Murray Robinson v Hy-Performance Fluid Power Pty Ltd

[2011] FWA 6022

[2011] FWA 6022

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Murray Robinson
v
Hy-Performance Fluid Power Pty Ltd
(U2011/5541)

COMMISSIONER ROBERTS SYDNEY, 26 SEPTEMBER 2011

Application for unfair dismissal remedy - arbitration.

[1] This decision concerns an application lodged on 1 March 2011 by Mr Robinson (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by Hy-Performance Fluid Power Pty Ltd (Hy-Performance or the Company). The application was dealt with by a Fair Work Australia Conciliator on 28 March 2011 but the conciliation was unsuccessful.

[2] The Arbitration came before me for hearing in Brisbane on 11 July 2011. The Applicant appeared with his partner, Ms E Angelopoulos, and Mr Peter Robinson (Managing Director) appeared with Ms K Vercoe of HR People for the Company.

[3] The Applicant gave sworn evidence on his own behalf. Mr P Robinson, Mr Kelvin Hamilton (General Manager) and Mr Tim Young (Workshop Supervisor) gave evidence for the Company.

Background

[4] The Applicant was employed by the Company from 4 September 2006 until his employment was terminated on the grounds of alleged performance and behaviour issues. The Applicant is the brother of the Company’s Managing Director. The Applicant denies the veracity of the reason(s) relied upon by the Company for the termination. The Applicant claims that the termination of his employment was unfair. The termination letter was dated 21 February 2011 but it appears that it was not posted until 22 February 2011 and therefore not receivable by the Applicant before 23 February 2011. In any event, the Applicant was apparently aware on 21 February 2011 that his employment had been terminated. For its part, the Company maintains that the ending of the employment relationship occurred on 18 February 2011 by the Applicant’s action in not accepting a new demoted position by 6 pm on that day. All in all, I am satisfied that the employment ended on 21 February 2011. In any event, nothing turns on the exact date on which the Applicant’s employment ended.

The termination letter dated 21 February 2011

“Dear Murray,

RE: TERMINATION OF EMPLOYMENT

This letter is to confirm that your employment with Hy-Performance Fluid Power has been terminated as of 6:00pm on 18th February 2011.

Within recent correspondence and discussions we have clearly explained our concerns regarding your performance and attitude as leading hand. During the course of your employment, we feel we have provided you every opportunity and made every attempt to provide suitable employment with this company.

We asked you to take a week off to reflect on your less than effective work, and your attitude towards your fellow workers and managers. A scheduled meeting at 9am Friday 18th was set aside, you came unannounced 1 hour early and said you needed to be at another appointment at 9am. Despite this, Tim and Peter sat with you to discuss the situation and what you wanted.

It was clear to both Tim and Peter that you saw any complaint by anyone else here at Hy-Performance as being petty and it was a set up to get rid of you.

Peter requested you return between the hours of 3pm and 6pm the same day to sign copies of the same employment agreement that were express posted to you earlier in the week.

During the afternoon yourself and Peter exchanged text messages which culminated in a message from yourself saying that best you left to make everyone happy. This text plus the fact you did not show before the 6pm deadline was tantamount to job abandonment.

Payment of your final wages including annual leave accrued and Employment Termination Payment has been processed today. Please find attached your final payslip and PAYG Payment Summary - Employment Termination Payment, for your records.

We ask that you please return to reception at 51 Tradelink Rd Browns Plains, your company credit card and keys for all properties owned by Hy-Performance or Peter Robinson, by 5:00pm Thursday 24 Feb 2011.

We wish you all the best for the future.

Regards,

Kelvin Hamilton
General Manager
HY-Performance Fluid Power Pty Ltd”

Evidence

The Applicant

[5] The Applicant gave sworn evidence and submitted a witness statement 1. The Applicant said in his statement that the decision by the Company to demote him to a Welding Assistant constituted a termination of employment as it involved a significant reduction in duties.

[6] The Applicant went on to say, in summary:

• That Mr Young was provided to him as a support person on 11 February 2011 only after he asked why he wasn’t allowed to have a support person present at the meeting.



