Nicholas Olson v Blue Mountains Water Brewery 1888 Pty Ltd

[2019] FWC 131

[2019] FWC 131

FAIR WORK COMMISSION

DECISION

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

Nicholas Olson
v
Blue Mountains Water Brewery 1888 Pty Ltd
(U2018/9239)

VICE PRESIDENT HATCHER SYDNEY, 25 JANUARY 2019

Application for an unfair dismissal remedy.

Introduction

[1] Mr Nicholas Olson (Mr Olson) has applied under s 394(1) of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of the termination of his employment with Blue Mountains Water Brewery 1888 Pty Ltd (Blue Mountains Water) at its ZigZag Brewery business in Lithgow. Mr Olson commenced employment as a casual labourer and delivery truck driver at the ZigZag Brewery, which was then owned and operated by Lithgow Valley Springs (Aust) Pty Ltd (Lithgow Valley), on 1 July 2017. In April 2018 the ZigZag Brewery business was purchased by Blue Mountains Water, which accepts that it commenced employing Mr Olson on a casual basis on 9 April 2018. On 30 August 2018 Mr Olson was notified of the termination of his employment, to take effect immediately, by telephone. The reason for this given at the time was that there no more work for Mr Olson, and in its Form F3 – Employer Response to Unfair Dismissal Application, Blue Mountains Water stated that Mr Olson was no longer required as an employee because he was “surplus to our employee needs”. However the Employment Separation Certificate sent by Blue Mountains Water to Centrelink stated that the reason for Mr Olson’s dismissal was “Unsatisfactory work performance”, with this being particularised as “Casual staff. Unsatisfactory teamwork.” Mr Olson contends that his dismissal was unfair, and seeks compensation as a remedy.

[2] Some procedural difficulties attended the determination of Mr Olson’s application. On 29 October 2018 the matter was listed for an initial telephone directions conference to occur on 30 October 2018. The notice of listing was issued to Mr Olson and to Ms Tracy Cui, the Director of Blue Mountains Water, via email. Ms Cui had been identified as the primary contact person for Blue Mountains Water in its Form F3, which was filed on 20 September 2018. The notice of listing required both parties to provide their telephone contact details prior to the commencement of the telephone conference. Mr Olson provided his telephone contact details in accordance with the notice of listing, but no response was received from Blue Mountains Water. The teleconference was attended by Mr Olson only. Attempts were made to contact Ms Cui or any other representative of Blue Mountains Water using the telephone contact numbers provided in the Form F3 prior to the telephone conference, but these were unsuccessful. This resulted in directions and listing for the hearing of Mr Olson’s application being made at the telephone conference in the absence of any representative for Blue Mountains Water. The directions required Mr Olson to file his evidence and an outline of submissions by 16 November 2018 and Blue Mountains Water to file its evidence and an outline of submissions by 3 December 2018.

[3] On 31 October 2018 a document containing the directions and notice of listing was sent to the parties. It was sent to Blue Mountains Water by email to the email address provided in its Form F3, and it was also sent by express post to the postal address provided in the Form F3. The document stated the following:

“The Respondent (Blue Mountains Water) failed to attend by telephone conference on 30 October 2018 at 4.30pm.

The attached directions have been made. If either party has any difficulty with the directions, they can email Vice President Hatcher’s chambers to request a further telephone hearing.”

[4] Mr Olson filed a witness statement made by himself and an outline of submissions on 15 November 2018.

[5] It subsequently became necessary to change the hearing date. On 16 November 2018, the parties were requested by email to advise if they were available to conduct the hearing on 20 December 2018. Mr Olson confirmed his availability, but Blue Mountains Water did not reply to the email. On 19 October 2018 an amended notice of listing was sent to the parties via email to notify them that the hearing date had been changed to 20 December 2018. A copy was also sent to Blue Mountains Water by registered post.

[6] Blue Mountains Water did not file its evidence or submissions by 5.00pm on 3 December 2018, as required by the directions, nor did it apply for any extension of time or alteration of the directions. At 5.41pm on 3 December 2018, Mr Olson sent correspondence to the Commission noting that Blue Mountains Water had failed to file any material in accordance with the directions and seeking instructions on how to proceed. Following receipt of this email, an email was sent from my chambers to Blue Mountains Water on 5 December 2018 which said:

“Dear Ms Cui,

Re: U2018/9239 – Nicolas Olson v Blue Mountains Water

I refer to the above matter.

