviewed Ms Welfare and made a contemporaneous file note in which she recorded that Ms Welfare did not wish to participate in the investigation in relation to the allegations that Mr Ahmed was going home during shifts because she was fearful of Mr Ahmed. 4

[13] On 9 March 2016 Ms Booka Nile (Ms Nile) was appointed Acting Team Leader at Bentley House and became Mr Ahmed’s line manager. 5

[14] At a staff meeting held on 9 March 2016, the appointment of Ms Nile as Acting Team Leader and the appointment of Ms Sara Prijic (Ms Prijic) as second in charge was announced to the team. 6 Ms Nile was not involved in the decision to appoint Ms Prijic. Ms Nile says that, at that meeting, Mr Ahmed falsely accused her of appointing Ms Prijic because she was a friend of Ms Nile’s. At the same meeting, Ms Nile says that Mr Ahmed unfairly accused her of playing favourites in the selection of a staff member as the ‘champion of the month’.7 Ms Nile said that Mr Ahmed did these things in front of other staff members in an intimidating manner which caused her significant embarrassment and stress.8

[15] On 23 March 2016 and 29 March 2016, Mr Ahmed sent Ms Nile emails which contained allegations about her conduct. Ms Nile believed these allegations to be unfounded and unreasonable and lodged a grievance against Mr Ahmed. 9

[16] On 29 March 2016, Mr Ahmed was stood down pending an investigation into Ms Nile’s grievance. 10

[17] A meeting scheduled to be held on 31 March 2016 to discuss Ms Nile’s complaint was rescheduled to 4 April 2016 due to the unavailability of Mr Ahmed’s preferred support person. Mr Ahmed refused to attend the rescheduled meeting due to the presence of Ms Tobiolo who he says had improperly pressured Ms Welfare to make a formal report about Mr Ahmed’s alleged absence from the workplace during night shift. 11

[18] Mr Ahmed eventually agreed to attend a meeting on 7 April 2016 at which allegations were put to him that he had raised vexatious grievances about Ms Nile with the intention of damaging her reputation and had enlisted other staff to support him. He was advised that a further meeting would be held on 13 May 2016 to give him an opportunity to respond to the allegations. 12

[19] On 10 May 2016 Mr Ahmed indicated he would not attend the scheduled meeting unless various allegations he had raised were investigated. He was advised by letter dated 11 May 2016 that his allegations would be discussed at the meeting scheduled to be held on 13 May 2016 and that his attendance at the meeting was mandatory and considered a lawful workplace direction. 13

[20] Mr Ahmed failed to attend the meeting on 13 May 2016 and was subsequently informed in writing that Southern Cross Care considered his actions a frustration of contract. 14

[21] Southern Cross Care subsequently became aware that a farewell party was being held for Mr Ahmed because he planned to move interstate. 15 On 24 May 2016 Southern Cross Care wrote to Mr Ahmed informing him that if he did not advise them otherwise they would conclude he was abandoning his employment and would pay out his outstanding entitlements.16

[22] Mr Ahmed’s response was equivocal 17 and he was asked again in a subsequent email sent to him on 25 May 2016 to confirm his intentions.18 He replied again in an equivocal manner.19 On 30 May 2016, in the absence of any clear confirmation that he intended to remain employed by Southern Cross Care, Mr Ahmed was informed by letter from Southern Cross Care dated 30 May 2016 that his employment would be treated as having come to an end by frustration of contract, effective from 13 May 2016.20

[23] In its submissions filed pursuant to the Directions, Southern Cross Care conceded that Mr Ahmed was not afforded procedural fairness when his employment was terminated on 13 May 2016. 21

[24] It was not contested, and I am satisfied, that Mr Ahmed was protected from unfair dismissal by virtue of s.382 of the FW Act and was dismissed unfairly. 22 Accordingly, I am required to determine what, if any, remedy is appropriate in the circumstances.

Remedy

[25] Section 390 of the FW Act sets out the remedies available where the Commission is satisfied that a person protected by the FW Act from unfair dismissal is found to have been unfairly dismissed.

