1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mark Gwatking
v
Schweppes Australia Pty Ltd
(U2015/331)
COMMISSIONER HAMPTON ADELAIDE, 15 JULY 2015
Application for relief from unfair dismissal – altercation between two employees at the
workplace – long serving employee – applicant provoked but response beyond self-defence –
serious incident for individuals and other employee seeking to intervene - valid reason found
– dismissal harsh in the circumstances – remedy - remedial benefit of reinstatement - no
contrition or sense that conduct inappropriate – grounds for loss of trust and confidence
found – reinstatement not appropriate – compensation awarded.
1. Background and case outline
[1] Mr Mark Gwatking has made an application under s.394 of the Fair Work Act 2009
seeking a remedy for an alleged unfair dismissal. Mr Gwatking had been employed as a Filler
Operator by Schweppes Australia Pty Ltd (Schweppes) at its Payneham factory in South
Australia for a period of over 30 years at the time of his dismissal in January 2015.
[2] Mr Gwatking was dismissed by Schweppes following an incident with another
employee on 9 January 2015 during which a physical and verbal altercation occurred. There is
a dispute about the details of that altercation, including which employee initiated the incident,
the nature of the physical and verbal exchanges, and the degree to which Mr Gwatking
actively participated.
[3] Mr Gwatking was represented by United Voice in this matter and contends that he
was, in effect, assaulted by the other employee, Mr FW,1 and pushed to the ground. He further
contends that he pushed Mr FW away in self-defence and his conduct was reasonable and
proportionate in the circumstances. That is, the altercation was at the very low end of
seriousness and any conduct on his part was undertaken in the face of significant provocation.
Mr Gwatking also contends that he showed remorse, honesty and contrition during the
investigation and disciplinary process.
[4] On the basis of the above contentions, Mr Gwatking submits that there was no valid
reason for his dismissal and that the dismissal was harsh and disproportionate to the conduct
given the consequences for a very long serving and loyal employee. Further, he contends that
the dismissal was unreasonable in that it was based upon inferences that were not available to
[2015] FWC 3969
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 3969
2
the employer. Mr Gwatking seeks reinstatement and relies upon his own circumstances and
the attitude of the workforce to support that notion. In the alternative, Mr Gwatking seeks
significant compensation.
[5] Schweppes, which was represented with permission by Ms Aistrope of Kelly Hazel
Quill Lawyers, contends that the altercation between the applicant and Mr FW involved
Mr Gwatking acting aggressively and actively engaging in the physical altercation. This was
said to involve both men going at each other including by pushing and shoving, “air
punching”, the grabbing of Mr FWs’ clothing and aggressive language. The altercation
occurred in the context of a workplace where employees work in close proximity to both each
other and a production line and where conduct of the nature alleged was not tolerated.
Schweppes also contends that Mr Gwatking had, in the lead up to the altercation, acted
aggressively in throwing a partly filled bottle of soft drink at or in the direction of Mr FW.
[6] Schweppes also contends that Mr Gwatking did not show remorse during the
disciplinary process, did not accept that he had done anything wrong, had a tendency to lose
his temper, and previously had been given a final warning for an earlier incident with another
employee.
[7] Schweppes submits that the above circumstances provided a valid reason for dismissal
and it further contends that the dismissal was not harsh, unjust or unreasonable. In the
alternative, it also opposes reinstatement and any award of compensation given the alleged
conduct of the applicant and the circumstances of the workplace.
[8] In general terms, there is no dispute that the procedure followed by Schweppes leading
to the dismissal was fair and it is common ground that Mr Gwatking was protected from
unfair dismissal by the terms of the Act.2
[9] Accordingly, amongst other considerations, the key disputes in this matter concern the
circumstances leading to, and the conduct of Mr Gwatking in and surrounding, the altercation
with Mr FW and whether in that context a valid reason for dismissal existed. Further, an
assessment is required as to whether the dismissal was harsh or unreasonable, given all of the
circumstances of Mr Gwatking and the workplace.
2. The cases presented
[10] Mr Gwatking provided a witness statement and gave evidence. He also relied upon the
evidence of George Dadleff, a Forklift Driver who had worked with Mr FW and the applicant.
Mr Dadleff’s evidence went to some alleged incidents involving Mr FW and his view of
Mr Gwatking’s conduct.
[11] Mr Gwatking also called Mr Craig Burgess, a Machine Operator and United Voice
delegate. Mr Burgess provided evidence to confirm how a petition of production workers at
Schweppes supporting Mr Gwatking’s reinstatement was collected. Mr Burgess also acted as
a support person for Mr Gwatking during the disciplinary process leading to the dismissal.
[12] Schweppes provided witness statements and oral evidence from the following
employees:
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Frank Carella - Syrup Maker;
Steven Flynn - Syrup Maker;
Robert Murray - Reliability Manager;
Leon Rentis - EHS State Lead and RRTW Coordinator; and
Andrew Morrison - Site Manager, South Australia.
[13] Mr Carella directly observed the altercation and stepped in to separate the two men.
The incident was also observed and/or heard to various degrees by Mr Flynn and Mr Murray.
There is tension between elements of the evidence of these witnesses and the evidence given
by Mr Gwatking about some of the details of the altercation.
[14] Having heard and seen the witnesses, I prefer the evidence of Mr Carella as to the
actual facts of the altercation to the extent that it conflicts with Mr Gwatking’s account.
Mr Carella gave his evidence clearly and it was evident to me that he was simply telling the
truth from his perspective. Although called by Schweppes, he was one of the employees who
signed the petition in support of the applicant’s reinstatement and whilst this may have
influenced his view about what the outcome should be, his version of the facts as provided to
the Schweppes investigator, Mr Rentis, and confirmed in his witness statement, is to be
preferred.