We note that you have failed to comply with the attached Directions issued on 31 October 2018 which required you to file an outline of submissions, witness statements and other documentary material that you intend to rely on in opposition to the application in this matter by 5.00pm on Monday 3 December 2018.

If you would like to seek an extension to file your evidence and submissions, you must request the extension by sending an email to the Vice President’s Chambers and outline the reasons as to why the extension should be granted. In the absence of such an extension request being made and granted, the matter may be determined on the basis of the evidence and submissions filed by Mr Olson.”

[7] A copy of the above correspondence was also sent to Blue Mountains Water by registered post on 6 December 2018. There was no reply as such to this correspondence. However on 10 December 2018 Ms Cui sent an email to my chambers which simply stated:

“Hi,

I will attend this list by myself on time.

As Nicolas was casual staff, we just noticed him when there was no job for him. I am not sure any documents I need prepare.”

[8] This email was sent from the same email address to which all previous emails from the Commission to Blue Mountains Water had been sent.

[9] On 20 December 2018 Ms Cui attended the Commission in Sydney for the purpose of the hearing. Mr Olson did not personally attend under the mistaken belief that the hearing would not proceed because Blue Mountains Water had not filed any evidence or submissions. However, after some delay, Mr Olson’s attendance by telephone was arranged, and the matter was able to proceed. It was conducted as a determinative conference pursuant to s 398 of the FW Act (and not as a formal hearing pursuant to s 399), which meant there was considerable informality in the conduct of the matter. Mr Olson’s witness statement was admitted into evidence and, under affirmation, he was subject to some limited questioning by Ms Cui. Ms Cui did not seek to give evidence on oath or affirmation, nor would I have permitted this in any event given her unexplained failure to comply with the directions. Nonetheless Ms Cui made a number of assertions of fact in the course of explaining her position, and these were responded to by Mr Olson.

[10] I accept the evidence which Mr Olson gave through his witness statement and on affirmation. His account of what occurred was coherent and consistent, and was not the subject of any contrary evidence or serious challenge in cross-examination. To the extent that Ms Cui made various assertions of fact at the determinative conference which contradicted Mr Olson’s evidence or which were denied by him, I do not accept them. In any event, insofar as Ms Cui made allegations concerning Mr Olson’s conduct (discussed later in this decision), Ms Cui did not suggest that she was present when the alleged conduct occurred, and there were no contemporaneous records to corroborate the allegations. Her assertions in that respect cannot be accepted in the face of Mr Olson’s denials.

Facts

History of the employment

[11] As earlier stated, Mr Olson commenced employment at the ZigZag Brewery in Lithgow as a labourer and truck driver on or about 1 July 2017. His employer at that time was Lithgow Valley. Mr Olson’s evidence, which I accept, was that although employed as a casual he was expected by his employer to show up to work five days per week from the beginning of his employment. This expectation was communicated to him by the General Manager at the time, who did not want to have to ring the casual employees every day to inform them whether there was work the following day. He would occasionally be sent home upon arrival at the worksite if there was insufficient work, but he usually worked eight hours per day, five days per week. He was paid $23.51 per hour when working in the brewery, and $24.00 per hour when working as a delivery driver.

[12] In April 2018, Mr Olson and the other employees were informed that Blue Mountains Water would be taking over the ZigZag Brewery. Lithgow Valley represented that the employment of Mr Olson and the other employees would be guaranteed for a minimum of six months. The employees were also told that their conditions were the same. Ms Cui managed the business after Blue Mountains took ownership of it.

[13] Mr Olson commenced employment with Blue Mountains Water on 9 April 2018. He performed the same duties at the brewery as he did before. Mr Olson continued to regularly work five days per week, usually starting at 7.00am and finishing at around 3.30pm. The only occasions he did not work for five days were when he was sick, or when he was sent home or told not to come in because there was not enough water in the tanks to keep bottling. Mr Olson estimated that the latter eventuality occurred on three or four occasions in April-August 2018. There were 12 other employees at the ZigZag Brewery who, as far as he was aware, worked the same hours as he did.

[14] Mr Olson expected that he would continue working for Blue Mountains Water into the future. He was the only employee trained to run the beer bottling/sparkling water line and was the primary forklift operator, and his role was critical to the daily operations of the business.