• That “There was no warning, my warning was a demotion with a significant reduction in duties and hours which I refused to accept which effectively led to my dismissal.”

[7] The Applicant’s witness statement goes on to set out in considerable detail his responses to performance and behaviour allegations against him. I have paid regard to that material.

[8] In further evidence, the Applicant said that on 18 February 2011 in a meeting with Mr P Robinson and Mr Young, he was not given an adequate opportunity to respond to any of the allegations against him and was told that the decision to demote him was final. At the meeting, he was shown statements collected from other staff detailing their concerns about working with him but he was previously unaware that such problems existed. He returned to work on 21 February 2011 and was again told that if he didn’t sign a new contract as a Welding Assistant his employment with the Company would be terminated. On 23 February he received a letter of termination.

[9] Nothing of significance to my decision making arose out of cross-examination.

Mr P Robinson

[10] Mr P Robinson gave sworn evidence and submitted a witness statement 2.

[11] Mr P Robinson said in his statement that the Applicant’s employment was suspended on 14 February 2011 on full pay to allow him to consider taking up a new position as Workshop Assistant/Welder in lieu of his Leading Hand role. “This position was a demotion from his current position as leading hand however there was no change in his hourly pay rate. This offer was made in an effort to keep Murray employed, as Hy-Performance could no longer afford to have Murray setting a poor example and disrupting production from his current position in management. Murray refused the offer and left the meeting.”

[12] The offer of the new position was again made on 18 February 2011 but was again rejected.

[13] Mr P Robinson went on to say: “In regard to the submission [by the Applicant] I state that Murray Robinson was afforded the opportunity to respond to the allegation of misconduct. I believe that he was afforded more opportunity than any other employee who conducted themselves in this manner would have been given. No other employee would have received the opportunities that Murray Robinson received. Due to the family relationship, we tried to find a way to keep Murray Robinson employed at Hy-Performance even though he was clearly not skilled for supervisory roles. His constant abuse of his relationship with me made ongoing employment uncomfortable for all parties concerned, but we still tried to locate something to retain him in the business. The demotion was a demotion of supervisory responsibility and not financial. Other employees in the business refused to work for and/or with him. This was our last attempt at offering him something to keep him here.”

[14] In cross-examination, Mr Robinson said that he had numerous informal discussions with the Applicant about his behaviour towards fellow employees. “I didn't make any diary notes of them. We were brothers. And I took it upon myself to try and mentor you through the trouble that you were having cooperating with people at work.” 3 He was then asked: “How did the discussions go?” and replied: “Murray, you need to pull your head in, put your head down and work harder. You're upsetting people.”4

[15] In further cross-examination, Mr P Robinson said that it was intended to mentor the Applicant through the demotion “and get you back up to the position that you held before. I told you that on many occasions.” 5

Mr Hamilton

[16] Mr Hamilton gave sworn evidence and submitted a witness statement 6

[17] Mr Hamilton said in his statement that the Applicant commenced work for Hy-Performance in 2006, initially as a Fitter. He then was allocated to the Gearbox and Fabrication Department, the Leading Hand of which initiated several meetings with Mr Hamilton “regarding problems with working with Murray. The problems were, not taking instructions, poor communication skills, wanting to do things his way and if not done then digging his heals in and dragging jobs out; and encouraging others to the same.”

[18] The Applicant later took over the running of the Gearbox and Fabrication Department and the former Leading Hand was moved to the Engineering Department. The decision to move the former Leading Hand was directly related to that person’s difficulties with the Applicant. Initially the performance of the Applicant in his new role “was sound with no real issues”. This situation did not continue and Mr Hamilton sets out a number of incidents and occasions where the Applicant allegedly failed to abide by instructions and was abusive to other employees.

[19] Mr Hamilton went on to say, in summary:

• That the Applicant ignored instructions concerning the building and handling of equipment.



• That the Applicant abused other employees in the presence of customers.



• That the Applicant “continually abused the system ordering parts without a purchase order and failing to fill in details.” When questioned about this the Applicant was abusive.



