Stephen Lawrence v Fulton Hogan Pty Limited
[2010] FWA 7924
•4 NOVEMBER 2010
[2010] FWA 7924 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen Lawrence
v
Fulton Hogan Pty Limited
(U2010/9483)
COMMISSIONER BISSETT | MELBOURNE, 4 NOVEMBER 2010 |
Application for unfair dismissal remedy.
[1] This is an application by Mr Stephen Lawrence for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
[2] Mr Lawrence was employed by Fulton Hogan as a truck driver. He commenced employment on 4 March 2009. His employment was terminated on 1 June 2010.
[3] The matter could not be settled in conciliation.
[4] Mr Lawrence gave evidence on his own behalf. Ms Kelly Lawrence and Ms Amanda Rigby were witnesses on his behalf.
[5] Evidence for the Respondent was given by Mr Joe Schoessow (Transport Manager); Mr Russell Reed (Workplace Health and Safety Officer for Fulton Hogan) and Mr Brendan Shiels (Production and Maintenance Manager, Burnside Road Asphalt Plant).
Background and evidence
[6] Fulton Hogan, amongst other things, provides asphalt and quarry services to the Origin Alliance project in Queensland. As part of the operation of the site Origin Alliance requires all workers (direct employees, contractors, etc) to undertake an induction process. It appears that this results in the granting of an induction card. Without such a card, a worker (directly employed or otherwise) cannot enter the site.
[7] On 28 May 2010 Origin Alliance revoked Mr Lawrence’s induction card. Because his card was revoked Fulton Hogan terminated his employment. Fulton Hogan says the termination of his employment relates to his capacity (incapacity) to fulfil his contract of employment in that he can no longer access the Origin Alliance site. 1
[8] Mr Lawrence says that on 24 May 2010 he felt ‘a twinge of pain in [his] lower back’ 2 while winding a tarp back on his truck. At the time he was on the Origin Alliance site. He did not immediately report the twinge.
[9] When he woke the next morning (25 May), his back was still sore so he rang Mr Schoessow at about 6.00am to advise that he had hurt his back and was going to rest. Mr Lawrence’s evidence is that he asked Mr Schoessow if he should ring Mr Reed - the Workplace Health and Safety Officer - to which Mr Schoessow replied ‘No, you have called me and that is enough.’ 3
[10] Mr Schoessow agrees that Mr Lawrence rang him, but says Mr Lawrence told him that he had a niggle in his back and wanted to stay home and put a heat pack on it and he ‘should be OK tomorrow.’ Mr Schoessow says he thanked Mr Lawrence for the call and hung up. 4
[11] Ms Kelly Lawrence, the wife of Mr Lawrence, gave evidence that she heard her husband’s side of the conversation and that she was ‘lying in bed, he was sitting on his side of the bed, so - a queensize bed - about a metre away’ from him at the time. 5 Subsequent to the conversation she made a statutory declaration as to what she heard.6 This accords with Mr Lawrence’s version (of his side) of the conversation.
[12] Later that day, Mr Lawrence says he again rang Mr Schoessow and advised he was going to the doctor. Mr Schoessow asked if it was a Workcover claim and said ‘if it happened at work you will have to tell your doctor that it is a Workcover claim.’ 7
[13] Mr Schoessow’s evidence of the conversation is that he asked Mr Lawrence if he had reported it, to which Mr Lawrence said no. He then asked Mr Lawrence if it was a Workcover claim to which Mr Lawrence said he didn’t know. 8
[14] Mr Lawrence’s doctor subsequently gave Mr Lawrence the remainder of the week off work. A Workcover medical certificate was issued by the doctor and a Workcover claim form completed. 9 The Workcover claim says the injury was sustained on the Origin Alliance site. The Workcover claim also indicates that the injury was reported to ‘Joe’.
