1
Fair Work Act 2009
s.394—Unfair dismissal
Laeth Ishak
v
Jetstar Airlines T/A Jetstar
(U2013/5656)
COMMISSIONER RYAN MELBOURNE, 19 JULY 2013
Termination of employment - remedy - reinstatement, continuity of service and lost
remuneration discounted for misconduct.
[1] On 10 May 2013 I issued a decision, [2013] FWC 2959 in which I found that the
dismissal of the Applicant was harsh, unjust or unreasonable. I advised the parties that I
would hear from them further in relation to remedy. A hearing was held on 6 June 2013 to
deal with the issue of remedy.
[2] At the remedy hearing the Applicant pressed its original case that a remedy should be
granted and the Applicant’s preferred remedy was reinstatement. The Respondent contended
that no remedy should be granted but that if a remedy was to be granted then reinstatement
was inappropriate and compensation, albeit a minimal amount, would be appropriate.
[3] The Respondent introduced further evidence from Mr Carter, the Ramp Manager for
the Respondent at Tullamarine, which evidence went to two separate issues: the unavailability
of work at Tullamarine for the Applicant and the Respondent’s loss of trust and confidence in
the Applicant.
[4] The relevant provisions of the Fair Work Act relating to remedies for unfair dismissal
are s.390 - s.393
[5] The first issue for the Commission to consider is whether a remedy should be granted.
S.390 is as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
[2013] FWC 4794 Note: An appeal pursuant to s.604 (C2013/5211) was
lodged against this decision - refer to Full Bench decision dated 3 October
2013 for result of appeal.
DECISION
AUSTR FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2013fwcFB7030.htm
[2013] FWC 4794
2
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[6] The decision to grant or not grant a remedy is broadly discretionary. The decision of
Full Bench of the former Australian Industrial Relations Commission in Vdoukakis v DJ
Cussan Pty Limited t/as Royal Hotel Randwick1 (Vdoukakis) has been relied on for the
proposition that the Commission may exercise its discretion under s.390 and not grant a
remedy.
[7] The decision in Vdoukakis concerned the operation of s.170CH of the former
Workplace Relations Act which was in very different form to s.390 of the Fair Work Act.
Relevantly s.170CH(1) and (2) of the former Act were as follows:
“170CH Remedies on arbitration
(1) Subject to this section, the Commission may, on completion of the arbitration,
make an order that provides for a remedy of a kind referred to in subsection (3), (4) or
(6) if it has determined that the termination was harsh, unjust or unreasonable.
(2) The Commission must not make an order under subsection (1) unless the
Commission is satisfied, having regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s undertaking,
establishment or service; and
(b) the length of the employee’s service with the employer; and
(c) the remuneration that the employee would have received, or would have
been likely to receive, if the employee’s employment had not been terminated;
and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the
employee as a result of the termination; and
(e) any other matter that the Commission considers relevant;
that the remedy ordered is appropriate.”
[8] In Vdoukakis the Full Bench said of s.170CH:
“[21] There is nothing in this section which obligates the Commission to provide for
one of the remedies set out in section 170CH(3), (4) or (6) as a consequence of finding
a dismissal to be harsh, unjust or unreasonable.”
[2013] FWC 4794
3
[9] There is sufficient similarity in the wording of s.390(1) of the Fair Work Act and
s.170CH(1) of the former Act that the same can be said of s.390(1), in which case the
discretion to not grant a remedy appears to be at large. However, the discretion is not at large
because of the operation of s.381 of the Act.
“381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on
reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure that a
“fair go all round” is accorded to both the employer and employee concerned.”
Note: The expression “fair go all round” was used by Sheldon J in In re Loty and
Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
[10] In determining whether a remedy should or should not be granted the Commission
must ensure that a “fair go all round” is accorded to both the Applicant and the Respondent.
[11] Whilst the concept of a “fair go all round” is readily embraced by industrial
practitioners it is easily misunderstood. It pays to go back to the decision in Re Loty and
Holloway v Australian Workers’ Union to understand the meaning behind that term.
