Trevor Moody v C.T. Freight Pty Ltd
[2017] FWC 4491
•29 AUGUST 2017
| [2017] FWC 4491 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Trevor Moody
v
C.T. Freight Pty Ltd
(U2017/5297)
COMMISSIONER GREGORY | MELBOURNE, 29 AUGUST 2017 |
Application for an unfair dismissal remedy – Applicant summarily dismissed – no valid reason – dismissal harsh and unreasonable – compensation ordered – quantum to be determined.
Introduction
[1] Mr Trevor Moody was first employed by C.T. Freight Pty Ltd (“CT Freight”) in November 2011 and worked as a Warehouse Supervisor. He also operated a trucking business which CT Freight utilised on a regular basis until recently. However, in July last year he sustained a back/hip injury and was off work until 25 August 2016. He initially returned to work with limited hours and restricted duties and only resumed full-time hours in December. However, he was still on restricted duties at this point.
[2] On 21 April 2017, Mr Moody made a further workers’ compensation claim in regard to a hernia injury. However, on 27 April, he was called to a meeting and asked whether he had played golf while on a period annual leave in September last year. His employment was then terminated on 4 May 2017 on grounds of serious misconduct on the basis that he had deliberately and wilfully breached his return to work obligations by playing golf.
[3] Mr Moody subsequently lodged an unfair dismissal application which was dealt with in a hearing on 14 August 2017. Mr Moody appeared on his own behalf. Ms Amanda Miller from Australian Dismissal Services was given permission to appear on behalf of CT Freight under s.596(2)(c) of the Fair Work Act 2009 (Cth) (“the Act”) as it would be unfair not to because it would be difficult otherwise for the business to represent itself effectively.
The Issue to be Determined
[4] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied “the dismissal was harsh, unjust or unreasonable.” 1 Section 387 continues to require that the Commission must take into account the following considerations in determining whether the dismissal was harsh, unjust or unreasonable. It states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.” 2
[5] The Commission is therefore now required to determine whether Mr Moody’s dismissal was “harsh, unjust or unreasonable” taking into account the various matters in s.387.
The Evidence and Submissions
Mr Trevor Moody
[6] Mr Moody indicates in his witness statement that after being injured at work on 8 July 2016 he returned to work on 25 August on a return to work plan that specified certain physical limitations prescribed by his doctor in consultation with his physiotherapist. This return to work plan was reviewed on a fortnightly basis. It involved a gradual increase in his hours until he resumed his normal full-time working hours on 26 December 2016.
[7] On 27 April 2017, he was directed to attend a meeting in which he was asked whether he had played golf on 27 September last year. He indicated in response “I may have played 9 holes,” 3 as he was not surprisingly uncertain about exactly what he done on that day, 7 months ago. He was then shown a photocopy of an article dated 7 October 2016 from the Riverine Herald newspaper detailing golf results from the Rich River resort. It stated at the outset under the heading “Tuesday results”4 that “One hundred and sixty-five golfers enjoyed a stableford event on the west course with some excellent scores being recorded.”5 It continued to indicate that Trevor Moody shared the “nearest the pin”6 award on the eighth hole. After reading the article Mr Moody confirmed that he had played golf on that day. The meeting then concluded.
[8] Mr Moody was then called into another meeting on the following morning and provided with what he described as a “show cause” letter. It referred to his acknowledgement that he had played golf on 27 September and continued to indicate:
“Your admission causes CT Freight management serious concerns in relation to your conduct as an employee;
The details of our concerns are detailed below;
● You were on a graduated return to work plan with restricted duties during the period 18th Sep – 5th Oct 2016
● As per the graduated return to work plan you attend at work for limited hours and performed restricted duties during this period
● The certificate of capacity (COC) signed by yourself on the 15th Sep 2016 listed your physical restrictions/functions during this period as;
…” 7
[9] It continued to make reference to an extract from his return to work plan which referred to “2–3 days/week 3–4hr/day, no lifting > 5 kg, no repetitive back loading/squatting/bending, no heavy pulling/pushing, rest breaks for stretches as required,” 8 with a fortnightly review of this plan to then occur.
[10] It continued to state:
“Despite you being under these restrictions, and given your admission in the meeting today to having played competition golf during the period of restriction, we believe you have wilfully and deliberately breached the terms of your graduated return to work plan by engaging in activities that were in direct contravention to your agreed physical restrictions and functions.