[15] On 26 May 2010 Mr Lawrence says he rang Mr Schoessow at around midday but his phone was engaged. He then left a message with reception to ‘tell Joe [Schoessow] that the doctor has given me the rest of the week off...’ 10 Mr Lawrence spoke to Mr Schoessow at about 2.00pm. Mr Schoessow asked what sort of certificate the doctor had given him and Mr Lawrence replied that it was a Workcover certificate. Mr Schoessow said he would arrange for Mr Lawrence to attend a company doctor. Mr Schoessow subsequently rang Mr Lawrence a bit later that day and advised that he would be picked up by Michael (an employee of Fulton Hogan) at 7.00am the next day and taken to an appointment with the company doctor.11
[16] Mr Lawrence attended the company doctor on 27 May - driven by Michael. Mr Lawrence gave the Workcover paperwork to Michael, who gave it to Mr Schoessow on his return to work at about 11.00am. 12 Mr Schoessow’s evidence is that at 11.15am he advised Mr Frederick (the Fulton Hogan Project Manager at Origin Alliance) that Mr Lawrence had sustained an ‘unreported Workcover injury claiming it occurred on the [Origin Alliance] project.’13
[17] On 28 May Mr Lawrence attended his own doctor accompanied by Russell Reed from Fulton Hogan. At that time Mr Reed advised Mr Lawrence that he was required to attend a meeting with the company on Monday 31 May at 8.00am. He did not advise (because he did not know) the purpose of that meeting. 14
[18] Mr Lawrence’s evidence is that whilst at the doctor he said to Mr Reed ‘Hasn’t this got out of control for a back injury. Now all of a sudden I have got meetings? I said to Joe on Tuesday morning when I rang “Do you want me to phone you (meaning Russell [Reed])” and Joe told me “no” because he had it covered’, to which Mr Reed replied ‘Joe should have phoned me and then I would have rung you and started the ball rolling’. 15 Mr Reed’s evidence is that Mr Lawrence asked him what he (Mr Reed) would have done if Mr Lawrence had advised him sooner of his injury, and Mr Reed replied that that was a question based on hindsight and as he was in Melbourne on business at the time he couldn’t say.16
[19] Further, on 28 May 2010, Mr Frederick wrote to Origin Alliance advising that a Fulton Hogan worker had been injured on the Origin Alliance site. The pertinent paragraphs of that letter state:
The Fulton Hogan Surfacing Project Manager (Origin) [Mr Frederick] was informed by the Fulton Hogan Transport Manager around midday on 27/05/10 that an injury had occurred on the [Origin] job site last Monday but the driver had informed nobody of the nature of the injury. Further discussion over the next few days have determined that he has consulted his own doctor and been provided with a Workcover form (attached) without the knowledge of Fulton Hogan Management. In turn, he has breached protocol for both Origin Alliance and Fulton Hogan and subsequent disciplinary actions shall be taken upon return of the employee sometime after Monday.
As discussed this morning between Fulton Hogan (Robert Frederick, Russell Reed and Joe Schoessow) and Origin Alliance (Steve O’Brien), the driver shall not return to the Origin Project Site and his induction has been revoked. 17
[20] This letter was written following a meeting held at 8.30am that same day 18 between representatives of Fulton Hogan (Mr Frederick, Mr Schoessow and Mr Reed) and Origin Alliance (Mr O’Brien).
[21] A letter dated 28 May 2010 was then sent from Origin Alliance to Mr Frederick of Fulton Hogan stating, in part:
We refer to our discussions with you on Friday, 28 May 2010 with Russell Reed, Joe Schoessow and Steve O’Brien regarding the above matter.
Specifically on Monday 24 May - Stephen Lawrence failed to report an injury to his supervisor in a timely manner. Failure to report this injury constitutes a breach of the Origin Alliance Golden Rules as outlined in the site induction.
As a result the DG2 Joint Venture has decided to revoke Stephen’s induction card... 19(emphasis added)
[22] It is not clear when this letter was delivered to Mr Frederick, but Mr Frederick emailed it on to Mr Schoessow on 31 May 2010 at 3.00pm. 20
[23] Up to the point of the letter of 28 May being sent by Origin Alliance to Fulton Hogan revoking Mr Lawrence’s induction card for the Origin Alliance site, no-one had spoken to Mr Lawrence with respect to any breach of policy with respect to his injury. Mr Lawrence was not copied into any of this correspondence between Fulton Hogan and Origin Alliance.