• That the Applicant ignored instructions not to build further gearboxes: “He was only doing it to keep his department busy and avoid any reduction in staff levels.”



• That two informal meetings were held with the Applicant on 9 and 10 February 2011 “to discuss his attitude and co-operation with others. After I had received 3 complaints from workers about them having difficulties working with Murray.”



• That he prepared a disciplinary memo following the meeting on 10 February 2011. This was handed to the Applicant on 11 February.



• “Murray was asked to leave the premises and suspended on full pay for one week to contemplate his future with HPFP as outlined in the notice. I requested he return to HPFP for a meeting on the 18th of February.”



• That he was responsible for the preparation of the termination of employment letter to the Applicant.

[20] In response to the witness statement of the Applicant, Mr Hamilton basically repeated the evidence of Mr P Robinson in reply to that statement.

[21] Attached to Mr Hamilton’s witness statement was a document headed “Unsatisfactory Performance/Discipline Memo” 7. The document is dated 10 February 2011 and bears a handwritten annotation: “Copy given to Murray 11.2.2011”. That document states, inter alia, that: “The specific conduct concerns that the company has are: Continues disruption and deliberate sabotage of the HPFP work environment. 1. Non co-operation with all team members ... 2. Not taking responsibility for your workshop or the tools and equipment in it ... 3. Deliberate entry of #12 Warehouses, knowing full well the area is restricted. 4. Poor attitude towards other team members, causing disharmony.”

[22] The memo concludes: “Continuation of unsatisfactory conduct described above will lead to the termination of your employment. Action required; HPFP no longer can afford to tolerate the poor attitude and non co-operation of Murray Robinson, continually contaminating the work environment and culture of the HPFP team, the ongoing costs of lost production and management/administration time to maintain every issue raised is unsustainable. HPFP will require Murray to take leave for 1 week, during that time we would ask that Murray consider if HPFP is the best work environment for him. On Friday the 18th 1 pm at #51 Tradelink road, Murray will be required to attend a meeting with Kelvin Hamilton, Peter Robinson and Dayna Robinson to discuss further employment with HPFP. Your conduct will be reviewed on 18-02-2011 to assess if HPFP and Murray Robinson can work together in a healthy work environment.”

[23] The memo states that the relevant meeting was conducted by Mr Hamilton with the Applicant and Mr Young, who is listed as the Employee’s witness. The memo is signed by Mr Hamilton and Mr Young and bears a notation that the Applicant refused to sign it.

[24] In cross-examination, Mr Hamilton said that:

• He has been employed by the Company for some 13 to 14 years.



• On numerous occasions the Leading Hand in the Gearbox and Fabrication Department complained about the Applicant. 8



• He told the Applicant on numerous occasions to stop making gearboxes. 9



• Several employees wrote out statements saying they could not work with the Applicant. 10



• Agreed that the Applicant did not have a support person of his choice at the meeting on 11 February 2011. 11



• He denied that the Applicant was demoted to Workshop Assistant before he had an opportunity to respond. 12

Mr Young

[25] Mr Young gave sworn evidence and submitted a witness statement 13. In summary, it was Mr Young’s witness statement that he was present at the meeting with the Applicant on 18 February 2011. At the meeting, discussion occurred with the Applicant concerning reduced hours he would be required to work. “He was then informed that his hourly pay rate had not changed but the reduced hours were in line for the work load we had on at the moment and it was also the same reduced hours that all staff were now on as has been previously discussed at our ‘toolbox’ meeting that we hold bi-weekly.” The Applicant had said at the meeting “that he would not be able to survive on those hours ...”

[26] Mr Young went on to say: “Murray assured both myself and Peter that he felt he was in no way wrong on any of the issues that had arisen with other staff. We then spoke to him of at least three employees within the last few days of him being back at work after holidays that he had upset for numerous reasons. The conversation centred on the above issues for approximately 30 minutes, he then informed us that he had another appointment and he would have to leave. He suggested that we would have to make a decision on his employment, we then told him the decision was his, and all he needed to do was sign the employment contract and return to work on Monday under the agreed conditions. He then refused to sign and said he would return when we had made a decision on his employment and sign the form. He was informed what was on the table would stand, with that he left the building.”

