Ms Frances Boon v Taramore Pty Ltd T/A Ontraq Haulage
[2011] FWA 5749
•5 SEPTEMBER 2011
[2011] FWA 5749 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Frances Boon
v
Taramore Pty Ltd T/A Ontraq Haulage
(U2011/7289)
COMMISSIONER CLOGHAN | PERTH, 5 SEPTEMBER 2011 |
Application for unfair dismissal remedy.
[1] On 21 April 2011, Ms Frances Boon (“the Applicant”) made application to Fair Work Australia (FWA) alleging that she was unfairly dismissed on 19 April 2011 from her employment with Taramore Pty Ltd trading as Ontraq Haulage (“the Employer”).
[2] The application has been made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[3] The application was unable to be resolved at conciliation and was referred to me for arbitration.
[4] At the hearing, Ms Boon was represented by Ms Papa, Transport Workers’ Union. Ms Boon gave evidence in support of her application. Mr Kevin Otway represented the Employer. Mr Otway is a Director and Chief Executive Officer of Ontraq Haulage. Mr Otway gave evidence, as did his daughter, Ms Kelly Otway. Ms Rene Hook also gave evidence on behalf of the Employer.
[5] As part of the procedural directions, both parties provided documentation to the Tribunal and, with the exception of ten purported witness statements from persons who did not give evidence, were incorporated into proceedings. Having received the documentation, heard oral evidence and submissions, I reserved my decision. My decision and reasons for the decision follow.
RELEVANT BACKGROUND FACTUAL MATTERS
[6] Ms Boon commenced employment with the Employer on 27 August 2009 as a yard person. At the time of her termination of employment, Ms Boon was employed as a Receivals Officer.
[7] On 19 April 2011, Ms Rene Hook came into the Employer’s haulage to have her vehicle transported to Karratha.
[8] Ms Hook had a discussion with Ms Boon which concluded with her attending Mr Otway’s office. The content of this discussions is the subject of conflicting evidence.
[9] Ms Hook had a discussion with Mr Otway which resulted in him going to Ms Boon’s work area. Following an exchange, which is subject of differing evidence, Ms Boon’s employment ceased.
[10] On or about 4 May 2011, Ms Boon received an Employment Separation Certificate from the Employer which states that the “owner terminated employee” and that the reason for employment separation was due to “unsatisfactory work performance” 1.
[11] Ms Kelly Otway completed the Employment Separation Certificate on 27 April 2011.
[12] Among Ms Otway’s duties, she is the Payroll Officer and Human Resources Officer for the Employer.
[13] As part of her termination payment, Ms Boon received one week’s pay in lieu of notice.
[14] Ms Boon commenced alternative employment on 16 July 2011.
EVIDENCE OF MS BOON
[15] Ms Boon outlined the Employer’s usual procedure for dispatching goods as follows. A Receivals Officer would meet/greet the person dispatching goods. A description of the goods and destination would be documented on a consignment note. Ms Boon would ensure that goods were located in the appropriate area for dispatch by truck. The documentation or consignment note would be collected by the office staff.
[16] On 19 April 2011, Ms Boon gave evidence that a person, who she now knows to be Ms Rene Hook, arrived at the Employer’s premises to have her vehicle transported to Karratha. Ms Boon asked Ms Hook to reverse her car into the Karratha bay for dispatch and meet her in the office area to complete the paperwork. While Ms Hook was undertaking this request, Ms Boon obtained an iced coffee from the jiffy van which had just arrived 2.
[17] Part of the consignment note requires details of who is paying freight charges. As Ms Hook left the payee details blank, Ms Boom enquired as to who was paying freight charges. According to Ms Boon’s evidence, Ms Hook stated:
“Oh, I don’t know. Mum discussed it with Kevin [Mr Otway] and they’ve got it worked. She said, ‘it’s going to Peter Spence [Ms Hook’s stepfather]. Do you know Peter Spence?’ I said, ‘no’. She then said, “well, Mum and Kevin have got this arranged. I’m just dropping the car off and mum said to make sure the keys go to Kevin, and he knows all about it’. So I said, ‘well, that’s Kevin’s office over there’, gave her the con note to take it through” 3.
[18] Due to the fact that Ms Hook, and her boyfriend, Mr Gazia, who had now joined her, did not have appropriate footwear, Ms Boon escorted both in the direction of Mr Otway’s office. Ms Boon returned to her work area 4.