[24] The first discussion anyone had with Mr Lawrence about the reporting of the injury occurred at a meeting on 31 May 2010. The purpose of that meeting, according to Mr Schoessow, was to ‘determine whether it would actually go to a disciplinary meeting.’ 21
[25] The meeting on 31 May 2010 was attended by Mr Lawrence, Mr Schoessow, Mr Reed and Mr Carter (all of Fulton Hogan). The meeting heard both Mr Lawrence and Mr Schoessow’s versions of the conversation of 6.00am on 25 May 2010. Mr Lawrence was asked why, when he rang Mr Schoessow on 26 May, he rang on the land line and not the mobile. 22 When asked what he remembered of his induction the evidence of Mr Schoessow and Mr Reed is that Mr Lawrence shrugged and said ‘maybe I remember maybe I have forgotten.’23
[26] During this meeting Mr Lawrence was advised by Mr Schoessow that it was intended he be given a first and final warning. Mr Schoessow also, on his evidence, ‘made Stephen aware at this meeting that he [had] been stood down from duties on full pay whilst the investigation [was] carried out both by Fulton Hogan and Origin Alliance.’ 24 Mr Lawrence advised that he wanted the meeting to stop so he could get representation.
[27] Immediately following that meeting, Mr Lawrence was given a letter in which he was notified that he would be required to attend a disciplinary hearing on 1 June 2010 at 10.00am. At that meeting, the letter advised, he would be required to respond to charges of serious misconduct relating to his alleged failure to report his injury. The letter also advised that ‘with effect of today you have been stood down from you [sic] duties on full pay whilst the investigation is carried out both by Fulton Hogan and Origin Alliance’. 25
[28] It appears that Mr Schoessow received the letter from Origin Alliance (see paragraph 21, above) revoking Mr Lawrence’s induction card after the meeting of 31 May with Mr Lawrence but before the meeting arranged for the next day. Whilst there is no evidence of this it can only be assumed that the revocation of Mr Lawrence’s induction card by Origin Alliance was a result of the ‘investigation’ carried out by Origin Alliance referred to in Mr Schoessow’s statement and in the letter of 31 May from Fulton Hogan to Mr Lawrence outlining the allegations against him. 26
[29] A further meeting was held with Mr Lawrence and Ms Rigby, his union representative, on 1 June 2010. That meeting was attended for Fulton Hogan by Mr Schoessow, Mr Reed, Mr Carter and Mr Power. This meeting again canvassed the phone call of 6.00am on 25 May. Mr Lawrence was asked why he waited until the Wednesday (26 May) to advise of his workplace injury. 27
[30] At the conclusion of the meeting Mr Schoessow advised Mr Lawrence that he was being dismissed for failing to report a workplace injury in accordance with Origin Alliance Project and Fulton Hogan’s safety procedures. 28 A letter confirming the termination was sent to Mr Lawrence stating that the reason for the termination of his employment was his ‘recent action whereas you failed to report a workplace injury according to Fulton Hogan Company procedure and also breached the safety procedures at the Origin Alliance project that resulted in the cancellation of your Origin Alliance Induction Card and are no longer allowed on site’.29
[31] Ms Rigby provided a witness statement in which she claimed that when she accompanied Mr Lawrence to collect his belongings following the meeting of 1 June, she had a conversation with Mr Shiels where Mr Shiels indicated that ‘there is plenty of quarry work. Drivers are not required daily at Origin. Only this morning I sent two trucks to the Marsden Yard. Stephen could have been one of those guys’. When asked by Ms Rigby if this would be the norm, Mr Shiels replied ‘Yes, we do it every day. Stephen was a good worker’. 30
[32] The Respondent chose not to cross examine Ms Rigby, relying on a statement of Mr Shiels 31 to refute Ms Rigby’s evidence.
