Mr Stephen Woodward v Greyhound Australia Pty Ltd

[2015] FWC 2570

[2015] FWC 2570

FAIR WORK COMMISSION

DECISION

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

Mr Stephen Woodward
v
Greyhound Australia Pty Ltd
(U2014/11992)

COMMISSIONER CLOGHAN PERTH, 31 JULY 2015

Application for relief from unfair dismissal.

[1] This is an application by Mr Stephen Woodward (Mr Woodward or Applicant) seeking a remedy for alleged unfair dismissal from his former employer, Greyhound Australia Pty Ltd (Greyhound or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] At the hearing, Mr Woodward was represented by Mr Glenn Ferguson, Senior Projects Officer, Transport Workers’ Union of Australia, Western Australia Branch (TWU). Mr Woodward gave evidence on how own behalf. Mr Phillip Ogden, a former bus driver, gave evidence for the Applicant.

[4] Greyhound, with the leave of the Commission ([2015] FWC 2105), was represented by Ms Libby Mussared of Herbert Smith Freehills. Ms K Henningsen gave evidence on behalf of the Employer. Mr Tulp’s written witness statement was admitted into evidence without the necessity of cross-examination.

[5] This is my decision and reasons for decision on Mr Woodward’s application.

RELEVANT BACKGROUND

[6] The Applicant is a 57 year old driver.

[7] The Applicant commenced employment with the Employer as a Bus Driver on 5 November 2013.

[8] Mr Woodward’s letter of termination of employment dated 8 August, 2014 relevantly provides:

“I refer to incident on 4 August 2014, where it was alleged that:

• You failed to follow your allocated run service timetable



• Drove a Greyhound vehicle for an extended period of time whilst reading a document. On this occasion you were observed to have limited control over the vehicle



• Used a mobile phone to make a phone call, while the vehicle was stationary and not parked.

The Company has now considered the information you provided and the information substantiated throughout the recent investigation. These three incidents are of great concern to The Company.

Your conduct at this time shows that you were driving without due care and attention. More specifically, Greyhound considers driving a vehicle for an extended period of time whilst reading a document to be a serious breach. As such, The Company believes that your behaviour does not display what is expected of an employee at Greyhound Australia and the decision has been made to terminate your employment.

Your employment with The Company will be terminated effective immediately…”

[9] Mr Woodward has admitted his behaviour, fully cooperated with the Employer and apologised for his conduct.

[10] The TWU does not “shy” away from Mr Woodward admitting to his conduct, however, asserts that such behaviour “would normally be handled by performance management processes and re-training to assist and refresh employees in the standards required...[further] no consideration [was] given to the impact upon the life of a 57 year old Applicant”. 1

[11] The Employer submits that the termination of Mr Woodward’s employment was not “harsh, unjust or unreasonable” and that the three incidents, “either separately, or taken together, provide Greyhound with a valid reason for the termination of Mr Woodward’s employment”. 2

[12] What were the three incidents?

Failure to follow his run sheet

[13] Mr Woodward’s run sheet (which is essentially an itinerary) required him to drop employees off at 5:45 am at ISBL Beach for a “toolbox meeting”. Mr Woodward was required to leave ISBL Beach at 6:45 am and transfer the employees at their worksite. However, at approximately 6:20 am, the toolbox meeting finished and some employees boarded the bus.

[14] Mr Woodward’s evidence is that “some [passengers] told me they were all on the bus and it was OK to go” 3. Rather than waiting until 6:45 am, Mr Woodward took the employees to their worksite destination.

[15] On returning to the Greyhound depot, Mr Woodward informed his Supervisor that he left earlier than 6:45 am. The content of the discussion between Mr Woodward and his supervisor, Mr Paul Ferguson will be discussed later in this Decision.

[16] On 5 August 2014, Greyhound received an email from Bechtel complaining of Mr Woodward’s early departure from ISBL Beach. Mr Woodward completed a “request for a Statement Form”. Mr Woodward states “as pax [passengers] told me all were on I considered although it was early I thought it was better than having supervisors complain pax sit for 20 mins doing nothing instead of working” 4.