[19] Before reaching her work area, Mr Otway approached Ms Boon. Ms Boon described her discussion with Mr Otway as follows:
“[79] And at that time, what was Mr Otway's demeanour like towards you when he confronted you?---Very, very agitating. He was, like, shrieking at me, "I don't pay you to go and have coffee," and it was - yes, it was just - - -.”
“[80] Okay. So can you explain exactly what happened when Mr Otway confronted you?---When he confronted me, he was just screaming about me; accusations about being rude to clients. "This is the daughter of one of my biggest clients. How dare you be rude. You are here to do the job. You're not paid to be rude to clients and you're finished. You can get out. Go and find another job." But, even after that he still continued on about, "I've had enough." Honestly, it's just - - -.”
“[81] At any stage did Mr Otway say to you the words, or words to the effect, "If you can't treat our customers correctly, you should look for another job"?---No. He said, "I don't pay you to be rude to my clients. You're finished. You can get out. Go and find another job.”
“[82] What did you say to Mr Otway when he accused you of being rude to Ms Hook?---It took a while, because it's very hard to speak to Mr Otway when he's in that phase, and when there was a moment, I said, "I was not rude." That's the only words I could say, "I was not rude," but you have to fit those words in between.”
“[83] Why were they the only words that you could fit in?---Because there's no - you can't speak back to him. You're not given an opportunity to respond.”
[20] Ms Boon denies being rude either to Ms Hook or Mr Otway on 19 April 2011. 5
[21] Ms Boon did not know who Mr Spence was 6, nor was she advised to expect a customer who would be transporting a vehicle to Karratha at Mr Spence’s expense.
[22] Apart from Mr Otway, Ms Hook, Mr Gazia there was only one other person to witness the confrontation between Ms Boon and Mr Otway and that was Ms Sarah Davidson 7.
[23] On 4 May 2011, Ms Boon received her Employment Separation Certificate from her Employer. The Certificate, which is dated 27 April 2011 states that the reason for separation is “Unsatisfactory performance” and in response to her request for further details, it states, “owner terminated employee” 8.
[24] Ms Boon found alternative employment on 16 July 2011 as a trades assistant.
[25] Mr Otway cross-examined Ms Boon extensively on their discussion, which the Applicant asserts, led to her termination of employment.
[26] Ms Boon did not resile from her evidence that Mr Otway terminated her with the words, “you are finished. You can get out. Go and find another job” 9.
[27] However, Ms Boon conceded that in what she described as Mr Otway’s “outburst” 10, he may have said:
“If you can’t treat my customers correctly you should look for another job” 11.
[28] In cross-examination, while the issue of Ms Boon’s performance was raised, I am satisfied that this issue did not go to the principal reason which led to the Applicant’s employment ceasing.
EVIDENCE OF MS KELLY OTWAY
[29] Ms Otway is the daughter of Mr Otway and a Director and a 25 percent shareholder in the Company.
[30] Ms Otway was not present at the incident between Mr Otway and Ms Boon 12.
[31] Ms Otway gave evidence in chief that she had not been briefed on the “incident” by her father 13.
[32] Ms Otway agreed she was the author of the Employment Separation Certificate and the statements contained within the document 14.
[33] Ms Otway gave evidence that her statements in the Employment Separation Certificate were, “just a human writing error when I completed it” 15.
[34] Notwithstanding Ms Otway’s evidence that it was a human error, she also gave evidence that her knowledge about the incident came from “another person” 16 and, “from limited knowledge that I heard from other people in the office”17.
[35] Ms Otway spoke to no other person other than Ms Davidson concerning the incident between Mr Otway and Ms Boon 18.
[36] In cross-examination, Ms Otway informed the Tribunal that she had discussed the incident on or about 20 April 2011 with Ms Davidson and that, “Boon was no longer with us because she was rude to a client” 19.
[37] Ms Otway could not give an explanation why she did not speak to her father about the incident or why she assumed that she had been terminated.
[38] Ms Otway sought, on a number of occasions in her evidence, to emphasise that she made an assumption following her discussion with Ms Davidson, rather than gain an “impression” of what happened.
[39] After putting “owner terminated employee”, Ms Otway considered it appropriate that Ms Boon receive one week’s pay in lieu of notice 20; this action was consistent with Ms Otway have written “SACKED” on her timesheet which was provided as part of the Employer’s response to the application alleging unfair dismissal.