Trevor, these actions were both wilful and deliberate and have put yourself at great risk of aggravating your existing injury and may have adversely affected your graduated return to work plan.
Given the seriousness of the above, CT Freight management feel we have no option but to consider termination of your employment.
The termination is proposed to occur on Wed 3rd May 2017. The termination would be based on the grounds of “gross misconduct.” 9
[11] Mr Moody was then told to clock off and leave the premises. The letter also required that he provide a response by close of business on 2 May, and indicated that “[s]ubmissions and or any communications from third parties on your behalf will be disregarded.” 10
[12] Mr Moody provided a response on 3 May 2017, which indicated in part:
“It is alleged that I acted in a way that constituted “gross misconduct.” I strongly disagree agree with this notion.
On the 27–4–2017 I attended a meeting and was asked “Did you play golf on 27th September 2016.” As you are no doubt aware that was some 7 months ago. My initial thought was I had no idea but as I was put on the spot I said I may have played 9 holes. At the time (27th Sept 2016) I was on 2 weeks annual leave and had previously returned to work on reduced hours.
I believe I have done nothing wrong and have made every effort to return to work as soon as possible:
- Weekly physio session.
- Once or twice weekly hydrotherapy sessions.
- Daily exercise regime designed by physio and performed at home.
- Regular gym sessions at my expense.
- Two sessions with a psychologist at my expense.
- Periodic doctor reviews.
In no way has playing a modified style of golf impacted on my physical recovery. However it did have a positive effect on my mental recovery.
I believe golf has no direct physical relationship to the duties I perform at work which involve repetitive weight-bearing movements (loading), driving a forklift, directing staff and making decisions to affect meeting cut-offs.
In conclusion I believe I have been sincere in all my efforts to recover and return to work as soon as possible. I would also point out that my last doctor’s review also attended by Stuart from IPAR. I was commended by my doctor for how well I had work towards recovery and how quickly I have returned to work.
I hope you look favourably on my response.” 11
[13] However, Mr Moody then received a letter by email on 4 May 2017 from Mr Robert Brown, the Operations Development Manager, which stated:
“Trevor,
CT Freight invited you to attend a disciplinary meeting on 28th April 2017 and at this meeting you were stood down and given a “Show Cause” letter and given a chance to respond with a timeline and process.
CT Freight management have now reviewed your response to this process and unfortunately we do not believe you have shown sufficient cause why we should not terminate your employment for the following reasoning;
1. You admitted in both the disciplinary meeting and in your written response to the show cause notice that you played 18 holes of competition golf on Sept 27th 2016.
2. On this date, and as part of your return to work plan, you had signed for and knew you were under severe physical restrictions in relation to your mobility.
3. No reasonable person would believe that playing 18 holes of competition golf would be consistent with you following the restrictions listed in the certificate of capacity covering this period.
4. We listed these four restrictions on the show cause notice.
5. We believe your actions and playing 18 holes of completion (sic) golf on Sept 27th 2016 were wilful, deliberate and reckless.
6. As a result of your actions we have lost all trust in you as an employee and your actions have you irreparably damaged the employment relationship.
As a result of the points above, our decision is to summarily terminate your employment reason of gross misconduct effective 4th May 2017.
Trevor, you will be paid all your accrued entitlements in the next pay run; a final payslip will be forwarded to you as soon as is practicable by the payroll department.” 12
[14] Mr Moody submits in response that no valid reason existed for his dismissal and his actions in playing golf on the day in question were unrelated to his work. In addition, that activity has not been shown to be in breach of his return to work plan. He also indicated in cross examination that he had used a golf cart when he played, and his wife had assisted him in lifting his golf clubs in and out of the car. In addition, he only played 9 holes, using a modified or restricted swing, and his treating medical practitioners had advised that normal physical activities, including golf, could be of benefit to his recovery in both a physical and psychological sense.
[15] He also submits that his work performance has never been questioned and he has not, at any stage, received any criticism or negative comment about his performance at work. He now seeks compensation as a consequence of what he considers to be his unfair dismissal.
Mr Robert Brown
[16] Mr Robert Brown is the Operational Development Manager with CT Freight. Mr Moody commenced employment with the business in December 2011 as a Storeman/Supervisor and Mr Brown confirmed that there have been no significant disciplinary or performance issues concerning Mr Moody until the issue which led to his dismissal.
