1
Fair Work Act 2009
s.394—Unfair dismissal
David Dawson
v
Qantas Airways Limited
(U2016/2341)
DEPUTY PRESIDENT LAWRENCE SYDNEY, 23 NOVEMBER 2016
Application for relief from unfair dismissal.
[1] On 18 May 2016 Mr David Dawson (the Applicant) lodged with the Fair Work
Commission (the Commission), pursuant to s.394 of the Fair Work Act 2009 (the Act) an
application for a remedy for unfair dismissal against his former employer Qantas Airways
Limited (Qantas)
[2] The Applicant commenced employment as a flight attendant on 8 February 1988. He
was notified of his dismissal on 28 April 2016 and the dismissal took effect on the same day.
He received five weeks’ pay in lieu of notice, having been an employee of Qantas for 28
years. The Applicant is 50 years of age. The Applicant seeks reinstatement and/or
compensation.
[3] The Applicant was dismissed because a small amount of alcohol, the property of
Qantas was found on him, in a random search of the crew following a flight from Perth to
Sydney on 14 February 2016. There were different versions of what was found and the issues
around the search but it is not denied that some alcohol was found. The Applicant says that
dismissal was disproportionate to the offence and the dismissal, in the circumstances, harsh,
unjust or unreasonable.
[4] Qantas says that there was a clear breach of company policy which was not denied by
the Applicant. The Applicant did not make full disclosure during the investigation process
which it says was entirely appropriate. It further says that the relationship of trust has broken
down between Qantas and the Applicant and it cannot be repaired.
Commission Proceedings
[5] The matter was conciliated on 16 June 2016 but could not be resolved.
[6] A telephone programming mention was held by me on 31 August 2016.
[7] The hearing took place on 12 and 13 September 2016 in Sydney.
[2016] FWC 8249 [Note: This decision has been quashed - refer to Full
Bench decision dated 24 January 2017 [2017] FWCFB 41]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb41.htm
[2016] FWC 8249
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[8] The Applicant was represented by Mr I Latham of counsel. Qantas was represented by
Mr M. Follett of counsel. Both were granted permission to appear pursuant to s. 596 of the
Act.
[9] The Applicant relied on written and oral submissions and a witness statement of
himself (Exhibit L1).
[10] Qantas relied on written and oral submissions and the following witness statements:
Fiona Morris – Service and Performance Manager (Exhibit F1)
Chris Matkaris, Manager Learning and Development, Freight and Catering (Exhibit
F2)
Claire Elliott, Service and Performance Manager (Exhibit F3)
Samantha Vivian, Service and Performance Manager (Exhibit F5)
Nicholas O’Connor, Head of Qantas – International Cabin Crew and Lounges
(Exhibit F4).
[11] An order to produce was issued on behalf of the applicant. There was an argument
about the production of material relating to the treatment of another employee. I decided to
consider this material as part of this case on the basis that that employee’s privacy would be
preserved.
Protection from Unfair Dismissal
[12] An order for reinstatement or compensation may only be issued where I am satisfied
the Applicant was protected from unfair dismissal at the time of the dismissal.
[13] Section 382 sets out the circumstances that must exist for the applicant to be protected
from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his
or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts
(if any) worked out in relation to the person in accordance with the
regulations, is less than the high income threshold.”
[14] The applicant was covered by an enterprise agreement, Flight Attendants Association
of Australia – International Division Qantas Airways Limited and Qantas Flight Cabin Crew
Australia Pty Limited Enterprise Agreement 2012. In addition, his salary was $67,462 per
annum which is well below the high income threshold. It was conceded, therefore, that he was
a person protected from unfair dismissal in accordance with s.382.
[15] Section 396 provides that certain matters must be determined by the Commission
before proceeding to deal with the merits of a matter. It provides:
[2016] FWC 8249
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“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) Whether the dismissal was consistent with the Small Business Fair Dismissal
Code;
(d) whether the dismissal was a case of genuine redundancy.”
[16] None of these matters were at issue in this case.
Was the dismissal unfair?
[17] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the
circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
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.”
[18] No issue was raised pursuant to s.385(a), (c) or (d).