Use of a mobile phone

[17] The conduct which led to Mr Woodward’s dismissal was that he used a mobile telephone, “while in the driver’s seat of his bus and while the bus was stationary and not parked. The bus was in a designated pick up/drop off point. The mobile phone was hand held and not affixed to the vehicle” 5. Mr Woodward’s action was in breach of the Employer’s Greyhound Australia Mobile Phone Usage Whilst in Control of a Vehicle procedure (WHS-PR0007) (MPP).

Reading the run sheet

[18] Video footage demonstrates that Mr Woodward “had driven at over 25 km/hr reading a document (his run sheet) for approximately 20 seconds (according to the Applicant, 14 seconds) during which time it was observed that he had limited control of the vehicle 6.

[19] Mr Woodward asserts that he had control of the vehicle.

[20] The Employer submits that, “whilst not every breach of an employer’s lawful and reasonable direction (such as a policy) will automatically give rise to a valid reason for termination, the character of the relevant policies (being policies directed at workplace health and safety) and the nature of these breaches (engaging in conduct potentially endangering the health and safety of other workers, and potentially impacting Greyhound’s obligations under safety legislation) strongly indicate the existence of a valid reason in his case” 7.

RELEVANT LEGISLATIVE FRAMEWORK

[21] There is no dispute between the parties that Mr Woodward has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration is ss.385 and 387 of the FW Act.

[22] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal

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) ...
(d) ...”

[23] The criteria for whether a dismissal is harsh, unjust or unreasonable can be found in s.387 of the FW Act and is 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.”

AGREED FACTS

[24] Mr Woodward and Greyhound have agreed to the following:

“3. The Applicant was dismissed for the following alleged offences:

(a) Failed to follow allocated run service timetable
(b) Drove a Greyhound vehicle for an extended period of time whilst reading a document, having limited control of the vehicle
(c) Used a mobile phone to make a phone call, while the vehicle – (Bus) was stationary.

4. The Applicant provided an explanation to the Respondent when requested in a timely manner regarding alleged offence (a)

5. The Applicant operated a mobile phone when the Greyhound vehicle – (Bus):

• Was stationary



• Whilst sitting in the driver’s seat of the Bus; then



• exiting the bus; then



• returning to the Bus; and



• Again operated a mobile phone from the driver’s seat whilst the Bus was stationary.

6. The Applicant was subject to the Mobile phone usage whilst in control of a vehicle policy

7. The Applicant attended from time to time regular tool box meetings that discussed mobile phone policy

8. The Applicant whilst in control of a Greyhound bus, in operation upon a roadway, did view a document – (run sheet) on several occasions whilst the bus was moving in a forward direction.

9. The Applicant was afforded procedural fairness throughout the investigation process.” 8

CONSIDERATION

[25] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[26] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[27] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.

[28] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 9. Further,

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 10

[29] This application is refreshingly unusual in that Mr Woodward admits to the conduct that led to his dismissal and that he was afforded procedural fairness during the disciplinary process. Accordingly, the Commission is required to determine whether there was a valid reason for Mr Woodward’s dismissal and are there any other matters which the Commission should take into consideration in accordance with s.387(h) of the FW Act.

[30] Greyhound submit that the three (3) incidents, separately or taken together, provide it with a valid reason for termination Mr Woodward’s employment 11.

Failed to follow Run Sheet

[31] Mr Woodward agrees he left ISBL Beach approximately 20 minutes early. Mr Woodward was advised that all passengers were aboard the bus and it was OK to go. Rather than have the passengers “kill” time and be kept away from their workplace (the passengers were at a “toolbox meeting”), he left earlier than the designated start time on his run sheet.

[32] On returning to the bus depot, Mr Woodward’s evidence is that he advised Mr Paul Ferguson, who stated to him that his actions were “Ok – not to worry, I had done the right thing” 12. Mr Paul Ferguson agrees that Mr Woodward spoke to him on his return to the depot but cannot recall what was actually said.

[33] I find it less than satisfactory that when Mr Woodward was interviewed on 7 August 2014 regarding the incident on 4 August 2014, it is specifically recorded that on returning to the depot, the Applicant spoke to Mr Paul Ferguson who indicated that the “leave time was an advisory time” 13. This was not followed up as part of the investigation. I have an email from Mr Paul Ferguson dated 5 December 2014 which, not unexpectedly, states that he cannot recall what was discussed between himself and Mr Woodward on 4 August 2014. In making this observation, I am not being critical of Mr Paul Ferguson but it appears that the Employer is, after the event, “papering over” some of the inadequacies of its investigation.