“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.”

[26] Reinstatement is the primary remedy for unfair dismissal. An order for payment of compensation may only be made where reinstatement is not appropriate and where an order for compensation is appropriate in all the circumstances of the case.

Reinstatement

[27] Mr Ahmed seeks reinstatement. 23

[28] Southern Cross Care submits reinstatement would be inappropriate in the circumstances for the following reasons, which collectively resulted in a breakdown in the necessary trust and confidence between the parties:  24

(a) Mr Ahmed intentionally caused distress to a client with a personality disorder;
(b) a number of employees are fearful of Mr Ahmed whom they found to be intimidating; 25
(c) Mr Ahmed maliciously raised grievances about Ms Nile with the intention of damaging her reputation, and enlisted other staff to support him in this endeavour;
(d) Mr Ahmed repeatedly refused to follow lawful and reasonable instructions to attend investigatory/disciplinary meetings; and
(e) Mr Ahmed abandoned his employment.

resulting in a breakdown in the necessary trust and confidence between the parties.   

[29] Trust and confidence is a necessary ingredient in any employment relationship. Where trust and confidence have been lost, reinstatement may be impracticable. The reason for loss of trust and confidence must however be soundly and rationally based. 26

[30] Ms Nile gave evidence in relation to the allegation that Mr Ahmed caused distress to a client with a personality disorder and in relation to the allegation that Mr Ahmed intimidated co-workers.

[31] Ms Nile commenced employment with Southern Cross Care as a Mental Health Worker in January 2013. She was Acting Team Leader at Southern Cross Care’s facility at Bentley from 9 March 2016 until 1 August 2016 when she was appointed Team Leader at the Mount Claremont facility. In her role as Acting Team Leader she was the direct line manager of Mr Ahmed. 27

[32] Ms Nile alleges that, one evening in 2015 Mr Ahmed commented to her that ‘nobody is unwell – it’s boring’ and then proceeded to intentionally cause distress to a client with a personality order by asking her questions inconsistent with her care plan. 28 Ms Nile says that another staff member, Ms Alana Kelly, told her that she didn’t want to work with Mr Ahmed because he interacted with clients inappropriately by trying to ‘rile them up’.29

[33] Ms Nile also alleges that Mr Ahmed had sought to intimidate or bully her on a number of occasions. For example, on or around 6 March 2016, she says that Mr Ahmed, accompanied by several other male staff members, wrongly accused her of providing information in relation to an investigation that staff, including Mr Ahmed, were going home to sleep during their night shift. At a staff meeting held on or around 9 March 2016, she says that Mr Ahmed falsely accused her of promoting a friend. At the same meeting she says that he unfairly accused her of playing favourites in the selection of a staff member as the ‘champion of the month’. She said that he did these things in front of other staff members in an intimidating manner which caused her significant embarrassment and stress. 30

[34] Ms Nile also alleges that another staff member had told her she was being bullied by Mr Ahmed, 31 and that the previous Team Leader, Amy Farrell, told Ms Nile that she had resigned because should couldn’t face dealing with Mr Ahmed any longer.32

[35] On 23 March 2016 and 29 March 2016, Mr Ahmed sent Ms Nile emails which she says contained unfounded and unreasonable allegations about her conduct. 33 Ms Nile says that she had only recently been appointed to the role of Acting Team Leader, and that given a number of these allegations didn’t concern Mr Ahmed and were dated back over two years, she believed the emails were a deliberate and malicious attempt by Mr Ahmed to undermine her self-confidence and her capacity to perform her acting duties.34

[36] Ms Nile says that these various events caused her to feel intimidated by Mr Ahmed and that this adversely affected her health and she began to look for alternative employment. On 30 March 2016 she also filed a grievance against him alleging that his conduct amounted to harassment in breach of Southern Cross Care’s policies. 35