[27] Mr Young said that the meeting of 18 February 2011 was conducted following a letter to the Applicant dated 14 February 2011 from Mr Hamilton:

“This letter is to confirm that Hy-Performance Fluid Power Pty Ltd (Hy-Performance) will be providing you with five (5) consecutive days of paid leave commencing on 14 February 2011. You will be paid for your Ordinary Hours, no annual leave will be deducted but will continue to accrue as normal. In this time we ask that you reflect on your past performance and attitudes towards other team members during your time working for Hy-Performance and consider your future with Hy-Performance.

Management will be using this time to interview and take statements from Hy-Performance employees that have been directly affect by your behaviour. These statements will be filed along with the Unsatisfactory Performance/Discipline Memo issued on Friday 11th Feb 2011.

We invite you to come in for a meeting at 9am on Friday 18th Feb 2011 at 51 Tradelink Rd, Browns Plains. You may be accompanied by any other current Hy-Performance team member of your choosing, their role is to provide support and act as a witness to proceedings. In preparation to this meeting we ask that you consider how you intend on improving your performance and attitudes in the future, why you should continue to be employed by Hy-Performance and what you can offer the company in detail (ie. skills, leadership and administration abilities).

If it is agreed by all that your employment is to continue, Hy-Performance will provide counselling to help clear up any lingering issues / personal differences and to assist you in your understanding of the basic requirements of working as a team member of Hy-Performance. Also if your employment is to continue, your employment agreement and unsatisfactory performance/discipline memo must be signed before leaving the premises on Friday the 18th. Your employment agreement has been enclosed to allow you ample time to peruse the document and consider our terms of employment before Friday. You must bring this document with you to the meeting. Please be aware that the warning provided on Friday 11th of Feb 2011 was your final warning and any further misconduct will result in immediate dismissal.

If it is agreed at the meeting that your employment is to be terminated, you will be paid all annual leave accrued to date in addition to 4 weeks pay. We will also require the return of your company credit card and keys for all properties owned by Hy-Performance will be terminated should you fail to attend the meeting at 9am on Friday the 18th Feb 2011.

I hope that we can come to a resolution that will benefit all.”

[28] In cross-examination, Mr Young:

• Agreed that the Applicant’s demotion would have involved significantly fewer duties. 14



• Did not agree that the Applicant was not afforded the opportunity to have a support person when meeting with the Company. 15



• Said that he heard Mr Hamilton offer the Applicant the choice to have a support person present. 16

Submissions

[29] Both parties relied on written materials as filed and made brief oral submissions. I have paid regard both to the written and oral submissions.

Conclusions and Findings

[30] Firstly, I will deal with the threshold issue of exactly how the employment relationship between the Applicant and the Company came to an end. The arguments put forward by the Company were not easy to follow but appear to come down to this: The Applicant abandoned his employment or resigned by his action in not accepting a demoted position by 6 pm on 18 February 2011. This argument was maintained by the Company during proceedings despite the termination letter dated 21 February 2011. All in all, I am satisfied that Mr Robinson’s employment was terminated at the initiative of the Company as per the 21 February letter. If I am wrong in this assessment, the Company’s decision to demote the Applicant would in itself constitute a termination of employment. On the evidence of Mr Young, the new position would have involved significantly fewer duties. Further, on the evidence of Mr P Robinson, the new role was a demotion from supervisory responsibility to an assistant role. The Applicant’s hourly rate was not to change but the number of hours he would work was to be reduced thus giving rise to a significantly lower total wage. Section 386 of the Act clearly envisages such circumstances as being a termination at the initiative of the employer.