[34] Notwithstanding my previous observation, there is no dispute that the driver’s run sheet indicates “leave at the time instructed”, with an exception that is not relevant to the application.

[35] The Employer submits that its decision to terminate Mr Woodward for leaving early is sound, defensible and well founded on three (3) grounds. Firstly, four (4) months earlier, he had received a verbal warning for following his run sheet and missing a pick up. I have read Mr Woodward’s explanation and it would commonly be called a “stuff up” between himself and another driver. In light of the explanation, I do not consider Mr Woodward’s failure to adhere to the run sheet, as indicative of an employee who deliberately ignores a directive from the Employer.

[36] The second disciplinary matter relates to a written warning regarding the inappropriate manner of his comments and feedback on the STARRT card. While I was not provided with the comments or feedback, the conduct and penalty is not disputed.

[37] The third reason set out by the Employer to justify the dismissal, relates to the fact that “Mr Woodward was driving his bus on the roads at a time when he should not have been and, in doing so, put the health and safety of others at risk” 14.

[38] It is self-evident that in leaving ISBL Beach early, he was on the road at a time when he should not have been. However, because this is true, it does not automatically lead to the conclusion that Mr Woodward put the health and safety of others at risk.

[39] The Employer submits that, although none of the passengers on the bus were hurt or injured by Mr Woodward leaving ISBL Beach early, “this is irrelevant” 15. In describing somebody’s actions as unsafe and subsequently nothing untoward happens, common sense says that we should acknowledge the fact. We should take the circumstances into account, without conceding that the employee’s actions were a safe course of action.

[40] Just as Mr Woodward leaving his departure point on time, does not preclude the possibility of the passengers being in an accident, it is possible that Mr Woodward can depart early or late, and deliver his passengers safely to their destination.

[41] The fact is that Mr Woodward delivered his passengers safely to their destination. For the above reasons, I disagree with Greyhound when it states that such a fact is “irrelevant”.

[42] Finally, the Employer states, “ultimately, Mr Woodward wilfully disregarded unambiguous instructions not to leave his run early” 16. There is no dispute that he left his run early. However, there is no evidence to say that he left early “wilfully”, or deliberately or intentionally left early. A set of circumstance presented which enable him to leave early – he did so – and he explained the reasons why he left early.

[43] The simple fact is that Mr Woodward, when told that all passengers were on board, left early. Mr Woodward made the assumption that what he had been told by the passengers was correct. As we all know, assumptions can be the “mother of all stuff ups”.

[44] In the circumstances, I am not satisfied that conduct by Mr Woodard of leaving the ISBL Beach early, of itself, provided a valid reason to dismiss him from his employment. I have no reason to disbelieve his evidence that his purpose was to be beneficial to the Employer. Obviously, if the frequency of early departures increased for no reason, the Employer could properly come to the view that Mr Woodward had made deliberate decisions to ignore the Employer’s direction.

Use of a mobile phone

[45] On 6 August 2014, the Employer advised Mr Woodward that it would investigate an allegation that he “used a mobile phone to make a phone call, while the vehicle was stationary and not parked” in breach of the MPP 17.

[46] The purpose of the MPP is to ensure compliance with Australian Road Rules (ARR). According to Greyhound, the ARR “make it illegal for the driver of a vehicle to use a hand held mobile phone while the vehicle is moving (or while the vehicle is stationary but not parked). I am unsure of the authority for such an assertion, but it is not relevant for my purposes.

[47] The ARR are a set of rules to assist in the uniformity or consistency of road rules across all Australian jurisdictions.

[48] The ARR are not self-contained, they are to be read in conjunction with the laws of each jurisdiction.

[49] Sub rule 265(2) of the Western Australian Road Traffic Code 2000 states:

“A driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked unless…”

[50] This provision is similar to the ARR.

[51] The parties agree that Mr Woodward was subject to the MPP. The parties agree that Mr Woodward used his mobile telephone while the vehicle was stationary 18. Accordingly, the issue is whether, contrary to the MPP, it was “not parked”.