[15] I do not consider that Mr Gwatking attempted to mislead the Commission. He had a
tendency to give short abridged answers that reflected his views but did not at times fully
articulate his position. I accept that this is consistent with his personality and conduct during
the investigation of this matter. However, I did find that Mr Gwatking exaggerated the extent
of his personal safety concerns during the incident and has also understated the degree to
which he actively responded to Mr FW.
[16] In terms of what was said in the course of the altercation, many of the witnesses were
imprecise about that detail and this is understandable in the circumstances. As accepted by
Mr Murray in cross-examination, the evidence of Mr Flynn in that respect is likely to be more
accurate given the circumstances under which each witness observed/heard the altercation.
[17] I find that the evidence of Mr Dadleff is relevant to the degree that it sets some of the
context within the workplace more generally. There is also some dispute about an earlier
incident involving Mr FW and a Supervisor, and the resolution of that dispute is not assisted
by a lack of precision as to when this occurred and whether the Supervisor was at work at the
time. Mr Dadleff did not observe the altercation between Mr Gwatking and Mr FW.
[18] I accept the evidence of Mr Rentis and Mr Morrison as to the facts of the investigation
and the basis upon which the decision was made. To the extent that these and other witnesses
expressed views about the seriousness of the conduct and the appropriateness of the dismissal
(and the request for reinstatement) these are ultimately matters for the Commission. This
includes the evidence of Mr Dadleff, Mr Burgess and Mr Murray, and I note that their long
association with the applicant and their personal views of Mr Gwatking and/or Mr FW mean
that care must be exercised in placing weight on their subjective opinions of the individuals
concerned.
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[19] The petition3 contained various alleged facts about circumstances surrounding
Mr Gwatking’s dismissal. The petition was, with the concurrence of both parties, admitted as
an indication of the views of some of Mr Gwatking’s former colleagues potentially going to
the issue of remedy.
3. Findings
[20] Schweppes conducts a carbonated soft drink production facility at its Payneham site.
Mr Gwatking and Mr FW were two of the employees who primarily worked on the
production line. The production line is largely automated; however the various stages along
the line involve employees monitoring the processes involved and undertaking various tasks
to ensure that the production occurs as required. This includes work associated with flavour
and other product changes.
[21] The production line has a drip tray underneath it and there are various walkways and
platforms where employees stand or move around the line. The facility at Payneham is not
large in relative terms and employees work in close proximity to one another. Given the
nature of the production line, each of the employees is dependent upon the others to do their
respective roles and it is important in that environment that interactions between them are
conducted in a professionally appropriate manner.
[22] Schweppes had in place at the time of the altercation and the dismissal, a “Managing
Performance and Conduct Issues” policy.4 That policy included expectations that all
employees would “treat other people in the way themselves would want to be treated”. In
addition, the policy included, under the banner of serious misconduct that might warrant
immediate dismissal, conduct that is inconsistent with the continuation of the employment
contract or causes serious and imminent risk to health and safety of a person, and fighting on
the premises.
[23] Mr Gwatking is currently 50 years of age. He was employed by Schweppes as a Filler
Operator from February 1984 until his dismissal on 15 January 2015. Mr Gwatking was
considered to be a skilled and good operator.
[24] Mr Gwatking holds a Certificate III in Food Processing and has forklift certification.
[25] During the course of his over 30 years of service Mr Gwatking was the subject of
some relatively limited disciplinary action. This included a verbal warning and counselling in
relation to not following correct procedures in 2000 and 2010, and a first written warning for
leaving work early in 2007.
[26] Mr Gwatking also received a final written warning in 2008. The terms of the warning
were as follows:
“...
Dear Mark,
This morning witnesses reported an incident where you lost your temper with another
employee and punched a hole in the canteen door then followed the employee back to
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his work station with the purpose of inciting a fight. Fortunately the other employee
retreated and a fight did not develop.
When I spoke with you about these allegations you admitted that this had occurred and
your anger was provoked due to the manor in which the employee had spoken to you
in the canteen. Your actions constitute 3 serious breached of company policy.
1. Wilful disregard for your own safety when you punched the door and suffered
an injury to your hand.
2. Wilful disregard for company property when you damaged the door with your
fist.
3. Acting aggressively toward an employee with verbal abuse and threats of
physical violence.
It is for these reasons that I give you this final written warning about your
aggressive behaviour and if there are any future repeats of this type of behaviour
then this will result in your termination of employment.
...”5
[27] Mr Gwatking takes issue with the degree to which he was aggressive to the other
employee at the time, but also expressed regret about that event and noted that he was in the
middle of some significant personal issues that may have contributed to that incident.6
[28] The previous warnings, including their nature, context and when they were issued, and
the applicant’s long work history more generally, are relevant to the determination of this
matter.
[29] There is some evidence to support the notion that Mr Gwatking does have a short
temper and at times will yell at himself and potentially others.7 There are some suggestions in
the evidence of Mr Morrison and Mr Murray that the applicant may have a tendency to
respond angrily to being challenged and was a risk to other employees. However, the incident
in 2008 and the altercation in 2015, represent the only direct evidence of any such alleged
propensity turning into conduct.
[30] Mr FW was employed by Schweppes in December 2011 through a program facilitated
by a non-profit organisation known as Whitelion. The program involves providing work for
young people that are at risk due to abuse and neglect, drug addiction and poverty. There is no
indication that Mr FW’s past involved being in trouble for violence and his only disciplinary
action at Schweppes did not involve violence or aggression. There is some indication in the
evidence that Mr FW was involved in an altercation with a Supervisor and that at times
following the absence of that Supervisor (for unrelated personal reasons), he would leave the
production line and was not always constructive in his responses to other employees. None of
this led to disciplinary action being taken.
[31] On the day of the altercation, Mr Gwatking was working on the production line and
this included, amongst other more substantive duties, monitoring whether caps were being
correctly applied to the plastic bottles after being filled. Mr FW was working in relatively
close proximity further down the line on or near to the labeller. At some point, the bottles
[2015] FWC 3969
6
were not being correctly capped and this was impacting upon Mr FW’s area. This took place
during or associated with a flavour change being undertaken at that time.