[15] Mr Olson’s evidence was that Blue Mountains Water engaged 12 employees at the ZigZag Brewery site in Lithgow, but also had another five employees at a worksite in Auburn and two at Bowen Mountain. In its Form F3, Blue Mountains Water said it had 12 employees at the time of Mr Olson’s dismissal. It is not clear whether this refers to just the employees at the ZigZag Brewery site, or excludes some casual employees who were considered not to be employed on a regular and systematic basis, or simply contradicts what Mr Olson said. Blue Mountains Water did not contend in its Form F3 that its business was a small business and that the dismissal was consistent with the Small Business Fair Dismissal Code.

[16] Mr Olson’s payslips show that from about mid-August 2018 until his dismissal, he received less than 30 hours’ work per week. He explained that because of drought and the business’ failure to purchase top-up water, there was insufficient water to maintain production at full capacity and he was being sent home early because of insufficient work.

The dismissal

[17] On 29 August 2018, Mr Olson arrived at work as normal. A work colleague named Geoff told him that Ms Cui had sent a message on “WeChat”, a messaging and social media app, to the effect that there was no work for Mr Olson for the next two days. Mr Olson assumed that this was because the business had run out of bottle tops for the beer bottling machine. However he was upset that he had not been told there was no work the day before and had come into work for nothing. He said to the colleague words to the effect of: “Tracy could have [expletive] told me that there wasn’t any work for me”. He did not speak to Ms Cui that day.

[18] The next day (30 August 2018), Mr Olson received a telephone call from “Bruce”, 1 the accountant for Blue Mountains Water. A conversation to the following effect occurred:

Bruce: There is no work for you.

Olson: I know, so I’ll come in on Monday?

Bruce: No, there is no more work for you at all.

Olson: So you’re telling me that I’m fired.

Bruce: Yes.

Olson: Why?

Bruce: You need to talk to Tracy.

[19] Later the same day Mr Olson had a text message exchange with Ms Cui which included the following:

Olson Tracey. It’s Nick in Lithgow. Can we have a meeting soon to see where I went wrong. I thought I was an important cog in the bottling section. I could understand being dismissed if I had been warned of something and did wrong but I’ve never been written up. Plus I was finally getting the downstairs line running smoothly. Please allow me another opportunity. Was just telling Scott I had decided to do the truck license after all too.

Cui Hi Nick, it is better for you find other job, the reason we don’t run product line next week and maybe the following week too, no job for product line about 2 weeks, talk to you later, Tracy

Olson Why did you choose me? I know more about the bottling lines than everyone but Phil and Bernie. Btw. Phil said there was a weeks worth of sparkling to run. Why am I not part of that.

Cui No work for product line about 2 weeks

Olson I’m confused. Are you saying everyone has to look for a job or just me? Because I do have seniority over three others.

Cui It is better you is looking for other job, as there is no enough job for product line

[20] Mr Olson then applied to Centrelink for unemployment benefits, but was told that it was necessary for him to obtain a separation certificate from Ms Cui. He made a request to Ms Cui to provide the certificate, and she filled out the Centrelink’s standard-form separation certificate on 4 September 2018. Under “Reason for separation”, the form identified seven possible reasons (plus “Other”). Ms Cui placed a cross next to “Unsatisfactory work performance”, but not beside the reasons “Shortage of work” and “Redundancy”. Beside this the form said “Please give reason and/or further details”. Ms Cui filled in after this: “Casual staff. Unsatisfactory teamwork”. This response meant that Mr Olson was not eligible for Centrelink benefits including job placement services.

[21] There can be no doubt from Mr Olson’s exchanges with Bruce and Ms Cui that what occurred on 30 August 2018 was intended to be Mr Olson’s permanent dismissal from his employment with Blue Mountains Water, and not some form of temporary stand-down or period of non-engagement because of a short-term lack of work. Bruce readily accepted that Mr Olson had been “fired”, and Ms Cui’s messages to the effect that Mr Olson should look for another job constituted an unmistakeable communication that his employment with Blue Mountains Water had come to an end.

