Otis Smart v Pintupi Homelands Health Service T/A Pintupi Homelands Health Service Aboriginal Corporation

[2020] FWC 1572

[2020] FWC 1572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Otis Smart
v
Pintupi Homelands Health Service T/A Pintupi Homelands Health Service Aboriginal Corporation
(U2019/11141)

COMMISSIONER SIMPSON BRISBANE, 24 MARCH 2020

Termination of employment – whether position still required – whether consultation process genuine – whether other positions suitable for redeployment – whether dismissal a genuine redundancy.

[1] On 4 October 2019, Mr Otis Smart made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Pintupi Homelands Health Service T/A Pintupi Homelands Health Service Aboriginal Corporation (PHHS).

[2] PHHS raised the jurisdictional objection that Mr Smart’s dismissal was a case of genuine redundancy and on that basis, Mr Smart was not able to pursue an unfair dismissal application. I determined that both the jurisdictional objection and the merits application should be heard at the same time. The arbitration hearing for the matter took place on 5 February 2020 in Brisbane.

[3] Mr Smart appeared on his own behalf. Mrs Lawton, from Vivid Advice, appeared on behalf of the Respondent.

Background

[4] PHHS submitted that the Pintupi Homelands Health Service Aboriginal Corporation is situated at Kintore in the Northern Territory, approximately 530 kilometres west of Alice Springs. Prior to 2013 aged care in the community was operated by a community organisation before being delivered by a private company.

[5] In December 2015, the PHHS was funded by the Commonwealth to deliver Home Support Program (CHSP) and the National Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP). Within three months, the staffing structure was put in place with a Team Leader reporting to the CEO. PHHS submitted that this was due to that staff member’s experience at the Kalkutjatjara Aged Care in Docker River.

[6] PHHS further submitted that over time, the staffing structure of having a Community Services Manager in addition to the Team Leader developed, intending to create a unified team working with the community and outside staff.

[7] Mr Smart was employed as Community Services Manager for PHHS on a contract, commencing employment with the Respondent on 2 October 2018, with his contract finishing on 1 October 2020. The contract of employment included a clause providing for termination of the contract before its expiry in a number of circumstances including for operational requirements.

[8] PHHS submitted that throughout 2019, the aged care industry in Australia came under close scrutiny. PHHS submitted that in July 2019, the Aged Care Quality Standards changes came into effect with the intention of tightening criteria and standards and requiring a better skilled and more compassionate workforce to provide higher quality care and support to the aged.

[9] PHHS submitted that in mid-August 2019, Mr Paul Button, the then Acting CEO of the Respondent, identified concerns regarding “leadership role conflict” and “bullying”, and requested an external review leading to one on one, open ended interviews with all four Aged Care staff members including Mr Smart.

[10] Relevantly, the review was finalised on 3 September 2019 and found the following:

“There is a clear need to revisit the structure of the Aged Care facility to firstly assess its effectiveness in delivering a service to the community effectively and secondly to ensure the correct structure is in place to meet these obligations. A cursory observation would indicate the structure, as it currently stands, is top heavy with both a manager and a team in place and this in itself has created frustration amongst staff that has the potential to impact on service delivery.” 1

[11] On 6 September 2019, an Operations Meeting was held to consider the findings of that review.

[12] PHHS submitted that several employee conduct issues were identified in the HR Report and it was agreed that these would be addressed by the Acting CEO.

[13] On 10 September 2019, a meeting was held with Mr Smart and Mr Paul Button, Health Services Manager, regarding the employee conduct issues. The meeting lasted 45 minutes. PHHS submitted Mr Smart was advised of the performance issues and responded to them.

[14] On 11 September 2019, a letter (Warning Letter) was given to Mr Smart summarising the concerns discussed at the 10 September 2019 meeting, and Mr Smart’s response to those concerns. The letter warned that failure to improve conduct and performance could result in termination of employment. The letter also invited Mr Smart to respond by email or in writing.