EVIDENCE OF MS HOOK
[40] Ms Hook’s written statement of evidence is as follows:
“...I arrived and found my way to the “reception” area where I requested to a girl behind the counter to see Kevin with reference to my car.
The girl responded that she was just going to get a coffee and would deal with me shortly guy appeared from an office (later to find out it was Kevin) and addressed the girl quote ‘that his customers are not to be greeted like this and the coffee can be had later and if you cant or wont do this then I suggest you look for another job’
The girl said OK then disappeared...” 21.
[41] In cross examination, Ms Hook conceded that her mother, Jeanette Spence wrote her witness statement. Notwithstanding this, Ms Hook gave evidence that she read and signed the statement. The signature is in capitals and when asked whether her signature is similar to that of her sister, which is also at the bottom of the statement, replies, “I don’t think I’ve seen my sister’s signature” 22.
In examination in chief Ms Hook was asked:
“Tell the court exactly what happened to your recollection accurately, please?---Yes. I went to drop my car off at Ontraq for it to be taken up to Karratha. As I arrived - I was with my boyfriend and I walked - I was told that I had to meet with Kevin, because Kevin was the one that was sorting it out with my stepfather, and as I went inside, I asked the lady if she could please point me in the direction of Kevin and she turned around to me and she said, "Can you just wait. I am going to get a coffee from the Jiffy van," so I stood there. She took me inside and by this point my partner had arrived, and she got me to fill in the forms for my vehicle to be taken to Karratha and I said to her - I said, "Look, can I please speak to Kevin. I've been asked to speak to Kevin because of the whole payment thing," and she refused for a while. She just stood there and she just gave me the paper and said, "Sign here," and I said, "I don't know anything about the payment. Can I please speak to Kevin," and then she went in to find Kevin. She came back out and another girl with a Scottish accent came out, and I said, "Can you please find me Kevin, because I need to speak to him about my car." As Sarah came out - I think her name was Sarah - I said to her - I said, "Look, the lady that was helping me was really rude to me." I said, "I need to speak to Kevin in regard to my car. That's what I've been advised to do," so she went and Kevin came out. I said to Kevin that she was rude to me and he asked me why. I just said, "Look, her attitude towards me wasn't the best. I've never really been spoken to as a customer like that." Then he went up to the lady - sorry, I don't know what her name is - and said to her, "Were you rude?" and she started yelling at Kevin and said, "No, I wasn't rude." Kevin basically just said, "If you can't be nice to my customers and treat my customers with respect, you need to leave," and she stormed off in a huff. I was walking out with my partner and on the way back in she turned around to me and she said, "Thanks very effin' much. You just got me effin' fired".” 23
[42] However, in cross examination, Ms Hook gave the following evidence in summary form:
• contrary to her written statement, she did not go directly to reception and speak to another staff member seeking Mr Otway;
• the initial engagement at the truck depot with Ms Boon, was consistent with Ms Boon’s evidence;
• that she was asked by Ms Boon to fill out the consignment note, which “I did that willingly, because obviously forms need to be filled out, and then it came to a payment. She asked how I was paying for it and how it was going to be dealt with. I said, “Look I was asked to speak to Kevin, because Kevin was dealing with it. He was due to expect me anyway and she goes, "Oh" - to be honest, I can't really remember what our conversation was about, but I know that I asked several times to speak to Kevin because of the whole payment arrangement. I hadn't sorted it out. It was my stepdad that sorted it out” 24. (my emphasis)
[43] Ms Hook’s version of the incident between Mr Otway and Ms Boon was that Mr Otway was “calm” and not “rude in any kind of way” 25.
EVIDENCE OF MR OTWAY
[44] Mr Otway gave evidence that Ms Boon commenced her duties prior to the designated starting time each day, was an average employee and despite having to speak to her on numerous occasions, agreed there were no performance notes on her file.
[45] Mr Peter Spence is the Area Manager of Decmil. Decmil occupy 45 to 50 percent of Ontraq Haulage premises at Barker Road for the Gorgon-Chevron Project. Mr Otway has worked with Decmil for 15 or 16 years and is a preferred carrier under contract 26.
[46] Mr Otway described Decmil as a “blue-chip customer” 27.