Relevantly Sheldon J said at 99:
“...in order to justify, in its discretion, intervention by the Commission by way of
reinstatement, it must be shown in this case that the branch executive exercised its
right of dismissal unfairly even though it was perfectly legal and this should be
determined by standards neither more strict nor more relaxed than those applicable to
any employer. I say “unfairly” because adjectival tyranny should be resisted and I
believe that in modern context expressions used in the older cases such as “harsh”,
“oppressive” and “unconscionable” as determinants as to whether intervention by an
industrial authority is in its discretion permissible are properly interpreted on the basis
simply of firstly deciding in all the circumstances, even though in the dismissal (be it
summary or on notice) the employer has not exceeded his common law and/or award
rights, whether the employee has received less than a fair deal.
Mr Commissioner Manuel in a recent case put it in a nutshell and in language readily
understood in the industrial world when he conceived his duty to be to ensure “a fair
go all round”. In my view, the use of the old adjectives, with overtones from other
jurisdictions, tends to distort this basically simple approach in that they can be strained
to mean that an employer can be less than fair in exercising his right to dismiss and yet
stand outside the permissible area within which an industrial authority in its discretion
[2013] FWC 4794
4
may act. It is a question of emphasis rather than substance as these adjectives have
frequently been used in conjunction with and as alternatives to such expressions as
“unfair”, “unjust” and “unfair dealing”. The last expression was used as an alternative
to “injustice” and “oppression” as far back as 1921 in the historic Bank Officers Case,
and it is inconceivable that a more rigid test should be applied half a century later. The
less fetters there are on the discretion the better (none appear in the Act) but it is all-
important that it should be exercised soundly. The objective in these cases is always
industrial justice and to this end weight must be given in varying degrees according to
the requirements of each case to the importance but not the inviolability of the right of
the employer to manage his business, the nature and quality of the work in question,
the circumstances surrounding the dismissal and the likely practical outcome if an
order of reinstatement is made. There certainly may be cases where the dismissal had
many elements of unfairness but an industrial authority if it was convinced of the
practical uselessness of trying to re-establish the employer-employee relationship,
would not intervene at all. There may be other cases where there are reasonable
prospects for the future of the relationship if clarifying conditions are imposed.”
[12] Whilst the requirements imposed by s.381(2) are readily understandable by having
regard to the decision of Sheldon J, there are other requirements placed upon the Commission
in the exercise of the discretion under s.390 of the Act.
[13] The authorities make it clear that the discretion must be exercised subject to
reasonable constraints. The constraints are clearly identified in the decision of the High Court
in House v The King as follows:
“It is not enough that the judges composing the appellate court consider that, if they
had been in the position of the primary judge, they would have taken a different
course. It must appear that some error has been made in exercising the discretion. If
the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to
guide or affect him, if he mistakes the facts, if he does not take into account some
material consideration, then his determination should be reviewed and the appellate
court may exercise its own discretion in substitution for his if it has the materials for
doing so. It may not appear how the primary judge has reached the result embodied in
his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court
may infer that in some way there has been a failure properly to exercise the discretion
which the law reposes in the court of first instance. In such a case, although the nature
of the error may not be discoverable, the exercise of the discretion is reviewed on the
ground that a substantial wrong has in fact occurred.”2
[14] More recently in Coal and Allied Operations Pty Ltd v Australian Industrial Relations
Commission a majority of the High Court has said:
“Because a decision-maker charged with the making of a discretionary decision has
some latitude as to the decision to be made, the correctness of the decision can only be
challenged by showing error in the decision-making process (See Norbis v Norbis
(1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is
only if there is error in that process that a discretionary decision can be set aside by an
appellate tribunal. The errors that might be made in the decision-making process were
identified, in relation to judicial discretions, in House v The King” 3
[2013] FWC 4794
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[15] If the Commission is to grant a remedy the Commission is required by s.390(3) to
consider firstly the appropriateness or inappropriateness of reinstatement. If, and only if, the
Commission considers that reinstatement is inappropriate can the Commission consider
whether it is appropriate or inappropriate to grant the remedy of compensation.
[16] Where, as is the case in the present matter, the conditions precedent in s.390(1)(a) and
(b) and in s.390(2) have been met then the following proposition would appear to accord with
the purpose of s.390(1) of the Act. Both the requirement of s.381(2) and the principle
enunciated in House v The King operate so that the Commission could only exercise its
discretion to refuse to grant a remedy where the Commission considers firstly, the
appropriateness or inappropriateness of reinstatement and determines that reinstatement is
inappropriate, and then the Commission considers whether it is appropriate or inappropriate to
grant the remedy of compensation and determines that compensation is inappropriate.