[52] There is no definition in the MPP of “parked”.

[53] In support of Mr Woodward’s alleged contravention of the MPP, Greyhound refers to a tool box meeting on 5 July 2014 19. The tool box meeting notes clearly indicate that drivers are strictly prohibited from using a mobile phone while driving a vehicle. The Employer does not allege that Mr Woodward was driving the vehicle when he used his mobile phone.

[54] However, it is the case that on 2 August 2014, Mr Woodward attended a tool box meeting in which Mr Crane is recorded as saying to those present that, “could drivers be aware of the Bechtel phone etiquette. It is a rule that if you want to answer a text or make a phone call, please turn off the engine and remove yourself from the driver’s seat” 20. (my emphasis).

[55] At the time Mr Woodward made the telephone call, the vehicle was located in a designated “pick up/drop off” point 21. It is not in dispute that Mr Woodward parked the bus, applied the maxi-brake and placed the gearbox in the “P” position. Passengers left the vehicle. Mr Woodward turned the interior lights out and left the bus. Mr Woodward visited the toilet, returned to the bus and sat in the driver’s seat and made a mobile telephone call to his wife22.

[56] I have not been provided with any definition of when a vehicle is “not parked” in the MPP for the purposes of “stationary and not parked”.

[57] I am uncertain as to whether the pick up and drop off point is a road for the purposes of the Road Traffic Code 2000.

[58] The ARR at R350 discusses stopping or parking on a road. R350 uses the alternatives of a driver who “stops” or “parks” a vehicle on a road. The definition of “stop” includes “park”. The definition of “park” includes “stop”. The definition of “park” includes the situation, whether or not, the driver leaves the vehicle.

[59] Ultimately, following a simple and straightforward line of reasoning, Ms Henningsen agreed the Mr Woodward, when sitting in the bus, the vehicle was both stationary and parked 23. As a consequence, the allegation must fail. Further, the allegation, even if sustained, was not a valid reason, of itself, to dismiss Mr Woodward from his employment.

[60] Contrary to the submission of Greyhound, I have no evidence to demonstrate that the MPP was, “developed for reputational reasons such as, drivers using mobile phones while in the driver’s seat adversely impacts Greyhound’s brand and reputation. Further, that this situation removes any temptation by drivers use their mobile phone while driving”. 24

[61] The Employer’s MPP concerns health and safety. Any attempt to incorporate “reputation” into the Policy undermines, in my view, its legitimate purpose regarding health and safety. The simple fact is that Mr Woodward may have breached Greyhound client’s (Bechtel) etiquette or rule.

[62] In view of the vagueness of the authority for such a Bechtel etiquette or rule, I am reluctant to come to the view that this was a breach of the Wheatstone Project LNG Project Information Handbook as asserted by the Employer. The Handbook relates to such “catch all” or generalised concepts such as employees being “accountable for…complying with project environmental safety health regulations…” 25

[63] Further, even if the Applicant’s conduct was a breach of the MPP, the conduct, of itself, was not a valid reason to dismiss Mr Woodward. It is hard to disagree with Mr Glenn Ferguson that, the conduct “is so trivial in nature – of such a small degree – with no consequences in terms of compromising safety of the Applicant and other persons that it cannot support a finding of a valid reason to terminate because it is fanciful to suggest that the behaviour was a deliberate breach of safety and constituted misconduct. It borders on an absurdity to reach such a conclusion” 26.

[64] On the evidence, I am satisfied that Mr Woodward used his mobile phone while the bus was stationary and parked in the pick up and drop off point.

Reading the run sheet while driving the bus

[65] Mr Woodward agrees that, while driving a Greyhound bus, he did, on several occasions, look at his run sheet.

[66] The allegation is that Mr Woodward carried out the action of looking at the run sheet for an “extended period”.

[67] Mr Woodward states that the lapsed time of looking at the run sheet was 14 seconds. The Employer states that it was for a period of approximately 20 seconds. The total journey time when Mr Woodward’s actions took place was approximately 20 minutes 27.

[68] The allegation also states “…you were observed to have limited control over the vehicle”.

[69] Mr Tulp does not refer to the video in his witness statement. Ms Henningsen appears to have viewed the video footage and asserts that Mr Woodward had “limited control of the vehicle”. Ms Henningsen does not state why she reached such a conclusion.