Reason for the dismissal

[22] What is less clear is what the real reason was for Blue Mountains Water terminating Mr Olson’s employment. There was no letter of termination and no evidence of any internal record of the dismissal. Bruce was not prepared to identify the reason for the dismissal in response to a direct question from Mr Olson, and Ms Cui was clearly being evasive in her responses to Mr Olson’s text messages. A reluctance to disclose the actual reason for the dismissal is clearly discernible. Insofar as Ms Cui’s referrence in the text message exchange to the production line being shut down for 1-2 weeks, Mr Olson accepted in his oral evidence that this had occurred because of quality control issues. However he said that there had remained a need for 3-4 employees to continue to work to conduct inspections during the shutdown, that employees less experienced than him were retained for this role during the shutdown, and that all employees (except him) were re-engaged after the shutdown ended. On the basis of this evidence, which I accept, I conclude that Mr Olson was not dismissed either because of the shutdown or because of some more general lack of work.

[23] The separation certificate filled in by Ms Cui on 4 September 2018, five days after the dismissal occurred, is the best contemporaneous evidence of the real reason for Blue Mountains Water’s dismissal of Mr Olson. It confirms that lack of work was not the reason for the dismissal, but rather that the real reason was unspecified concerns about Mr Olson’s “performance” and “teamwork”. I find that the separation certificate states the actual reason for the dismissal.

[24] It is convenient at this point to refer to the factual assertions advanced by Ms Cui at the determinative conference concerning the reason for the dismissal. Her position, as best I understand it, was as follows:

● there were two reasons for the dismissal;

● the first was that there was no more work for Mr Olson;

● the shutdown had occurred for 4-6 weeks because of a lack of water, during which all the casual employees were not engaged, and only painting and cleaning was done during this time;

● after this, Blue Mountains Water determined to cease engaging casual employees, and selected five full-time employees from the existing casual workforce for that purpose;

● the second reason was that Mr Olson had been involved in “at least two or three” arguments with other employees, including a manager, which had been reported to Ms Cui; and

● it was because of these arguments that Mr Olson was not selected as one of the five full-time employees who were retained.

[25] Ms Cui’s statement of the position of Blue Mountains Water lacks credibility. At the outset, there is the general difficulty that Ms Cui did not take advantage of the opportunity afforded by the directions to give evidence in relation to the matter in the normal way, so that the above propositions were simply self-serving assertions made at the determinative conference, without notice to Mr Olson, and were not made on oath or affirmation. The credibility of the above assertions is also diminished when they are compared to the following statement made in Blue Mountains Water’s Form F3 (which was signed by Ms Cui): “We are sorry that Nicholas feels he was unjustly dismissed, this was not a reflection on his teamwork, simply that we no longer had enough work to keep him busy and could not justify keeping him employed” (underlining added). This cannot be reconciled with what Ms Cui stated as the reason for the dismissal in the separation certificate nor with the second reason for dismissal set out above.

[26] Additionally, I consider that Ms Cui was deliberately vague about the length of the shutdown - a significant matter for the business which she must have known - and was probably exaggerating its length. There was no precision as to when the alleged shift to a model of full-time employment occurred, or whether any other casual employees were displaced as a result. To the extent that Ms Cui intended to convey the position that Mr Olson had been considered for selection for full-time employment but rejected because of his performance record, this cannot possibly be accepted. As earlier stated, it is clear that Mr Olson’s employment was permanently terminated by Blue Mountains Water on 30 August 2018, so any suggestion that the non-continuation of his employment had anything to do with a selection process occurring, on Ms Cui’s account, not earlier than some weeks if not months later is fanciful.

[27] What can be taken from Ms Cui’s assertions at the conference is confirmation that the “performance” and “teamwork” issues referred to in the separation certificate were at the heart of the dismissal and that, so far as Ms Cui was concerned, this was based on an allegation that Mr Olson had engaged in arguments with other employees, including a manager, on two or three occasions.

[28] There was no evidence that any such arguments actually occurred. Ms Cui did not give evidence about them, and did not even assert that she was a witness to them. There was no identification of when these alleged arguments occurred, what they were about (except for a suggestion that one argument was about another employee being called into work instead of Mr Olson), what was said, or the names of the other persons involved. There was no evidence of any contemporaneous record of any incident of this nature. Ms Cui said that the incidents occurred in July 2018 or earlier, so it is not clear why they led to a dismissal on 30 August 2018. There was no suggestion that Ms Cui had raised any concern about these matters, or any concern at all about Mr Olson’s behaviour or performance at work, prior to his dismissal. She asserted that another manager had discussed one alleged argument between Mr Olson and another casual employee with them, and it was reported to her that the issue had been resolved. Mr Olson’s evidence, on affirmation, about this was: “There was no argument” and that he had never been spoken to about any alleged argument. From Mr Olson’s perspective, the first he heard about these alleged arguments being an issue was at the determinative conference.