[33] Mr Shiels’ evidence is that he told Ms Rigby he couldn’t get involved. 32 Under cross examination, Mr Shiels was belligerent and rude. With respect to the conversation with Mr Shiels, I prefer the evidence of Ms Rigby. Ultimately, not much turns on this conversation because of a lack of detail of the conversation and it must be weighed against other evidence of the use of contractors in quarry work. The conversation has, however, been taken into account by me.
[34] Mr Schoessow gave evidence that the HR Manager did look to see if there were other jobs at Fulton Hogan for Mr Lawrence but ‘there were no positions available’. 33 This was done without reference to Mr Lawrence’s qualifications.34 It also appears that the search was limited to the division of Fulton Hogan in which Mr Lawrence worked.35
Consideration
[35] In determining whether Mr Lawrence has been unfairly dismissed I must determine if the dismissal was harsh, unjust or unreasonable:
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.
(a) A valid reason relating to conduct or capacity
[36] This matter does not go to whether or not Origin Alliance had a valid reason for withdrawing Mr Lawrence’s induction card or the process it used to make that decision (although it is notable that it made that decision without any discussion with Mr Lawrence). Fulton Hogan is the employer and this case relates to the actions and decisions it took in terminating Mr Lawrence’s employment.
[37] There is however a level of complexity added by the presence of a third party. Origin Alliance clearly has established procedures for people working on its sites. These are important to Origin Alliance - and properly so - for maintaining appropriate standards, including health and safety, on its sites. It is important however not to confuse the reasons for the termination of Mr Lawrence’s employment by his employer - Fulton Hogan - with the actions of Origin Alliance.
[38] Whilst the actions of Origin Alliance may have been unfair - and Mr Lawrence certainly did not have a chance to be heard before it made the decision to revoke his induction card - this does not, of itself, make his termination of employment by Fulton Hogan unfair. As was recently observed in Henderson v Connect (South Tyneside) Ltd:
[I]t has long been recognised that the fact that the client who procures, directly or indirectly, the dismissal of an employee may have acted unfairly, and that the employee has thus suffered an injustice, does not mean that the dismissal is unfair within the meaning of the statute. That is because the focus of s. 98 of the Employment Rights Act 1996, and its statutory predecessors, is squarely on the question whether it was reasonable for the employer to dismiss. 36
[39] Whilst the relevant statute in the United Kingdom differs from the Fair Work Act 2009, parallels can be drawn. The question to be addressed here, similarly to the UK, is whether there was a valid reason for the actions of the employer in terminating the employment of Mr Lawrence. 37 The actions of Origin Alliance are not relevant.
[40] As this matter is not about the actions of Origin Alliance, it is my opinion that Fulton Hogan cannot use the loss of the induction card as a valid reason, by itself, for the termination of Mr Lawrence’s employment. Mr Lawrence lost access to the Origin Alliance project. That is a fact. But the termination of Mr Lawrence’s employment must be considered against the actions of Fulton Hogan and whether it had a valid reason for terminating Mr Lawrence’s employment.
[41] Fulton Hogan’s reasons for terminating Mr Lawrence’s employment appear to be:
(i) that he failed to report a workplace injury according to Fulton Hogan procedures; 38
(ii) that, having lost his induction card to Origin Alliance, he could not fulfil his duties as a truck driver; 39
(iii) that there was insufficient work for him exclusive of the Origin Alliance project. 40
[42] The first matter to consider is if there was a valid reason to terminate Mr Lawrence’s employment because he failed to report a workplace injury in accordance with Fulton Hogan procedures.
[43] Mr Lawrence says that he asked Mr Schoessow at 6.00am on 25 May if he should advise the Health and Safety Officer (Mr Reed) and was told that he had done enough by ringing Mr Schoessow. Mr Schoessow says Mr Lawrence did no more than say he would, in effect, be off work for the day.
[44] Mr Lawrence’s version of events is corroborated by his wife (to the extent of his statements). She made an affidavit to that effect. She was within a metre of her husband when he made the call. Her evidence was not contested.