[47] Mr Otway and Mr Spence had a conversation regarding his stepdaughter attending the haulage yard to transport a vehicle to Karratha. Mr Otway agreed that he did not inform Ms Boon of the proposed consignment 28.
[48] When asked what did Ms Hook complain of regarding Ms Boon, he replied:
“Ms Hook told me that she has never been spoken to like that before. She felt belittled, right? She couldn't believe that she has been told to wait while someone went to the Jiffy van and got a coffee, right?...” 29.
[49] Mr Otway’s response to Ms Hook’s complaints are set out as follows:
“---I don't agree with it. I'm a disciplinarian and I didn't agree with it. I have a military background and a police force background, and I don't agree with that misbehaviour and treating my customers in that manner.” 30
“What do you mean you're a disciplinarian?---I make people have discipline.” 31
“So were you angry, were you upset, were you stern?---Weren't angry, upset. I was stern, but I spoke in a quiet tone, right, and raised the issue and told her what my problem was.” 32
“Did you give Ms Boon an opportunity to explain her side of the story?---She was shouting at me.” 33
“She was shouting at you?---Yes.” 34
“But you initially went up to her and accused her of being rude?---Didn't accuse her at all. I told her straight out and the lady, Ms Hook, was there. I told her she can't talk to my customer in that manner, right? If she's going to talk to my customers in that manner, she should look for another job.” 35
“You didn't ask Ms Boon her side of the story?---She was already shouting it out to me.
But if she was shouting out to you, wasn't that in response to you accusing her of this alleged behaviour?---Without being rude, do I have any rights as the owner and a manager to correct my people when they do something wrong?” 36
“You've confronted her. You've accused her of being rude to a customer?---I've told her what she has done wrong.” 37
“What you believe she has done wrong?---And what my client and my customer - and what has happened in the past experience with her.” 38
“So do you regularly address employee issues in this manner?---I address them where warranted, correctly. Like I said, being an ex-military person, an ex-police officer for over 20 years combined, that's the way I do business; straight to the point, down the line and tell them when they're doing and when they do good, I tell them when they do good. That is the way I conduct my business.” 39
[50] Mr Otway did not discuss the incident with his daughter, Ms Otway, even though she was responsible for human resources. His explanation for not doing so was that he is a “very busy person” 40.
[51] Finally, Mr Otway’s evidence of the incident with Ms Boon was as follows:
“...And that's the very first thing that you said?---No. I walked out and I said, "I've got a complaint here. You've been rude to this lady here,"who I did not know and I'd never seen her before, right? "You can't do that. If you're going to treat my customers like that, you should look for another job".” 41 (my emphasis)
[52] I now turn to the key statutory provisions.
RELEVANT LEGISLATIVE FRAMEWORK
[53] Section 385 of the Act provides:
“A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...; and
(d) ...
[54] The meaning of dismissal is contained in s.386 of the Act.
“(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.”
[55] The criteria for considering whether a dismissal has been harsh, unjust or unreasonable is contained in s.387 of the Act:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
CONSIDERATION AND CONCLUSION
[56] A number of facts in this application are in dispute. Of particular importance is the submission of Mr Otway that Ms Boon was not dismissed but left her employment after he stated, “if you can’t treat my customers correctly, you should look for another job” 42.
[57] Mr Otway made it clear to the Tribunal that Ms Boon left of her own accord. Mr Otway did not make the argument that, should I find that her employment was terminated at the Employer’s initiative, it was for performance reasons which were not unfair 43.
[58] Having heard the evidence and had the opportunity to consider the demeanour of the witness, I am satisfied that the exchange between Ms Boon and Mr Otway was anything but a reasonable and rational discussion between both parties. I am satisfied that the exchange is best described by Ms Boon as a “vitriolic outburst” 44.
[59] For reasons which I will explain later, it is important to ask the question, what was the content of this vitriolic outburst?
[60] It is notable in Mr Otway’s written statement, that he does not give evidence of what Ms Boon said in the incident, save to say that she was “very rude and argumentative” 45. Further, in his oral evidence when asked whether he gave Ms Boon an opportunity to explain her side of the story, he replied that, “she was shouting at me”46. The only evidence the Tribunal has of the words spoken by Ms Boon during the incident is that she repeatedly stated that she was not rude to Mr Otway47. This evidence is confirmed by Ms Hook.
