1
Fair Work Act 2009
s.394—Unfair dismissal
Noel Cannan
v
Nyrstar Hobart Pty Ltd
(U2013/15506)
Kevin Fuller
v
Nyrstar Hobart Pty Ltd
(U2013/15509)
DEPUTY PRESIDENT WELLS HOBART, 7 OCTOBER 2014
Unfair dismissal – decision on restoration of lost pay.
[1] On 19 September 2014 I delivered a decision determining part of the remedy to be
applied in these unfair dismissal applications. That decision ([2014] FWC 5072) (the
decision) held at [281] to [283]:
[281] I have concluded that in all the circumstances reinstatement of both Mr Cannan
and Mr Fuller is appropriate to another position on terms and conditions no less
favourable than those on which they were employed immediately before the
dismissals. I have also determined it appropriate to maintain the continuity of Mr
Fuller’s and Mr Cannan’s employment and that their period of continuous service is
maintained.
[282] To enable assessment of lost pay relevant in these matters, the parties are
required to provide written submissions relevant to the issues contained in s.391(3)
and (4) of the Act. Directions [for] the provision of these submissions are issued
separately.
[283] An order giving effect to this decision will be issued, following receipt of the
submissions requested above. Should a conference to affect an orderly return of the
Applicants to the workplace be considered appropriate, I am available at the request of
either of the parties.
[2] Both parties filed submissions in accordance with the directions issued. These are my
reasons for decision on remedy for lost pay and should be read in conjunction with my
reasons contained in [2014] FWC 5072.
[2014] FWC 7014 [Note: An appeal pursuant to s.604 (C2014/6727,
C2014/6729) was lodged against this decision - refer to Full Bench
decision dated 27 February2015 [[2015] FWCFB 888] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB888.htm
[2014] FWC 5072
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[3] The relevant section of the Fair Work Act 2009 (the Act) dealing with remedy and lost
pay is s.391(3) and (4) and provides:
Order to restore lost pay
(3) If 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),
the 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.
[4] Both parties submitted the power to make an order under s.391(3) of the Act is
discretionary.
[5] The Applicants advanced that it was relevant that the FWC made findings that a
number of recent behaviours on which Nyrstar Hobart Pty Ltd (Nyrstar) sought to rely had
not been made out and that only those matters found by FWC could be matters where the
Applicants had materially contributed to their own dismissals. Further, the Applicants
submitted that as the decision held that Nyrstar had denied the Applicants procedural fairness
(see paragraphs [240]-[246]) and that Nyrstar had condoned the behaviour and had not taken
action to fix workplace matters or to discipline the Applicants (see paragraphs [264]-[266]),
Nyrstar had made a material contribution to the ‘unfairness’ of the dismissals.
[6] It was said by the Applicants that due to Nyrstar’s own contribution, it was appropriate
that an order for lost pay be made and that the Applicants should receive all of their lost
remuneration less any amount earned since termination. It was submitted that taking into
account the 5 week notice period paid to the Applicants at the time of dismissal, the effective
date of termination for Mr Cannan’s employment was 27 November 2013 and Mr Fuller’s
was 3 December 2013.
[7] Nyrstar submitted that due to the misconduct the Applicants should not be awarded
any amount for lost pay and that in the alternative their conduct contributed substantially to
the dismissals being effected, as found at paragraphs [232] and [237]-[239] of the decision. I
was argued that due to this contribution, a discount should be applied of at least 75% of any
loss calculated. In addition Nyrstar submitted that should I make an order for lost pay, it
should be fully offset against pro rata leave entitlements already paid, with the Applicants
being afforded the option to either repay the leave amount to restore leave entitlements or they
could accept the leave as taken and leave accrual would commence from the date of
termination.
[2014] FWC 5072
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[8] Both parties made submissions on the amount of lost pay and superannuation which,
with the exception of the possible off-setting of leave entitlements, were substantially the
same.
[9] Nyrstar relied on the principles applied in authorities of this Commission1 which held
it appropriate not to order restoration of lost pay, or to order a reduction in the amount
calculated, due to the conduct of the Applicants. Nyrstar particularly relied on the Full Bench
decision of B, C and D v Australia Postal Corporation T/A Australia Post [2013] FWC 9293
at [118](b) which provided:
“There must be a significant discount in order for backpay to reflect the fact of the
Appellants’ misconduct, quite apart from any other discounts that may be appropriate
to reflect a “fair go all round”, particularly in light of the delay in the resolution of
these matters. Obviously income earned in the intervening period must be brought to
account.”