Harsh, Unjust or Unreasonable
I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The
criteria I must take into account when assessing whether the dismissal was harsh, unjust or
unreasonable are set out at s.387 of the Act:
“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
[2016] FWC 8249
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(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.”
The Applicant’s Submissions
[19] When the flight from Perth to Sydney landed at about 8.45pm on 14 February 2016, 9
crew members were taken to a room and searched. The applicant criticised the search because
it may have let other crew members dispose of the stolen property in the toilet. In any event
he was found to have 1 can and 1 bottle of beer in his jacket, a 50ml bottle of gin in his bag
and 2 50ml bottles of vodka in his trouser pockets.
[20] Qantas sent the Applicant a letter on 19 February asking him to respond to allegations,
which he did by letter on 4 March. An interview took place on 10 March. The Applicant was
supported by a representative of his Union, the Flight Attendant Association. The Applicant
provided Qantas with a further written response on 23 March. On 31 March Qantas accused
him of not being truthful during the disciplinary process. The Applicant responded on 5 April.
He was given a “show cause” letter on 14 April to which he responded on 18 April. He was
terminated on 28 April by letter given to him in a meeting.
[21] The Applicant admitted to removing the beer from the flight but said that the vodka
was in his pocket inadvertently. He said he did not know how the gin came to be in his bag.
[22] The Applicant submitted that he has been treated differently to other employees who
have been found to have taken Qantas property from the flight but have not been dismissed.
This included at least one employee from the same flight who was subject to the random
search.
[23] The Applicant says that his personal circumstances were not taken into account by
Qantas. These included:
28 years of “unblemished” service to Qantas.
His age.
A recent car accident involving the Applicant and his daughter.
Recent surgery that the Applicant had necessitating four months off work.
The contrition he showed for his admitted wrong doing.
[24] In his response of 4 March 2016, the Applicant said that the beer and the gin were
inadvertently pocketed by him as a result of serving passengers. He also speculated that the
gin may have gotten into his bag from a hotel mini bar the day before the flight. In his letter of
22 March, the Applicant admitted that he had deliberately taken the two beers from the ice
[2016] FWC 8249
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draw. He continued to assert that the vodka was inadvertently in his pocket. No explanation
was provided for the gin. The first explanation appears to have been withdrawn.
[25] The Applicant was contrite for his actions and explained his misleading explanation as
arising from panic due to his fear of losing his job.
[26] Qantas’s show cause letter of 14 April 2016 was comprehensive. The allegation was
theft of the alcohol and a misleading and deceptive response to the allegations. He was asked
to “show cause” why he should not be terminated. The Applicant did not dispute these
allegations but argued that dismissal was not the appropriate response for the reasons
mentioned above. These included significant health and stress problems arising from the
surgery and motor vehicle accident that he had in 2015.
[27] The Applicant submits that two other crew members on the flight were found to have
Qantas’ property without authorisation but one was not dismissed.
[28] The Applicant also questioned the effectiveness of the search. This was because other
flight attendants had an opportunity to dispose of items. As well, the vodka and can of beer
were originally noted as being in the Applicant’s bag which was not true. It was said that this
error pre-disposed Qantas to take serious action.
Qantas’s Case
[29] Qantas submits that it carried out an extensive process of investigating the events and
gave the Applicant ample opportunity to respond to the allegations.
[30] The Applicant was dismissed because of a breach of Qantas’s Standards of Conduct
Policy, that is, removing the alcohol and misleading in the investigation as to how he came to
have possession of the alcohol.
[31] Notwithstanding the Applicant’s personal circumstances, Qantas submits that the
dismissal was not harsh. He had access to Qantas’s property in an unsupervised situation. It is
essential that these policies be upheld.
[32] Qantas says that it took the Applicant’s length of service, his good record, his age,
health and family circumstances into account.
[33] However, it came to the view that dismissal was the appropriate response. Ms Vivian
was the ultimate decision maker.
[34] Fiona Morris maintained her version that one beer and the vodka were found in the
Applicant’s bag. This is supported by Chris Matkaris. Samantha Vivian, who was the decision
maker in the dismissal, accepted this version of events. Her evidence was, however, that even
if she had accepted the Applicant’s version that one beer and the vodka were in his pocket,
she would have still terminated him. She also took the view that the Applicant was not
genuinely remorseful. It is apparent that the Applicant’s lie during the investigation was the
decisive factor in the decision to dismiss because of the breakdown in the level of trust that
this represented.