[61] In Mr Otway’s cross examination of Ms Boon, the following exchange takes place:
“...yes, you accused me of being rude to a customer. That is correct. But, you did specifically say to me, "You're finished. You can get out. Go and find another job," but you were saying so many other things at the same time.” 48
“So you really wouldn't remember what I really said, because I was saying so many things?---I do remember specifically - - -.” 49
[62] Despite a very precise written witness statement by Ms Boon which set out the alleged words used by Mr Otway during the incident, Mr Otway does not challenge them specifically but responds with the generalisation that “I have read Boons (sic) statement it is totally incorrect, false...” 50. Further, in his oral evidence, he did not challenge the specific words he is alleged to have said by Ms Boon, but concentrated upon words which it is agreed he said, and which infer that the Applicant could make a choice as to whether she remained in his employment or not.
[63] I am satisfied from the evidence and find that the verbal exchange between Ms Boon and Mr Otway went beyond Mr Otway giving Ms Boon a choice as to whether she remained in his employment or not. I am satisfied that during the “vitriolic outburst”, Mr Otway used words of “you’re finished/get out/ you can find another job”.
[64] I find that the unambiguous words of the Employer of “you’re finished/get out/ you can find another job” should be regarded as terminating Ms Boon’s employment. I also find that Mr Otway used words to the effect that if Ms Boon can’t treat customers correctly, she should look for another job. Given the totality of the exchange, I find that the Applicant had a genuine and reasonable understanding that the outcome of the words used by Mr Otway were that she had been dismissed from her employment.
[65] Mr Otway may have used the words he did in the heat of the moment, however, in the totality of all the words used, their ordinary meaning was to terminate the contract of employment. Ms Boon, having taken these words at face value, considered she had been dismissed. Ms Boon retrieved her personal belongings. In support of my finding, I have considered the evidence of Ms Hook who gave evidence that Ms Boon said to her, “thanks very effin’ much. You just got me effin’ fired”, and wrote “SACKED” on her time sheet. Finally, following a discussion between Ms Otway and Ms Davidson, Ms Boon received an Employment Separation Certificate which sets out that she was terminated by the Employer for unsatisfactory work performance.
[66] Having found that Ms Boon was terminated at the Employer’s initiative it is necessary to consider the criteria as to whether the dismissal was harsh, unjust or unreasonable as set out in s.387(a) to (h) of the FW Act.
[67] Ms Boon gave evidence that she was unaware of any arrangement between Mr Otway and Mr Spence when Ms Hook arrived at the haulage yard to have her vehicle transported to Karratha.
[68] With respect to the initial interaction between Ms Boon and Ms Hook, I prefer the evidence of Ms Boon.
[69] During the interaction between Ms Boon and Ms Hook, it is common ground that Ms Boon went to the jiffy van to obtain a coffee. While this appears to be a principal reason for the allegations of rudeness, Ms Hook’s response in examination in chief was to say “okay” 51 when Ms Boon advised her she was going for a coffee as her boyfriend was walking towards her and she did not know where to go. Importantly, Ms Hook gave conflicting evidence as to when the issue of Ms Boon going for a coffee occurred. Having heard the totality of her evidence, I am satisfied that the action coincided with the request for Ms Hook to move her car to the Karratha bay52.
[70] Stripped to its essentials, the Tribunal has had to grapple with the factual issue of whether the alleged rudeness of Ms Boon towards Ms Hook was a valid reason to terminate her employment. Ms Boon openly gave evidence that she went to the jiffy van for coffee and did so while Ms Hook was moving her car to the Karratha bay. It is common ground that this occurred.
[71] Having said “okay” 53 to Ms Boon going and getting a coffee, I find Ms Hook, some time later saying to Mr Otway that, “I’ve never really been spoken to as a customer like that”54 inconsistent and misrepresentative of what actually occurred.
[72] At this point, it is necessary to recall that Mr Otway gave evidence that he had never met or known Ms Hook.
[73] Notwithstanding the fact that he had never met or known Ms Hook, Mr Otway immediately confronted the Applicant in her workplace, in front of another employee and clients and accused her of being rude to Ms Hook. I suspect that this environment led to the “vitriolic outburst” between Mr Otway and Ms Boon.
[74] In my view on an objective assessment of the Applicant’s conduct leading to, and the incident between Mr Otway and Ms Boon, these are not valid, sound or defensible reasons 55 for her termination of employment. I cannot come to the view that Mr Otway’s reaction to what allegedly happened between Ms Hook and Ms Boon was reasonable.