[37] Following the filing of Ms Nile’s grievance, Mr Ahmed was stood down. Ms Nile says that she became concerned that Mr Ahmed would blame her and, given that he lived opposite the workplace, might come and confront her. She says that this raised her level of anxiety even higher. 36 Ms Nile says that on one occasion her manager, Ms Christa Riegler (Ms Riegler), the Acting General Manager of Mental Health, pulled her aside and told her Mr Ahmed was attending the office and that Ms Nile should get a colleague to walk her to her car in case Ms Nile crossed paths with Mr Ahmed.37

[38] By way of cross examination, Mr Ahmed challenged the veracity of Ms Nile’s memory because she was unable to remember the exact dates on which the incidents she complained about occurred. He also challenged the truthfulness of the allegation that he intentionally caused distress to clients, in light of Ms Nile’s admission that she did not raise his conduct with him at the time nor make any informal or formal record or report of the event. 38 There is also no evidence that, despite being aware of allegations by other staff members that Mr Ahmed caused clients distress, Ms Nile reported this or those staff members reported this.39

[39] Mr Ahmed challenged Ms Nile’s assertion that she was intimidated by, and fearful of, him by tendering a photograph of Ms Nile at a party at his home in November 2015. 40 He also questioned how reasonable her fear of him was by suggesting that there was nothing inappropriate about the manner in which he and his colleagues raised with her their concerns about her involvement in the investigation into staff going home during night shift or his use of the grievance procedure to raise the allegations contained in his emails of 23 and 29 March 2016.41

[40] Ms Nile says that she didn’t raise her concerns about him causing a patient distress at the time, and that she attended the social event at his home, because she wanted to stay on the ‘right side’ of Mr Ahmed because she was aware that he was bullying other staff members and she was fearful of him targeting her. 42 Subsequently, she conceded under cross examination that her relationship with Mr Ahmed did not substantially breakdown until his emails of 23 and 29 March 2016, which she found distressing and humiliating.43

[41] Ms Tobiolo is the Senior Human Resources Business Partner at Southern Cross Care. 44 Ms Tobiolo gave evidence in relation to the allegation that Mr Ahmed failed to follow lawful and reasonable instructions, including refusing to participate in an investigation into allegations of misconduct by him and refusing to attend disciplinary meetings on 13 May 2016 and 4 April 2016. She also gave evidence in relation to the allegation that a number of employees were intimidated by Mr Ahmed.

[42] Ms Tobiolo gave evidence that, in or around January 2016, in the course of investigating an allegation that Mr Ahmed was going home during his night shift, she spoke to an employee called Ms Ruiha Welfare (Ms Welfare). According to Ms Tobiolo, Ms Welfare declined to give evidence against Mr Ahmed because she was scared of him. Ms Tobiolo attached to her witness statement her contemporaneous file note of her conversation with Ms Welfare. 45 Ms Tobiolo also gave evidence that another employee, Ms Alicia Norval, also reported to her that she felt intimidated by Mr Ahmed. Similarly, Ms Norval declined to formalise her complaint. Ms Norval was not called as a witness.46

[43] Mr Ahmed says that little weight should be given to the allegations raised by these women or the assertion that they were fearful of him because both women declined to formalise their allegations about him and neither were called as witnesses to give evidence with respect to their allegations or with respect to their alleged fear of Mr Ahmed. 47

[44] As part of her role, Ms Tobiolo was required to undertake an investigation into the grievance raised by Ms Nile in relation to Mr Ahmed’s emails of 23 and 29 March 2016. 48 Ms Tobiolo gave evidence that Mr Ahmed was provided with written directions to attend the meetings on 4 April 2016 and 13 May 2016 but refused to comply with those directions.49 She also gave evidence that he had previously refused to attend a meeting with his then line manager, Ms Lisa Burtenshaw (Ms Burtenshaw), on 17 December 2015 despite advice from Ms Tobiolo that such a direction was lawful and reasonable and he was obliged to comply with it.50

[45] Ms Tobiolo conceded in cross examination that Mr Ahmed did eventually attend a meeting with Ms Burtenshaw and that no disciplinary action was taken in relation to the conduct which was the subject of the meeting. 51 In his defence, Mr Ahmed says that he refused to attend the meeting on 4 April 2016 because Ms Tobiolo was to attend and he believed her involvement in previous matters involving him indicated that she might not be objective.52 There is no evidence before me to indicate that Mr Ahmed’s assertion that Ms Tobiolo would not act objectively was reasonable or any grounds why, as the Senior Human Resource Business Partner, it was not appropriate that Ms Tobiolo attend the meeting.

