Robert Aldred v J Hutchinson Pty Ltd
[2012] FWA 10419
•13 DECEMBER 2012
[2012] FWA 10419 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Aldred
v
J Hutchinson Pty Ltd
(U2012/6299)
COMMISSIONER LEWIN | MELBOURNE, 13 DECEMBER 2012 |
Unfair dismissal - redundancy - redeployment - remedy - reinstatement - compensation - viability - mitigation - remuneration likely to have been earned - lost remuneration - length of employment.
Introduction
[1] This decision concerns an application for relief in relation to the termination of Mr Robert Aldred’s employment by J Hutchinson Pty Ltd on 6 March 2012.
[2] The application was the subject of a decision on 26 October 2012 1, by which I determined that I was satisfied that the termination of Mr Aldred’s employment by J Hutchinson Pty Ltd was harsh, unjust and unreasonable, for reasons contained therein. I did not then deal with the appropriateness of a remedy in respect of the unfair dismissal found to have occurred in that decision.
[3] Since the decision of 26 October 2012, the parties have called witness evidence, made submissions and filed further material for consideration for the purpose of a decision in relation to the appropriateness of a remedy.
[4] Mr Aldred has sought reinstatement and orders for lost wages and continuity of his employment with J Hutchinson Pty Ltd or in the alternative an appropriate order for payment of an amount of compensation in lieu of reinstatement.
Statutory Provisions – Remedy
Reinstatement
[5] The statutory provisions which govern the Tribunal’s jurisdiction and the exercise of its powers to award a remedy of reinstatement in relation to an unfair dismissal of an employee are set out below:
“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.”
[6] A reading of the decision of 26 October 2012 will show that Mr Aldred’s employment was terminated for reason of redundancy. However, in that decision I decided that it would have been reasonable for J Hutchinson Pty Ltd to have redeployed Mr Aldred to a position in Queensland, at the time his employment was terminated.
[7] The material now before me deals with subsequent events affecting the level of employment within J Hutchinson, nationally and in Queensland. Among other things, I am satisfied that there is now no position of the kind in which Mr Aldred was employed immediately before the dismissal available in J Hutchinson Pty Ltd in Queensland to which Mr Aldred could be reappointed, pursuant to section 391(1)(a) of the Fair Work Act 2009 (the Act).
[8] Additionally, I am satisfied that there is otherwise now no vacant position within J Hutchinson Pty Ltd to which Mr Aldred could be appointed on terms and conditions no less favourable than those he enjoyed at the time of his dismissal. In this respect there is evidence that, had Mr Aldred been redeployed to Queensland at the time of the termination of his employment, in the period between that time and late 2012, 178 positions were made redundant among the Queensland workforce of Hutchinson Pty Ltd and that 115 tradesman and carpenters have been retrenched from their employment by J Hutchinson Pty Ltd since that time nationwide. 2
[9] Clearly, the requirements of J Hutchinson for labour have substantially diminished, most likely as a consequence of a downturn in the industry of the company. In such circumstances it is more likely than not that an order under s.391(1)(b) would lead to Mr Aldred’s employment being soon, if not immediately, surplus to J Hutchinson’s requirements and unable to be deployed usefully.
[10] There is no evidence upon which I could consider an order for the reinstatement of Mr Aldred in an associated entity of J Hutchinson Pty Ltd.
[11] For these reasons I am satisfied that an order for reinstatement is not appropriate.
Compensation
[12] The statutory provisions which govern the Tribunal’s jurisdiction and the excercise of its power to make an order for the payment of compensation in relation to unfair dismissal are 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), 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.”
[13] I now turn to consider the appropriateness of an order that J Hutchinson Pty Ltd pay an amount in lieu of reinstatement as compensation to Mr Aldred in relation to his unfair dismissal. I will deal with each of the statutory considerations which must be taken into account in order.