[75] With respect to s.387(b) of the FW Act, the evidence clearly indicates that Ms Boon knew of, but disagreed with, the reason for her dismissal.
[76] As to s.387(c) of the FW Act, I find that the only reliable evidence is that Ms Boon responded to Mr Otway that she was not rude to Ms Hook. The incident was not one which attracted rational discussion and consideration of respective views.
[77] The circumstances in which the dismissal was effected did not lend itself to a support person being present.
[78] Section 387(e) is not relevant and even if it was, the evidence was conflicting and the only sure piece of evidence was that there were no notes on Ms Boon’s employment file.
[79] Having regard to all the circumstances, it is unlikely that the Employer’s size or lack of a full time dedicated Human Resources Officer would have changed the incident which led to Ms Boon’s dismissal. While this is a subjective test, the evidence presented to the Tribunal was that neither Ms Otway, as the part time Human Resources Officer and a Director of the Company, nor her father, Mr Otway, who is also a Director and CEO of the Company, spoke about the matter of Ms Boon’s termination of employment.
[80] In conclusion, this application consisted of an enormous amount of conflicting evidence. However, having considered the totality of evidence, I am satisfied that Ms Boon was dismissed in clear and unambiguous language. Further, that this dismissal was unfair. In reaching this conclusion, I acknowledge that while the Employer’s own Employment Separation Certificate was challenged, it provides a clear contemporaneous assessment by Ms Otway following a discussion with a “third party” who was present at the incident.
REMEDY FOR UNFAIR DISMISSAL
[81] Section 390 of the FW Act states:
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA 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) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA 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.
[82] The Applicant has sought and found alternative employment. Further, the Applicant is not seeking reinstatement.
[83] Having heard all the evidence, my reasons for decision, and the Applicant’s request not to be reinstated, I am satisfied that reinstatement is not appropriate.
[84] As a consequence of determining that reinstatement is not appropriate, I am satisfied that an order for compensation is appropriate as provided for in s.390(3)(b) of the FW Act.
COMPENSATION
[85] The relevant parts of s.392 of the FW Act are as follows:
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), FWA 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 FWA considers relevant.
[86] Ms Boon’s employment ceased on 19 April 2011. On ceasing employment, Ms Boon received one week’s pay in lieu of notice.
[87] Ms Boon recommenced employment on 16 July 2011.
[88] By way of compensation, the Applicant is seeking 26 weeks pay less one week in lieu of notice and any income she received from her current employer 56.
[89] Ms Boon’s uncontested evidence was that she worked an average of 50 hours per week at $22 per hour.
[90] In view of the paucity of material and evidence before the Tribunal at the hearing, and in fairness to both parties, I will give them the opportunity to make further submissions and put forward witness evidence as to remedy. Having received that material, I will make a decision as to the appropriate compensation, if any, to be awarded to Ms Boon.
COMMISSIONER
Appearances:
Ms Papa, Transport Workers’ Union for the Applicant.
Mr Otway, for the Employer.
Hearing details:
2011:
Perth.
4 August.
1 Exhibit A2
2 Exhibit A1 paras 14 and 15
3 PN 74
4 PN 76
5 PN 85
6 PN 67
7 PN 78
8 Exhibit A1 para 22
9 PN 134 and 145
10 PN 134
11 PN 196
12 PN 261
13 PN 262
14 PN 265
15 PN 267
16 PN 262
17 PN 270
18 PN 332
19 PN 300
20 PN 336
21 Exhibit R2
22 PN 384
23 PN 364
24 PN 411
25 PN 414
26 PN 481
27 PN 482
28 PN 490
29 PN 507
30 PN 509
31 PN 510
32 PN 511
33 PN 512
34 PN 513
35 PN 514
36 PN 515
37 PN 525
38 PN 526
39 PN 529
40 PN 535
41 PN 532
42 PN 570
43 PN 572
44 PN 148
45 Exhibit R3
46 PN 512
47 PN 415
48 PN 148
49 PN 149
50 Exhibit R3
51 PN 373
52 PN 396
53 PN 373
54 PN 364
55 Selvachandran v Peterou Plastics Pty Ltd (1995) 62 IR 371 at 373.
56 PN 567
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