[32] Mr FW threw at least one bottle (and probably more), with a lid not correctly fitted,
into the drip tray under the production line in the direction of Mr Gwatking. This may have
been to attract the applicant’s attention to the problem but was clearly inappropriate. The
bottles were spraying soft drink and this impacted upon Mr Gwatking. Mr Gwatking took
exception and threw a bottle, which was still at least half full, back in the direction of Mr FW.
Mr FW at that stage was about 10 metres away from the applicant and Mr Gwatking threw the
bottle over the top of the production line. The bottle did not hit Mr FW and heated words
were exchanged between the two employees.
[33] The actions in throwing the bottle back towards Mr FW was also inappropriate and
was itself provocative and is likely to have been influenced by Mr Gwatking’s general
frustration with the work of Mr FW at that time.
[34] Shortly thereafter, lunch was called and Mr Gwatking and Mr Carella walked towards
the lunch room and the wash basin area that was adjacent to the production line. In doing so,
they came across Mr FW. It is likely that Mr FW approached Mr Gwatking and aggressively
took exception to having the bottle thrown at him and moved into Mr Gwatking’s personal
space. The exchange then quickly escalated into mutual yelling and at one point early in the
exchange, both Mr Gwatking and Mr FW were pushed over. In the case of Mr FW, he fell
against the wash basin. In the case of Mr Gwatking, Mr Carella, who was standing alongside
the men, caught Mr Gwatking as he was falling to the ground and then stood directly between
them.
[35] Mr FW and Mr Gwatking then continued to grab each other’s shirts at the neck, and to
yell and push. In addition, both men continued to make “air punches” which were more in the
nature of angry swinging of fists at each other over and around the head of Mr Carella (who
remained between them) rather than concerted attempts to strike.
[36] Both Mr FW and Mr Gwatking were actively involved in the altercation and both were
being aggressive, physically and verbally. The incident went on even after Mr Carella stepped
between them and repeatedly yelled for them to stop. Although Mr Murray stated in his
witness statement that some specific threats were made by Mr Gwatking towards Mr FW
during the course of the exchange, this was not confirmed by Mr Flynn and Mr Murray
conceded that Mr Flynn’s recall of the details was more likely to be accurate. I am not
satisfied that such specific threats were made. The language used by both men was however
aggressive and threatening and involved heated swearing at each other.
[37] I find that Mr Carella’s summary description of the altercation is apt; namely:
“Throughout the incident both (Mr Gwatking) and (Mr FW) were actively involved.
They were doing things to each other with fists going everywhere in the air (they
didn’t connect) and pushing and shoving each other. They were screaming and
carrying on, swearing at each other. It was really bad. I thought it was going to get out
of hand because they were really angry with each other so I stepped in to try and
diffuse the situation.”8
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[38] The incident was reported to Mr Morrison and after a brief discussion with both
Mr Gwatking and Mr FW, they were suspended on pay pending an investigation.
[39] An investigation was conducted by Mr Rentis and this involved interviewing, and
preparing statements for, Mr Gwatking, Mr FW, Mr Carella, Mr Flynn and Mr Murray.
Mr Gwatking was accompanied by Mr Burgess as his support person. The statements were
provided to each of these employees to seek confirmation and in the case of Mr Gwatking, he
was given the opportunity to confirm the statement at the subsequent “outcomes” meeting.
[40] Mr Gwatking’s statement read as follows in relation to the actual incident:
“…
MG: (Mark Gwatking) I finished with the flavour change until around 11.35am when I
called for lunch via the PA system. Both Frank Carella and I were walking towards the
lunch room. When we go to the hand wash station I heard (Mr FW) calling me, I
turned around with (Mr FW) staring at me aggressively. (Mr FW) said to me “throw
another bottle at me c**t. I turned around and told him to “Piss Off” before attempting
to walk away. As I started to walk towards the lunch room, (Mr FW) again proceeded
to push me using his chest, I reacted by pushing him away from using my hands, I
shoved him away.
Leon: (Leon Rentis) Did (Mr FW) …(sic) to the ground?
MG: No I don’t think so, he kind of stumbled onto the wash station. At this point
(Mr FW) became really aggressive and he pushed me to the ground. I got back on my
feet and we both were going for each other.
Leon: What do you mean going for each other?
MG: We both had each other by the collar, pushing each other
Leon: Were any punches thrown?
MG: No just pushing each other.
Leon: OK, so what happened next?
MG: Frank Carella tried to separate us by getting between us and pushing us apart.
Leon: Did he succeed?
MG: Yes, we both let go of each other and walked our separate ways.
… …” 9
[41] The results of the investigation by Mr Rentis were reported as follows:
“...
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(6) INVESTIGATOR’S FINDINGS
ALLEGATION 1:
The company alleges that both Mark Gwatking and FW were involved in a serious
incident which breached numerous company policies. This incident was witnessed by
a number of employees who have provided their own accounts via signed statements
during the investigation process.
(1) Background to the incident
FW was working near the warmer pushing full 1.25ltr bottles into the machine as part
of a flavour change. During this process, he found numerous bottles with a faulty cap
application. FW grabbed a hand full of these bottles and threw them towards Mark
Gwatking’s drip tray. FW then alleges that Mark threw a 1.25ltr bottle at him while he
was walking on the catwalk headed towards the contiroll labeller. The incident then
proceeded to escalate when both employees bumped into each other near the hand
wash station as they were heading to the lunch room for their break. At this point there
was aggressive behaviour displayed by both employees which involved verbal abuse,
pushing and shoving and numerous air punches being thrown. Both employees were
pushed with one landing on a bin (FW) and the other on the floor (MG). The
aggression continued with both employees pushing and holding on to each other’s
shirts until another employee stepped in and physically separated both of them
On this basis, the allegation is found to be SUSTAINED”.10
[42] I note that the above represented a summary and did not reflect all of the details of the
events or the statements provided by those involved or witnessing the events. The statements
were however also supplied to Mr Morrison and taken into account.
