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[2013] FWC 3394
DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Stephen Gleeson
v
Blenners Transport Pty Ltd T/A Blenners Transport
(U2012/12564)
COMMISSIONER SPENCER BRISBANE, 18 JUNE 2013
s.394 - unfair dismissal remedy - compensation ordered - consideration of quantum.
[1] A decision was issued in this matter on 16 May 2013 in which the Commission as
presently constituted found that the termination of the employment of Mr Stephen Gleeson
(the Applicant) from Blenners Transport Pty Ltd T/A Blenners Transport (the Respondent)
was harsh, unjust or unreasonable.i It was found that the Applicant was not afforded any
procedural fairness in effecting the dismissal and particularly parts of the Respondent’s
evidence regarding the events leading to the decision to dismiss the Applicant were
completely discredited.
[2] At the conclusion of that decision the Commission directed the Applicant to file
further material only in relation to ss.392(e) and (f) of the Fair Work Act 2009 (Cth) (the Act)
in order that the Commission may appropriately consider the quantum of any award of
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 3394
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compensation in the matter. There was an absence of material on these sections related to the
amount of earnings between the dismissal and date of Order. The Respondent was directed to
file a reply to that material if they wished to do so.
[3] The substantive decision makes reference to the relevant sections of the Act regarding
compensation so far as was possible on the material before the Commission at the time. This
decision considers the quantum of compensation only and should be read in conjunction with
the decision in the substantive matter.
Applicant submissions
[4] The Applicant filed a supplementary affidavit as to those matters contained in
ss.392(e) and (f) of the Act.
[5] The Applicant confirmed that the state of affairs remains the same as it was at the
conclusion of the hearing in the substantive matter.
[6] Relevantly the Applicant confirmed that since termination his total earnings from
work performed is $1,100.00. The Applicant also confirmed that he had continued to receive
the Newstart Allowance in this period.
[7] The Applicant attached to his supplementary statement medical certificates as
evidence that he remains unfit for work due to his pre-existing condition which he stated was
exacerbated by the events, as discussed in the substantive decision.
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[8] In relation to s.392(f) the Applicant stated that he has been hospitalised since 6 May
2013 and that he can say “with some confidence” that it is highly unlikely he will be able to
earn any income for work done up to the date that compensation is ordered.
Respondent submissions
[9] The Respondent filed material beyond that directed to be filed by the Directions of 16
May 2013. The Respondent sought, without notification or proper application, to introduce
further submissions as to those matters the subject of the decision in the substantive matter.
[10] This material should have been filed in accordance with the substantive directions and
raised at the hearing of the substantive matter. The Respondent did make submissions prior to
the hearing and further respond to evidence raised by the Applicant in regards to the award of
compensation sought.ii The Respondent did not, at that time, make submissions as to the
matters now sought to be raised. The Respondent (who was at the time of filing submissions
legally represented) did not indicate in submissions in the substantive matter that it would
seek to be heard as to compensation. The Respondent only sought to be heard as to
reinstatement if the Commission was considering such an order. The submissions of the
Respondent in the substantive matter show that the Respondent was cognisant of the
legislation regarding an award of compensation and was aware that the Applicant had put
material before the Commission in regards to those matters.
[11] Specifically, as to whether an award of compensation would affect the viability of the
Respondent, the following exchange occurred during cross-examination of Mr Blennerhasset,
the Owner of the Respondent:
[2013] FWC 3394
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“Is your company presently in any financial difficulty whatsoever?---None
whatsoever.”iii
[12] Given that the additional material sought to be filed by the Respondent was already the
subject of directions in the primary matter, that those matters were able to be addressed at the
hearing, and indeed some were, and that both parties had legal representation in preparing
their cases for hearing the Commission is of the view that it is inappropriate for the
Respondent to now seek to introduce new material after the substantive hearing and the
decision; material which is also contrary to that provided at the hearing on these issues.
[13] In addition, in the main, the Respondent’s further submissions relate to findings that
the Commission has already made in the substantive decision on the material filed by the
parties.