[46] Mr Weaver gave evidence in relation to the allegation that Mr Ahmed repeatedly refused to follow lawful and reasonable instructions to attend investigatory/disciplinary meetings and that Mr Ahmed abandoned his employment. Mr Weaver is Head of Human Resources for Southern Cross Care. 53

[47] Mr Weaver gave evidence that Mr Ahmed had made complaints about 12 other employees and that complaints had been made about him by four employees (Ms Nile, Ms Tobiolo, Ms Welfare and Ms Morbell). The implication Mr Weaver sought to draw was that the extent of grievances involving or relating to Mr Ahmed had detrimentally affected Southern Cross Care’s confidence that Mr Ahmed could work effectively with his colleagues if he were to be reinstated. Mr Weaver conceded that Ms Welfare and Ms Morbell declined to formalise their complaints and were not called as witnesses with respect to their allegations or with respect to the assertion that they were fearful of Mr Ahmed, but he suggested this was consistent with his assertion that they were fearful of Mr Ahmed. 54

[48] Mr Weaver also provided evidence, in the form of attachments to his witness statement, of the contemporaneous correspondence between Southern Cross Care and Mr Ahmed in relation to Southern Cross Care’s efforts to investigate the allegations made against Mr Ahmed, Mr Ahmed’s refusal to fully participate in the investigation process, the written directions given to Mr Ahmed to attend various meetings and the efforts of Southern Cross Care to establish whether Mr Ahmed had abandoned his contract. 55 Mr Weaver submitted that Mr Ahmed’s unreasonable refusal to attend the meetings as instructed demonstrated a challenging and unnecessarily argumentative approach incompatible with reinstatement.56

[49] Mr Weaver gave evidence that the introduction of a new centralised rostering system intended to better match staff with client demand would mean that it would be extremely difficult to guarantee that Mr Ahmed and Ms Nile might not be required to work together. 57 On occasion this might involve them being the only two staff rostered on a night shift together.58 Mr Weaver submitted that, given Ms Nile’s assertion under oath of her fear of Mr Ahmed, this would make reinstatement impractical.

[50] In support of Mr Ahmed’s Application, Ms Francine Cherubino, a Mental Health Recovery Partner for Southern Cross Care, gave evidence that she was not ‘enlisted’ by Mr Ahmed to sign the grievance contained in Mr Ahmed’s email of 29 March 2016 and signed of her own free will. She says that she repeated those concerns in another email she separately forwarded to Southern Cross Care which was received positively by Southern Cross Care in contrast to the response Mr Ahmed received. 59 Mr Christopher Dissanayake and Mr Ryan Chisanga, both also Mental Health Recovery Partners, also gave evidence that they were not ‘enlisted’ by Mr Ahmed and signed the email of 29 March 2016 of their own free will.60 Mr Ahmed submitted that this is proof that the allegations that he enlisted other staff to intimidate Ms Nile was therefore baseless.

[51] Whether Mr Ahmed was guilty of some or all of the allegations levelled against him, it is clear that Southern Cross was entitled to and, in fact, was obliged by its own policies to investigate the allegations. Given the evidence led by Mr Ahmed and his witnesses, had Mr Ahmed participated in the investigation as directed he may well have cleared some or all of Ms Nile’s allegations or perhaps been given a written warning. Certainly dismissal does not appear on Mr Weaver’s evidence to have been a ‘fait accompli’ at that point.

