Peter Kidd v TransAdelaide

[2010] FWA 2580

[2010] FWA 2580

FAIR WORK AUSTRALIA

DECISION

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

Peter Kidd
v
TransAdelaide
(U2009/13957)

COMMISSIONER HAMPTON ADELAIDE, 21 APRIL 2010

Termination of employment - Alleged assault of passenger by Tram operator - Whether serious misconduct - Whether valid reason - Whether harsh, unjust or unreasonable – Whether mitigating circumstances a relevant consideration - Applicant was provoked but did push passenger - Some misconduct occurred - Dismissal harsh and unreasonable in all of the circumstances - Remedy - Reinstatement appropriate - Application granted.

Introduction and Case Outline

[1] This is an application by Mr Peter Kidd (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The applicant was dismissed from his role as a Tram Operator with TransAdelaide (the respondent) following an incident with passengers on a tram that took place on the evening of 20 October 2009.

[2] On that night, during the course of an exchange with some young adult male passengers who were deliberately preventing the tram doors from closing, the applicant firmly pushed one of the passengers. The applicant was then attacked both on the tram and the adjoining platform and suffered head and other injuries. Following an investigation by the respondent and a disciplinary process, the applicant was dismissed on the basis that he had initiated the physical contact with the passenger and that no satisfactory explanation for the “violent” response had been provided. Further, the respondent relied upon the alleged failure of the applicant to disclose his part in the events when completing the original incident report 1.

[3] Having regard to the matters outlined in s.399 of the Act, I considered that it was appropriate to conduct a hearing in this matter. 2 The hearing also included inspections of an equivalent tram to examine the location of certain cameras and door closing mechanisms, and the viewing of Closed Circuit Television (CCTV) footage of the incident.

[4] The applicant, who was represented by the Australian Rail, Tram and Bus Industry Union (the ARTBIU), contended that the decision to dismiss was harsh because it did not take into account the circumstances applying at the time of the incident including the nature of the passengers’ conduct and the threat of harm to the applicant. In particular, the actions of the applicant were described as being a defensive action that was reasonable in the circumstances. Further, it was argued that the applicant’s long and good work record was not sufficiently taken into account by the respondent.

[5] The applicant also argued that the dismissal was unreasonable on a number of grounds including what was said to be an inadequate investigation and a failure by the respondent to follow its own investigation and disciplinary policy and procedure.

[6] The applicant seeks reinstatement with consequential orders.

[7] The respondent argues that the contact made with the passenger was violent and took place in the context of the applicant’s failure to follow the proper process for dealing with such incidents. Further, the respondent contends that the applicant failed to report his part in the subsequent assault and provided no reasonable explanation for either matter. These were said to have been in breach of the relevant (Public Sector) Code of Conduct and constituted serious misconduct.

[8] In light of the subsequent investigation and the formal disciplinary process that was said to have confirmed these elements in a procedurally fair manner, it was contended by the respondent that the dismissal of the applicant was in all of the circumstances both reasonable and appropriate.

The evidence

[9] In addition to the applicant, the following gave evidence in support of his case:

• Mr Darren Phillips – Organiser with the ARTBIU - who represented the applicant during the investigation and disciplinary processes; and



• Dr Rod Pearce – the applicant’s treating Doctor.

[10] The following gave evidence in support of the respondent’s case:

• Mr Allen Maciunas – Tram Operations Manager with TransAdelaide – who was involved in the investigation and disciplinary process; and



• Mr Peter Doggett, Chief Operating Officer of TransAdelaide – who in effect made the decision to dismiss the applicant.

[11] The written material before Fair Work Australia includes a comprehensive book of documents from each party, which included witness statements, the original incident report, various documents provided during and after the internal investigation and disciplinary process conducted by the respondent, and stills taken from the CCTV footage. The actual CCTV footage was also viewed at various stages of the hearing and although it was lacking in any sound recording and was somewhat disjointed, it did enable me to draw reliable inferences as to the chain of events.