[2016] FWC 8249
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Valid Reason – s.387(a)
[35] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench
said ‘In our view, the consideration of whether there was a valid reason for termination is a
separate issue from the determination of whether a termination was harsh, unjust or
unreasonable’.
[36] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same
time the reason must be valid in the context of the employee’s capacity or conduct, or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that the employer and employee are each treated fairly ...”
[37] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench
held:
“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.”
[38] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia
Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the
Commission in weighing the factors to be considered under s.387:
“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v
Commonwealth – that s.170DE(2) by its operation could render invalid a reason that
would otherwise have been a valid reason. The fact that some dismissals are “harsh,
unjust or unreasonable” notwithstanding the existence of a “valid reason” means that
the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class
of dismissals where there is no “valid reason” for the dismissal.
[21] Section 387 specifies a range of matters that must be considered in each case.
Section 387(h) requires consideration of “any other matters that FWA considers
relevant”. In any given case, there will be a range of matters, beyond those specified in
s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or
unreasonable” and thus are “relevant matters” that must be considered pursuant to
s.387(h).
[2016] FWC 8249
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[22] Often it will not make any difference to the ultimate outcome whether a particular
circumstance is considered pursuant to s.387(a) in determining whether there is a valid
reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate
determination of whether the dismissal was “harsh, unjust or unreasonable”. However,
in some cases it may matter greatly. That will tend to be so when the particular
misconduct, shorn of the personal circumstances of the employee and the broader
context beyond the particular acts or omissions that are said to constitute the
misconduct, is clearly a matter that a reasonable employer is entitled to take seriously.
This is such a case.
...
[34] In considering whether there was a valid reason for a dismissal under s.387(a), the
reason(s) being considered are the employer’s reason(s). In a misconduct case, the
Commission is concerned with whether the misconduct in fact occurred, not with
whether the employer has reasonable grounds to believe that it occurred (eg. Yew v
ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998)
88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). “
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is
assessed from the perspective of the employer and by reference to the acts or
omissions that constitute the alleged misconduct on which the employer relied,
considered in isolation from the broader context in which they occurred. It is the
reason of the employer, assessed from the perspective of the employer, that must be a
“valid reason” where “valid” has its ordinary meaning of “sound, defensible or well
founded”. As Northrop J noted, the requirement for a valid reason “should not impose
a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the
fundamental term of the contract of employment that obliges employees to comply
with the lawful and reasonable directions of the employer. In this way, a substantial
and wilful breach of a policy will often, if not usually, constitute a “valid reason” for
dismissal.
. . .
[58] Reaching an overall determination of whether a given dismissal was “harsh,
unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a
weighing process. The Commission is required to consider all of the circumstances of
the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in
favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may
properly be brought to account as weighing against a finding that
dismissal was a fair and proportionate response to the particular
misconduct.”
[39] I respectfully adopt this approach.
[2016] FWC 8249
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[40] The Applicant was dismissed because he stole Qantas property and because he gave a
false explanation, which he subsequently changed during the investigation. It was a small
quantity of alcohol but Qantas has strict policies about theft of such company property. This is
entirely understandable.
[41] The Applicant’s version is set out in this exchange in cross-examination:
“ What are you saying, that the allegations are true?---That I stole the two beers.
Yes, but you also removed two vodkas?---Accidentally, yes.
But you recognised that an accidental removal of property is also a breach of
policy?---Yes.
I think in your most recent response, you also say that you have always conceded that
the items were in your possession without authority?---Correct.
You understand that this particular policy about removal of items from aircraft is taken
very seriously by Qantas?---Yes.
I think in the policy itself, it refers to it as zero tolerance?---Yes.
Picking up on something you have just said, you recognise and understand that there's
a significant distinction between accidentally removing items from the aircraft and
deliberately doing so?---Correct.
One is simply a mistake and the other involves an intention to actually remove items
that you know you shouldn't have?---Yes.
You understand, don't you, the commercial rationale sitting behind the policies that
Qantas has adopted?---No.
Would you agree that crew have ready access to small items of Qantas Group property
on planes all the time?---Yes.