[17] Mr Moody reported a work-related injury on 8 July 2016, and a WorkCover claim was submitted on 18 July, which was approved by the insurer. Mr Moody was then absent from work from 9 July until 23 August. He returned to work on 24 August on restricted hours and with specific physical restrictions in place. He then indicated in January that he would be making a further WorkCover claim in regard to a hernia condition. That claim was submitted on 21 April.
[18] Mr Brown said he was made aware at some point in the early part of this year that another employee had raised concerns about Mr Moody playing golf, as he as he had been seen with a golf bag in his car. He was also made aware that the WorkCover insurer had concerns about his WorkCover claim and was considering commencing an investigation. He understood this took place in the early part of this year.
[19] He continued, “The Respondent was by now aware that the Applicant had been featured in a local newspaper article when he (and others) had won a golf tournament at Rich River played on 27 September 2016. This had been discovered by one of the Applicant’s supervisors who – in the context of the insurer’s concerns about the Applicant’s WorkCover claim – had typed in the words “Trevor Moody Golf” in the Google search engine and the search immediately turned up the newspaper article.” 13
[20] Mr Brown then sought external advice about whether Mr Moody had deliberately and wilfully breached his return to work specific physical restrictions by playing competitive golf. He subsequently instructed his Victorian-based Managers to meet with Mr Moody to investigate this alleged breach. This discussion and Mr Moody’s responses led to him being given the “show cause” letter, and after considering his response a decision was taken to terminate his employment based on the grounds set out in the termination letter. Mr Moody was then asked to attend a further meeting on 4 May when he was told it had been decided to terminate his employment.
[21] Mr Brown concluded by stating:
“In summary – the reasons for termination included that on the Applicant wilfully and deliberately breached a number of the specific physical restrictions under his Return to Work Plan when he, as admitted, played in the competitive golf tournament on 27th September 2016. Based on this conduct and the lack of honesty when the matter was initially raised with the Applicant, the Respondent lost all trust and confidence in the Applicant and believed that the Applicant’s conduct irreparably damage the employment relationship.” 14
Mr David Trbuhovich
[22] Mr Trbuhovich has been engaged as a contractor by CT Freight since December 2014 and has been providing services exclusively to it since that time. His current role includes responsibility for Marketing/Development – Perishables. He was made aware late last year by the Warehouse Manager that Mr Moody had been seen with golf clubs in the back of his car, and it appeared he may be playing golf at a time when he had specific physical restrictions imposed on him about lifting and movement as part of his return to work plan. He mentioned this to Mr Brown who is based in the Sydney office.
[23] He was then informed by the Branch Manager, Mr Scott Blood, that he had done a Google search and discovered a newspaper article from the Riverine Herald about Mr Moody winning a golf tournament on 27 September last year. A copy of the article was forwarded to Mr Brown.
[24] The second WorkCover claim was then submitted on 21 April 2017 and Mr Trbuhovich then received an instruction from Mr Brown to meet with Mr Moody as part of an investigation into the alleged breach involving him playing golf in September last year. Mr Trbuhovich said he was given specific questions to put to Mr Moody and to note his responses. He asked Mr Moody in the meeting whether he had played golf on 27 September last year. He indicated in his oral evidence that Mr Moody responded by stating that he had played “9 holes with a reduced swing.” 15
[25] Mr Trbuhovich was aware that Mr Moody was then provided with the “show cause” letter. He was also aware of his subsequent written response. His witness statement indicated that he was then asked to meet with Mr Moody to advise him that it had been decided to terminate his employment, however, he indicated in his oral evidence that these statements had been mistakenly included in his witness statement, and that meeting did not take place.
The submissions by CT Freight
[26] CT Freight submits that the evidence concerning Mr Moody was “clear and compelling,” 16 and his explanations “were unconvincing.”17 It does not accept that playing golf at a competitive level, as evidenced in the newspaper article, was consistent with his description of playing “a modified style of golf.”18 It submits instead that his conduct constituted serious misconduct and provided a valid reason for dismissal.
[27] It also submits he was made aware of the reason for his dismissal as a consequence of the “show cause” letter, and the letter of termination that was then emailed to him. He was also given an opportunity to respond to the allegations, which he did in the meeting on 27 April 2017, and in his written response of 30 April 2017.
[28] It also submits that it was aware there was an investigation being carried out into the validity of Mr Moody’s WorkCover claims, but it was unable to access these findings. It subsequently conducted its own investigation and decided his employment should be terminated.