[12] Each of the witnesses in this matter gave their evidence truthfully and with integrity. The applicant did tend to put the best gloss on certain events and given the impact of the assault on him on the night in question, some of the recollection of events was influenced by the CCTV footage. He did not however in my view attempt to mislead the Tribunal and I generally accept his evidence on the key issues.

[13] I have no hesitation in accepting the facts as contended by each of the other witnesses. There were however various opinions expressed in their evidence that are properly matters for me to determine based upon the facts as I find them to be.

General findings of fact

[14] Based upon the material before me, the following facts emerge.

[15] The applicant has been employed by the respondent since January 1999. He worked initially as a full-time employee but became a permanent part-time employee working three days per week in September 2002. Although he was subject to a disciplinary warning in 2005, when the applicant lost his temper at the relevant Depot, he has otherwise been a good employee. There is no evidence of any ongoing anger management issues or performance concerns and the incident that led to his dismissal is clearly out of character.

[16] As a Tram Operator, the applicant would both drive the tram and at other times act as a “conductor”. On the night in question, he was acting in the latter capacity as the only conductor on the tram.

[17] On 20 October 2010, the tram in question was running between Glenelg and the City West terminus. At about 9.10pm, the tram was stopped at the Rundle Mall stop and the applicant was directed by the driver to attend to a door, in the middle of the tram, that was not closing. I interpose that each of the doors has a beam mechanism that prevents the door closing if there is an object or person within reasonable proximity. After five unsuccessful attempts to close, the system prevents further attempts to close until a staff member manually resets the mechanism.

[18] The door in question was being blocked from closing by a number of teenage or young adult males. It is clear that these passengers were deliberately preventing the door from closing. Passenger one (as identified during the hearing) was involved in the incident and was moving both in and out of the tram. When approached by the applicant, passenger one was immediately outside of the tram and remained there but passenger two moved inside the tram and stood in the doorway. Passenger two refused to move, ignored the applicant’s apparent attempts to explain the need to clear the door beam, and was deliberately ignoring that applicant’s directions to clear the doorway. Passenger one, who remained immediately outside of the tram, verbally abused the applicant 3 and both deliberately defied the applicant’s requests to move away from the door.

[19] The relevant training provided by the respondent in these circumstances would suggest that the applicant should withdraw and then seek assistance from either the driver and/or the police. However, the applicant persisted with his attempts to persuade the passengers to allow the door to close and did so in part because he considered that it was necessary to have the tram leave the stop in order to meet its timetable. It is also clear to me that he was motivated to address the situation given the close proximity of other passengers. However, it is also evident to me that the applicant resented the defiance of the passengers in not following his direction.

[20] The applicant remained in close proximity to passenger two and after an unexplained disturbance at the front of the tram that took the attention of all concerned, the applicant then forcefully pushed the passenger. The circumstances applying at that time are not clear from the CCTV footage and it is likely that passenger two did move closer to the applicant however it is not possible to infer the motive behind that move. What is clear is that the contact made by the applicant was sufficient to rapidly move passenger two to the seats on the opposite side of the tram. It was suggested by the respondent, at least during these proceedings, that this contact may have been a punch. However, I find that it was a push with the open hand to the shoulder or torso of the passenger. It was also contended during the investigation by the respondent that the applicant had pushed passenger two to the floor of the tram. This is not supported by the CCTV footage but little turns on this in my view.

[21] Passenger one, who remained immediately outside of the door at the time, then joined passenger two inside the tram and they both assaulted and kicked the applicant who was by now on the floor of the tram. The passengers concerned then left the tram and the applicant, who was in a dazed state, followed them onto the platform. Although the evidence on this element is not clear, it is likely that the applicant was further assaulted by the passengers on the platform. I find that the applicant followed passengers one and two in the vain attempt to restrain them until some assistance arrived.

[22] The applicant then returned to the tram and sought to find his glasses and to pick up the tickets and paperwork that had by then become strewn across the tram floor. Passenger two then also came back into the tram via another door however the applicant, who was at that stage clearly disorientated and dazed, did not even notice that this passenger was back within close proximity. As a result of the intervention of another passenger (passenger three – who may have been associated with the other passengers but not involved in the incident and who put himself between the applicant and passenger two) no further interaction between them took place.