[31] I therefore find that the Applicant’s employment was terminated at the initiative of the Company. From the evidence and materials before me, it is clear that the reason for the termination of employment was a combination of performance and attitude issues attributed to the Applicant by the Company. By far, the major factor seems to me to have been the inability of the Applicant to get along with fellow employees and to follow lawful instructions given to him by his superiors. In this regard, I prefer the evidence of Company’s witnesses to that of the Applicant. It is apparent to me that the Applicant had significant attitude and behaviour problems at work and these finally gave rise to a decision by the Company to terminate his employment. The fact that the Applicant is the brother of the Managing Director delayed the termination occurring but also made its circumstances more bitter than it might otherwise have been. I believe that Mr P Robinson was truthful in his evidence in cross-examination when he said that the proposed demotion was intended to be accompanied by mentoring of the Applicant with the intention of returning him at some future date to a supervisory role in the Company.

[32] As the Applicant’s conduct is a reason or part reason given by the Company for the termination, I have to determine for myself whether the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 17:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

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 termination.”

[33] In Container Terminals Australia Limited v Toby 18, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”19

[34] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 20 said:

“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 reason 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 each treated fairly, ….”

[35] In Qantas Airways Ltd v Cornwall 21, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[36] In Edwards v Justice Giudice 22, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[37] As noted above, I have formed the view that the Company witnesses were truthful in their evidence concerning the conduct of the Applicant. On the basis of that evidence I believe that the conduct of the Applicant amounted to a species of misconduct. I accept that the actions of the Applicant over a considerable period of time gave rise to a situation which justified the Company in seeking to demote him and, when he refused to accept the demotion, to terminate the employment’s relationship. I have no doubt that the Applicant was basically a competent employee but he appears to have been unable to follow instructions when he held a contrary view. This led to conflict with his superiors who, quite rightly, expected their directions to be followed. The total effect was the failure of the company-employee relationship. I therefore find that there was a valid reason for the termination of the Applicant’s employment.

[38] I now turn to the question whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

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.”

[39] In Byrne v Australian Airlines 23, McHugh and Gummow JJ of the High Court said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[40] The question of valid reason is dealt with above.

[41] It is apparent from the materials and evidence, particularly that of Mr Hamilton, that a disciplinary memo was prepared on 10 February 2011 which makes findings against the Applicant without any formal process being conducted. That memo was then given to the Applicant at a disciplinary meeting on 11 February 2011. The Applicant was not permitted to have a support person of his choice at the 11 February meeting. Given the terms of the memo, it is apparent that the meeting of 11 February was never intended to involve seeking any meaningful response from the Applicant but rather, was held merely to present him with findings that had already been made.

[42] The next step was the issuing of the letter of 14 February 2011, which again was provided to the Applicant as a fait accompli. The sole purpose of the meeting on 18 February 2011 was to ascertain whether the Applicant would accept the fait accompli or not. Again, the Applicant was denied a support person of his choice at the meeting. The fact that Mr Young was a witness against the Applicant during proceedings clearly illustrates that he was not present at the 18 February meeting to assist the Applicant.

[43] I therefore find that the Applicant was notified of the reason(s) for the termination of his employment and further find that he was not given a reasonable opportunity to respond.

[44] I also find that the Company did not allow the Applicant a support person of his choice to be present during discussions with the Company which ultimately led to the termination of the Applicant’s employment.

[45] I am satisfied that the Applicant was warned about his unsatisfactory conduct during discussions with company representatives prior to the meeting on 11 February 2011. However, on the evidence of Mr Hamilton and Mr P Robinson, those meetings were informal. This is not surprising given the family relationship between Mr P Robinson and the Applicant and the size of the employer’s enterprise. Those warnings, albeit given informally, should have left the Applicant in no doubt as to the Company’s view of his conduct and I so find.

[46] The size of the employer’s enterprise (some 22 employees) is a factor which is likely to have impacted on the procedure followed in effecting the Applicant’s dismissal. On what is before me, I conclude that the Company is a medium-sized operation with no access to internal advice on industrial relations matters. This would have impacted significantly on the procedures followed in effecting the dismissal of the Applicant and I so find. The advice provided by Ms Vercoe of the HR People was only sought by the Company after the event. Her subsequent advice that the procedure followed by the Company in carrying out the termination was in accord with law and practice appears to have given the Company great comfort that it had acted appropriately. Ms Vercoe provided a statement 24 during proceedings as to her post-facto involvement. For my part, I am unable to see how any objective examination by Ms Vercoe of the procedures followed by the Company could lead to a conclusion that the process was fairly carried out.