[52] However, Mr Ahmed refused on more than one occasion to comply with a lawful and reasonable direction by his employer to attend investigation meetings so that it could discharge its obligation to investigate the allegations made about him and afford him procedural fairness. His refusal to comply with the direction also prevented Southern Cross Care from properly investigating the allegations he had raised and affording procedural fairness to Mr Ahmed and those about whom he had made allegations. Further, Mr Ahmed’s decision to leave Western Australia is inconsistent with an intention to continue to discharge his obligations under his contract of employment.

[53] Mr Ahmed’s conduct has justifiably undermined Southern Cross Care’s trust and confidence in him such that I am not satisfied the relationship can be restored if Mr Ahmed was reinstated.

[54] Mr Ahmed’s concession that he refused to attend the investigation meetings because he believed he would not be given justice 61 and that he had lost respect for higher management62 suggests that the breakdown of the relationship was mutual.

[55] In addition, Ms Nile appeared genuinely fearful of contact with Mr Ahmed and I am satisfied that it would be impracticable within the new business model for Southern Cross Care to guarantee that Ms Nile would never have to work with Mr Ahmed if he were reinstated.

[56] In the circumstances, I am satisfied that reinstatement is inappropriate.

Compensation

[57] Subsection 390(3)(b) of the FW Act provides that an order for compensation can only be made if it is appropriate in all the circumstances.

[58] I am satisfied that an order for compensation is appropriate in all the circumstances of this case to compensate Mr Ahmed for the losses attributable to Southern Cross Care’s failure to afford him procedural fairness given that, for the reasons articulated above, reinstatement is impracticable.

[59] Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[60] The method for calculating compensation under s.392 of the FW Act was dealt with by a Full Bench of the Commission in Ellawala v Australia Postal Corporation (2000) Print S5109 at [31]. This methodology has been adopted below.

[61] Mr Ahmed was earning an average of $1367.12 gross per week at Southern Cross Care. 63

[62] I am satisfied that, but for Mr Ahmed’s failure to unequivocally confirm that he had not abandoned his employment with Southern Cross Care, Mr Ahmed would have remained employed for only so long as it was necessary for Southern Cross Care to terminate his employment in a procedurally fair manner for failure to comply with its lawful and reasonable directions that he attend investigative meetings. I am satisfied that Southern Cross Care could have comfortably discharged their obligation to afford Mr Ahmed procedural fairness and have dismissed him in compliance with the FW Act within 4 weeks from 13 May 2016.

[63] The amount the Applicant would have received but for his dismissal is therefore $5468.48 gross.

[64] Mr Ahmed has earned $6,748.10 gross in remuneration for employment during the period since the dismissal and the date of the Determinative Conference. This amount must be deducted from the compensation to be ordered.

[65] Given that the amount earned since his termination exceeds the amount of compensation awarded, it is therefore unnecessary for me to consider any income likely to be earned under subsection 392(2)(f).

[66] I find it is not appropriate in the circumstances that a contingency should be applied.

[67] I am also satisfied that there are no other matters which warrant an increase or reduction in the amount of compensation to be ordered.

[68] Consideration of whether any order for compensation will affect viability of Southern Cross Care’s enterprise in accordance with subsection 392(2)(a) is unnecessary in the circumstances.

[69] I find that Mr Ahmed’s period of service with Southern Cross Care, being less than 6 years, should not affect the amount of compensation to be ordered.

[70] In considering whether Mr Ahmed has taken steps to mitigate the loss suffered as a result of the dismissal, I should take into account whether he acted reasonably in the circumstances. 64 I find that Mr Ahmed has made efforts in accordance with his obligations under subsection 392(2)(b) to mitigate the loss suffered as a result of the dismissal.

[71] It is not necessary to separately take into account Mr Ahmed’s misconduct pursuant to subsection 392(3) as this has already been reflected in the amount of compensation awarded.

[72] In accordance with subsection 392(4), the amount of compensation calculated does not include a component for shock, humiliation or distress.

[73] In the circumstances, it is not necessary for me to apply the compensation cap contained in subsection 392(5).