[43] Mr Rentis was not requested to make any specific recommendations and did not do so.
[44] An outcomes meeting was conducted by Mr Morrison on 16 January 2015.
Mr Gwatking attended with Mr Burgess as his support person. Mr Rentis was also in
attendance. When requested to review and comment on the statement of his version of events
that had been prepared by Mr Rentis, Mr Gwatking indicated words to the effect that “only a
few minor wording errors, everything else is correct”.
[45] Mr Morrison then summarised the outcomes of the investigation and confirmed that it
was a very serious incident. Mr Morrison then indicated, in effect, that it was the view of
Schweppes that Mr Gwatking’s employment was to be terminated immediately for serious
breaches of company policies.
[46] Mr Gwatking was then given an opportunity to say anything else that might change
that decision. His response was that he was trying to defend himself and to the effect that he
was not just going to stand there and take it. It was “a man’s right to fight back”. Upon being
prompted by management, Mr Gwatking acknowledged that a better option would have been
to not get involved.
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[47] Mr Morrison confirmed that it was unacceptable to get involved in a fight and that it
would have been proper for the applicant to have reported the original incident to the team
leader and let them handle it. Mr Gwatking confirmed that he needed a job and Mr Burgess
indicated that he and many other employees supported Mr Gwatking and would be impacted
by any dismissal.
[48] Mr Morrison referred to the need to apply the policies, that fighting in the workplace
was unacceptable and that it was not appropriate to “give a second chance to deliberately hurt
someone in the workplace.” Mr Burgess again sought a last chance for Mr Gwatking.
[49] Mr Morrison considered the circumstances, including Mr Gwatking’s length of service
and decided to proceed with his termination. Mr Morrison had earlier also considered, but
rejected, the notion of a warning being given. Mr Morrison then confirmed the dismissal and
read a letter of dismissal to Mr Gwatking.
[50] The termination letter, which reflected the views of Mr Morrison, outlined the
allegation, finding and outcome in the following terms:
“…
The specific allegation made against you is as follows:
That on Friday 9 January 2015, you engaged in a physical altercation with FW by
the hand washing station at the Payneham factory.
This letter confirms the outcome of this incident investigation as discussed with you at
our meeting on Monday 12 January 2015.
Finding
After a full investigation of the fact and careful consideration of your responses, the
Company has determined that the allegation made against you has been substantiated
and in particular that you did engage in a physical altercation with FW on the premises
at Payneham.
Outcome
The Company considers your behaviour and conduct to constitute serious
misconduct. Your conduct was inconsistent with your obligations as an employee and
unacceptable for a number of reasons, including that:
It was in serious breach of the Company’s Managing Conduct and Performance
Issues Policy, in particular that you engaged in fighting on the premises; and
It was in serious breach of the terms and conditions of your employment.
In these circumstances, the Company has no option but to terminate your
employment effective immediately. You will be paid five (5) weeks in lieu of notice in
accordance with your contract of employment.”11
[51] As advised in the letter of termination, Mr Gwatking was terminated with immediate
effect but was paid five weeks in lieu of notice.
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[52] Mr FW was also dismissed as a direct result of the altercation.
4. Was the dismissal of Mr Gwatking unfair within the meaning of the
FW Act?
[53] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.”
[54] Mr Gwatking was dismissed, the employer is not a small business within the meaning
of the FW Act, and the concept of a genuine redundancy is not relevant here.
[55] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or
unreasonable.
[56] The FW Act relevantly provides as follows:
“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
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(h) any other matters that the FWC considers relevant.”
[57] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature
of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of
considerations that must, where relevant, be treated as a matter of significance in the decision
making process and weighed up accordingly.
[58] It is convenient therefore to use the various provisions of s.387, with reference to the
relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to
Mr Gwatking’s capacity or conduct (including its effect on the safety and welfare of
other employees)
[59] Valid in this context is generally considered to be whether there was a sound,
defensible or well founded reason for the dismissal. Further, in considering whether a reason
is valid, the requirement should be applied in the practical sphere of the relationship between
an employer and an employee where each has rights, privileges, duties and obligations
conferred and imposed on them. That is, the provisions must be applied in a practical,
common sense way to ensure that the employer and employee are each treated fairly.12
[60] In applying this approach, it is also important to recognise that conduct occurs in a
context and this must also be taken into account. This might include the circumstances in
which any misconduct occurs and the events leading to that point.13
[61] More specifically, it is well established that physical violence in the workplace will
generally constitute a valid reason for dismissal and that all of the circumstances must be
considered as to whether this is so in any given case. Those circumstances include, but are not
limited to:
Whether the dismissed employee was provoked and whether he or she was acting
in self defence;14
The employer’s need to establish and retain discipline amongst its employees; and
The service and work record of the employee concerned.15
[62] It is also clear from the authorities that the reason for termination must be defensible
or justifiable on an objective analysis of the relevant facts before the Commission. That is, it
is not enough for an employer to rely upon its reasonable belief that the termination was for a
valid reason.16
[63] In this case:
Mr Gwatking was provoked by the aggressive approach to him undertaken by
Mr FW and there was an element of self-defence in the initial response. However,
Mr Gwatking was also partly responsible for the events leading to that provocation
(in throwing the bottle (back) at Mr FW and engaging in the earlier verbal
exchange);
Mr Gwatking’s part in the subsequent altercation went well beyond self-defence
and he became actively involved in the incident;
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The workplace is one in which violence or aggressive behaviour creates immediate
physical safety concerns and there is a genuine need for Schweppes to retain
discipline amongst employees in relation to that conduct;
The physical part of the altercation involved aggressive pushing and shoving with
each being pushed over (combined with aggressive language) and the swinging of
fists in the air but without any blows being struck. The combined effect of the
conduct of both Mr FW and Mr Gwatking was such that it was a genuinely
threatening event for those involved and for Mr Carella;
Mr Gwatking cooperated with the investigation, raised the issue of provocation
and, albeit only after prompting, acknowledged in that process that he should have
walked away from the incident;
Neither Mr Gwatking nor Mr FW were in a supervisory capacity; and
Mr Gwatking had a very long and largely positive employment record with
Schweppes; albeit punctuated with some warnings including a directly relevant
final warning some 7 years before the altercation.