[45] The second conversation between Mr Lawrence and Mr Schoessow in the afternoon of 25 May should have clarified the issue. The issue of Workcover was discussed in both versions of the conversation. Mr Lawrence however believed he had done what was required and advised his employer (in the first conversation that day). Mr Schoessow at this point raised Workcover but again did not ask when and how Mr Lawrence thought he might be injured. Clearly Mr Schoessow was enlivened to the notion that it may have been a workplace injury - he did raise the issue of Workcover with Mr Lawrence.
[46] Even if this was not the case, there is no reason given as to why Mr Schoessow did not press Mr Lawrence on where he was when he injured himself when he spoke to him on the afternoon of 26 May. He knew Mr Lawrence had a Workcover certificate. Mr Schoessow arranged for Mr Lawrence to see a company doctor. 41 That Mr Lawrence injured himself on the Origin Alliance site specifically is not, for the reason outlined above, relevant to these proceedings.
[47] Where there is a conflict as to what was said, I prefer the evidence of Mr Lawrence to that of Mr Schoessow.
[48] Mr Lawrence was forthright and clear in his recollections and openly admitted any shortcomings. I find that Mr Lawrence did ask if he should ring Mr Reed but was told that he had done enough. I accept that Mr Lawrence believed he had reported his injury as required to his employer. On the other hand I find, for reasons outlined below, that Mr Schoessow was conflicted through the entire event, including the decision to terminate Mr Lawrence’s employment.
[49] On the conversation between Mr Lawrence and Mr Reed I accept the evidence of Mr Lawrence as to what he said but also accept that Mr Reed answered to the effect he was in Melbourne.
[50] The Fulton Hogan General Induction Handbook specifies that ‘any work-related event, which is likely to involve a claim under Workers Compensation, must be reported to your Supervisor immediately, or as soon as is practicable.’ 42
[51] I find that Mr Lawrence did report his injury in accordance with the Fulton Hogan procedure, whilst with some delay, not a delay such to suggest he had breached the requirements of the Fulton Hogan procedures.
[52] The second ground of termination to consider is Mr Lawrence’s inability to fulfil the requirements of his role as truck driver.
[53] There is no question that Mr Lawrence lost his induction card for the Origin Alliance site. As such he could no longer access that site.
[54] Fulton Hogan argues that, having lost his induction card, Mr Lawrence’s employment was terminated due to his incapacity to do his job. However, there is no evidence that Mr Lawrence was employed by Fulton Hogan solely to work on the Origin Alliance project, nor that his employment was in any way tied to that project. Similarly, there is no evidence that maintenance of access to the Origin Alliance project was a condition of Mr Lawrence’s employment.
[55] Whilst he lost access to the Origin Alliance site, that did not mean he was incapable of driving a truck. He had not lost his driving license (which would undoubtedly result in him being unable to undertake the duties for which he was employed). He was employed as a truck driver. He could still drive trucks. The obligation on Fulton Hogan was to determine if there was work Mr Lawrence could have undertaken for them based on his skills and any vacancies Fulton Hogan may have had at that stage. I am not convinced that they undertook this task to the extent they should have or with the necessary rigour.
[56] The third consideration is that there was insufficient work for Mr Lawrence once his access to Origin Alliance was denied. If Mr Lawrence was excess to the requirements of Fulton Hogan because there was insufficient work for him to do, the question arises as to whether he should have been consequently made redundant.
[57] I have found that Mr Lawrence did report his injury in a timely manner. Whilst there were some delays that are regrettable, these are in the order of hours, not days or weeks and are not such to provide a valid reason for the termination of Mr Lawrence’s employment.
[58] I do not find that Mr Lawrence was unable to fulfil the requirements of his position. He lost access to the Origin Alliance site but he could still drive trucks and, on the evidence, there was potentially other work he could have performed for Fulton Hogan.
[59] If there was insufficient work for Mr Lawrence to undertake, Fulton Hogan should have considered redeployment or redundancy options. They did not do so.
[60] I therefore find that there was no valid reason for the termination of Mr Lawrence’s employment.