Consideration
[29] As indicated at the outset in dealing with an unfair dismissal application the Act requires that the Commission must take into account the various considerations in s.387 in deciding whether Mr Moody’s dismissal was “harsh, unjust or unreasonable.”
[30] An explanation about the type of conduct that might be encompassed within the phrase “harsh, unjust or unreasonable” is contained in the decision in Byrne & Frew v Australian Airlines Ltd 19 when McHugh and Gummow JJ stated as follows:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 20
[31] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 21 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:
“Where the Applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 22
[32] I now turn to deal with each of the considerations in s.387 and those authorities that are relevant to the determination of this matter.
(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)
[33] In considering whether there was a “valid reason” in all the circumstances of this matter I have also had regard to various relevant authorities who have considered what is required to establish that a valid reason for dismissal exists.
[34] The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 23 is often referred to in considering what constitutes a “valid reason.” His Honour came to the following conclusion:
“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.
Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies 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. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 24
[35] In Parmalat Food Products Pty Ltd v Wililo 25 the Full Bench concluded that:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 26
[36] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 27(“Australian Postal Corporation”) also provided a useful summary of the approach to be taken by the Commission in weighing the various factors to be considered:
“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 28
[37] As the decision of the Full Bench in Australian Postal Corporation also makes clear consideration of “valid reason” inevitably involves weighing various considerations, including the conduct involved, and any other mitigating or other relevant matters. I have sought to adopt the approach of these authorities in coming to a decision in this matter.
[38] The reasons for Mr Moody’s termination are set out in the termination letter given to him on 4 May 2017. Its content has been set out at an earlier point in this decision. A number of things can be said about that letter, and whether CT Freight can be said to have had a valid reason for Mr Moody’s termination. Firstly, it refers on three occasions to him having played “18 holes of competition golf” on 27 September 2016. This statement appears to have been based on a report in the Riverine Herald published on 7 October 2016. However, it is not borne out by the available evidence. Mr Trbuhovich’s evidence is instead that when he asked Mr Moody whether he played golf on 27 September last year he responded by indicating that he had only played 9 holes, using a reduced swing and a modified style. Mr Moody also indicated in cross examination that in the format being utilised on that day he did not even complete every hole that he played.
[39] Secondly, there is no indication that any medical advice or opinion was sought about whether playing golf in the way Mr Moody described would conflict with his physical limitations and return to work plan. The termination letter makes reference to “No reasonable person would believe that playing 18 holes of competition golf would be consistent with you following the restrictions listed in the certificate of capacity covering this period.” 29 Leaving aside the fact that the evidence does not indicate that Mr Moody played “18 holes of competition golf,” it would appear that the only “reasonable person” who could make an objective judgement about the effect of playing 9 holes of golf with a modified swing during a period of annual leave, more than 2 months after the initial injury occurred, would be an appropriately qualified medical practitioner. There is no evidence indicating that any such advice or opinion was sought or obtained before the decision was taken to terminate Mr Moody’s employment.
[40] The letter also makes reference to having “lost all trust in you as an employee.” 30 Mr Brown’s evidence makes reference in this context to the lack of honesty displayed by Mr Moody when he was asked by Mr Trbuhovich about whether he had played golf on 27 September, some 7 months earlier. Again this conclusion does not appear to be borne out by the evidence. Mr Moody was asked about something that occurred 7 months ago. It is not surprising at all that he was not certain, initially, about what he was doing on that day. I can find nothing in the available evidence to indicate Mr Moody set out to deliberately conceal the fact that he had played golf last year during a period of annual leave, or that he had in any way acted dishonestly.
[41] Even if it is conceded that Mr Moody did the wrong thing in playing golf when he did, a question arises about whether CT Freight’s response was proportionate. There is no evidence indicating his actions on that day in any way hindered his physical recovery from the initial injury. There was also no suggestion in any of the witness evidence that he had been anything other than an exemplary employee during the period of almost 6 years in which he had been employed. In addition, the business had entered into a separate contractual arrangement with him for the supply of a vehicle and driver. As indicated, even if it is accepted that Mr Moody was somehow in breach of his employment obligations in playing golf when he did, it is difficult in all the circumstances to conclude that the appropriate “punishment” for that “crime” was termination of his employment.