[64] Having considered the above factors and my findings more generally, I find that there
was a valid reason for Mr Gwatking’s dismissal related to his conduct.
Section 387(b) – whether Mr Gwatking was notified of the reasons for dismissal
[65] This consideration requires the Commission to assess whether the applicant concerned
was relevantly notified of the reasons leading to the dismissal before that decision was
taken.17
[66] Mr Gwatking accepts that he was notified of the reasons.18
Section 387(c) – whether Mr Gwatking was given an opportunity to respond to any
reason related to his capacity or conduct
[67] Mr Gwatking accepts that he was given the opportunity contemplated by this
consideration.19
Section 387(d) – any unreasonable refusal by the respondent to allow Mr Gwatking a
support person
[68] Mr Gwatking accepts that there was no refusal to allow a support person.20
Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr
Gwatking – whether he has been warned about that unsatisfactory performance before
the dismissal.
[69] This consideration relates to performance of the job. Performance in this context
includes the employee’s capacity to do the work, and the diligence and care taken with that
work.21
[70] The dismissal was not determined by reference to any unsatisfactory performance and
this consideration does not arise.
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Section 387(f) – the degree to which the size of Schweppes enterprise would be likely to
impact on the procedures followed in effecting the dismissal.
Section 387(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.
[71] Schweppes is a large and well resourced employer and the procedures followed were
consistent with those circumstances.
Section 387(h) - other matters considered to be relevant
[72] Amongst other considerations, the Commission should consider the impact of the
dismissal upon the applicant given all of the circumstances. This includes consideration as to
whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct
found by the Commission.22
[73] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,23 the Full Bench observed:
“[24] ... ... 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.”
[74] In this case there are competing elements bearing upon this consideration. These
include the nature and extent of Mr Gwatking’s employment and the impact of the dismissal
upon him. In that regard, the loss of employment held by him for over 30 years, his age and
relatively narrow skill set, are significant mitigating factors to be taken into account.24
[75] I must also consider the actual conduct and the view that I have formed that such
provided a valid reason for dismissal. Further, all of the circumstances, including the
provocation and the physical context for the altercation, Mr Gwatking’s attitude to the events
and his particular role in such, and the earlier warnings, are also important considerations and
must be factored into any assessment of the dismissal for present purposes.
[76] Mr Gwatking contends that the decision was unreasonable on the basis that certain
inferences were relied upon that were not reasonably open to the employer. This primarily
relates to whether punches were thrown during the altercation. I accept that the notion of “air
punches” was understood by Mr Morrison and Mr Rentis as attempted punches that did not
connect. Based upon the evidence before the Commission,25 these “air punches” were more in
the nature of both men angrily flailing about with their fists rather than serious attempts to
strike each other. In any event, the seriousness of the conduct must be considered in its
entirety and I have made findings about such earlier in this decision.
[77] Mr Gwatking was paid five weeks in lieu of notice and this is also to be taken into
account.
[2015] FWC 3969
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Conclusion on nature of dismissal
[78] I have found that there was a valid reason for dismissal and the considerations relating
to the procedural aspects of the dismissal do not support a finding that the termination was
unfair on those grounds. However, having regard to all of the circumstances I am, on balance,
persuaded that the dismissal was harsh.
5. Remedy
[79] Division 4 of Part 3-2 of the Act provides as follows:
“Division 4—Remedies for unfair dismissal
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).
(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.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s
employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was
employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions
no less favourable than those on which the person was employed
immediately before the dismissal.
(1A) If:
[2015] FWC 3969
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(a) the position in which the person was employed immediately before
the dismissal is no longer a position with the person’s employer at
the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an
associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was
employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no
less favourable than those on which the person was employed
immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it
appropriate to do so, the FWC may also make any order that the FWC
considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or
(if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it
appropriate to do so, the FWC may also make any order that the FWC
considers appropriate to cause the employer to pay to the person an
amount for the remuneration lost, or likely to have been lost, by the
person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection
(3), FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned
by the person during the period between the making of the order for
reinstatement and the actual reinstatement.
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
[2015] FWC 3969
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(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;
[2015] FWC 3969
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(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.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may
permit the employer concerned to pay the amount required in instalments
specified in the order.”
[80] The prerequisites of ss.390(1) and (2) have been met in this case.
[81] Mr Gwatking primarily seeks reinstatement to his former position with the
maintenance of continuity of service. Amongst other considerations, he relies upon the
contentions that he was a long standing employee who was well regarded, has the support of a
considerable number of former colleagues who sought his return to Schweppes, and that
Mr FW (who was described as the source of the problem) was no longer in the workplace.
[82] Mr Gwatking has not secured any on-going work and has been actively seeking
alternative employment. He has only earned something in the order of $1,500 from some
private work for a friend since his dismissal.
[83] Schweppes is opposed to that outcome on the basis that it, as the employer, has lost
trust and confidence in Mr Gwatking and contends that this view was soundly based.
Amongst other factors, Schweppes contends that Mr Gwatking did not have an unblemished
record, that he has a short temper and that his responses during the course of the investigation
and the hearing of this matter meant that there could be no confidence that he would not
behave in a violent and aggressive manner in the future.