[15] PHHS submitted Mr Smart did not respond at the time of receiving the letter nor in the following days. PHHS submitted therefore Mr Smart both accepted the warning and believed that the issue would not arise again. PHHS submitted in its view the issues were thus finalised.

Operations review

[16] The Operations Review was carried out by the CEO between 6 September 2019 to 15 September 2019 in consultation with Directors and clinicians and relevant staff. Information was also obtained from appropriate experts and other remote Aged Care services. The Operations Review made a number of findings.

[17] It was found that the management team did not include a credentialed clinician but only individuals with ‘medical assist’ and Certificate III. PHHS submitted this lack of clinical expertise caused some confusion around care issues and incidents were recorded in PHHS Quality Management System to this effect PHHS submitted that the Operations Review considered that someone holding a higher qualification of Registered Nurse could address many of these concerns, particularly in relation to clinical care and follow-up at Aged Care.

[18] After considering various options, the Operations Review recommended, amongst other things, a change in structure to include only one position responsible for oversight of staff. This position would be known as Aged Care Coordinator with the duties and functions set out in the position description. The qualification of a Registered Nurse was an essential requirement for the role.

[19] PHHS submitted that clinical staff were consulted about this proposal and were supportive of it.

[20] A further finding of the Operations Review was that the Management Structure, that consisted of a Community Service Manager and Team Leader, was “top heavy and unusually for a small community-based day aged care”, 2 and that this structure, which had been inherited from its predecessor in 2016, was leading to difficulties for the staff and clinical care.

[21] PHHS submitted that after considering the findings and various options, a reorganisation was recommended and agreed to on the 15 September 2019. Among other changes, the reorganisation encompassed the change in structure to include the Aged Care Coordinator. PHHS submitted that consequently, staff redundancies would be required for the positions of Team Leader, and Mr Smart’s position as Community Services Manager.

Consultation

[22] On the morning of 16 September 2019 at approximately 11:16 am, the CEO met with Mr Smart. A letter was provided to Mr Smart dated 16 September 2019 that outlined the changes and informed that these would result in his position being made redundant. It is necessary to set this letter out in full:

“Dear Otis –

You have been employed as the Community Services Manager to oversee programs operating out of Aged Care. These programs are the Commonwealth Home Support Program (CHSP}, the National Australian Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP} and the School Nutrition Program (SNP).

As you are aware there was a recently completed external independent review of Aged Care by Foster Stravidis. This review was requested by Paul Button Acting CEO following concerns expressed by staff. The main recommendation of the review was that “There is a clear need to revisit the structure of the Aged Care facility to firstly assess its effectiveness in delivering a service to the community effectively and secondly to ensure the correct structure is in place to meet these obligations.”

Accordingly, an in-depth operation review of the Aged Care facility was undertaken as a matter of priority to assess and determine what would be the most effective structure to deliver services to the community and best this would align/fit in with the overall effectiveness of the Pintupi Health Service.

Management has discussed the need for organisational changes at Aged Care with the Chair, Directors and staff to improve the management, clinical services and provide a safe and secure environment for staff.

These changes proposed would involve the appointment of Registered Nurse as the Aged Care Coordinator to integrate the operation clinically with Primary Health Care and supervise all staff and programs. The Aged Care Coordinator would report directly to the Health Services Manager.

We seek feedback from you now regarding these changes and the effects on staff. This input will be considered before a final decision is completed.

Sincerely Yours,

Leon Chapman

Chief Executive Officer”.

[23] In its written submissions, PHHS stated that during this meeting, that commenced at 11:16 am and concluded at 11:38 am, Mr Smart was invited to provide feedback on the proposal, program management, lack of indigenous employee support and client contact.

[24] Following this meeting and at approximately 1:00 pm, the CEO met with the Health Services Manager. PHHS submitted that genuine consideration was given to the matters raised by Mr Smart during the meeting that morning. It was determined that the operational changes would proceed.