[17] I will follow this approach.
Is reinstatement appropriate or inappropriate?
[18] The Respondent contends that any remedy (including reinstatement) is inappropriate
given the findings made by the Commission that the Applicant did physically assault Mr
Samson through grabbing Mr Samson’s arm and that the Applicant lied to both the
Respondent and the Commission about this. Whilst the Commission did not find that the
Applicant’s conduct was serious misconduct the Respondent contends that the Applicant’s
conduct was serious misconduct and this means that any remedy is inappropriate.
[19] The Respondent further contended that reinstatement is inappropriate because:
Mr Samson’s evidence was that he fears the Applicant and could not work with
him,
the Respondent could not roster either or both Mr Samson and the Applicant so as
to avoid the possibility of each having contact with the other,
there is no current vacancy for the Applicant in his previous position as a GC3A
due to restructuring which has occurred at the workplace
the Respondent has no trust in the Applicant and that trust and confidence in the
Applicant has been lost for good.
[20] The Respondent contended that:
“So I rely on three key features of this case that make it very clear that there is no trust,
no sufficient trust, between the parties any longer. First, the assault occurred. Second,
there has never been to this day any assurance from the applicant that he will not assault
anyone again. Now, why is that the case? Maybe it’s because he’s always denied that
there was an assault, and that is the third consideration. He has denied, he has lied to his
employer and he has lied in the witness box, in the commission, under oath. He has lied,
as found by the commission. Now, how on earth could a conclusion other than the
employer has lost trust and confidence in the applicant, and that’s its evidence, and that
that is a rational belief on the part of the employer be made? It is so rational, it is
objectively understandable, it is soundly and rationally based, that decision of the
employer that there is no trust. No trust. A fortiori there is no sufficient trust between
the parties.”4
[2013] FWC 4794
6
[21] The Applicant contends that reinstatement is the appropriate remedy in this matter.
The Applicant acknowledges the findings of the Commission that the Applicant did grab Mr
Samson on the arm, and that the Commission found that the Applicant had not been truthful
about this. The Applicant also noted that the Commission had made adverse findings against
Mr Samson who was clearly the aggressor in the altercation and who had pushed the
Applicant back. The Applicant contended that the injustice done to the Applicant, where he
had been dismissed and Mr Samson had not, should only be cured by reinstating the
Applicant.
[22] The very nature of a “fair go all round” requires that the Commission find the proper
balance so that a fair deal or fair go is accorded to each of the employer and the employee. As
Sheldon J, in Loty and Holloway said:
“The objective in these cases is always industrial justice and to this end weight must
be given in varying degrees according to the requirements of each case to the
importance but not the inviolability of the right of the employer to manage his
business, the nature and quality of the work in question, the circumstances surrounding
the dismissal and the likely practical outcome if an order of reinstatement is made.”
[23] The fact which weighs most heavily against the grant of any remedy and against the
grant of a remedy of reinstatement is that the Applicant maintained throughout this entire
matter that he did not grab Mr Samson on the arm. The Applicant never wavered from this
denial.
[24] The Respondent has relied upon the evidence of Mr Samson in support of a contention
that reinstatement is inappropriate. The Respondent in particular relies upon the uncontested
evidence of Mr Samson concerning his fear of the Applicant.
[25] I place little weight on the evidence of Mr Samson. The Respondent drew to my
attention the medical certificate issued by Mr Samson’s treating doctor which contains an
explanation of the way in which the abrasion on Mr Samson’s arm occurred. The story told by
Mr Samson to his doctor is quite different to the truth of the matter as discussed in my earlier
decision. The uncontested evidence of Mr Samson that he suffers from sleeplessness and
flashbacks must be considered in the context of Mr Samson giving evidence on other matters
which when challenged was shown to be false.