[84] Section 390 of the Act makes it clear that compensation is only to be awarded as a
remedy where the Commission is satisfied that reinstatement is inappropriate and that
compensation is appropriate in all the circumstances. As a result, it is proper to firstly
consider whether reinstatement is appropriate.
[85] In Australia Meat Holdings Pty Ltd v McLauchlan26 a Full Bench of the AIRC,
having considered the language of the Act, which is comparable to the present provision, said:
“In our view a consideration of the appropriateness of reinstatement involves the
assessment of a broader range of factors than practicability.
... ...
We accept that the question of whether there has been a loss of trust and confidence is
a relevant consideration in determining whether reinstatement is appropriate. It is one
factor to be taken into account, but it is not necessarily conclusive.
[2015] FWC 3969
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In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full
Court of the Industrial Relations Court said:
"... 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 loss of confidence in the employee.
Each case must be decided on its own merits."
While Perkins was decided under the former statutory scheme the above observations
remain relevant to the question of whether reinstatement is appropriate in a particular
case.”
[86] More recently, a Full Bench of the Commission further considered the statutory
scheme surrounding the remedy provisions including the role played by an alleged loss of
trust and confidence felt by the employer. In Colson v Barwon Heath,27 the Full Bench found
as follows:
“[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing
remedies if a dismissal is found to be unfair, which is one element of the object of Part
3–2. Section 381(2) of the Act requires as part of the object that a “fair go all round” is
accorded to both the employer and employee concerned in deciding on and working
out remedies under Part 3–2. Section 390(3) of the Act provides that the payment of
compensation should not be ordered unless the Commission is satisfied that
reinstatement of the person is inappropriate (and an order for compensation is
appropriate).
...
[31] The approach of the Deputy President is consistent with that of the Full Bench in
Regional Express Holdings Limited trading as REX Airlines v Richards which stated:
[2015] FWC 3969
19
“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a
remedy is appropriate, compensation must not be ordered unless the tribunal is
satisfied that reinstatement is inappropriate. Seen in the proper context the
Commissioner’s statement that reinstatement is the presumptive remedy is not
indicative of any error in the decision. The section provides that compensation
must not be ordered unless reinstatement has been found to be inappropriate.
There is no basis for concluding that the Commissioner interpreted the section
differently. Rex’s first submission on remedy must fail.
[24] In relation to remedy, therefore, the first question is whether reinstatement
is appropriate.”
[87] The Full Bench further observed that consideration of reinstatement involved a
balancing of the relevant considerations based upon evidence,28 and that the approach outlined
in Perkins remains sound and requires consideration of the “rationality” of the basis of the
employers concerns.29
[88] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese
Community Ethnic School South Australian Chapter30 the Full Bench conveniently
summarised the approach required as follows:
“[27] The following propositions concerning the impact of a loss of trust and
confidence on the question of whether reinstatement is appropriate may be distilled
from the decided cases:
Whether there has been a loss of trust and confidence is a relevant consideration in
determining whether reinstatement is appropriate but while it will often be an
important consideration it is not the sole criterion or even a necessary one in
determining whether or not to order reinstatement.
Each case must be decided on its own facts, including the nature of the
employment concerned. There may be a limited number of circumstances in which
any ripple on the surface of the employment relationship will destroy its viability
but in most cases the employment relationship is capable of withstanding some
friction and doubts.
An allegation that there has been a loss of trust and confidence must be soundly
and rationally based and it is important to carefully scrutinise a claim that
reinstatement is inappropriate because of a loss of confidence in the employee. The
onus of establishing a loss of trust and confidence rests on the party making the
assertion.
The reluctance of an employer to shift from a view, despite a tribunal’s assessment
that the employee was not guilty of serious wrongdoing or misconduct, does not
provide a sound basis to conclude that the relationship of trust and confidence is
irreparably damaged or destroyed.
The fact that it may be difficult or embarrassing for an employer to be required to
re-employ an employee whom the employer believed to have been guilty of serious
wrongdoing or misconduct are not necessarily indicative of a loss of trust and
confidence so as to make restoring the employment relationship inappropriate.
[2015] FWC 3969
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[28] Ultimately, the question is whether there can be a sufficient level of trust and
confidence restored to make the relationship viable and productive. In making this
assessment, it is appropriate to consider the rationality of any attitude taken by a
party.”
[89] Given the potential remedial benefit of reinstatement in the circumstances of
Mr Gwatking, and the basis upon which that course of action is opposed, it is appropriate to
assess the basis upon which it is contended that there has been a loss of trust and confidence
within the framework provided by the decisions outlined above, along with other
considerations.
[90] Mr Morrison, Mr Murray and Mr Rentis all expressed concerns about the propensity
for Mr Gwatking to act inappropriately if returned to the workplace. Mr Murray, who
expressed the strongest view, that other workers “feared the applicant,”31 did not provide any
convincing foundation for that particular position beyond the notion that the applicant got
angry and had damaged some equipment. This concern was not a feature of any of the other
witnesses including those employees called by Schweppes.
[91] Mr Flynn indicated in his statement that Mr Gwatking had a short temper and got
frustrated and would yell at himself.32 Under cross-examination Mr Flynn indicated that he
had not seen Mr Gwatking yell or intimidate anyone in the workplace or be physical, and that
he had no problems working with applicant.33
[92] Mr Carella also indicated during oral evidence that Mr Gwatking was not aggressive.
[93] The petition concerning Mr Gwatking was organised by United Voice and signed by
19 employees including Team Leaders, Syrup makers, Forklift Operators and Maintenance
employees. This included Mr Carella and Mr Flynn and the thrust of the petition was to
strongly support the applicant’s reinstatement.
[94] The reservations held by Mr Morrison and Mr Rentis34 were primarily based upon
what Mr Gwatking said about the events and his views about his role in the altercation. In the
case of Mr Morrison, the earlier warning and his perception that Mr Gwatking “won’t take
anything from anyone and will initiate confrontation with other people” was also relied
upon.35 The earlier warning appears to be the foundation for that view and given the timing of
that warning and the context, and having regard to the other evidence touching upon this
issue, I consider that whilst there is an issue with Mr Gwatking’s temper on occasions, that
view is somewhat of an exaggeration.