(b) notified of the reason
[61] Mr Lawrence was advised of one of the reasons for his dismissal in the letter given to him on 31 May 2010 (the letter notifying him of the disciplinary hearing), that he failed to report his injury as required by the Fulton Hogan procedures and the Origin Alliance golden rule. 43
[62] It also states in this letter that Origin Alliance was undertaking its own investigation into the incident and that ‘there may be further ramifications that may have an affect [sic] on [Fulton Hogan’s] investigation, and your ability to fulfil your duties’. 44 However this was not clear advice that a reason for the termination of Mr Lawrence’s employment was his inability to fulfil the requirements of his job.
[63] Mr Lawrence was not advised that his employment was to be terminated because there was insufficient work for him to do.
[64] I find that Mr Lawrence was advised of one of the reasons for the termination of his employment but not the others.
(c) opportunity to respond.
[65] Mr Lawrence was given an opportunity to respond on the matter of reporting his injury.
[66] There is no evidence that it was put to Mr Lawrence that the withdrawal of his induction card meant his capacity to fulfil the requirements of his job was compromised and he would therefore have his employment terminated, or that he was given an opportunity to respond to this.
(d) support person
[67] Mr Lawrence was not unreasonably refused the opportunity to have a support person present.
(e) any other matters considered relevant
[68] Mr Schoessow was involved in the interview with Mr Lawrence, the decision to terminate Mr Lawrence’s employment and also those events that led to the decision to terminate his employment.
[69] Mr Schoessow advised Mr Lawrence at the conclusion of the meeting of 1 June 2010 that he would be dismissed from his employment. 45 One of the reasons for the decision was that Mr Lawrence had not reported his workplace injury. But it was to Mr Schoessow that Mr Lawrence says he reported his injury and it was Mr Schoessow who says he never had the conversation that Mr Lawrence says occurred at 6.00am on 25 May 2010. It was a case of Mr Schoessow’s word against that of Mr Lawrence (with his wife’s affidavit).
[70] This is not indicative of independent decision making but rather of a compromised investigation. Mr Schoessow was part of the investigation by Fulton Hogan, he was part of the decision making by Fulton Hogan and he determined the penalty to be imposed on Mr Lawrence.
[71] To any reasonable person this would suggest a lack of procedural fairness by Fulton Hogan. Mr Lawrence was entitled to put his case to Fulton Hogan (which he did). He was also entitled to have it considered by a person with separation from the incident in dispute. This did not occur.
[72] This lack of procedural fairness is of such magnitude that it compromises the investigation and decision making process of Fulton Hogan.
[73] Whilst I have said that the actions of Origin Alliance in withdrawing Mr Lawrence’s induction card are not relevant to a consideration of whether the termination of Mr Lawrence’s employment was unfair, it is of note that the meeting with Origin Alliance on 28 May, which discussed Mr Lawrence’s failure to report his injury, was also attended by Mr Schoessow and that the decision to revoke Mr Lawrence’s induction card was made without any discussion with Mr Lawrence. Whilst that process was not considered in this matter - and rightly so - questions could arise about Mr Schoessow’s involvement in that process for the same reasons as outlined above.
Conclusion
[74] In all of the circumstances I find that the termination of Mr Lawrence’s employment was harsh, unjust and unreasonable. I have found there was no valid reason for Mr Lawrence’s termination. In any event, the procedural issues raised above would lead me to consider the termination unjust.
[75] I find that Mr Lawrence was unfairly dismissed. An order to this effect will be issued.
Remedy
[76] In this case Mr Lawrence does not seek reinstatement. In such circumstances the Act establishes the basis for determining compensation that should apply.
392 Remedy—compensation
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.
Effect on viability of employer
[77] I do not consider that the order I make on this matter will affect the viability of the employer.
Length of service
[78] Mr Lawrence commenced working for Fulton Hogan on 4 March 2009. His employment was terminated on 1 June 2010. His length of service was 15 months.
Remuneration would have received
[79] Whilst working at Fulton Hogan Mr Lawrence earned approximately $1296 (gross) per week exclusive of allowances. 46
Mitigation
[80] Mr Lawrence gained employment approximately one week after his employment was terminated by Fulton Hogan. He has taken all reasonable steps to mitigate his loss.