[29] I cannot be satisfied that Mr Olson ever engaged in any “argument” involving inappropriate behaviour at work while employed by Blue Mountains Water.

Effect of the dismissal

[30] Mr Olson’s dismissal caused financial hardship to him and his family. He is married with two young children. It also affected his mental wellbeing. Mr Olson found it difficult to obtain alternative employment in Lithgow, which is a small town in a regional area. He made extensive efforts to find other employment, and to that end made twenty job applications per month. He eventually commenced new employment on 19 November 2018.

Preliminary matters – section 396

[31] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Mr Olson’s application may be considered. I will deal with each of these in turn.

Section 396(a) – time for making application

[32] Mr Olson’s application was made within the 21-day period required by s 394(2).

Section 396(b) – whether person protected from unfair dismissal

[33] I am satisfied that Mr Olson is a person protected from unfair dismissal within the meaning of s 382.

[34] In relation to the minimum employment period specified in s 383, Mr Olson had at the time of the dismissal worked at the ZigZag Brewery for over 12 months. Although Mr Olson was employed as a casual employee, I am satisfied that the entirety of his service should count towards the calculation of the minimum employment period in s 383 because he was employed on a regular and systematic basis throughout and had a reasonable expectation of continuing employment on a regular and systematic basis. I base this conclusion on the evidence of Mr Olson, which I accept, that he was expected to attend the worksite every day from Monday to Friday, and usually worked a full day, and that it was only occasionally that upon arrival at the worksite he was sent home because of insufficient work.

[35] Mr Olson’s service with Lithgow Valley prior to 9 April 2018 counts towards the minimum employment period by virtue of s 22(5) of the FW Act. There was a transfer of Mr Olson’s employment from Lithgow Valley to Blue Mountains Water within the meaning of s 22(7)(b) because there was a transfer of the ZigZag Brewery business between the two entities within the meaning of s 311(1).

[36] Mr Olson’s period of service was in excess of 12 months, and thus exceeded the minimum employment period specified in s 383 whether or not Blue Mountains Water was a small business employer as defined in s 23.

[37] In relation to s 382(b), Mr Olson was likely covered by a modern award given the nature of the duties he performed, but in any event earned less than the high income threshold.

Section 396(c) – whether dismissal consistent with Small Business Fair Dismissal Code

[38] Blue Mountains Water did not contend in its Form F3 or otherwise that Mr Olson’s dismissal was consistent with the Small Business Fair Dismissal Code (Code). If Mr Olson’s evidence concerning its number of employees is accepted, Blue Mountains Water was not a small business employer at the time of his dismissal within the definition of s 23. Even if Blue Mountains Water was a small business employer, it is clear that the Code was not complied with. There is no evidence, nor was it contended that, Blue Mountains Water believed that Mr Olson had engaged in serious misconduct justifying summary dismissal. There was no valid reason for the dismissal, as explained later in this decision. Mr Olson was not warned that he was at risk of being dismissed or that there was a need for improvement in his work performance or behaviour, nor was he given any opportunity to respond or a reasonable chance to rectify any perceived problem.

Section 396(d) – whether dismissal was a genuine redundancy

[39] Blue Mountains Water did not contend in its Form F3 or otherwise that Mr Olson’s dismissal was a case of genuine redundancy within the meaning of s 389. In any event, and assuming that the concept of genuine redundancy has application to casual employees, I am satisfied that the dismissal was not a case of genuine redundancy. For the reasons earlier stated, I do not consider that Mr Olson was dismissed for the genuine reason that his job was no longer required or because of a shortage of work. Accordingly that part of the definition in s 389(1)(a) (at least) cannot be satisfied.

Was the dismissal unfair?

[40] Section 385 of the FW Act provides that a person has been unfairly dismissed if:

(a) the person has been dismissed;

(b) the dismissal was harsh, unjust or unreasonable;

(c) the dismissal was not consistent with the Code; and

(d) the dismissal was not a case of genuine redundancy.