[26] The Respondent also relies on the evidence of Mr Porter and Mr Carter that it would
not be possible to roster employees at Tullamarine so as to ensure that the Applicant and Mr
Samson did not have contact with each other. It would appear that a rostering arrangement
that had the Applicant and Mr Samson working at different times of the day would minimize
the occasions for any contact between the two while at work. The pursuit of a rostering
arrangement which ensured zero possible contact between the Applicant and Mr Samson is
both too extreme and is unnecessary. If Mr Samson’s evidence is accepted that he is fearful of
the Applicant and given that Mr Samson advised in his interview with Mr Carter on 5
December 2012 that he did not get on with the Applicant then it is most likely that Mr
Samson will not want to initiate contact with the Applicant. It is clear from the evidence in
this matter and from the earlier decision that the Applicant has not been the initiator of any
aggressive approach towards with Mr Samson. Given that the altercation between Mr Samson
and the Applicant only occurred because of Mr Samson’s aggressive approach towards the
[2013] FWC 4794
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Applicant then it would appear that if Mr Samson does not initiate contact with the Applicant
there will be no further problems.
[27] The Respondent relied on the evidence of Mr Carter given at the remedy hearing to
establish that there was no current vacancy for the Applicant at Tullamarine. The evidence of
Mr Carter was that there had been a restructuring of operations at Tullamarine so that 22
persons employed as labour hire or contract labour were no longer needed by the Respondent.
Mr Carter’s evidence was that there were no vacancies. That is a very different issue to the
one which I must consider namely, could the Applicant be reinstated to the position he had
immediately before the dismissal.
[28] The Applicant was employed as GC3A, a leading hand of a ground crew, and the
Respondent still employs GC3A’s at Tullamarine doing the same work that was performed by
the Applicant. Mr Carter’s evidence was that there were now 44 employees employed either
as GC3 or GC3A. Whilst there may be no vacancies for ground crew at the Respondent’s
Tullamarine site there are positions of GC3A into which the Applicant could be reinstated.
I note the observation of Gray J in Chelvarajah v Global Protection Pty Ltd where he said:
“It is therefore easy to accept that there may be many cases in which an employer may
be required to create the position to which it is ordered to appoint a dismissed
employee. Such cases will be those in which the employer continues to conduct the
same, or a similar, business to that conducted at the time of the termination of
employment. They will be cases in which the position created will have attached to it
duties on the employee to perform work, provided that there is no impediment to the
employee performing work.”5
[29] The Respondent relies on the evidence of Mr Carter and Mr Porter to support a
contention that the Respondent no longer has any trust and confidence in the Applicant.
[30] At the remedy hearing Mr Carter gave the following evidence:
“Mr Tracey: Mr Carter, the question is this, as of today, with the benefit of the
knowledge you have of the investigation into the applicant’s conduct, the
circumstances leading up to the dismissal and then the decision of the commission,
which you say you’ve read, what is the company’s position so far as trust and
confidence is concerned in the applicant?---
Mr Carter: The discussion that’s been had amongst the key stakeholders, which is the
decision-maker Garry Porter, our HR business partner Melissa Mendola and her boss
Kylie Gardner and Garry Porter’s boss Mike Cooper is that there is concern that the
appellant continues to claim that the incident did not occur and that continues to worry
the business around trust and confidence between the relationship of the employee and
the employer being broken.
Mr Tracey: In relation to that what does the company say? Is it broken or is it not
broken?
Mr Carter:---The company maintains that the relationship between the employer and
the employee is broken and in particular, due to the nature of our operation, being a
22-hour operation, often during the hours of the night with personnel being
unsupervised and being responsible for the safe conduct of the operation for carrying
millions of passengers from the public every year is that trust and confidence has to be
implicit and always in existence and never threatened in our workplace.”6
[2013] FWC 4794
8
[31] In Perkins v Grace Worldwide (Aust) Pty Ltd, (1997) IRCA 15 a Full Court of the
Industrial Relations Court of Australia set out the principles applicable to a consideration of
the issue of loss of trust and confidence in relation to a possible remedy of reinstatement:
“ii) Principles
Trust and confidence is a necessary ingredient in any employment relationship. That is
why the law imports into employment contracts an implied promise by the employer
not to damage or destroy the relationship of trust and confidence between the parties,
without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited
(Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The
implication is not confined to employers, it extends to employees: see for example
Blyth Chemicals Ltd v Bushell [1933] HCA 8; (1933) 49 CLR 66 at 81-2 and North v
Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the
question whether there has been a loss of trust and confidence is a relevant
consideration in determining whether reinstatement is impracticable, provided
that such loss of trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of
an employer, accuses an employee of wrongdoing justifying the summary termination
of the employee’s employment, the accuser will often be reluctant to shift from the
view that such wrongdoing has occurred, irrespective of the Court’s finding on that
question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the
relationship of trust and confidence between employer and employee, and so made
reinstatement impracticable, an employee who was terminated after an accusation of
wrongdoing but later succeeded in an application under the Division would be denied
access to the primary remedy provided by the legislation. Compensation, which is
subject to a statutory limit, would be the only available remedy. Consequently, it
is important that the Court carefully scrutinise any claim by an employer that
reinstatement is impracticable because of a loss of confidence in the employee.