Conclusion

[74] Considering all of the circumstances of this case, I am satisfied that an order for reinstatement or compensation is not appropriate. An order to this effect (PR589501) will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S Ahmed, Applicant.

G Weaver and T Wheatcroft for the Respondent.

Hearing details:

2016.

Perth:

October 31.

Final written submissions:

Applicant, 10 October 2016

Respondent, 17 October 2016

1 Warrell v Walton [2013] FCA 291 at [24].

 2   Exhibit R3, Witness Statement of Geoffrey Weaver, (Exhibit R3) at [9]-[10] and Attachment GW1.

 3   Exhibit R2, Witness Statement of Filomena Tobiolo, (Exhibit R2) at [13].

 4   Exhibit R2 at Attachment FT3.

 5   Exhibit R1, Witness Statement of Booka Nile, (Exhibit R1) at [1]-[7].

 6 Exhibit R1 at [21].

 7 Exhibit R1 at [25].

 8   Exhibit R1 at [21]-[28].

 9   Exhibit R1 at [29]-[36].

 10 Exhibit R3 at Attachment GW3 and Exhibit R1 at [37].

 11   Exhibit R3 at Attachment GW4.

 12   Exhibit R3 at Attachment GW7.

 13   Exhibit R3 at Attachment GW10.

 14   Exhibit R3 at Attachment GW13.

 15   Exhibit A3, Witness Statement of Shah Ahmed, (Exhibit A3) at Attachment A-11a and Exhibit R3 at Attachment GW17.

 16   Exhibit R3 at Attachment GW17.

 17   Exhibit R3 at Attachment GW18.

 18   Exhibit R3 at Attachment GW19.

 19   Exhibit R3 at Attachment GW20.

 20   Exhibit R3 at Attachment GW21.

 21   Exhibit R4, Respondent’s Submissions, (Exhibit R4) at [3].

 22   Transcript PN9.

 23   Exhibit A4, Applicant’s Submissions, (Exhibit A4) at [20].

 24   Transcript PN58.

 25   Exhibit R2 at [14], [17]-[18].

 26   Perkins v Grace Worldwide (Aust) Ltd (1997) 72 IR 186 cited in Nguyen v IGA Distribution (Vic) Pty Ltd[2011] FWA 3354.

 27   Exhibit R1 at [1]-[7].

 28   Exhibit R1 at [8]-[14].

 29   Transcript PN634.

 30   Exhibit R1 at [16]-[29].

 31   Transcript PN116.

 32   Transcript PN527.

 33   Exhibit A3 at Attachment A-2a.

 34   Transcript PN516 and PN522.

 35   Exhibit R1 at [30]-[36].

 36 Exhibit R1 at [35].

 37 Exhibit R1 at [37].

 38   Transcript PN128, PN156, PN159-PN162.

 39   Transcript PN641-PN645.

 40   Transcript PN193 and PN208.

 41   Transcript PN275.

 42   Transcript PN208 and PN640.

 43   Transcript PN611, 595.

 44 Exhibit R2 at [3].

 45 Exhibit R2 at [14].

 46   Exhibit R2 at [17]-[18].

 47   Transcript PN725-PN727.

 48 Exhibit R2 at [8].

 49   Exhibit R2 at [9]-[10].

 50 Exhibit R2 at [15].

 51   Transcript PN744-PN746.

 52   Exhibit R3 at GW4.

 53 Exhibit R3 at [4].

 54   Transcript PN833-PN843.

 55   Exhibit R3.

 56   Transcript PN1024.

 57   Transcript PN537-PN555, PN1265.

 58   Transcript PN565.

 59   Exhibit A6, Witness Statement of Francine Cherubino.

 60   Exhibits A7 and Exhibits A8, Witness Statements of Christopher Dissanayake and Ryan Chisanga.

 61   Transcript PN1036.

 62   Transcript PN1189.

 63   Transcript PN1151.

 64   Biviano v Suji Kim Collection PR915963 at [34].

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<Price code C, PR589500>