[42] As indicated, the authorities make clear that a “valid reason” for dismissal should be one that is “sound, defensible and well founded.” It is difficult to conclude that any of these grounds existed in the present matter. It should also be based on an objective assessment of the relevant facts. Again, the decision in this case does not seem to be based on any such assessment. It was instead made by persons with no medical expertise, and with only a limited understanding of what actually occurred. In short, I am unable to conclude in all the circumstances that a “valid reason” existed for Mr Moody’s dismissal.
(b) whether the person was notified of that reason
[43] Mr Moody was called into a meeting on 27 April 2017, without being provided with any prior notice of what the meeting was to be about, and was then asked about whether he had played golf on a day seven months prior, during a period of annual leave. He was then given the so-called “show cause” letter on the following day, which detailed the concerns about his behaviour. He was also given the termination letter on 4 May 2017, which has already been referred to, and sets out the reasons for his termination. It is also noted that, despite what is contained in the witness statements of Mr Brown and Mr Trbuhovich, the evidence makes clear that no further meeting took place with Mr Moody on that day.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[44] Mr Moody was given a period of time after receiving the show cause letter to provide a response to the issues raised, which he did. However, he believed that the terms of the letter precluded him from including in his response any additional advice or opinion from, for example, one of his treating medical practitioners.
(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
[45] The only meeting that took place with Mr Moody about any of the issues to do with his termination was the brief discussion with Mr Trbuhovich on 27 April 2017. There is no indication of any refusal to allow Mr Moody to have a support person present in this meeting, although he clearly did not consider it necessary, given he was not provided with any prior notice of what the meeting was to be about.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[46] CT Freight submits the dismissal did not concern unsatisfactory performance and there was no requirement to provide any warnings prior to the dismissal.
(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
[47] CT Freight submits it is a relatively small organisation, although the evidence indicates it has more than 100 employees. It initially endeavoured to work through the issues involving Mr Moody internally, before seeking external advice.
(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
[48] CT Freight does not have dedicated human resource expertise and generally relies on the advice of external consultants when it considers this to be necessary. It did obtain advice on this occasion. I am not satisfied that the shortcomings identified in the processes that occurred in all the circumstances of this matter can necessarily be explained by the fact that the business does not have dedicated human resource management expertise, although those same circumstances might also suggest that it could only benefit by having such expertise available.
(h) any other matters that the FWC considers relevant
[49] Nothing further was raised in this context.
Conclusion
[50] I am satisfied, in conclusion, having had regard to all the circumstances involved in this matter, and the various considerations in s.387 that the Commission must have regard to, that Mr Moody was unfairly dismissed in that his dismissal was harsh and unreasonable. In coming to this conclusion I have had particular regard to the findings made about the existence of a “valid reason.” I now turn to consider what is appropriate by way of remedy.
Remedy
[51] The Act provides that orders for reinstatement and/or compensation may be made in circumstances where the Commission is satisfied that a person is protected from unfair dismissal at the time of being dismissed, and the person has been unfairly dismissed. However, Mr Moody made clear in response to a question from the Commission that he does not seek to be reinstated by way of remedy. He also emphasised in this context that he takes great pride in his reputation and is particularly disappointed by the accusations made about him. While he rejects those allegations he believes it would now be difficult for him to return to the workplace and to re-establish the relationships that existed previously. He therefore does not seek to be reinstated. I am also of the view that reinstatement is not an appropriate remedy in all the circumstances. I now turn to consider whether it is appropriate to make an order of compensation.
[52] Section 392 of the Act states:
“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
(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.
(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.” 31
[1] I now turn to consider whether an order for compensation should be made taking into account the various criteria contained in s.392 and the submissions provided by the parties.
(a) The effect of the order on the viability of the employer’s enterprise
[2] Neither party suggested the effect of any order of compensation would impact on the viability of CT Freight.
(b) The length of the person’s service with the employer
[3] Mr Moody was first employed 2011 and has therefore been employed by CT Freight for more than five years. This is a significant period of service with the one employer.
(c) The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[4] Mr Moody provided information about his earnings in the 26 weeks prior to his dismissal. He indicated in his submissions that his total earnings in the period from 5 November 2016 to 5 May 2017 were $45,940.00. CT Freight did not take issue with this estimate.
(d) The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[5] Mr Moody indicated that he has made some attempts to find work elsewhere since being dismissed and has made eight job applications to date without being able to obtain other employment. However, he has also had a hernia operation recently and this has obviously hampered his ability to obtain other work in that he was, firstly, unable to look for work while recuperating and, secondly, he did not consider it appropriate to be looking for work at a time when he would shortly be required to be absent from work following the operation.
