[2013] FWC 9080
The attached document replaces the document previously issued with the above code on 24
December 2013.
In paragraph [2] delete “The hearing was conducted on the 18 and 19 September 2013” and
replace with “The hearing was conducted on the 25 and 26 September 2013”.
Stevie Smith
Associate to Commissioner Riordan
13 January 2013
1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peco Sirijovski
v
BlueScope Steel (AIS) Pty Ltd
(U2013/1841)
COMMISSIONER RIORDAN SYDNEY, 24 DECEMBER 2013
Application for relief from unfair dismissal.
[1] This decision relates to an application lodged on 4 June 2013 by Mr Peco Sirijovski,
pursuant to section 394 of the Fair Work Act (the Act) in relation to an alleged unfair
termination of his employment by BlueScope Steel (AIS) Pty Ltd t/a BlueScope Steel
(BlueScope). Mr Sirijovski is a member of the Australian Workers’ Union, Port Kembla
Branch (AWU).
[2] The hearing was conducted on the 25 and 26 September 2013. An inspection of the
relevant work site was conducted on the morning of 18 September 2013. Mr Sirijovski was
represented by Mr Aron Neilson from Maurice Blackburn Lawyers. BlueScope was
represented by Mr Aaron Dearden from Duncan Cotterill Lawyers.
Background
[3] Mr Sirijovski has been employed by BlueScope for 35 years, the last 27 in the Plate
Mill. At the time of his termination Mr Sirijvski was a Level 4 Plate Processing and Dispatch
Operator.
[4] Mr Sirijovski was involved in a serious safety incident on 14 December 2012.
Following an investigation he was asked to show cause why his employment should not be
terminated.
[2013] FWC 9080 [Note: Appeals pursuant to s.604 (C2014/2644 &
C2014/2658) were lodged against this decision - refer to Full Bench
decision dated 23 April 2014 [[2014] FWCFB 2593] for result of appeal.]
DECISION
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB2593.htm
[2013] FWC 9080
2
[5] In response, Mr Sirjovski committed to following all of BlueScope’s policies and
procedures in the future. After considering his response, Mr Sirijovski was issued with the
following First and Final Written Warning and given a 5 day suspension on 19 December
2012.
“Dear Peco,
This is to inform you that the Company has investigated an incident involving
yourself that occurred on Friday, 14th December 2012 when you entered the rail
exclusion zone in the Normaliser Building (Road 1A) while a shunt was
occurring.
The findings of the investigation have shown that the incident occurred as a
result of your gross misconduct in the form of not following a Company Safety
Critical procedure. The incident could have been avoided should you have
chosen to follow the safety critical operating procedure.
The Company has considered all the factors relating to this incident including
your employment history and your training record. On this basis you will be
issued with a first and final written warning and 5 shift unpaid suspension for
unacceptable behaviour in the form of gross misconduct by not following a
Company Safety Critical Procedure.
The Company requires this unacceptable safety performance be addressed
urgently, and reminds you that working safely is a condition of employment.
Peco, please be aware this is a first and final written warning, any future
breach of critical operating procedures, operational negligence, wilful
misconduct, or behaviour of a similar kind may lead to further disciplinary
action, which may include termination of your employment.
(My emphasis)
Prior to you resuming your normal duties the Company will arrange to have you
complete refresher training in:
BlueScope Steel Life Preserving Principles (Cardinal Rules)
Rail Line Restricted Access - Critical Procedure
The Company would also like to take this opportunity to remind you that a
Company sponsored Employee Assistance Programme (EAP) is available to all
employees. Peco, I encourage you to take advantage of this Employee Assistance
Program (EAP). Through this confidential, no-cost, service you may also be
referred to community based support services where appropriate. Please call the
Employee Assistance Program (EAP0 on (02) 4226 1099 of you wish to take
advantage of this offer.
Yours faithfully,
David Otsyula”1
[2013] FWC 9080
3
[6] Mr Sirijovski returned to work on 8 January 2013 and undertook the required training.
[7] Mr Sirjijovski was the Relief Operator on night shift on 20 May 2013. He was
assigned to the role of Trim Shear Operator for the shift. Mr Sirijovski was upset about being
assigned to this role. This role required Mr Sirijovski to remain in a pulpitt (Control Room)
for the full shift and trim the steel plates to the appropriate dimensions as per each individual
order.
[8] There were a number of production issues on the shift. A number of witnesses,
including his Team Leader Mr Anic, described the shift as a “difficult shift”. This included
plate jams, malfunction of the sheer traverse and the quality of a number of the plates
processed.