[25] At 2:15pm, a second meeting was held with Mr Smart, the CEO and the Health Services Manager advising Mr Smart that the position of Community Services Manager would be made redundant. At that meeting, a letter dated 16 September 2019 was provided to Mr Smart explaining the reasons for the decision and advising that his employment would be terminated. It stated as follows:

“Dear Otis

Thank you for your feedback regarding the proposed Aged Care organization changes. Management have considered your feedback and a decision has been made.

It has been decided that the appointment of Registered Nurse as the Aged Care Coordinator to integrate the operation clinically with Primary Health Care and supervise all staff and programs. The Aged Care Coordinator would report directly to the Health Services Manager. This arrangement is necessary to improve operations, outcomes and match the needs of the services.

Management have made every effort to find you another position within PHHSAC, but none are available to continue your employment with us. This new arrangement means that your employment will be discontinued.

This change is required for operational requirement and the termination falls under Item 10 (e) of your employment contract as follows:

Operational Requirements and Economic Considerations:

PHHSAC may terminate your employment because of reasons associated with operational requirements, economic consideration or financial circumstances as, for example, reduced funding received from various funding entities.

Your termination is effective with the following arrangement that are consistent with your contract and work legislation:

Four (4) weeks’ notice of termination is hereby provided - Employment Contract 10 (a)

PHHSAC has the right to waive the requirement to work for the four (4) weeks and will instead pay out the time.

•  One week for redundancy for being an employee over 45 years

•  One weeks for redundancy

•  Annual Leave owing

•  Isolation Leave owing

•  Travel time for 18 September 2019 and 19 September 2019

It is required that you provide a hand over to Paul Button the Health Services Manager including on work keys, password and computers and prepare to leave the community on the Centre Bush Bus on Wednesday 18 Septemebr 2019. Travel documents will be e-mailed to you.

Thank you for your efforts and I wish you the best for your future.

Sincerely Yours,

Leon Chapman

CEO

16 September 2019”.

CONSIDERATION – GENUINE REDUNDANCY

[26] Section 385 provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

[27] As is made clear from the above provisions of the Act, I must determine whether the termination of Mr Smart was a genuine redundancy before considering the merits.

[28] Section 389 provides:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

Was the Applicant’s job no longer required?

[29] In advancing its position, PHHS relied on Kerekis v A.Hartrodt Australia Pty Ltd, where Senior Deputy President Hamberger found that “it can still be a genuine redundancy where the duties of the job persist but are redistributed to other positions. The test is whether the job previously performed by the Applicant still exists”. 3

[30] PHHS submitted the position of Community Services Manager previously held by the Mr Smart no longer existed, despite some of the functions of the role continuing in the newly established Age Care Coordinator role. PHHS submitted that while there are areas of overlap between the job descriptions of Community Services Manager and the Aged Care Coordinator, there are significant differences, including the Age Care Coordinator’s greater emphasis on clinical care and continuity of care through collaboration with the primary health service.

[31] In its written submissions, PHHS referred to the Aged Care Quality Standards, a new set of standards contained in the Quality of Care Amendment (Single Quality Framework) Principles made under the Aged Care At 1997 (Cth), that came into effect on 1 July 2019. PHHS submitted that the decision to re-structure the Aged Care Operation included consideration of these new standards, the entirety of PHHS’ operations, as well as the previous poor financial performance of Aged Care.

[32] PHHS submitted that to meet the standards best practice, the skills of a Registered Nurse was required to improve operational outcomes and client care.

[33] PHHS submitted several documents to support its position.

[34] Mr Smart disputed that PHHS no longer required his job to be performed by anyone and submitted that PHHS used hiring a Registered Nurse to “disqualify myself and my team leader from being able to perform the duties.” 4

[35] Mr Smart argued that the independent review did not consider all relevant factors and ultimately did not agree with its findings. Mr Smart said he was not made aware when Mr Stavridis arrived in the community to conduct the review, that he only ever met with Mr Stavridis one time for half an hour, and that “not once did Foster Stavridis come over to the centre to see us working on the ground.” 5 Mr Smart disputed that the organisation was “top heavy” and submitted that it was not necessary for a Registered Nurse to carry out the role.