[23] The driver, who had remained in the front cabin up until that point, and some other passengers, then assisted the applicant to collect his belongings. The incident was reported to management, probably by the driver, and the applicant was subsequently taken to hospital for treatment.

[24] The applicant was treated that night and allowed to go home. He was however suffering from head trauma and some minor injuries to his hands and legs as a result of being struck. I interpose that the subsequent medical advice is that the nature of his head injuries may have been such as to impact upon his memory of the events and the applicant was diagnosed with post traumatic stress in the aftermath of the incident. 4

[25] The applicant returned to work on 22 October 2009 in light of a medical clearance to do so. He also filed an incident report on that day and this reported the assault that he had suffered but did not make mention of the fact that he had pushed the passenger.

[26] The respondent, through Mr Maciunas, commenced an investigation of the matter in light of the incident report. Upon viewing the CCTV footage, Mr Maciunas considered that the matter should be formally investigated and requested that the applicant attend a preliminary investigation interview on Monday 26 October 2009.

[27] The preliminary investigation interview proceeded as scheduled and the applicant was accompanied by the relevant ARTBIU delegate. The explanation given at that time by the applicant did not mention that he had pushed the passenger. Upon reviewing the CCTV footage, Mr Maciunas considered that the applicant had apparently assaulted the passenger and assessed that a formal investigation under the respondent’s disciplinary policy should be conducted.

[28] The applicant was advised, by letter dated 28 October 2009 5, that he was required to attend an investigation interview to further consider the matter. That letter contained the allegation that the applicant has assaulted the passenger and confirmed his right to be supported by an appropriate representative.

[29] Arrangements where then also made for the applicant and his representatives to view the CCTV footage in advance of the investigation interview. The applicant initially declined to do so but subsequently viewed the footage upon advice from his representatives.

[30] The investigation interview proceeded on 2 November 2009 and in light of the CCTV footage, the applicant conceded that he had made physical contact with the passenger. The applicant also conceded that ideally he should have walked away from the incident and reported the matter. The applicant also cited a number of mitigating circumstances and indicated that he had not intended to make contact with the passenger.

[31] Mr Maciunas also interviewed the driver of the tram and this did not apparently reveal any particularly relevant information concerning the events leading to the actual incident.

[32] Mr Maciunas then reported his findings to Mr Doggett, including the applicant’s admission that he had “struck one of the passengers” and had not made mention of his own actions when reporting the incident.

[33] Mr Doggett, who had already been made aware of the incident involving the applicant on the night in question and instructed Mr Maciunas to conduct the preliminary investigation, then considered that the investigation revealed conduct that might represent grounds for disciplinary action and implemented a disciplinary interview process. On 5 November 2009, the applicant was advised in writing of that decision, the allegation then being made, and his representational rights. The notification also outlined that the applicant would be given an opportunity to respond and that if his conduct was found to warrant disciplinary action, such may include a written final warning or consideration of termination of your employment. 6

[34] The disciplinary interview proceeded on 9 November 2009 and the applicant was assisted by his ARTBIU representatives. The applicant was reminded of the investigation findings and he acknowledged the seriousness of the matter and apologised. He also indicated that until he had seen the CCTV footage he was unaware that he had made any contact with the passenger concerned.

[35] Mr Doggett indicated that he would consider the matter and advise of a decision on the following day.

[36] On 10 November 2009, the applicant was handed a notice of dismissal upon his attendance for work at the tram depot. I accept that the applicant was genuinely surprised about this turn of events, particularly given that the outcome of the disciplinary process was not advised to him directly by Mr Doggett.

[37] The basis for the decision to dismiss the applicant was summarised in the following terms:

“…

A Disciplinary Interview was subsequently held on 9 November 2009, at which time you were asked to respond to the allegation that, on 20 October 2009, you had behaved in an aggressive manner and physically assaulted a passenger, knocking him to the tram cabin floor.