[9] From the inspection, I witnessed a near safety incident. A steel plate coiled like a
spring which forced an employee to jump to safety because the straight edge had been
incorrectly engaged for the current size plate.
[10] It is suggested by BlueScope that 40 plates should be processed every hour, though
this is not a target. It is a role, from my observation, which requires a high level of
concentration.
The Incident - Brief Summary
[11] A significant scrap jam that occurred on the trim shear syntron conveyor inside the last
two hours of Mr Sirijovski’s shift at approximately 5.30am. This conveyor is one of six
screen shots constantly displayed in the pulpitt on two monitors.
[12] It is common practice to only use one of the two monitors on night shift. The Shear
Trim Operator is required to check the monitor on a regular basis. Mr Sirijovski claims that he
did not see the scrap jam even though he checked the monitors on a regular basis.
[13] The last two hours of Mr Sirijovski’s shift were the most productive hours of the shift.
He processed 67 plates in one hour and forty five minutes. There were no mistakes or issues
[2013] FWC 9080
4
of quality in relation to the plates that were processed and trimmed during this time, even
though the cutting blades were blunt on one side and needed replacing.
[14] Mr Otsyula conducted an investigation into the incident which resulted in Mr
Sirijovski being terminated on 28 May 2013. The termination letter stated;
“Dear Mr Sirijovski
Notification of Termination of Employment
This is to advise you of the termination of your employment from BlueScope
Steel (AIS) Pty Ltd effective immediately from Tuesday 23 May 2013 for
continued poor performance. This has resulted in operational negligence and
failure to follow Company policies and procedures. The Company has
determined that you are incapable of performing the role of an operator, and
your ongoing employment with the Company constitutes an unacceptable risk to
the business.
After carefully considering all the relevant information the Company concludes
that your continuing employment is no longer tenable.
The Company will pay you 5 weeks ordinary pay in lieu of notice in accordance
with your entitlements.
HR Assist, Adelaide, will be in contact with you to finalise any payroll,
superannuation and other administrative arrangement.
Yours sincerely
David Otsyula”2
[15] In considering whether the dismissal of Mr Sirijovski was harsh, unjust or
unreasonable, I am required to take into account the relevant provisions of the Act.
Part 3-2 Unfair Dismissal
“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
[2013] FWC 9080
5
(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.”
“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,”
[16] In determining this application I have taken into account the evidence before me and
the submissions of the parties.
[2013] FWC 9080
6
Section 387(a) - Valid Reason
[17] By his own admission, Mr Sirijovski was a very good Operator. He is highly
experienced with no previous warnings in relation to “operational negligence” in his thirty
five year career.
[18] He had an “interesting but not uncommon” relationship with his Team Leader, Mr
Anic. Mr Sirijovski could be regarded as a belligerent and difficult employee. He regularly
questioned Mr Anic’s authority but I believe that Mr Anic continued to act in a manner to
support Mr Sirijovski.
[19] Mr Sirijovski was dismissed for continued poor performance and operational
negligence. However, in cross examination, Mr Otsyula attested that Mr Sirijovski was
dismissed because Mr Sirijovski deliberately ignored the scrap jam. Poor performance,
operational negligence or deliberate and wilful misconduct may constitute a valid reason for
dismissal.
[20] In Qantas Airways Ltd v Cornwall3, the Full Court of the Federal Court said;
“The question is whether there was a valid reason. In general, conduct of that kind
would plainly provide a valid reason. However, conduct is not committed in a vacuum,
but in the course of the interaction of persons and circumstances, and the events which
lead up to an action and those which accompany it may qualify or characterize the
nature of the conduct involved.”4
In Edwards v Guidice5, in a different legislative framework, Moore J made the following
observation in relation to the operation of s.170CG(3) of the Workplace Relations Act;
“The paragraph requires consideration of the validity of the reason when the reason is,
relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid
the conclusion that the Commission is obliged in such circumstances to investigate in
the inquiry process contemplated by s.170CG(3) whether the conduct relied on
occurred as a necessary step in the process of determining whether a valid reason
existed.
[2013] FWC 9080
7
The reason would be valid because the conduct occurred and justified termination. The
reason might not be valid because the conduct did not occur or it did occur but did
not justify termination.”6
(My emphasis)
[21] The joint judgement of McHugh and Gummow JJ, in Byrne v Australian Airlines sets
the parameters for these types of determinations;
“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. ...