[41] With respect to s 385(a), I am satisfied that Mr Olson was dismissed within the meaning of s 386(1)(a). On the basis of the facts I have earlier set out, it is clear that his employment was terminated on 30 August 2018 at the initiative of Blue Mountains Water. Blue Mountains Water did not contend otherwise. With respect to s 385(c) and (d), I have already found that the dismissal was not consistent with the Code and was not a case of genuine redundancy.

[42] That leaves the question of the whether the dismissal was harsh, unjust or unreasonable. In considering this question s 387 of the FW Act requires the Commission to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in relation to Mr Olson’s application in turn below.

Section 387(a) - Whether there was a valid reason for the dismissal related to the person’s capacity or conduct

[43] I have earlier found that the actual reason for Mr Olson’s dismissal was an issue concerning his work “performance” and “teamwork” based on an allegation that he had engaged in two or three arguments with work colleagues in July 2018 or earlier. I have also found that there is no evidence and I am not satisfied that any such argument involving inappropriate workplace behaviour ever occurred. Accordingly I find that there was no valid reason for Mr Olson’s dismissal based on his capacity or conduct.

Section 387(b) and (c) - Whether the person was notified of that reason and was given an opportunity to respond to any reason related to the capacity or conduct of the person

[44] Mr Olson was not notified of the real reason for his dismissal, and thus had no opportunity to respond.

Section 387(d) - Whether there was any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[45] There were no discussions relating to the dismissal, so the issue of the presence of a support person does not arise for consideration.

Section 387(e) - If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[46] Mr Olson was not warned about any unsatisfactory performance prior to his dismissal.

Section 387(f) and (g) - The degree to which the size of the employer’s enterprise or 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

[47] Blue Mountains Water’s business is a small one, and there is no evidence that it has any dedicated human resource management specialists or expertise. This likely had some effect on the procedures followed in effecting Mr Olson’s dismissal. However, I do not consider this would have prevented Ms Cui identifying to Mr Olson that she held concerns about his workplace behaviour and giving him a chance to respond to the allegation that he had been involved in arguments with work colleagues before dismissing him.

Section 387(h) - Any other matters that the Commission considers relevant 

[48] I consider two matters to be relevant:

(1) There was no evidence that Mr Olson’s work performance was other than satisfactory.

(2) Mr Olson’s dismissal caused him financial loss and personal distress.

Conclusion

[49] I am satisfied that Mr Olson’s dismissal was harsh, unjust and unreasonable. There was no valid reason for his dismissal based on his capacity or conduct, he was denied procedural fairness, there was no evidence that his work performance was other than satisfactory, he was not warned that his work performance was considered unsatisfactory, and the dismissal caused him financial loss and personal distress.

[50] Accordingly I find that Mr Olson’s dismissal was unfair.

Remedy

[51] I do not consider that reinstatement is an appropriate remedy. Mr Olson does not wish to return to his employment with Blue Mountains Water and has found other employment. Given the way in which Ms Cui effected the dismissal and the small size of the business, I do not consider that there is any reasonable prospect that a viable working relationship could be re-established.

[52] I consider that the award of compensation to Mr Olson would be appropriate given that his unfair dismissal has caused him financial loss. It is therefore necessary for an assessment to be made as to the amount of compensation which should be ordered. In assessing compensation, it is necessary under s 392(2) of the FW Act to take into account all of the circumstances of the case including the specific matters identified in paragraphs (a)-(g) of the subsection, and it is also necessary to consider the other relevant requirements of s 392. I am concerned that the parties (particularly Blue Mountains Water) did not at the determinative conference adequately address the s 392(2) matters. I propose therefore to express my provisional views concerning compensation, and then allow the parties a further opportunity to provide written submissions in response before I make any final compensation order. My provisional assessment as to the quantum of compensation will be based on the methodology articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. 2

Section 392(2)(c) - Remuneration that would have been received if the dismissal had not occurred

[53] If Mr Olson had not been dismissed, I consider there is no reason, on the evidence before me, why he would not have remained in employment with Blue Mountains Water until at least the date he commenced his new employment (19 November 2018). Mr Olson’s work was of significance to the operation of the brewery, and there is no basis to conclude that his work did not continue to be required to be done during this period or that Mr Olson was otherwise than competent in performing it. I have earlier dealt with Ms Cui’s assertion that the casual workforce was, at some time after the shutdown, replaced by five full-time employees. There is no evidence to establish that this actually occurred prior to 19 November 2018 (or indeed at all), and if it did, there is no basis upon which it could be concluded that Mr Olson would not have been appointed to one of the positions (assuming he was not treated unfairly based on the unsubstantiated allegations of argumentative behaviour).

