Otto Pirko and Nono Bintoro v Toll Holdings Ltd T/A Toll Priority

[2016] FWC 8823

[2016] FWC 8823

FAIR WORK COMMISSION

DECISION NO.2

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

Otto Pirko and Nono Bintoro
v
Toll Holdings Ltd T/A Toll Priority
(U2016/7326 & U2016/7329)

COMMISSIONER CAMBRIDGE SYDNEY, 8 DECEMBER 2016

Applications for unfair dismissal remedy - ss. 391 (3) and 391 (4) - determination of amount of lost pay.

[1] This Decision is made further to the earlier Decision [2016] FWC 7095 in these matters. This Decision is confined to the question of the amount of lost pay that should be Ordered pursuant to subsection 391 (3) of the Fair Work Act 2009 (the Act).

[2] Lawyers acting on behalf of Otto Pirko and Nono Bintoro (the applicants) made submissions which, in summary, contended that the applicant, Mr Pirko, should be Ordered “back pay” of $27,396.23, and that the applicant, Mr Bintoro, should be Ordered “back pay” of $18,959.66.

[3] The respondent employer, Toll Holdings Ltd T/A Toll Priority (ACN: 25 006 592 089) (the employer or Toll), made submissions which, in summary, contended that the applicants were “not entitled to compensation for lost wages.”

[4] I have examined and carefully considered the Parties respective submissions made on the question of the amount of lost pay that should be Ordered to the applicants.

[5] The relevant provisions of the Act are subsections 391 (3) and 391 (4) which are in the following terms:

“Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[6] As mentioned in the earlier Decision, the circumstances of this case have led to a conclusion that the applicants will not be provided with Orders for restoration of all lost pay. Some reduction in the amount of lost pay should be made to reflect that the applicants did engage in an unsafe activity during the satchel cage incident.

[7] It was somewhat unfortunate to observe the significant difference between the respective positions of the Parties on the question of the amount of lost pay that should be provided to the applicants. In particular, the submissions made by Toll which contended that no lost pay should be provided are, objectively, unrealistic and unhelpful.

[8] In the particular circumstances of this case, I can see no reason why the pre-termination average weekly earnings of the respective applicants should not be used as the basis upon which to calculate the lost pay of the applicants. The applicants have indicated that they do not seek to be re-credited with any long service and annual leave that was paid on termination. The payments made in lieu of notice should be deducted from any amount of lost pay, and further deduction should be made for any remuneration received from alternative employment during the period between the dismissal and the actual reinstatement of the applicants.

[9] As indicated in the earlier Decision, in this instance I have determined that a further deduction should be made to reflect the particular circumstances of the satchel cage incident. In this regard, I have decided to reduce the amount of lost pay by two weeks average remuneration in respect to each of the applicants.

[10] Consequently, I have determined that;

● In the case of the applicant, Mr Pirko, the gross loss pay figure of $50,753.87 is reduced by $6,195.95 paid in lieu of notice, and further reduced by $17,151.69 paid from other work during the period between dismissal and reinstatement. The resultant figure is $27,406.23, which is reduced by an amount commensurate with two weeks of lost average weekly pay being $4,413.38, thus resulting in an amount of $22,992.85.

● In the case of the applicant, Mr Bintoro, the gross lost pay figure of $37,816.83 is reduced by $6,195.95 paid in lieu of notice, and further reduced by $12,661.22 paid from other work during the period between dismissal and reinstatement. The resultant figure is $18,959.66 which is reduced by an amount commensurate with two weeks of lost average weekly pay being $3,270.08, thus resulting in an amount of $15,689.58.

[11] Orders providing for lost pay to the applicants in the terms as calculated herein shall be issued accordingly.

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