[14] The Commission will only have regard to those submissions of the Respondent which
are in reply to those matters raised by the Applicant in the further submissions file 23 May
2013.
[15] The Respondent submitted that any amount of compensation ought to be reduced by
the amount of $1100 to take into account the earnings of the Applicant since termination.
[16] The Respondent conceded that as their submission remained that the Applicant would
not have continued in his employment for more than two months and that that period had
[2013] FWC 3394
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already passed no deduction should be made for any reasonable income likely to be earned
between the order of compensation and the actual compensation.
[17] The Respondent did however submit that a 30% deduction should be applied in
relation to contingencies. This particular matter was not addressed at the hearing or in written
submissions previously. After the Applicant having responded to this matter specifically I
have taken this submission into account.
Consideration
[18] The Commission in the substantive decision considered:
“An amount of $42,500, representing 26 weeks of the Applicant’s gross annual salary of
$85,000 was sought in accordance with s.392(6)(a)(ii), and raised with the Respondent
at the hearing.”iv
[19] The Commission’s considerations as to the relevant sections of the Act are relevantly
set out in the substantive decision at [85]-[101]. In relation to those matters put to the parties
for further submissions the following considerations arise.
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; and s. 392(2)(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
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[20] The Applicant has confirmed that his earnings since termination remain at $1100.00.
[21] Given the Applicant’s medical complications it is unlikely that the Applicant will earn
any income in the period between the Order of compensation in this matter and the actual
compensation.
Conclusion
[22] The Commission has found that the Applicant’s employment would have likely
continued for six months or more.v This represents an amount of $42,500.00.
[23] A deduction must be made in the amount of $1,100.00 in recognition of the earnings
received by the Applicant post-dismissal. This reduces the maximum amount receivable to
$41,400.00.
[24] No deduction is made in relation to misconduct to account for the particular
difficulties that the Applicant has endured given his medical condition, family circumstances
and relocation expenses incurred to take up this position.
[25] A further amount of $1634.00 is deducted to account for payment in lieu of notice
made to the Applicant upon termination. This reduced the amount to $39,766.00
[26] The Respondent submitted that an amount of 30% should be deducted to account for
contingencies. The basis for this, it was submitted, that since the termination the Applicant
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has been unwell enough such that he has been unable to seek work or undertake paid work.
The Respondent submitted that this indicated that had the Applicant continued working he
would inevitably have had to take a period or period of unpaid sick leave.
[27] The Applicant submitted that a 30% deduction for contingencies was excessive. And
that a lesser amount of not more than 15%, for a portion of the period of the Applicant’s
medical difficulties since termination should apply.
[28] The Commission accepts that the evidence is that the Applicant has had a period of
medical difficulties which have affected his ability to undertake work. The Applicant has
conceded that the Transport Investigation is an issue that has exacerbated his pre-existing
medical condition.vi As Operations Manager, the Applicant would inevitably have been
involved in the investigation further, whether by direct involvement or through his ordinary
duties in relation to fatigue management. As to what effect this ongoing stress would have had
on the Applicant’s medical condition is not known. However it is likely that the Applicant
would have had a period of illness, given his previous concessions (of the effect of the
investigation on him). Accordingly a deduction of 20% t has been determined to account for
the likely event that the Applicant would have had a period of illness in circumstances where
he had limited tenure and therefore, at best, a limited accrual of personal leave entitlements. A
deduction of 20% equates to $7953.20.
[29] A final Order for compensation [PR537341] will issue requiring the Respondent to
pay to the Applicant an amount of $31,812.80, to be taxed according to law, within 14 days of
the date of the Order.
[2013] FWC 3394
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COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code A, PR537340
i Gleeson v Blenners Transport Pty Ltd T/A Blenners Transport [2013] FWC 76.
ii Respondent submissions filed, filed 18 January 2013, paragraph 39.
iii Transcript, 13 February 2013 at PN374.
iv Gleeson v Blenners Transport Pty Ltd T/A Blenners Transport [2013] FWC 76 at [83].
v Ibid at [88].
vi Ibid at [91].
FAIR WORK CO 1 SSION AUSTRALIA THE SEAS