Procedures adopted in carrying out the termination might properly be taken into
account in determining whether the termination thus produced was harsh, unjust or
unreasonable...”7
[22] Mr Sirijovski should have seen the scrap jam. I do not accept his suggestion that the
monitor may have been frozen. If this was the case, than Mr Sirijovski should have noticed
that the other 5 sections of the plant were stationary. I acknowledge that the monitor
displaying the scrap conveyor operation is not very clear, but a cursory glance in the last hour
of the shift should have raised Mr Sirijovski’s concerns. I have concluded that his failure to
observe the scrap jam was a performance failure. However, there is no supporting evidence
or credible motivation to support a suggestion that Mr Sirijovski’s actions were deliberate in
actually ignoring the scrap jam.
[23] I find that Mr Sirijovski was guilty of operational negligence and that BlueScope had a
valid reason to terminate Mr Sirijovski’s employment.
[2013] FWC 9080
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(b) Notified of the Reason
[24] Mr Sisijovski was notified of the operational negligence issue. Mr Sirijovski was
notified of that reason for his dismissal both verbally and by correspondence. He was not
notified of Mr Otsyula’s additional reason for termination of his employment, ie Mr Otsyula’s
conclusion that the failure to deal with the scrap jam was deliberate.
[25] As stated earlier, Mr Otsyula injected an element of confusion into his evidence under
cross examination by stating that the basis of Mr Sirijovski’s termination was his deliberate
action in ignoring the scrap jam. Mr Sirijovski was not notified of this reason.
(c) Opportunity to Respond
[26] Mr Sirijovski was given an opportunity to respond to the allegation of operational
negligence. However, the issue of deliberate and wilful misconduct was never mentioned to
Mr Sirijovski. This raises real issues in relation to procedural fairness. I note that Mr
Sirijovski was only interviewed on two occasions and for a combined time of approximately
35 minutes. There was no opportunity for Mr Sirijovski to respond to Mr Otsyula’s unstated
conclusion that Mr Sirijovski was guilty of deliberate operational failure.
(d) Attendance of Support Person
[27] Mr Sirijovski had a support person present
(e) Previous Warnings
[28] Mr Sirijovski received a final written warning in December 2012 for breaching a
Company Safety Critical Procedure. He was required to Show Cause why he shouldn’t be
dismissed. Mr Otsyula accepted his undertakings and was entitled to rely upon them.
[29] The final warning “covered the field” in relation to Mr Sirijovski’s on-going
performance at BlueScope and not simply in relation to his compliance with relevant safety
practice and procedures. I have concluded that it is not fair that an employee with an
unblemished record of over thirty five years, who makes a single mistake in relation to safety,
[2013] FWC 9080
9
can be subject to a stringent and onerous final warning which covers all aspects of his on-
going employment. The final nature of the 2012 warning was inappropriate in all the
circumstances and, in my opinion, cannot be relied on to boost the 2013 incident to one
justifying termination of employment.
[30] In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and
Transport8, the Full Bench said:
“[77] Where a termination of employment is related to unsatisfactory performance
by the employee - as is the case here - the Commission must have regard to whether
the employee had been warned about that unsatisfactory performance before
termination (s.170CG(3)(d)).”
In Fastidia Pty Ltd v J B Goodwin9 the Full Bench said:
“ [43] In the context of s.170CG(3)(d) we think that a warning must:
- identify the relevant aspect of the employee’s performance which is of
concern to the employer; and
- make it clear that the employee’s employment is at risk unless the
performance issue identified is addressed.
[44] In relation to the latter requirement, a mere exhortation for the employee to
improve his or her performance would not be sufficient. We also note that we accept
that these criterion are to be applied in a practical and commonsense way taking into
account the employment context.”
(It should be noted that s.170CG(3)(d) of the Workplace Relations Act is identical to s.387(e)
of the Fair Work Act.)
[31] In my view the final warning failed the “fair go” test of section 381 (2) of the Act and
the practical and commonsense test applied in Fastidia v Goodwin. It is not fair or practical to
give someone a warning, or put them on notice in relation to aspects of their future
performance, if they have not contravened any of those aspects in the past. It is as if they are
being warned for a breach that they have not committed. Any warning must be appropriately
and deliberately particularised. The final warning should have applied to the issue of
Occupational Health and Safety and Critical Safety Procedures only.
[32] I find that Mr Sirijovski was not appropriately warned in relation to the issue of
operational negligence or poor performance before he was dismissed.