(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
[6] The submissions set out above are also relevant to this consideration.
(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
[7] The submissions set out above in regard to paragraph (d) are again relevant in this context.
Any other matter that the FWC considers relevant
[8] While Mr Moody was ostensibly summarily dismissed on grounds of serious misconduct he was still provided with a payment of 5 weeks’ pay in lieu of notice. Neither party made submissions about any other matters that might be relevant in this context and the Commission is not aware of any other matters that should be taken into account.
Conclusion as to Remedy
[9] In determining an amount of compensation in this matter I have had regard to the provisions contained in s.392 of the Act. I have also adopted the approach of the Full Bench in the decision of a Sprigg v Paul’s Licensed Festival Supermarkets (Sprigg). 32
[10] While it is obviously not possible to be precise about how much longer an employee would be employed for, if not for their dismissal, I am satisfied Mr Moody had a reasonable expectation of being employed by CT Freight for a further period of at least 6 months, if not longer. No issues have been raised about his work performance during his 6 years of employment, and the evidence indicates he was generally regarded as a valued employee. In addition, the injuries he sustained at work do not appear to be long-term or career ending.
[11] Section 392(3) also provides that if the Commission is satisfied an employee’s misconduct contributed to the decision to dismiss the person the Commission must reduce the amount that would otherwise be ordered on account of the misconduct. However, in this case I am not satisfied that the evidence reveals any misconduct on Mr Moody’s part that warrants a reduction in the amount of compensation that might otherwise be ordered.
[12] However, one factor which only emerged at the conclusion of the hearing is clearly significant in terms of any order for compensation that might be made. The evidence makes clear that Mr Moody has made two separate workers’ compensation claims in the recent past, and he provided correspondence at the conclusion of the hearing which indicates that the second of those claims has now been approved, and he is in receipt of additional workers’ compensation payments, which also appear to include some component of back pay. The decision in Sprigg, as affirmed by the Full Bench decision in Steggles Limited, 33 makes clear that payments received in respect of workers’ compensation claims are to be considered in terms of any order for compensation that might be made. It is also noted that despite having been summarily dismissed Mr Moody did receive a payment equivalent to 5 weeks’ salary at the time of his termination.
[13] I therefore now request that Mr Moody to provide further confirmation to the Commission about the amount of any workers’ compensation payments that have been made to him since the date of his dismissal, whether he still continues to receive those payments and, if so, for how long is this likely to continue. This detail should include the amounts that have been or are now being provided on a weekly basis. He is also requested to confirm his salary details at the time of his termination, and any shortfall between that amount and the weekly workers’ compensation payments he has received since that time. These details should be provided to the Commission, if possible, within seven days of the date of this decision. The same information should also be forwarded to CT Freight. It will then have a further period of 7 days to provide any submissions about the accuracy or validity of the details provided by Mr Moody. I will then hand down a further decision in regard to any order for compensation.
COMMISSIONER
Appearances:
T Moody on his own behalf.
A Millar for the Respondent.
Hearing details:
2017.
Melbourne:
August 14.
1 Fair Work Act 2009 (Cth) s 385.
2 Fair Work Act 2009 (Cth) s 387.
3 Exhibit TM1 at [10].
4 Exhibit TM1 at Attachment D at p 3.
5 Ibid.
6 Ibid.
7 Ibid at p 1.
8 Ibid at p 2.
9 Ibid at p 2-3.
10 Ibid at p 3.
11 Exhibit TM1 at Attachment E.
12 Exhibit TM1 at Attachment F.
13 Exhibit CTF2 at [18].
14 Ibid at [28].
15 Transcript at PN 338.
16 Respondent’s submissions, dated 17 July 2017, at [3].
17 Ibid.
18 Exhibit TM1 at Attachment E.
19 (1995) 185 CLR 410.
20 Ibid at 465.
21 [2011] FWAFB 7498.
22 Ibid at [20].
23 (1995) 62 IR 371.
24 Ibid at 373.
25 [2011] FWAFB 1166.
26 Ibid at [24].
27 [2013] FWCFB 6191.
28 Ibid at [58].
29 Exhibit TM1 at Attachment F.
30 Ibid.
31 Fair Work Act 2009 (Cth) at s 392.
32 (1998) 88 IR 21.
33 Print S5876, 11 May 2000, Watson SDP, Williams SDP, Smith C.
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