You do not dispute the fact that you initiated physical contact with the passenger involved and could offer no satisfactory explanation as to why you responded in such a violent manner.

Having carefully considered your explanation of the reported incident and taking into account all relevant information obtained in the course of the investigation of this matter, it has been determined that your response to the situation was inappropriate and cannot be condoned.

In view of the violent nature of your actions and your failure to include details of your actions in the initial Incident Report, it has been determined that your conduct warrants termination of your employment on the basis of serious misconduct.

...” 7

[38] The respondent did not conduct a dismissal interview precisely as contemplated by its disciplinary policy and I will return to the significance of this issue in due course.

[39] The applicant’s termination was effective immediately. He was however paid five weeks pay in lieu of notice. The applicant cooperated with the requirements to return the respondent’s property and left the premises.

[40] I would add that the applicant attended all of his normal shifts after receiving a medical clearance, including after the decision was taken by the respondent to investigate the matter and perhaps more significantly, even after the subsequent commencement of the formal disciplinary process.

[41] The disciplinary procedures applying to the respondent provide for an internal appeal of any disciplinary decision. The applicant did appeal to the then Chief Executive Officer (CEO) of the respondent and the RTBIU provided a submission on his behalf. The CEO then conducted an appeal interview with the applicant and his representatives. The appeal was subsequently rejected by the CEO.

Consideration – was the dismissal harsh, unjust or unreasonable?

[42] The Act relevantly provides as follows:

“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.”

[43] I have earlier set out the general contentions of the parties and although I have considered the detailed submissions made by the parties, I will not repeat them for present purposes.

[44] It is clear that s.387 contemplates that an overall assessment as to the nature of the dismissal must be made by FWA. In so doing, the Act sets out a number of considerations that are, where relevant, to be taken into account.

[45] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).

[46] Valid in this context is often considered to be whether there was a sound, defensible or well founded reasons for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied 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. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 8 In a case such as this, consideration of the conduct as the Tribunal finds it to be must be made.

[47] The conduct as relied upon by the respondent involved two elements. The incident itself, involving the pushing of passenger two and the applicant’s decision to follow the passengers onto the platform. Further, the failure to accurately report the incident. This second aspect was however the lesser consideration. 9

[48] In terms of the incident itself there is no doubt that the applicant should have dealt with the matter differently. When the refusal of the passengers to cooperate became evident, he should have withdrawn and sought assistance. He should also not have made contact with passenger two in the manner in which he did. This does amount to misconduct. However, there were mitigating circumstances. The applicant was attempting to resolve the situation notwithstanding provocation. As outlined earlier, there were a range of motivations in acting as he did and some of these were understandable and reasonable in the circumstances. There was a strong element of reaction to the circumstances, including the fact that passenger two moved closer to the applicant and he was being ignored by one and abused by the other passenger at the time.

[49] The applicant did follow the passengers onto the platform and this was also unwise and not in line with the training provided by the respondent. However, it is evident that he was in shock and was motivated by a desire to prevent those that had assaulted him from leaving the scene.

[50] As to the nature of the initial incident report, the applicant did not indicate that he had pushed passenger two. However, it is clear to me that the applicant was traumatised by the incident and this affected his memory. This is supported by the medical evidence before me and the applicant’s own evidence. I find that he did not attempt to mislead his employer (the fact of CCTV footage from the trams was well known). When it became apparent from that footage that he had indeed pushed passenger two, the applicant acknowledged his conduct.