[36] Mr Smart submitted that a Registered Nurse was already being used from the clinic and weekly consultations and meetings were being completed by the assigned RN. Mr Smart submitted this had been the case prior to him commencing employment with PHHS and that it met the standards required.

[37] Mr Smart accepted in his submissions that although the work of the Community Services Manager was still being done, it was being done by a person with higher qualifications.

[38] The test under 389(1)(a) is whether or not or the Employer made the decision it no longer required the position to be performed due to a change in operational requirements of its enterprise. Whether or not Mr Smart agreed with this decision is not a relevant factor for me to consider.

[39] It is well established that an employee may still be genuinely made redundant when there are aspects of the employee’s duties being performed by other employees. 6 While Mr Smart’s duties still existed within the company, the employer determined that the two positions of Community Services Manager and Team Leader could be performed by one employee, as detailed in PHHS’ evidence and to which Mr Smart conceded, which I accept.

[40] I determine that the tasks done by Mr Smart in his role as Community Services Manager and the tasks performed by the Team Leader are now performed by one position due to operational requirements.

Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?

[41] It is an agreed fact that Mr Smart is covered by the Aged Care Award 2010 (the Award).

[42] The relevant consultation process is found in Part 2 of the Award. The relevant clauses read:

“8. Consultation about major workplace change

8.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(a) commence discussions as soon as practicable after a definite decision has been made.”

8.2 For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees;

(c) any other matters likely to affect employees.

8.3 Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

8.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 8.1(b).

8.5 In clause 8:

significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

8.6 Where this award makes provision for alteration of any of the matters defined at clause 8.5, such alteration is taken not to have significant effect.”

[43] PHHS submitted that it complied with the consultation requirements of the applicable Award. In addition to the evidence outlined above, the Respondent submitted that the following consultation process was undertaken:

“50. The Applicant was informed in the morning of 16 September 2019 of the decisions made on 15 September, in other words as soon as reasonably possible after the decision was made. Further written advice was provided to the Applicant at that time and feedback was sought.

51. As required by the Award, prompt consideration was given to the response of the

Applicant and the decision was advised to him in a timely manner, that afternoon.” 7

[44] Mr Smart disputed that PHHS complied with the consultation requirements of the Award. Mr Smart submitted that the first meeting that occurred on 16 September came as a surprise, and that he did not know at the time he was asked to give a response that his employment could be terminated by the end of that same day.

[45] Mr Smart said that when he was asked to provide a response to the information put to him at the first meeting, he said that he was of the view that the Aged Care Centre could not be run by one person. He also said a change in management would also require readjustments with the staff.

[46] The notice provided to Mr Smart on 16 September 2019 was in writing, pursuant to the Award Obligation. However, the consultation period with Mr Smart was not a long period. Mr Smart attended a meeting at 11:16 am where he was advised his position was to be made redundant and was then invited to provide feedback. This meeting concluded at 11:38 am. At 2:15 pm, another meeting occurred in which Mr Smart was advised his position was made redundant. The consultation period was, at a maximum, 2 hours and 59 minutes.

[47] In CEPU v QR Limited, 8Justice Logan said in relation to the content of the obligation to consult, that:

•  A key element is that the party to be consulted is given notice of the subject upon which views are being sought before any final decision is made or course of action is embarked upon.

•  There is a consequential requirement for the affording of a meaningful opportunity to present those views although what will constitute such an opportunity will vary according to the nature and circumstances of the case.

•  A right to be consulted is a valuable right but is not a right of veto

[48] I do not accept that PHHS consulted with Mr Smart about his redundancy, in accordance with the obligations in the Award. Although the notice provided to Mr Smart on 16 September 2019 was in writing and pursuant to the Award obligation, the consultation period with Mr Smart was not a long period, as already identified above.

[49] In between the first meeting with Mr Smart late in the morning and the second afternoon meeting, PHHS state that the Executive Management team met to consider the Applicant’s input at 1:00 pm and gave genuine consideration to the matters raised by the Applicant. However, PHHS submitted that it was determined that the operational changes would proceed.