[47] As noted above, it is not in issue that the Company does not employ dedicated human resources management specialists or possess any particular expertise within the enterprise relating to human resources management and I so find.

[48] Section 390 of the Act provides:

“390 When FWA may order remedy for unfair dismissal

(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.”

[49] In all the circumstances of this case, reinstatement would in my view be impractical and undesirable. I am unable to see how the employment relationship could ever be restored given the attitude of both sides and the fraught relationship between brothers. I therefore find that reinstatement is not an appropriate remedy in this case.

[50] Where reinstatement is not ordered, the Tribunal may order the payment of monetary compensation. Subsection 392(2) of the Act sets out the criteria for deciding a suitable level of compensation:

“(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.”

[51] In relation to subparagraph (a), I find that the effect of the order I intend to make will not have any obvious effect on the viability of the company. In relation to subparagraph (b), I have taken into account the duration of the Applicant’s employment with the Company. In relationship to subparagraph (c), I am satisfied that the Applicant’s employment prospects with the Company were extremely limited at the time of his dismissal and that he would not have continued in the employ of the Company for any significant period. In relation to subparagraph (d), I am satisfied that the Applicant has made efforts to mitigate his loss. I have also paid regard to subparagraphs (e) and (f). There is no other matter I consider relevant pursuant to subparagraph (g).

[52] Subsection 392(3) of the Act provides that:

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

[53] In the case before me, I am satisfied that a species of misconduct occurred and this provision is therefore relevant to my consideration. My assessment of the contribution by the Applicant towards the Company’s decision to terminate his employment can reasonably be set at 80 per cent.

[54] All in all, I find that the termination of the Applicant’s employment was procedurally harsh and an order will be issued that Company pay him a total of two weeks wages (less appropriate tax according to law) to be paid at the Leading Hand rate the Applicant was earning as at the date of the termination of employment. Should there be any dispute between the parties as to the monetary amount to be paid, the matter can be referred back to me for settlement within 14 days of the date of this decision. To avoid any doubt, that figure will not include any provision for overtime payments. I have arrived at the figure of two weeks wages after applying an 80 per cent discount to the amount of ten weeks wages which I would otherwise have awarded had the Applicant’s conduct not contributed to his own dismissal to such an extent. The sum awarded is to be paid within 14 days of the date of this decision.

[55] I wish to make it clear to the parties that my finding as to harshness is solely derived from my assessment of the fundamentally flawed process followed by the Company in effecting the dismissal. Given the facts of this case, had the Company followed a fair and transparent process, it would have been highly unlikely that any award would have been made in the Applicant’s favour given my views as to his conduct during the employment relationship.

[56] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’ in these proceedings.

COMMISSIONER

Appearances:

M Robinson with E Angelopoulos forthe Applicant.

P Robinson with K Vercoe for the Company.

Hearing details:

2011.
Brisbane:
11 July.

 1   Exhibit Applicant 1.

 2   Exhibit Respondent 1.

 3   Transcript PN169.

 4   Transcript PN170.

 5   Transcript PN176.

 6   Exhibit Respondent 2.

 7   Annexure A of Exhibit Respondent 2.

 8   Transcript PN222.

 9   Transcript PN264.

 10   Transcript PN343.

 11   Transcript PNs352-354.

 12   Transcript PN374.

 13   Exhibit Respondent 3.

 14   Transcript PN402.

 15   Transcript PN414.

 16   Transcript PN421.

 17   Print S4213, 17 March 2000.

 18   Print S8434, 24 July 2000.

 19   Ibid at para 15.

 20 (1995) 62 IR 371 at 373.

 21 [1998] FCA 865.

 22 [1999] FCA 1836.

 23 (1995) 185 CLR 410.

 24   Exhibit Respondent 4.

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