[54] The period from the date of dismissal to the date Mr Olson commenced his new employment was eleven weeks. However Mr Olson, if he had not been dismissed, may not have worked or been paid for the entirety of this period because of the shutdown. I consider, as earlier stated, that Ms Cui exaggerated the length of the shutdown and that, consistent with her text message to Mr Olson on 30 August 2018, it may have lasted for no more than two weeks. Even if it lasted longer than that, there was still some work to be done, some of which Mr Olson may have performed. Taking the shutdown into account, I consider Mr Olson would have received at least a further nine weeks’ income from employment with Blue Mountains Water had he not been dismissed.

[55] Mr Olson’s evidence was that, during his employment at the ZigZag Brewery, he normally worked eight hours per day, five days per week. However in the weeks immediately before his dismissal, his hours were reduced because the business suffered a water shortage. He expressed the view that the water shortage would not have occurred if the business had been managed competently. Be that as it may, I considered that in assessing the remuneration that Mr Olson would have received but for the dismissal, it is necessary to take into account his reduced hours immediately before the dismissal as well as the longer-term pattern of hours. Accordingly I consider that the amount of lost remuneration should be determined on the conservative basis that Mr Olson would have performed 30 hours’ work per week for a period of nine weeks. His base hourly rate of pay was $23.51, which I will use for the purpose of the calculation whilst acknowledging that he earned the higher rate of $24.00 per hour when performing delivery work.

[56] I provisionally conclude that Mr Olson would have earned $6,347.70 ($23.51 x 30 x 9) if he had not been dismissed.

Section 392(2)(e) and (f) - Remuneration earned and income reasonably likely to be earned

[57] Mr Olson did not earn any remuneration, and did not receive any unemployment benefits, prior to the commencement of his new employment on 19 November 2018. There is no basis to take into account any remuneration earned or likely to be earned after that date.

Section 292(2)(g) - Other matters

[58] I do not consider that there would be any basis for any deduction for contingencies. In relation to taxation, compensation should be determined as a gross amount and it should be left to Mr Olson to pay any amount of taxation required by law.

Section 392(2)(a) - Viability

[59] There was no evidence or even an assertion that any particular amount of compensation that was ordered would have an adverse impact on the viability of Blue Mountains Water.

Section 392(2)(b) - Length of service

[60] Mr Olson’s period of service does not justify any adjustment to the amount of compensation that might otherwise be ordered.

Section 392(2)(d) - Mitigation efforts

[98] I am satisfied that Mr Olson mitigated his loss by actively seeking and ultimately obtaining alternative employment.

Section 392(3)

[99] Mr Olson did not commit any misconduct, so no deduction is required under s 392(3).

Section 392(4) - No component for shock, distress, humiliation or other analogous hurt

[100] I confirm that the compensation amount assessed contains no component for any shock, distress, humiliation or other analogous hurt suffered by Mr Olson as a result of the manner of his dismissal.

Section 392(5) - Compensation cap

[101] The amount of compensation proposed is below the compensation cap.

Section 393 - Instalments

[102] I consider that the compensation should be paid in a single amount. There is no reason why the compensation should be payable in instalments.

Conclusion

[61] My provisional view is that a compensation amount of $6,347.70, less applicable tax, would be appropriate in all the circumstances.

Further submissions

[62] As earlier stated, I will allow the parties a further opportunity to make written submissions on the issue of the quantification of compensation only, taking into account the provisional assessment made above. Any such submissions shall be lodged within seven days of the date of this decision. I will then make a final determination of the compensation amount having regard to those submissions.

VICE PRESIDENT

Appearances:

N. Olson on his own behalf

T. Cui for Blue Mountains Water

Determinative Conference details:

2018.

Sydney:

20 December

Printed by authority of the Commonwealth Government Printer

<PR703730>

 1   There was reference at the determinative conference to Blue Mountains Water employing a Mr Bruce Young, and this was probably the same person.

 2   [2013] FWCFB 431; 229 IR 6