And they are relatively unsupervised in their dealings with that property?---Yes.
Qantas has very little way, if any, of knowing whether employees have taken any of
those items or not?---Yes.
It is for that reason, among others, that they adopt a very strict approach to taking
property from an aircraft?---Yes.”
[Transcript PN135 – PN147]
[42] The Applicant changed his story on 22 March so that he admitted he deliberately took
the two beers but said that he had accidentally taken the vodka. Initially, the Applicant gave a
rather fanciful explanation for the bottle of gin being in his bag. He then took the position that
he had no explanation for its presence. His original story had been that he accidentally took
the beers as well.
[43] There was a difference between the Applicant’s evidence as to the location of one of
the beers and the vodka during the search. The Applicant’s version, that they were in his
pockets, is more supportive of his explanation that the vodka was there by mistake. Fiona
Morris and Chris Matkaris testified that the items were in his bag. This was recorded at the
time of the search.
[44] I find the Qantas evidence more credible at this point. The Applicant signed the record
of contents found although he said that he disputed it. I accept Ms Morris’s and Mr Matkaris’s
evidence on this point.
[45] In any event, the Applicant admitted to stealing the two beers. His explanation for
inadvertently taking the other items is not credible. This was clearly contrary to Qantas
[2016] FWC 8249
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policy. As well, the Applicant charged his story during the investigation after giving an
incorrect explanation. I am therefore satisfied that there was a valid reason for his dismissal.
Notification of a valid reason – s.387(b)
[46] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas
Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR
137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services
Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the
Australian Industrial Relations Commission dealing with similar provision of the Workplace
Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee
be notified of a valid reason for their termination before any decision is taken
to terminate their employment in order to provide them with an opportunity to
respond to the reason identified. Section 170(3)(b) and (c) would have very
little (if any) practical effect if it was sufficient to notify employees and give
them an opportunity to respond after a decision had been taken to terminate
their employment. Much like shutting the stable door after the horse has
bolted.” Ibid at 151.
[47] I am satisfied that the Applicant was notified of the reason for his dismissal well
before the decision was made. Qantas carried out an appropriate investigation process. The
Applicant did not make any challenge on procedural grounds.
Opportunity to respond s.387(c)
[48] An employee protected from unfair dismissal must be provided with an opportunity to
respond to any reason for dismissal way to ensure the employee relating to the conduct or
capacity of the person. This criterion is to be applied in a common sense is treated fairly and
should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.
[49] It follows that the Applicant had an opportunity to respond.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[50] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, the employer should not unreasonably
refuse that person being present.
[51] A union official was in attendance at the meetings.
Warnings regarding unsatisfactory performance – s.387(e)
[52] This factor was not relevant in this case.
Impact of the size of the Respondent on procedures followed – s.387(f)
[53] The Respondent is a large business so this was not a factor.
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Absence of dedicated human resources management specialist/expertise on procedures
followed - s.387(g)
[54] It follows that this was not a factor.
Any other matter that the FWC considers relevant
[55] Section 387(h) allows the Commission to consider any other matters it considers
relevant. These must be considered in the context of the object of Part 3 - 2 of the Act
contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and
the employee concerned”.
[56] There were a number of factors which the Applicant relied on to support his argument
that his dismissal was disproportionate to the crime committed. These included:
His 28 years of unblemished service for Qantas as a long-haul flight attendant.
The small value of the items stolen.
The Applicant’s age of 50 meant it would be difficult to get another job, certainly
as a flight attendant.
Although he gave an incorrect explanation, he did correct it.
He had a number of medical and family issues prior to the incident.
I have taken these matters into account and together they lead me to the view that the
dismissal was harsh.
[57] The other matter which was raised by the Applicant was the alleged different
treatment of another flight attendant on the flight. As well as the Applicant, two flight
attendants were found with Qantas property on the flight. One was dismissed. The other was
not because Qantas says it had insufficient evidence that the property had been stolen. Of
course, I have not heard evidence with respect to this case, but there is no reason to think that
Qantas acted inappropriately. I have not taken this issue into consideration.
[58] Given the factors noted above, it would have been appropriate for Qantas to
implement a penalty lesser than dismissal.
[59] Because of my finding as to valid reason I find that the dismissal was not
unreasonable. I find nothing in the process adopted by the Respondent which makes it unjust.