[50] The Employer did not undertake meaningful consultation, as it was only a mere three hours before it made its decision to terminate the Applicant’s employment. It appears that it was an afterthought and a decision had been made. Further, it is difficult for the employer to demonstrate that it genuinely considered the information provided by the Applicant, or that Mr Smart was given a fair opportunity to consider matters he may wish to raise to seek to mitigate the effect of the decision on him It would have been more appropriate if the Applicant was given at least until his prearranged departure from the location on Wednesday to consider what he could put to his employer.

Was it reasonable in all the circumstances for the person to be redeployed within, (a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer?

[51] The remaining issue that requires consideration is whether it would have been reasonable in all the circumstances for the Applicant to have been redeployed.

[52] In Ulan Coal Mines Ltd v Honeysett, 9 a Full Bench of the Commission said:

“The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of the dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the role, the employee’s skills, qualification and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered”. 10

[53] The Full Bench continued in relation to the reasonableness of redeployment:

“Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it”. 11

[54] PHHS submitted that there were no alternative positions available within PHHS. Mr Smart, in disputing PHHS’ submissions, stated that he “was never spoken to, consulted with about any opportunity to continue employment [with] PHHS”. 12

[55] In Technical and Further Education Commission T/A TAFE NSW v Pykett, 13 the Full Bench of the Commission held that:

“For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding.” 14

[56] The position of Aged Care Coordinator had the mandatory qualification of Registered Nurse.

[57] I am satisfied on the basis of the evidence that it would not have been reasonable in all the circumstances for Mr Smart to have been redeployed as at the time of termination on 16 September 2019 as the evidence supports a conclusion that there was not a role for Mr Smart to be redeployed into.

[58] Given my findings regarding s. 389(1)(b) concerning PHHS’ failure to consult about the termination, I am not satisfied that this is a case of genuine redundancy. It is therefore necessary to consider whether the termination was harsh, unjust or unreasonable.

CONSIDERATION - DISMISSAL

[59] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account a range of matters set out at s. 387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Was there a valid reason for dismissal?

[60] There is no dispute that the Community Services Manager position is gone.

[61] As noted above, a warning letter was issued to Mr Smart on 11 September 2019. In Mr Smart’s written and oral submissions, he asserted that there was a connection between the warning issue to him and the termination of his employment. On the evidence tendered during these proceedings, I am unable to establish this connection asserted by Mr Smart.

[62] The reasons for dismissal were not related to the conduct or capacity of Mr Smart. In the circumstances s.387(a) is a neutral matter.

Was the Applicant notified of the reasons for their dismissals and given the opportunity to respond to the reasons?

[63] Despite Mr Smart’s assertion, it is apparent on the evidence tendered by PHHS that issues of capacity or conduct were not relied upon in the meetings held on the 16 September 2019 and therefore ss.387 (b) and (c) are neutral matters with respect to the consideration as to whether the dismissal was harsh, unjust or unreasonable.

Was there an unreasonable refusal to a support person?

[64] PHHS did not refuse a request for a support person at the discussions on the 16 September 2019.

Warnings of unsatisfactory performance?

[65] The Applicant was given a warning regarding unsatisfactory performance on 11 September 2019. Though, as I determined above, this warning was not in connection to Mr Smart’s termination and therefore is a neutral matter.

Did the size of the business likely impact on the procedures followed in effecting dismissal?

[66] PHHPS submitted that it does not have a dedicated human resource person or team within the organisation, and relies on assistance from AMSANT in this regard.

Any other matters

[67] There were sound, defensible and well founded reasons for Mr Smarts dismissal being that Mr Smarts job was no longer required because of operational changes. However, the failure to properly consult with Mr Smart as required by the Award as set out above tells for a conclusion that the dismissal was harsh, unjust or unreasonable.

CONCLUSION ON HARSH, UNJUST OR UNREASONABLE

[68] I am satisfied that the failure to consult was unreasonable notwithstanding the valid reason for dismissal.

