Styles v TNT Express

[2016] FWC 456

[2016] FWC 456

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Shane Styles
v
TNT Express
(U2015/8671)
DEPUTY PRESIDENT ABEY	HOBART, 22 JANUARY 2016

Application for relief from unfair dismissal – subsequent decision on s392 remedy –

compensation ordered

[1]        In a decision issued on 11 November 2015 I determined the applicant in this matter,

Mr Shane Styles, was unfairly dismissed. For reasons outlined in that decision, I determined

that reinstatement was not appropriate and invited the parties to confer as to compensation.

[2]        By correspondence dated 14 December 2015 the applicant advised that the parties had

been unable to reach agreement as to an amount of compensation. As a consequence the

parties were invited to present further written submissions.

[3]        The Act provides for compensation as a remedy for unfair dismissal.

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

[2016] FWC 456

(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.

Note: subsection 392(5) indexed to $68,350 from 1 July 2015

(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.”

[2016] FWC 456

[4]        In determining the amount of compensation to be awarded, if any, I must have regard

to all the circumstances of the case including each of the paragraphs in s.392[2] above. The

general approach to the calculation of compensation is set out by the Full Bench in Tabro

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Meat Pty Ltd v Heffernan and I will follow that approach in determining this matter.

Section 392(2)(c) – the remuneration that the person would have received or would have

been likely to have received, if the person had not been dismissed

[5]        Based on an hourly rate of $23.46 and an average of 44 hours per week, the applicant

contends that average weekly remuneration was $1103. The respondent contends that based

on earnings over a 12 week period, the average weekly remuneration should be $1083. The

difference is not material. For convenience, I adopt a weekly remuneration of $1100.

[6]        Mr Styles was employed for nearly eight years by the respondent. His work

performance appeared to be sound save for one written warning referred to in the earlier

decision. It was noted in the letter of warning by Mr Beeson that “this is a very rare

occurrence for you Shane, and I am sure after our conversation that an incident similar to this

will not reoccur.” There was some evidence of “butting heads” with his immediate supervisor

although there was nothing to suggest that this would have led to his termination in the

foreseeable future.

[7]        In my view it would be reasonable to assume that Mr Styles would have remained

employed for one year. Accordingly, I calculate that Mr Styles would have received, or been

likely to receive, had his employment not been terminated, an amount of $57200. It is

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appropriate to add to this an amount for statutory superannuation at 9.5%.	This equates to a
total of $62634.

[8]        Between his termination on 5 June 2015 until the decision on 11 November 2015, Mr

Styles would have received, or been likely to receive, but for the termination, an amount of

$24860. To this I add statutory superannuation at 9.5%, making a total of $27222.

[9]        For the period 12 November 2015 to 5 June 2016, being the remainder of the year I

consider Mr Styles’ employment would have continued with TNT but for his dismissal, the

remuneration would have been $32340, plus superannuation. However I am advised that Mr

Styles has been in full-time employment for this period in what appears to be a broadly

similar position. Accordingly any compensation which might otherwise be payable for this

period would be offset from earnings from this new position. It follows that it is unnecessary

to consider the question of contingencies.

Section 392(2)(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

[10]      Following termination Mr Styles was unemployed for a period of 11 weeks.

[11]      On 24 August 2015 Mr Styles secured casual employment with Skilled Engineering.

[2016] FWC 456

[12]      On 19 October 2015 Mr Styles obtained full-time employment with Veolia.

[13]      During the relevant period (5/6/15 to 11/11/15) Mr Styles earned the following:

	Skilled Engineering	$9711
	Veolia	$3294
	Total	$13005

[14]      To this total I have added statutory superannuation at 9.5%, making a total $14240.

[15]      Therefore from the amount of $27222 (earnings likely from TNT but for the dismissal)

I deduct $14240, leaving a total of $12982.

[16]      Mr Styles was paid four weeks’ pay in lieu of notice. Hence there should be a further

deduction of $3566, leaving a total of $9416.

Section 392(2)(g) – Any other matter the FWC considers relevant

[17]      In this case the deduction of remuneration earned in large measure included a casual

loading which in part is to compensate for accrued annual leave. In such circumstances it is

appropriate to add an amount for accrued annual leave for a period of 19 weeks. (22.6 weeks

less 3.6 weeks when employed on a full-time basis with Veolia.) On the basis of a 38 hour

week, this adds a total of $1299, resulting in provisional compensation of $10715.

Section 392(2)(a) – the effect of the order on the viability of the employer’s enterprise

[18]      The respondent is a large national employer and there is no evidence or submission

that an order would have a detrimental impact on the viability of the enterprise.

Section 392(2)(b) – the length of the person’s service with the employer.

[19]      Mr Styles was employed by the respondent for seven years and nine months. This is a

significant length of service and provides no basis for further reducing any compensation to

him.

Section 392(2)(d) – the efforts of the person (if any) to mitigate the loss suffered by the

person because of the dismissal

[20]      Mr Styles has been successful in gaining alternative employment, initially as a casual

and then on a full-time basis. His efforts at mitigation are sufficient to exclude any further

deduction from the quantum of compensation.

Section 392(3) –misconduct

[21]      Notwithstanding the finding that the dismissal was harsh and unjust I did find that the

applicant was not without blame. Whilst the security breach was potentially serious, I am

satisfied it was not wilful and on the evidence, atypical. In my view the extent of culpability

on Mr Styles part was at the modest end of the scale. Accordingly I deduct an amount

equivalent to 15% from the provisional compensation.

[2016] FWC 456

Section 392(5) - compensation cap.

[22]      The quantum of compensation proposed does not exceed the compensation cap.

Conclusion

[23]       I find that an order for compensation is appropriate.

[24]      I am satisfied that an order for payment of compensation by the respondent of $9108

less tax as required by law, to the applicant in lieu of reinstatement is appropriate in all the

circumstances of this case. It accords with a fair go all round to both the respondent and the

applicant.

[25]      The compensation payment is to be made within 14 days of this decision. An order

will be issued concurrently with this decision.

DEPUTY PRESIDENT

Appearances:

Final written submissions:

Mr Andrew Cameron for the Applicant - 15 January 2016

Mr Adam Moulton for the Respondent - 20 January 2016 -

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[2011] FWAFB 1080

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Rofin Australia Pty ltd v Newton, Print 6855