[2013] FWC 9080
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(f) Size of Employer
[33] BlueScope is a large employer
(g) Human Resource Management
[34] BlueScope has a dedicated and experienced HR Department who were involved in the
disciplinary process.
(h) Any Other Reason
[35] The investigation by Mr Ostyula was incomplete and disjointed. One of the key
personnel to be interviewed during the investigation should have been the Trim Shear
Operator who took over from Mr Sirijovski on day shift, but he was not interviewed by
anyone.
[36] It was also unusual, and in my opinion unsatisfactory, that Mr Otsyula outsourced
parts of the investigation to Mr Sladek and Mr Anic but didn’t ask for their input in relation to
the outcome.
[37] Mr Otsyula admitted that he had never been formally trained in investigative
techniques or practices. The decision to outsource parts of the investigation was a mistake.
The fact that Mr Sirijovski was only interviewed for 20 minutes on the first occasion and 15
minutes in the show cause meeting caused me to consider whether the interview process was
rushed or an outcome had already been determined prior to the interview.
[38] I find that the investigation did not provide the fundamental elements of procedural
fairness to which Mr Sirijovski was entitled to receive.
Harsh, Unjust or Unreasonable
[39] Mr Sirijovski had not been disciplined in thirty five years of employment for any issue
in relation to operational performance. He was rightfully proud of his record. For a single
incident of operational negligence to now be the cause of his dismissal does not satisfy the
test in Loty.
[2013] FWC 9080
11
Mr Otsyula testified that:
“My decision to terminate the employment of Mr Sirijovski was based on the facts of
the incident and Mr Sirijovski’s employment history (most notably his final warning)10
[40] Mr Sladek and Mr Anic both stated that the actions of Mr Sirijovski did not warrant
dismissal except for the final warning. I have already determined that the final warning was
inappropriately and unfairly worded. It should have been an ordinary warning. I am
persuaded by the conclusions of both Mr Anic and Mr Sladek, that the actions of Mr
Siriovkski did not justify dismissal. Even Mr Otsyula could not conclusively state that without
the final warning, Mr Sirijovski should be dismissed.
[41] The Plate Mill has been the subject of restructuring discussions and rumours over a
lengthy period of time. Large scale redundancies were expected. Relevantly, on 17 May 2013,
Bluescope announced that the Plate Mill was to be restructured and that there would be
redundancies.
[42] Mr Otsyula did not know how many positions would be made redundant from the
Plate Mill but suspected that it would be in the vicinity of 20-30. The restructuring is now
complete and 21 positions were made redundant. Mr Sirijovski’s position was one of those 21
identified redundant positions.
[43] I am not convinced that Mr Otsyula conducted his investigation and formed his
decision to terminate Mr Sirijovski based on an underhand attempt to save paying Mr
Sirijovski redundancy. I find Mr Otsyula to be a person of integrity. However, the fact that Mr
Sirijovski missed out on the opportunity to apply for redundancy is a factor I have taken into
account in considering whether or not the decision to terminate was harsh.
Conclusions
[44] I have already found that BlueScope had a valid reason to dismiss Mr Sirijovski.
[45] He has been a difficult and belligerent employee who had difficulty with his Team
Leader and would continually challenge his authority and instructions. This type of behaviour
should not have been tolerated in the workplace. Bluescope has allowed this behaviour to
[2013] FWC 9080
12
continue and by failing to discipline Mr Sirijovski and restrain his conduct has, to some
extent, condoned it. I have taken this into account.
[46] The warning process is a vital component of BlueScope’s disciplinary policy. A final
warning should be the penultimate step in the policy process before dismissal. A final
warning should not be lightly imposed and should never be imposed to make termination of
employment more accessible or easier in the future. Warnings must be used to advise an
employee of their shortcomings - where BlueScope require improvement from the employee
in order to continue the employment relationship. In this regard, warnings by their very nature
need to be precise so that employees can focus on the areas of their performance that need
improving. This did not happen for Mr Sirijovski. His final warning letter of 19 December
2012 covered issues such as critical operating procedures, operational negligence, wilful
misconduct, etc and not the critical safety procedures for which he was being disciplined.
[47] As a result, when Mr Sirijovski was operationally negligent on the morning of 21 May
2013 his employment was unfairly in jeopardy. Such an outcome does not pass the “fair go”
test.
[48] For the reasons stated above, I find that the dismissal of Mr Sirijovski to be harsh,
unjust or unreasonable.