Remuneration earned and likely to be earned
[81] In his current employment Mr Lawrence is earning $871 (gross) per week. Mr Lawrence should continue to receive this level of remuneration.
Any other matter
[82] If Mr Lawrence had remained employed by Fulton Hogan there is no reason to assume he would not have remained employed for at least another 6 months. Whilst the Origin Alliance project had some time left to run, without an induction certificate it cannot be assumed that Mr Lawrence would have been employed for that entire period. At the same time there was no evidence to suggest Mr Lawrence would not have been able to get another induction card from Origin Alliance. However, if he could not, the work that he may have been able to carry out for Fulton Hogan may not have lasted as long as the Origin Alliance project.
Remedy amount
[83] The representative of the Applicant suggested I should determine the amount of compensation with reference to the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket. 47 The Respondent argues that this is no longer relevant as the statute, at s.392, establishes the basis for determining compensation.
[84] I consider that the Respondent is incorrect on this matter. The reasoning in Sprigg remains relevant to a consideration of ss.392(2)(c), (e) and (f). Further, the remaining parts of s.393(2) must be considered and the requirements in ss.392(3), (4) and (5) must then be applied. It is not a matter of simply applying Sprigg and ignoring the remaining relevant sections of the Act nor of ignoring Sprigg in its entirety.
[85] I have applied the steps set out in Sprigg and applied a contingency of 20% to that amount.
[86] The amount of compensation ordered is therefore $8,840. This does not exceed the maximum remedy available and therefore does not need to be reduced for that reason. The amount does not include any amount for shock, distress or humiliation and does not need to be reduced for misconduct.
[87] The order issued arising from this decision will reflect this amount and shall require payment to be effected within 14 days of the making of the order.
COMMISSIONER
Appearances:
A. Carter for the Applicant.
G. Power for the Respondent.
Hearing details:
2010.
Brisbane:
16 September.
1 Transcript PN758.
2 Exhibit L2 paragraph 9.
3 Exhibit L2 paragraph 11.
4 Exhibit F2 paragraph 3.
5 Transcript PN33.
6 Exhibit L1 attachment KL1.
7 Exhibit L2 paragraph 13.
8 Exhibit F2 paragraph 4.
9 Exhibit F1.
10 Exhibit L2 paragraph 15.
11 Exhibit F2 paragraph 6-7.
12 Exhibit L2 paragraph 18; Exhibit F2, paragraph 8.
13 Exhibit F2 paragraph 9.
14 Exhibit F4 paragraph 5; Transcript PN600-2.
15 Exhibit L2 paragraph 22.
16 Exhibit F3 paragraph 6.
17 Exhibit L5.
18 See Exhibit F4, paragraph 4.
19 Exhibit F2 attachment FH2.
20 Exhibit F2 attachment FH2.
21 Transcript PN436.
22 Exhibit F2 paragraph 11.
23 Exhibit F2 paragraph 11; Exhibit F4 paragraph 7.
24 Exhibit F2 paragraph 11.
25 Exhibit F2 attachment FH1.
26 See Exhibit F2 attachment FH1.
27 Exhibit F2 paragraph 15.
28 Exhibit F2 paragraph 15.
29 Exhibit F2 attachment FH5.
30 Exhibit l3 paragraph 7.
31 Exhibit F5.
32 Exhibit F5 paragraph 5.
33 Transcript PN493.
34 PN493.
35 PN490.
36 United Kingdom Employment Appeals Tribunal, UKEAT/0209/09/SM, 1 October 2010, [16].
37 See ss.385 and 386(1).
38 Exhibit L2 attachment SL5.
39 Written submissions of Respondent, paragraph 5; Exhibit F2 paragraph 15, Exhibit L2 attachment SL5.
40 Written submissions of Respondent paragraph 5.
41 Exhibit F2 paragraphs 6-7.
42 Exhibit F2 attachment FH4, page 4.
43 Exhibit F2 attachment FH1.
44 Exhibit F2 attachment FH1.
45 Exhibit F2 paragraph 15.
46 Exhibit L2 paragraph 41 attachment SL6.
47 AIRC, Print R0235, (24 December 1998).
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