[51] The applicant returned to work following a medical clearance and although the respondent held serious concerns about his conduct, he worked his normal shifts for over two weeks until his dismissal. Mr Doggett explained this decision in response to a question I put to him about the issue as follows:

“No, it was something that was considered and pondered and the viewpoint that I came to was this was not the sort of incident that I would expect see repeated next week or next month, and I was confident that we would have the – the full investigation process finished relatively soon, but it wasn’t the sort of behaviour and given Mr Kidd’s remorse and the comments he made I was quite confident I just did not see it as a – a very likely possibility at all that it was behaviour that would be repeated.” 10

[52] Mr Doggett further explained the implication of that assessment in terms of the seriousness of the conduct as follows:

“It’s the sort of – and if you – if you go through examples in our disciplinary process about things that do warrant dismissal it’s – it’s clearly laid out there and I guess in my mind I was sort of thinking, “Well”, and I don't know whether it’s appropriate to say this, but if I murdered somebody I would expect to be punished and go to gaol even though I'm sure the great majority of murders are never repeated again. So that – you know, I'm not sure if that’s quite the right analogy, but it’s the sort of behaviour that can't be excused, but it’s also not something I expected to be readily repeated either. That’s the sort of logic I was using”. 11

[53] Mr Maciunas also indicated in evidence that the suspension of employees was not something that the respondent (generally) does and that where it had been implemented on other occasions, it was not “productive”. 12

[54] The decision to let the applicant resume employment whilst the formal investigation and interview process was underway may not deny the respondent the capacity to subsequently dismiss the applicant on the basis of the misconduct (he was paid in lieu of notice). However, the findings as to the actual conduct of the applicant in this case do not support Mr Doggett’s assessment of the seriousness of the matter. Importantly, Mr Doggett’s assessment of the applicant’s contrition and the likelihood of further behaviour of this sort, which was both fair and supported by the facts, does in my view bear upon the reasonableness of the decision to terminate. I will return to this aspect shortly.

Section 387(b) – whether the applicant was notified of the reasons for dismissal.

[55] The applicant was notified of the reasons for his dismissal both in the form of allegations and more importantly as confirmed in the dismissal letter on 10 November 2009.

Section 387(c) – whether the applicant was given an opportunity to respond to any reason related to his capacity or conduct.

[56] The applicant was given a reasonable opportunity to respond to allegations about his conduct during both the investigation and disciplinary process. This included the particularisation of the allegations and the inferences that were being drawn. The applicant was also shown the CCTV footage and given an opportunity to explain his perspective and provide any mitigating circumstances.

[57] The applicant was not shown the statement provided by the driver of the tram on the night in question or made aware that this had been sought. Whilst this should have been done, there were no significant elements in that statement regarding the events leading the incident.

Section 387(d) – any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to his dismissal.

[58] The applicant was afforded the opportunity to be represented throughout the investigation and disciplinary process as conducted by the respondent.

Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether the person has been warned about that unsatisfactory performance before the dismissal.

[59] The matter concerns an alleged act of misconduct and there is no suggestion of unsatisfactory work performance by the applicant in the sense referred to in this provision.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[60] The respondent is a relatively large employer and has sophisticated polices and procedures in place relating to conduct, investigations and disciplinary action.

Section 387(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.

[61] The respondent has dedicated human resource management specialists and these were involved in the investigation and disciplinary process.

Section 387(h) – any other matters that FWA considers relevant.

[62] The applicant’s relatively long period of service with the respondent is a relevant consideration in this matter.

[63] The fact that I have found the conduct not to be as serious as the respondent is also a relevant matter. The dismissal of the applicant was in my view disproportionate when all of the circumstances are taken into account.

[64] The findings that I have made as to the one-off nature of the conduct and the likelihood of further such conduct are also relevant matters.

[65] The applicant has relied upon a number of other matters that could also be relevant in this context. The respondent did not follow the letter of its disciplinary policy in certain respects. This included the suggestion that the actual formal investigation should have been personally conducted by the relevant delegate (Mr Doggett) and that a formal disciplinary interview should have been provided by Mr Doggett to conclude the process.

[66] Whilst a breach of policy may be relevant in a case such as this, the applicant was unable to demonstrate any prejudice as a result. The matter was subject to an initial investigation, it was then escalated to a formal investigation and ultimately a disciplinary matter. At each stage the applicant was afforded procedural fairness and when it became relevant, made aware of the seriousness and potential consequences of the matter. Further, the ultimate decision was made and communicated (through a letter) by the authorised delegate. On this basis, even if there was a breach of policy, this would not change the characterisation of the dismissal in this matter.