Each case must be decided on its own merits. There may be cases where any
ripple on the surface of the employment relationship will destroy its viability. For
example the life of the employer, or some other person or persons, might depend on
the reliability of the terminated employee, and the employer has a reasonable doubt
about that reliability. There may be a case where there is a question about the
discretion of an employee who is required to handle highly confidential information.
But those are relatively uncommon situations. In most cases, the employment
relationship is capable of withstanding some friction and doubts. Trust and
confidence are concepts of degree. It is rare for any human being to have total
trust in another. What is important in the employment relationship is that there
be sufficient trust to make the relationship viable and productive. Whether that
standard is reached in any particular case must depend upon the circumstances
of the particular case. And in assessing that question, it is appropriate to consider
the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a
person the employer believed to have been guilty of wrongdoing. The requirement
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281976%29%2011%20ALR%20599
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281933%29%2049%20CLR%2066
http://www.austlii.edu.au/au/cases/cth/HCA/1933/8.html
[2013] FWC 4794
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may cause inconvenience to the employer. But if there is such a requirement, it will be
because the employee’s employment was earlier terminated without a valid reason or
without extending procedural fairness to the employee. The problems will be of the
employer’s own making. If the employer is of even average fair-mindedness, they are
likely to prove short-lived. Problems such as this do not necessarily indicate such a
loss of confidence as to make the restoration of the employment relationship
impracticable. (emphasis added)”
[32] I adopt the observation made by a Full bench of the Australian Industrial Relations
Commission in McVinish v Flight West Airlines:
“[28] Emphasised in that way, the passage is a reflection of what we consider to be the
essential ingredient of the principles applied by the Court in Perkins in assessment of
the practicality of reinstatement against a consideration of loss of trust or confidence
by the employer in the employee, or by either the employer or the employee in the
employment relationship.” 7
[33] I accept that there is a sound and rational basis for the Respondent to hold a position
that “the relationship between the employer and the employee is broken” but it appears that
Mr Carter’s evidence that “trust and confidence has to be implicit and always in existence and
never threatened in our workplace” is not supported by the conduct of the Respondent.
[34] The altercation between Mr Samson and the Applicant occurred on 3 December 2012.
Whilst the Respondent’s internal investigations concluded that the Applicant initiated the
confrontation and assaulted Mr Samson it was clear by 9 May 2013 that Mr Samson had
initiated the confrontation and used abusive language towards the Applicant and had assaulted
the Applicant and had lied about this.
[35] Therefore in the case of Mr Samson the findings made on 9 May 2013 and the
evidence given on 6 and 7 May 2013 mean that the Respondent’s requirement that “trust and
confidence has to be implicit and always in existence and never threatened in our workplace”
would no longer hold true in relation to Mr Samson.
[36] By 6 June 2013 the position of the Respondent in relation to Mr Samson was
expressed by Mr Tracey for the Respondent as follows:
“As a matter from the bar table, there’s currently a confidential investigation being
undertaken in relation to Mr Samson in light of the commission’s decision. Now, that is
undertaken - it’s going through its course at the moment. Mr Samson has been given the
same natural justice that the applicant was given.”8
[37] The Respondent contended that the conduct of the Applicant in grabbing Mr Samson
by the arm and lying about the incident constituted serious misconduct. Therefore it would
appear that the Respondent would also characterize the conduct of Mr Samson as serious
misconduct. In both cases the Respondent proceeded to deal with the matter through an
internal investigation process. The clear difference between the Applicant and Mr Samson is
that in the case of Mr Samson there was a wealth of sworn evidence before the Commission
and there were the findings made by the Commission adverse to Mr Samson. Yet the
Respondent’s only response was to initiate an internal investigation against Mr Samson.
[2013] FWC 4794
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[38] I make these observations not as a criticism of the Respondent in relation to the way in
which it wants to deal with Mr Samson, but rather to put the evidence of Mr Carter in
perspective.