[10] Subsequent to that Full Bench decision, presiding member, Lawler VP, determined in
[2013] FWC 9293 at [22]:
“I consider that a discount of 75% on the calculated loss is appropriate to reflect both
the misconduct and the inappropriateness, in the peculiar circumstances of this case,
of holding Australia Post liable for the whole of the very long period that the course of
the unfair dismissal applications have taken thus far.”
[11] Nyrstar submitted that as it was found that both Applicants’ behaviour breached the
Nyrstar Code of Business Conduct and that their behaviour at pre-start meetings within the
workplace was of a bullying nature (see paragraphs [232], [234] and [237]-[238] of the
decision) such misconduct was a sufficient basis to warrant an order for no lost pay or a
substantial discount to be applied.
Order to restore lost pay
[12] Having regard for my reasons in the decision, the written submissions of the parties
and the authorities on the matter of lost pay detailed in this decision, I consider it appropriate
to make an order for the restoration of some lost pay.
[13] Such order will cause Nyrstar Hobart Pty Ltd to pay to each of the Applicants an
amount for the remuneration lost, or likely to have been lost by the Applicants due to their
dismissal. However, consistent with my findings of misconduct attributable to each of the
Applicants, I am satisfied that such remuneration is to be substantially discounted to reflect
the matters identified by me in paragraphs [232], [234] and [237]-[238] of the decision.
[14] I have considered the matters contained within s.391(4) and say that:
(a) The remuneration earned by each of the Applicants since their dismissal was a
matter for submissions subsequent to the issuing of the decision and has been
taken into account in my calculations.
(b) As to the remuneration reasonably likely to be earned by each of the applicants
evidence at hearing was substantially unchallenged by Nyrstar and was not
[2014] FWC 5072
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addressed in Nyrstar’s further written submissions. I am of the view that the likely
earnings are reflected in the actual earnings of the Applicants since termination.
[15] I am not inclined to accept the submissions of Nyrstar that there be no order for lost
pay. It is clear that the actions of Nyrstar contributed considerably to the unfairness of the
Applicants’ dismissals. But for their dismissal, the Applicants would have continued in
employment with Nyrstar. The calculated amounts I have determined include a discount for
contingencies and are, taking into account all of the facts of these matters, appropriate. I have
not considered it necessary to off-set any pro rata annual or long service leave entitlements
paid to the Applicants at the time of termination and have determined that continuity of
employment will apply for all purposes other than in respect of the accrual of annual leave
and long service leave.
[16] Based on the further written submissions of both parties and the evidence at hearing I
make the following calculations of the notional loss of each of the Applicants as a result of
their dismissal:
Mr Cannan Mr Fuller
Earnings if no dismissal - from termination to 14
July 2014 $59,500.00 $56,925.00
Earnings if no dismissal - from 15 July to 6 October
2014 $25,112.50 $24,752.00
Superannuation contributions - from termination to
14 July 2014 (9.25%) $5,503.75 $5,265.56
Superannuation contributions - from 15 July to 6
October 2014 $2,385.68 $2,351.44
Total earnings if no termination $92,501.93 $89,294.00
Total earned since termination $15,360.00 $23,938.00
Calculated loss from termination to 6 October 2014 $77,141.93 $65,356.00
Discounted by 50% $38,570.96 $32,678.00
[17] I consider that a discount of 50% on the calculated loss is appropriate in the
circumstances to reflect both the misconduct and the behaviours I held to be inappropriate. I
am of the view that whilst the quantification of the discounting applicable to the behaviours
and misconduct in this matter are not an exact science, I have reached a balanced outcome
requisite to my findings and reasons in the decision.
[18] The Order giving effect to this decision and the previous decision in this matter has
been issued separately.
DEPUTY PRESIDENT
[2014] FWC 5072
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Appearances:
Mr R Reitano, for the Applicants
Ms S Zeitz, for Nyrstar, the Respondent
Written Submissions as to lost pay:
2014
3 October
Printed by authority of the Commonwealth Government Printer
Price code J, PR556263
1 Kenley v JB Hi Fi Full Commission Print S7235 at [36] per Ross VP, Watson SDP and Holmes C; Lawrence v Coal &
Allied Mining Services Pty Ltd [2010] FWAFB 10089 per Lawler VP, O’Callaghan SDP and Roberts C; Presbury v
Australian Rail Track Corporation Limited [2010] FWA 2282 per Watson VP; Serafini v Holcim (Australia) Pty Ltd [2011]
FWA 4214 per Connor C; McIntosh v Health Services Union No 1 Branch [2014] FWC 5978 per Bissett C; Toms v Harbour
City Ferries Pty Ltd [2014] FWC 2327 per Lawrence DP; and Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354
per Bissett C.