[95] These findings are relevant but are subject to my earlier observations about the weight
that might be attached to the subjective views evident in much of the above evidence.
[96] During the outcomes meeting, Mr Gwatking indicated words to the effect that it was a
man’s right to fight back. This view is consistent with the actual conduct during the
altercation as I have found it to be. That is, having been confronted, Mr Gwatking yelled and
pushed back but went well beyond defending himself and became actively involved in a
mutual scuffle. That conduct is, in part, why a valid reason for dismissal was found. That
statement is also more consistent with a view that something beyond mere reasonable self-
defence is appropriate when confronted.
[2015] FWC 3969
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[97] Although submissions were made on his behalf that Mr Gwatking had shown
contrition, this was not evident in the outcomes meeting or in his evidence before the
Commission. As found earlier, the indication that the better option would have been to walk
away was only given in response to prompting by Mr Morrison.
[98] In cross-examination, Mr Gwatking confirmed that in his view he “had done nothing
wrong” on the day of the altercation.36 Although this was said in the context of proceedings
where the applicant was contesting, amongst other matters, whether there was a valid reason
for his dismissal, this is not consistent with a sense of responsibility or contrition. This is also
a post-dismissal factor that should be taken into account in terms of remedy.
[99] In this case, I have also found that the application of the relevant policy and the
maintenance of appropriate discipline within Schweppes are important. The impact of a
potential reinstatement, together with any associated orders and actions that might be taken by
the employer in that regard, is also important.
[100] Those mitigating factors that have led to the finding that the dismissal was harsh are
however also important considerations reinforcing the remedial benefit of reinstatement in the
circumstances of Mr Gwatking. These include his very long service, the impact of the
dismissal and his circumstances more generally.
[101] I have found that a valid reason for dismissal existed but, on balance, termination was
harsh given the all of the circumstances including the nature of the conduct, the impact upon
the applicant and the long service he had given to that point. In some such situations, an order
for reinstatement might be appropriate as it is capable of directly addressing the impact of the
dismissal.
[102] However, each case must be considered on its own facts and there is no automatic
relationship between the findings on merit and remedy.37 In this case, I have found that the
application of the relevant policy and the maintenance of appropriate discipline within
Schweppes are important. Further, the fact that Mr Gwatking has not shown any real
appreciation of his conduct or contrition, including during the hearing of this matter, leads to
genuine concerns about whether reinstatement is apt. That is, there is a rational basis for the
loss of trust and confidence given all of the evidence now before the Commission. This must
be considered along with all of the above circumstances to ensure a fair go all around.38
[103] Despite the remedial benefit of reinstatement to Mr Gwatking, I am satisfied that an
order of that nature is inappropriate in this case.
[104] As set out above, under the Act, it is then necessary to consider whether compensation
in lieu of reinstatement is appropriate.
[105] A recent Full Bench in McCulloch v Calvary Health Care Adelaide39 (McCulloch)
confirmed, in general terms, that the approach to the assessment of compensation as
undertaken in cases such as Sprigg40 remains appropriate in that regard.
[106] Section 392(2) of the Act requires me to take into account all of the circumstances of
the case including the factors that are listed in paras (a) to (g). Without detracting from the
overall assessment required by the Act,41 it is convenient to discuss the identified
considerations under the various matters raised by each of the provisions.
[2015] FWC 3969
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The effect of the order on the viability of Schweppes
[107] Nothing has been put to the Commission on this issue.
The length of Mr Gwatking’s service with Schweppes
[108] Mr Gwatking has been employed with Schweppes for over thirty years. This
consideration is supportive of an award of compensation being made. The period of service is
also to be taken into account in determining the level compensation, including when making
an assessment of the remuneration that would likely have been received if not for the
termination.
The remuneration Mr Gwatking would have received, or would have been likely to
receive, if he had not been dismissed
[109] This involves in part a consideration of the likely duration of Mr Gwatking’s
employment in the absence of what I have found to be an unfair dismissal.
[110] In all of the evident circumstances it is reasonable to assess the compensation in this
matter on the basis that the applicant would, on the balance of probabilities, have remained in
employment for a further period of 12 months. This arises from the length and nature of
Mr Gwatking’s employment, the nature of the conduct, the nature and timing of the earlier
final warning, and the circumstances of the applicant and the workplace more generally. That
estimate is also subject to the later consideration of contingencies.
[111] There is no evidence about Mr Gwatking’s exact remuneration with Schweppes at the
time of dismissal. Accordingly, it is not feasible to determine the projected remuneration loss
in dollar terms at this point.
The efforts of Mr Gwatking to mitigate the loss suffered by him because of the dismissal
[112] I accept that Mr Gwatking has made reasonable efforts to mitigate his losses.
[113] No discount to the amount of compensation is warranted based upon this
consideration.
The amount of any remuneration earned by Mr Gwatking from employment or other
work during the period between the dismissal and the making of the order for
compensation
The amount of any income reasonably likely to be so earned by Mr Gwatking during the
period between the making of the order for compensation and the actual compensation
[114] Mr Gwatking has earned something in the order of $1,500 from some private work for
a friend. He was also paid five weeks pay in lieu of notice. These amounts are to be taken into
account. He is not presently employed.