Remedy
[49] Mr Sirijovski’s position has been made redundant. If Mr Sirijovski was reinstated
nothing would prevent BlueScope from applying its redundancy policy to Mr Sirijovski. The
primary remedy for an employee who has been unfairly dismissed is reinstatement.
Alternatively, compensation can be awarded. If the employment relationship has broken down
beyond repair, that is a factor that can be taken into account to decide if reinstatement is
appropriate or not. I am of the view that Mr Sirijovski will be so bitter and disappointed at not
being given redundancy that re-employment could be hazardous. I believe that the
relationship cannot be restored to an appropriate level to allow for reinstatement.
[50] I am satisfied that Mr Sirijovski was a difficult employee. He regularly questioned the
authority of his team leader, complained and refused to undertake reasonable tasks and
displayed an apathetic attitude towards safety. That type of behaviour is unwarranted and
cannot be condoned.
[2013] FWC 9080
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[51] However, I was greatly disturbed by the revelation that Mr Sirijovski did not have
ready access to his isolation locks when Mr Anic and Mr Sirijovski attended a plate jam on 20
May 2013. The fact that they were locked in a cupboard to which he does not have access is
bordering on being unbelievable.
[52] Isolation locks are the most important piece of PPE for an Operator. Whilst safety
boots protect toes, gloves protect hands and safety glasses protect eyes - isolation locks
protect lives. They prevent isolated equipment from being switched on whilst another
employee is working on the equipment, especially if they cannot be seen. For Mr Sirijovski to
not carry a lock whilst at work is of concern but to not have easy access to one displays a
reckless and dismissive attitude towards safety.
[53] In determining the appropriate level of compensation, I am obligated to consider
section 392 of the Act.
“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
(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.
[2013] FWC 9080
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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 $64,650 from 1 July 2013
(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.”
[54] I am satisfied that compensation is the appropriate remedy in accordance with section
392(1) of the Act.
[55] Section 392(2)(a) the effect of the order on the viability of the employer’s
enterprise
Any payment to Mr Sirijovski will not affect the on-going viability of Bluescope.
(b) the length of the person’s service with the employer
Mr Sirijovski has been employed by Bluescope for 35 years with no prior warnings in
relation to his operational competency.
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed
Mr Sirijovski is 53 years old. He would have expected to work at Bluescope until he
retired at 67, ie for another 14 years.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal
[2013] FWC 9080
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Mr Sirijovski has not formally sought alternative employment but has asked family
and friends in regards to available casual employment.
(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
Mr Sirijovski has not earned any money since he was dismissed.
(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
Mr Sirijovski lives in the Illawarra area where the unemployment rate is very high. He
has skills which are not easily transportable outside of Bluescope.
(g) any other matter that the FWC considers relevant.
I have taken all of these matters into account including the fact that Mr Sirijovski has
personal debts.
(3) Misconduct reduces amount
I have found that Mr Sirijovski was guilty of operational negligence. In my view,
adopting the Bluescope disciplinary code, he should have been issued with a final
warning and given a 5 day suspension. I have taken this into account when
determining the appropriate level of compensation.
[56] Based on the principles in Sprigg11which were refined in Ellawarra v Australian
Postal Corporation12 an appropriate amount of compensation would be significantly higher
than the 26 weeks salary allowed under the Act.
[57] Taking into account the unfairness of Mr Sirijovski’s termination of employment it
seems unfair that Bluescope not pay Mr Sirijovski the previously available redundancy
package. It is not in any way fair or reasonable for BlueScope to deny this long serving
employee this benefit. BlueScope should not reap a financial benefit from not paying Mr
Sirijovski a redundancy because of an action which I have found to be harsh, unjust or
unreasonable.
[2013] FWC 9080
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[58] I accept that Bluescope is not obligated to pay the redundancy and therefore pursuant
to section 392(6) of the Act, I order that Mr Sirijovski be paid 26 weeks pay, including any
shift loadings, penalties or overtime pay that he worked in the 26 weeks immediately prior to
his dismissal.
[59] An Order will be issued to that effect.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code C, PR544710
1 Exhibit PS2
2 Exhibit PS1
3 [1998] FCA 865
4 [2012] FWA 8982 at para 44
5 [1999] FCA 1836
6 [1999] FCA 1836 at para 6 - 7
7 (1995) 185 CLR 410 at 465 - 468
8 S5897
9 S9280 [2000] AIRC 223
10 Exhibit B3 Paragraph 60
11 (1998) 88 IR 26
12 PRS5109