[67] I have also raised with the parties the relevance of the internal appeal as provided by the respondent’s policy. 13 The appeal was considered after the decision to dismiss was made and whilst it may have been possible for the respondent to argue that this would have covered off any procedural deficiencies in the process, such is not relevant here and I do not need to deal with this aspect.

Conclusion as to the nature of the dismissal

[68] Having regard to the considerations raised by s.387 and the facts of this matter, I find that the dismissal of the applicant was harsh and unreasonable in all of the circumstances. As a result, I find that the applicant was unfairly dismissed within the meaning of the Act.

Remedy

[69] Division 4 of Part 3-2 of the Act provides as follows:

Division 4—Remedies for unfair dismissal

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.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA 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), FWA 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.

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), FWA must take into account all the circumstances of the case including:

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

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

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

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

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

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

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(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.

Shock, distress etc. disregarded

(4) The amount ordered by FWA 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 FWA 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.

393 Monetary orders may be in instalments

To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[70] The prerequisites of ss.390(1) and (2) have been met.

[71] Section 390 makes it clear that compensation is only to be awarded as a remedy where I am satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, I must consider firstly whether reinstatement is inappropriate.

[72] The applicant genuinely seeks reinstatement to his former position. Given the nature of the applicant’s conduct as I have found it to be, the likelihood of further incidents, the obvious contrition of the applicant and the circumstances of the respondent and the employment in question, I consider that reinstatement is appropriate. In reaching this conclusion, I have also considered the evidence of Dr Pearce concerning the applicant’s medical condition including the applicant’s present state of mind and the benefits to him of reinstatement in these particular circumstances. 14

[73] I also consider that this reinstatement should be to the position occupied by the applicant immediately prior to his dismissal as contemplated by s.391(1)(a) of the Act.

[74] The applicant has made numerous but unsuccessful attempts to find alternative employment since his dismissal. Although the applicant is not without some responsibility for the circumstances leading to his dismissal, I consider that there should be an order to maintain his continuity of service with the respondent pursuant to s.391(2) of the Act.

[75] The consideration of any order to restore lost pay is to be taken having regard to the matters set out in s.391(4) of the Act. In all of the circumstances, and recognising that the events leading to his dismissal will form part of his employment record as a result of this decision, I do consider that the restoration of lost pay is appropriate in this case. The applicant received pay in lieu of notice but has not been employed or obtained work since his dismissal and in that latter respect there is no other remuneration that has been earned by him from employment or other work. Some lead in to the actual reinstatement is appropriate in order for the respondent to make the necessary arrangements. I consider that 14 days is appropriate for this purpose.

[76] It is not reasonable to allow for any such remuneration to be earned by the applicant from other employment or work in that period.

Orders

[77] Orders reinstating the applicant to his former position with the respondent, providing for the maintenance of his continuity of employment and for the restoration of lost pay, effective as from 14 days from this decision, have been issued. 15

COMMISSIONER

Appearances:

A Waddell with D Phillips from the Australian Rail, Tram and Bus Industry Union for the applicant.

B Johnston with A Maciunas and D James for the respondent.

Hearing details:

2010
Adelaide
March 26, 29, 30.

Final written submissions:

31 March and 1 April 2010.

 1   Outcome of Disciplinary Interview 10 November 2009 (exhibit R1 – annexure 12)

 2   Both parties supported the conduct of a hearing and the matter involved multiple witnesses and issues of credit.

 3   This is consistent with the applicant’s evidence and with the vision from Camera 5.

 4   The report from Dr Pearce and evidence PN390

 5   Exhibit R1 – annexure 6.

 6   Exhibit R1 – annexure 10.

 7   Exhibit R1 - annexure 12

 8   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, Ross VP, Williams DP, Foggo C, 15 June 2004 PR948009

 9   Doggett– evidence PN839.

 10   Transcript PN841.

 11   Transcript PN842.

 12   Transcript PN708.

 13   Transcript PN929.

 14   This includes the evidence of Dr Pearce at PN420-421 which was not challenged by the respondent.

 15   PR996268

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