[2015] FWC 3969
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Any other matter that the FWC considers relevant and the remaining statutory
parameters
[115] I have taken into account the projected nature of the anticipated loss of remuneration
over a relatively long period (s.392(2)(c)) and the actual remuneration from the new
employment (s.392(2)(e)). In that light, and given the circumstances of this case, it is
appropriate to make a further allowance for contingencies associated with the projected
remuneration loss and to do so before making other deductions.42 Having regard to the
normal factors touching upon such an assessment, and in this case, the prospect that another
relevant incident could have taken place in the workplace, a discount of 30 per cent is
appropriate to the losses projected after the hearing of this matter.43
[116] There is demonstrated misconduct that should be taken into account as provided by
s.392(3) of the Act. That is, there is misconduct that contributed to the decision and in the
circumstances it is appropriate to make a significant deduction on the amount of
compensation otherwise due. In the circumstances, a further deduction of 40 per cent of the
amount otherwise contemplated is appropriate.
[117] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or
humiliation that may have been caused by the dismissal.
[118] The maximum compensation limit in this case would be the lesser of 26 weeks
remuneration or $66,500.44 The amount of compensation that would arise from my findings is
less than that limit.
[119] Taxation is to be paid on the amount determined.
[120] The compensation confirmed below is also appropriate having regard to all of the
circumstances of this matter and the considerations specified by the Act.45
Conclusions on remedy
[121] After taking into account each of the relevant considerations, I find that compensation
is appropriate in this matter. Further, I find that the compensation should be assessed having
regard to the factors outlined above.
[122] Given the absence of evidence about Mr Gwatking’s earnings at the time of his
dismissal, I have calculated the compensation by reference to weeks of remuneration as
follows:
Projected earnings lost 52
Deduction for contingencies (30% of the period beyond the hearing)46 (9)
Deduction for misconduct (40% of 43 weeks)47 (17)
Deduction for notice and earnings48 (7)
Total 19 weeks
[123] Accordingly, I find that compensation in lieu of reinstatement should comprise a
payment to Mr Gwatking by Schweppes of nineteen (19) weeks remuneration.
[2015] FWC 3969
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6. Conclusions and orders
[124] I have found that the Mr Gwatking’s dismissal was harsh and therefore unfair within
the meaning of the Act.
[125] I have found that reinstatement is inappropriate but that compensation of the amount
determined above is appropriate in all of the circumstances.
[126] The payment of required compensation is to be made to Mr Gwatking by Schweppes
within 14 days of this decision.
[127] An Order49 to the above effect has been issued in conjunction with this decision.
[128] Liberty is granted to seek a further order in the event of a dispute about the precise
monetary value of the compensation.
COMMISSIONER
Appearances:
N Grealy of United Voice for Mr Gwatking.
K Aistrope of Kelly Hazel Quill Lawyers, with permission, for Schweppes Australia Pty Ltd.
Hearing details:
2015
Adelaide
June 18.
Printed by authority of the Commonwealth Government Printer
Price code C, PR568295
HAR MAAR COMMISSION AUSTRALIA THE SEAL OF THE FA
[2015] FWC 3969
25
1 I have not named the other employee as he was not a party to these proceedings and has not given evidence about his
version of events.
2 Section 382 of the Act.
3 Exhibit A1.
4 Attachment HM – 4 to the witness statement of Mr Morrison’s.
5 Attachment HM – 1 to the witness statement of Mr Morrison’s.
6 Witness statement of Mr Gwatking – Exhibit A3 at 5.
7 The evidence of Mr Flynn.
8 Witness statement of Mr Carella – Exhibit R1 at 11.
9 Attachment LR4 to the witness statement of Mr Rentis – Exhibit R4.
10 Workplace Investigation document prepared by Mr Rentis - AM-5 attached to Exhibit R5.
11 Letter of termination – AM-10 attached to Exhibit R5.
12 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR
458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB
8868, at par [36].
13 See Qantas Airways v Cornwall (1998) 83 IR 102.
14 See also Culpeper v Intercontinental Ship Management (2004) 134 IR 243 at [44] and Foster v BHP Steel Long Products
Division (IRCSA) Print I.50/1997.
15 See Tenix Defence Systems Pty Ltd v Fearnley AIRCFB Print S6238 per Ross VP, Polites SDP and Smith C, 22 May 2000;
Qantas Airways v Cornwall (1998) 83 IR 102; AWU-FIME Amalgamated Union v Queensland Aluminia Ltd (1995) 62 IR
385; and Jetstar Services Pty Ltd v Ishak [2013] FWCFB 7030.
16 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213
per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo
Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb
C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.
17 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
18 Applicant’s written outline of submissions.
19 Supra.
20 Supra.
21 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
22 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
23 [2011] FWAFB 1166.
24 See Sexton v Pacific National (ACT) Pty Ltd (2003) AIRC PR931440.
25 Primarily that of Mr Carella.
26 AIRC Print Q1625, per Ross VP, Polites SDP and Hoffman C, 5 June 1998.
27 [2014] FWCFB 1949.
28 Supra at [49] to [51].
29 Supra at [60].
30 [2014] FWCFB 7198. See also JBS Australia Pty Ltd v Mr Scott Challinger [2015] FWCFB 520.
31 Audio recording of evidence at 11.59am.
32 Exhibit R2 at 4.
33 Audio recording of evidence at 11.31am.
34 Audio recording of evidence at 12.11pm.
35 Witness statement – Exhibit R5 at 12, 37 and 39.
36 Audio recording of evidence at 11.09am.
37 See JBS Australia Pty Ltd v Mr Scott Challinger [2015] FWCFB 520 at [22].
38 Section 381 of the Act.
39 [2015] FWCFB 873.
[2015] FWC 3969
26
40 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District
Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.
41 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.
42 See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement
Villages Inc T/A Ottrey Lodge [2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109,
per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779,
per Williams SDP, Acton SDP and Gay C, 31 October 2001.
43 Applying the approach taken in McCulloch at [21];
44 Section 392(5) of the Act.
45 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].
46 Approximately 30 weeks of the anticipated future employment period is post the hearing.
47 This has been rounded down in light of the approach adopted to the estimation of the earnings from other employment.
48 I have estimated the (further) earning received by the applicant from other employment as being two weeks.
49 PR569460.