[39] Clearly the relationship between the Respondent and its employees is not as stark as
Mr Carter asserts. I conclude that the Respondent can and does tolerate ripples and even
waves on the surface of the employment relationship.
[40] There was no evidence that the Applicant had been engaged in any other physical
confrontations with other employees nor was there any suggestion that the Applicant was
predisposed to physical confrontations with anyone. The altercation on 3 December 2012 was
a one off incident. There is nothing to suggest that there would ever be a repeat of this
behaviour by the Applicant.
[41] The fact that the Applicant lied about the incident on 3 December 2012 and
maintained the lie throughout the proceedings before the Commission is troubling but not
necessarily fatal to the Applicant’s claim for reinstatement. It is clear from the evidence in
this matter that the Applicant cannot express himself as well as others and certainly nowhere
as well as Mr Samson. The very fact that the Applicant was not open and honest at all times
with the Respondent was a very clear case of utter foolishness. As is often the case once the
first evasion occurs it leads inevitably to more evasion and ultimately to lying. Having had the
benefit of listening to the Applicant give his evidence I do not accept that the Applicant would
not be truthful in future.
[42] I conclude that the employment relationship between the Applicant and the
Respondent can be re-established and can be made both viable and productive. But should the
employment relationship be re-established through reinstatement!
[43] In the House v King sense, would a decision to reinstate the Applicant be considered
“upon the facts” to be “unreasonable or plainly unjust”.
[44] In all of the circumstances of this matter, involving as it does two employees who had
an altercation where each assaulted the other and each lied about the matter and where the
Applicant was dismissed but the other employee who initiated the altercation wasn’t, it
appears that upon the facts a decision to reinstate the Applicant would neither be unreasonable
nor plainly unjust.
[45] I determine that reinstatement is appropriate.
[46] Having reached this conclusion I will exercise the discretion to grant a remedy and the
appropriate remedy is an order for reinstatement.
[47] The Applicant has also sought an order to maintain continuity of employment and
service and an order to restore lost pay. The language of both s.391(2) and (3) makes clear
that the Commission has a discretion to grant or not grant an order under either provision. The
discretion has to be exercised separately in relation to each of s391(2) and (3).
[48] An order for continuity of employment and service will protect the Applicant’s
previous service for the purposes of leave accrual matters. In all of the circumstances of this
[2013] FWC 4794
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matter and having regard to requirement to ensure a “fair go all round” I consider it
appropriate to exercise the discretion to grant an order under s.391(2) and I will do so.
[49] An order for restoration of lost pay would put the Applicant into the position that he
would have suffered no loss of his ordinary time wages by reason of the dismissal. The
amount of lost remuneration is substantial in this matter given that the Applicant has only
worked for a short period since the dismissal.
[50] An order for reinstatement together with an order to maintain continuous employment
and service and an order to restore all lost remuneration would effectively reward the
Applicant for his conduct. Whilst I am prepared to grant an order of reinstatement and an
order to maintain continuous employment and service I am not prepared to grant an order to
restore all lost remuneration.
[51] In my view it is appropriate for the Applicant to suffer a loss of remuneration in
recognition of his misconduct in both grabbing Mr Samson on the arm, using abusive
language and then not being open and honest about the matter. It would be appropriate and in
accord with the requirement to ensure a “fair go all round” for the Applicant to bear half of
the lost remuneration since the dismissal. An appropriate order under s.391(3) would be that
the Respondent pay to the Applicant half of the amount of the remuneration lost by the
Applicant since the dismissal.
[52] The orders to give effect to this decision are issued separately.
COMMISSIONER
Appearances:
B. Baarini, Transport Workers Union, for the Applicant
J. Tracey of Counsel for the Respondent
Hearing details:
2013.
Melbourne:
May 6, 9
June 6
OF FAIR WORK . ... AUSTRAI LY THE SEAL
[2013] FWC 4794
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Printed by authority of the Commonwealth Government Printer
Price code A, PR539051
1 PR949780
2 House v R. (1936) 55 CLR 499, at 404 - 405
3 (2000) 203 CLR 194 at 205
4 Transcript at PN4349
5 [2004] FCA 1661 at paragraph 37
6 Transcript at PN4167-PN4168
7 Print R9672
8 Transcript at PN4146