[70] Do I consider 20 seconds in relation to a journey of 20 minutes, an extended period of time? In my view, the problem with using the word “extended”, is that the Employer has formed a judgement rather than presented the facts.

[71] If “extended” is a judgement of the lapsed time of 20 seconds in a journey of 20 minutes, it is necessary to move from the idea of “quantity”, to the “quality” of Mr Woodward’s control over his vehicle.

[72] What does “limited control” mean? If it was meant to infer that Mr Woodward did not have complete control over his vehicle, then, as a matter of common sense, when the Applicant was looking at the run sheet, his eyes were not on the road for those 20 seconds. In such circumstances, is complete control the “test” as to whether a driver is complying with the Employer’s policies in relation to safe driving?

[73] The Employer’s evidence regarding all of the three allegations came from Ms Henningsen. At the time of the allegations, Ms Henningsen had been in the transport industry for approximately 15 months 28. Ms Henningsen was not familiar with bus driving procedures outside Greyhound29.

[74] Ms Henningsen had never driven a bus 30.

[75] Ms Henningsen conceded that the Employer does not have a policy document, or any document, which advises drivers not to read their run sheets while driving 31.

[76] Further, Ms Henningsen conceded that she was not aware of any instruction given to drivers regarding not to read run sheets while driving vehicles 32.

[77] Ms Henningsen gave evidence that the Employer views Mr Woodward’s actions as a serious breach of safe driving 33.

[78] Ms Henningsen was not aware, since Mr Woodward’s dismissal, whether the reading of run sheets by drivers had been raised by the Employer at tool box meetings 34.

[79] Ms Henningsen, quite properly, did not present her evidence as an “expert” in the transport industry. Ms Henningsen made the reasonable conclusion that when Mr Woodward was reading the run sheet, his eyes were not on the road, and some occasions, when he had the run sheet in one hand, he was only driving with one hand. From these facts, it was reasonable for the Employer to conclude that Mr Woodward did not have full control of his vehicle.

[80] Mr Ogden has been a driver for 11 years in both the private sector, and for a contractor, under contract, to the Public Transport Authority 35. Mr Ogden, at the time of the hearing, had been a TWU official for 10 months.

[81] Mr Ogden’s evidence is that in his experience (including himself), drivers glance at their “run sheets” while driving. This practice is adopted to ensure that the bus runs to designated times. Mr Ogden’s evidence is that, as long as drivers are only “glancing” at the run sheet, from time to time, it is a safe practice 36. Further, bus drivers also operate two-way radios while in traffic in conjunction with reading run sheets.

[82] In short, Mr Ogden’s evidence is that Mr Woodward’s actions were industry standard and he does not know of a driver being dismissed for such a practice.

[83] Mr Ogden agreed that driving on a construction site is different to roads in the metropolitan area 37. However, in his view, it still comes down to driving and having control of the vehicle. Having viewed the CCTV, he was of the view that Mr Woodward was in control of his bus.

[84] Mr Ogden’s was not cross examined on his experience or what he describes as “industry standard”. I have no reason to disbelieve his evidence, however, that does not make the practice safe or correct.

[85] I now turn to a matter which gives me some unease regarding this application.

[86] The “trigger” for the Employer’s investigation into Mr Woodward was a complaint by Bechtel that because he left ISBL Beach early, a number of workers were left behind.

[87] As part of the investigation, Ms Henningsen and Mr McDonald, General Manager-Express Operations, reviewed the video footage of the day in question and surrounding days. The purpose of viewing the CCTV footage was to see if Mr Woodward had actually left ISBL Beach early.

[88] However, Ms Henningsen’s evidence is that, “Greyhound had also been directed by Bechtel to review video footage of drivers as part of a safety crack down” 38. As part of reviewing the video footage, the Employer came to the view that Mr Woodward had committed, “two other very serious safety breaches” – that is, the use of the mobile phone and reading the run sheets while driving.

[89] Quite clearly, the revelation of Mr Woodward’s very serious safety breaches was serendipitous.