The effect of the order on the viability of the employer’s enterprise
[14] I commented on the size and economic dimensions of J Hutchinson’s business in broad terms in my decision of 26 October 2012. It is a large company with turnover of $1.2 billion in FY2012. 3
[15] No submission has been made that an order for payment of an amount of compensation within or up to the jurisdiction of the Tribunal would cause any risk to the viability of the Respondent. I find that any order made appropriately within the Tribunal’s jurisdiction would have no effect on the viability of J Hutchinson Pty Ltd.
The length of the person’s service with the employer
[16] Mr Aldred was employed by J Hutchinson Pty Ltd from 23 June 2011 until 6 March 2012. This is a short period of service. I note however that Mr Aldred is a construction worker and periodic engagements with various employers on construction projects are notorious. I will take the length of Mr Aldred’s employment into account accordingly when considering an appropriate order.
The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[17] I consider it more probable than not that Mr Aldred’s employment would have come to an end within months of redeployment to Queensland due to the significant reduction in the size of J Hutchinson’s workforce in that State.
[18] Therefore, I consider it necessary and appropriate to judge the likely employment horizon of Mr Aldred with J Hutchinson Pty Ltd in Queensland if he had been redeployed at the time of his dismissal accordingly. I have decided on a period of three months.
[19] In that time Mr Aldred would have received remuneration totalling 20,417.80. 4 This amount is based upon Mr Aldred having been engaged for 40 hours per week during this period. Mr Aldred submitted that it is more likely that he would have been engaged for 56 hours per week had he been so redeployed. J Hutchinson Pty Ltd maintains that the more likely scenario is 40 hours per week, based on company information. I must decide between the two alternatives on the material before me. J Hutchinson Pty Ltd is in a better position, in my view, to be able to provide the necessary information. While that information is limited, apart from an agreement governing employment of persons by J Hutchinson in Queensland, Mr Aldred has not submitted information upon which I could be reasonably satisfied that the hours worked would more likely have been 56 rather than 40.
[20] There is nothing before me on which I could conclude that Mr Aldred would have been further redeployed within J Hutchinson or an associated entity at any location, beyond the period of employment in Queensland which I judge would have been the case
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[21] Mr Aldred has substantially mitigated his loss and acted reasonably in all respects. The evidence shows Mr Aldred searched for and found employment with other builders during the period of three months from the termination of his employment with J Hutchinson Pty Ltd.
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
[22] As a result of Mr Aldred’s success in obtaining employment and payment to him of amounts from the Incolink redundancy scheme, Mr Aldred received the amount of $12 671.40 in remuneration during the period which I judge his employment would have continued had he been redeployed to Queensland.
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 an the actual compensation
[23] I am unable to identify a relevant amount.
Any other matter that FWA considers relevant
[24] In coming to my judgement concerning the likely employment horizon, had Mr Aldred been redeployed to Queensland, I have allowed a possibility that Mr Aldred may not have found the continuation of the employment to which he would have been redeployed amendable. While I have found that Mr Aldred was at the time of the termination of his employment in Melbourne willing to be redeployed to a position in Queensland some element of uncertainty of the length of continuity of such employment on Mr Aldred’s part must be allowed, having regard to possible unforeseen aspects of the employment to which he would have been redeployed.
Conclusion
[25] Having regard to all of the criteria above, including the length of Mr Aldred’s employment, I consider that an appropriate order of compensation is in the amount of $7,746.40 which constitutes the remuneration Mr Aldred lost in the period of the three months during which I judge he would have remained employed by Hutchinson Pty Ltd in Queensland but for the termination of his employment. Overall, I consider this an appropriate remedy.
[26] An order will issue accordingly.
COMMISSIONER
Appearances:
Mr R Wainwright of the CFMEU for Mr Robert Aldred.
Mr J. Tracey of Counsel for J. Hutchinson Pty Ltd.
Hearing details:
2012
Melbourne
December, 4
1 [2012] FWA 8289.
2 Transcript, PN2117
3 Exhibit A1, Attachment B at p.7.
4 Calculations received in a letter from Herbert Geer dated 7 December 2012, p. 2.
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