REMEDY

[69] Mr Smart did not press for reinstatement, and said he was seeking 26 weeks’ pay as compensation, saying he would have worked until the end of his contract on 1 October 2020. On the evidence before me, I am satisfied that reinstatement would not be practicable in any event given there is no job for him.

[70] Section 392 of the Act provides as follows:

“392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

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

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

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

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

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

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

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

Misconduct reduces amount

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

Shock, distress etc. disregarded

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

Compensation cap

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

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

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

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

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

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

[71] Mr Smart departed the location on Wednesday 18 September 2019 for the purposes of planned leave so Mr Smart could be with his wife before she went overseas. It was submitted for the Respondent that there was concern about Mr Smart having an extended consultation period over his termination because of previous experience of employees “stirring up trouble in the community” and for also for data security reasons. The termination occurred on Monday 16 September 2019. It was conceded in closing that with the benefit of hindsight, further consultation could have occurred before he left the community on the Wednesday 18 September 2019.

[72] The Respondent submitted it was reasonable because of the remoteness of the location, and dealing with the matter at the time allowed for it to be addressed with Mr Smart face to face and before an extended period of leave that had been approved in late August, and also because it would be unfair to Mr Smart to be left in this position for an extended period.

[73] I am persuaded by the submissions of the Respondent that it was reasonable for it to seek to consult with Mr Smart and consider his responses before Mr Smart left and would be on leave for approximately three weeks from 18 September until early October 2019. This is so because given the evidence that there was little or no likelihood the decision was likely to have changed, and delaying the decision until after the period of leave, would have resulted in Mr Smart being left hanging for an extended period and potentially making the lengthy trip to return for no practical purpose. However, it is my view Mr Smart should have been provided with at least the time before his planned departure on the Wednesday.

[74] On the basis of the view set out above, Mr Smart would have received an additional two days of pay had the decision to terminate not been taken until the Wednesday. My view in this regard should not be understood as a general acceptance that two days is always sufficient for the purposes of consultation. However, it is appropriate given the specific facts of this case and because Mr Smart would have commenced a period of paid leave from Wednesday had his dismissal not occurred before that time.

[75] Given the conclusion reached about the length of the period Mr Smart would have remained in employment had he not been dismissed, it is unnecessary to consider making any deduction on the basis of other income earned since termination, or income reasonably like to be earned.

[76] There is no evidence that an order for two days’ pay would affect the viability of the Respondent. Mr Smart was employed for approximately one year. In his written submissions, Mr Smart stated he had applied for three jobs based on his skill set, his experience, professional career and requirement to support and meet his family financially requirements, however had not yet received an interview. Misconduct did not contribute to the decision to dismiss Mr Smart.

[77] The payment of the amount of $692.30 gross plus 9.5% superannuation, less tax required by law, by Pintupi Homelands Health Service to Mr Smart within 14 days is appropriate in all the circumstances. This sum was arrived from dividing the annual salary of $90,000 per annum by 52 weeks and calculating two days’ pay from that figure. An order to this effect requiring the Respondent to pay that sum to Mr Smart will be issued separately and concurrently with this decision.

COMMISSIONER

Appearances:

Mr O. Smart Appearing on his own behalf.
Mrs M. Lawton from Vivid Advice appearing for the Respondent.

Hearing details:

2020
Brisbane
February 6

Printed by authority of the Commonwealth Government Printer

<PR717753>

 1   Respondent’s Outline of Submissions at paragraph 13.1.

 2   Ibid, at paragraph 29.1

 3   [2010] FWA 674, per [27].

 4   Applicant’s Outline of Argument – Objections at 4c.

 5   Applicant’s Outline of Argument – Objections at 4b.

 6   Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32 .

 7   Respondent’s Outline of Submissions at paragraph 15.

 8 [2010] FCA 591, 11 June 2010.

 9   [2010] FWAFC 7578.

 10 Ibid, at [27].

 11 Ibid, at [34].

 12   Applicant’s Outline of Argument – Objections at 4b.

 13   [2014] FWCFB 714.

 14 Ibid, at [36].