However, because of the factors I have considered pursuant to s.387(h) I find the dismissal to
be harsh. Accordingly, I find that the dismissal was unfair within the terms of s.385.
Compensation
[60] Having found that the dismissal was unfair, I now turn to the appropriate remedy.
[61] Section 390 of the Act sets out the circumstances in which I may make an order for
reinstatement or compensation:
“390 When the FWC may order remedy for unfair dismissal
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(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.”
[62] Although the value of the goods stolen was small, I do not think reinstatement is
appropriate in this case. I accept Qantas’s argument that the relationship of trust has broken
down and cannot be repaired. It is important that flight attendants are able to be trusted with
Qantas property. The fact that the Applicant changed his story is a crucial factor here.
Reinstatement may be seen to condone theft in some way.
[63] Section 390(3)(b) provides that I may only issue an order for compensation to the
Applicant if it is appropriate in all the circumstances.
[64] I have found that the Applicant has been unfairly dismissed and that reinstatement is
not appropriate in all the circumstances. I am satisfied that an order for compensation should
be made.
[65] Section 392 of the Act sets out the circumstances that must be taken into consideration
when determining an amount of compensation, the effect of any findings of misconduct on
that compensation amount and the upper limit of compensation that may be ordered provides:
“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
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(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;
(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
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have been received by the employee for the period of leave in accordance with
the regulations.”
[66] The method for calculating compensation under s.392 of the Act was dealt with by a
Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement
Villages Inc. T/A Ottrey Lodge, [2013] FWCFB 431 (Bowden). In that decision the Full
Bench set out the order in which the criteria and other factors should be applied, taking into
account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed
Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation,
Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining
the amount of a payment of compensation.
[67] I will now consider each of the criteria in s.392 of the Act.
Remuneration that would have been received: s.392(2)(c)
[68] The Applicant earned $67,462 per annum. I am satisfied that he would have remained
a flight attendant for the rest of his working life which could have been 15 or so years. He
could have earned $1,011,930.
[69] The Applicant has not earned income since the dismissal, but he has not sought
employment.
Income likely to be earned: - s.392(2)(f)
[70] This matter is not relevant.
Other matters: - s.392(2)(g)
[71] There are no other matters that I consider appropriate to consider.
Viability: - s.392(2)(a)
[72] This matter is not relevant.
Length of Service: - s.392(2)(b)
[73] I have taken the Applicant’s service into account.
Mitigating efforts: - s.392(2)(b)
[74] In considering whether the Applicant has taken steps to mitigate the loss suffered as a
result of the dismissal I should take into account whether the Applicant acted reasonably in
the circumstances, (Ellawala).
[75] I consider that the Applicant has acted reasonably given his personal and family
circumstances.
Misconduct: s.392(3)
[2016] FWC 8249
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[76] It is appropriate to adjust the compensation to take account of the fact that I have
found that there is a valid reason for the dismissal. The compensation will be reduced to
$500,000 on this ground.
Shock, Distress: s.392(4)
[77] I note that the amount of compensation calculated does not include a component for
shock, humiliation or distress.
Compensation cap: s.392(5)
[78] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the
total amount of remuneration received by the Applicant, or to which the Applicant was
entitled, for any period of employment with the employer during the 26 weeks immediately
before the dismissal, or half the amount of the high income threshold immediately prior to the
dismissal.
[79] The high income threshold component is $69,450.
[80] The compensation needs to be reduced to the salary cap.
[81] Accordingly, I will order the Respondent to pay to the Applicant an amount of
$33,731 which is 26 weeks of the Applicant’s earnings.
Conclusion
[82] I am satisfied that the Applicant was protected from unfair dismissal, and that the
dismissal was unfair and a remedy of compensation is appropriate. In accordance with
s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all
round’.
[83] An Order (PR587782) will be issued with this decision.
DEPUTY PRESIDENT
WOR F THE FAIR AUSTRALIA MISSION THE SEAL
[2016] FWC 8249
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Appearances:
I. Latham of counsel with T. Naji, solicitor for the Applicant.
M. Follett of counsel with J. McLean, solicitor for the Respondent.
Hearing details:
2016
August 31 (telephone conference)
September 12, 13.
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