[90] I am not, for one moment, being critical of the Employer for pursing the issues revealed in the CCTV footage. However, the Employer has, in the space of days, gone from not having a specific policy/instruction relating to drivers reading a run sheet while driving a bus, to dismissing an employee for same action. If the Employer thought that there was an underlying safety issue with such a practice, I would have considered it reasonable for it to bring it to the attention of the employees, and advise them of the consequences of not adhering to such instruction. For the Employer to adopt the course of action it did, leads to a conclusion that Mr Woodward’s dismissal was capricious, if not, spiteful. As Selvachandran states, a valid reason attempts to balance, in a practical way, the needs of employees and employers.

[91] A “safety crack down” is not a gap into which dismissed employees are thrown down, until a safety objective is achieved; it has to be more sophisticated.

[92] If reading run sheets is a safety issue for Greyhound, it should be put into some safe work practices or policy and discussed with employees in the first instance.

[93] In this instance, there was no foundation to the safety issue, however, the Employer moved immediately, with the benefit of serendipity, to the extreme consequence of dismissing Mr Woodward for such alleged unsafe driving.

[94] To make matters more difficult for the Employer, while it asserts that these matters were “very serious safety breaches”, it could not give evidence to the Commission to confirm that these matters had been addressed at tool box meetings on site 39since Mr Woodward’s dismissal. To be fair to Ms Henningsen, she gave evidence that she does not attend all tool box meetings on site40. However, from the evidence, I am not confident that the Employer has addressed, since Mr Woodward’s dismissal, what it considers to be serious safety concerns.

s.387(b)–(h)

[95] The parties agree that Mr Woodward was afforded procedural fairness in its investigation which led to the Applicant’s dismissal 41. Further, there are no matters which the Commission considers relevant and should be taken into account that have not been considered above.

CONCLUSION

[96] I am not satisfied, either separately or taken together, the Employer had a valid reason to dismiss Mr Woodward from his employment. I find that the Applicant was unfairly dismissed from his employment pursuant to s.385(b) of the FW Act.

[97] I now turn to the appropriate remedy for Mr Woodward’s unfair dismissal.

REMEDY

[98] Section 390 of the FW Act provides as follows:

“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.”

[99] Section 392 of the FW Act provides for compensation as follows:

“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.”

[100] I do not intend to consider remedy until the parties have had the opportunity to provide any evidence and make submissions to the Commission on the matter. However, this does not prevent the parties in reaching agreement on an appropriate remedy without determination by the Commission. Such an agreed remedy should be reached within fourteen (14) days of the date of this Decision.

[101] My Associate will contact the parties and advise of a directions conference, if the parties have not reached an agreement on remedy within 14 days of this Decision.

COMMISSIONER

Appearances:

G Ferguson, of the TWU, on behalf of the Applicant.

L Mussared of counsel, on behalf of the Employer.

Hearing details:

2015:

Perth,

13 April.

 1   Exhibit A1 paragraphs 1 and 2.

 2   Exhibit R1 paragraph 7.

 3   Exhibit A4 paragraph 12(a)

 4   Exhibit R5 paragraph 15

 5   Exhibit R1 paragraph 13

 6   Exhibit R1 paragraph 21

 7   Exhibit R1 paragraph 30

 8   Exhibit A3

 9   Brink v TWU PR922612 at paragraph [7]

 10   King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

 11   Exhibit R1 (7)

 12   Exhibit A4 (12)(c)

 13   Exhibit R5 (18)

 14   Exhibit R1 (12)

 15   Exhibit R1 (12)

 16   Exhibit R1 (12)

 17   Exhibit R5 (16)

 18   Exhibit A3 (5)

 19   Exhibit R5 (12)

 20   Exhibit R5 (13)

 21   Exhibit R2 (26)

 22   Exhibit A4 (10) and Exhibit R5 (18)

 23   Transcript PN516

 24   Exhibit R6 (23)

 25   Exhibit R6

 26   Exhibit A1 (24)

 27   Transcript PN599

 28   Transcript PN458

 29   Transcript PN460

 30   Transcript PN557

 31   Transcript PN461

 32   Transcript PN463

 33   Transcript PN464

 34   Transcript PN479 and PN464

 35   Exhibit A5

 36   Exhibit A5

 37   Transcript PN411

 38   Exhibit R6 (31)

 39   Transcript PN470 and PN479

 40   Transcript PN470

 41   Exhibit A3 (9)

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