1
Fair Work Act 2009
s.394—Unfair dismissal
Leigh Priest
v
Albury Blue Logistics
(U2017/10946)
COMMISSIONER WILSON MELBOURNE, 29 MARCH 2018
Application for an unfair dismissal remedy.
[1] Leigh Priest was employed by Albury Blue Logistics (Albury Blue) from a date in late
2011. His application for unfair dismissal remedy to the Fair Work Commission puts that
date at 2 December 2011, whereas the Respondent’s response suggests the period of
employment was slightly earlier than that, being 24 November 2011.
[2] Albury Blue Logistics is the trading name for the legal entity, the O’Brien No.2
Family Trust as trustee for Mollandhu Pty Ltd. The company operates in the transport
industry with a head office in Albury, New South Wales and a warehouse and trucking yard in
Laverton North, West Melbourne.
[3] The matters in dispute requiring determination in this decision include whether in all
the circumstances Mr Priest was or has been dismissed by Albury Blue Logistics and if so
whether any dismissal was an unfair dismissal.
[4] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four
initial matters before consideration of the merits of the application. Neither party put forward
that any of these initial matters required such consideration. In relation to the elements within
s.396, I find that Mr Priest’s application was lodged with the Fair Work Commission within
the 21 day period for making such applications; that at the relevant time he was dismissed he
was a person protected from unfair dismissal (if it is that there was a dismissal); and that
questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy
do not arise.
[5] I discussed with the parties prior to the commencement of proceedings the form which
they should take and recommended to them that, since they were each unrepresented that it
may be appropriate for the matter to proceed by way of a determinative conference, both
parties accepted that recommendation (s.399 of the Act).
[6] For the reasons set out below, I have found that Mr Priest was unfairly dismissed and
that while reinstatement as a remedy is not appropriate, compensation is appropriate to be
ordered.
[2018] FWC 1810
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 1810
2
BACKGROUND
[7] Leigh Priest was initially employed by Albury Blue Logistics in a warehouse/forklift
driver role and he was assigned a position of “Metro Supervisor” in mid-2013 which he says
carried additional duties and responsibilities to the warehouse/forklift driver role. In return for
these additional duties he submits that he was paid a further $80 per week. Beyond this
payment Mr Priest was otherwise paid in accordance with the Road Transport And
Distribution Award 2010.1 In September 2017 when the dispute which led to this unfair
dismissal application first arose Mr Priest was paid at the rate of $777.86 per week with the
Metro Supervisor payment continuing to be $80 per week and in addition to the base
payment. These two amounts are shown as separate items on the payslip issued by Albury
Blue to Mr Priest, with the base rate being equal to the minimum weekly rate payable under
the Modern Award to a Transport Worker Grade 4.
[8] The Laverton North facility is relatively small with there being in September 2017
only four or five employees, including Mr Priest and the Melbourne Depot Manager, Rick
Brewer.
[9] It is Mr Priest’s case that having been appointed as Metro Supervisor his supervisory
duties became part of his job and that he was called upon to continuously perform supervision
throughout the approximate four years that he undertook the duties. Mr Priest’s case is that
the Metro Supervisor position came about when Mr Dean O’Brien, the Company’s Business
Development Manager, said to him words to the effect of “would you like to run the depot?”
Mr Priest put forward that from that point on his duties changed with him being required to
receive freight into the depot; to fill out manifests and perform administrative functions; to
direct drivers and maximise efficiencies for the yard. For its part Albury Blue put forward that
having commenced paying Mr Priest as the Metro Supervisor that function did not become his
job or part of his contract of employment and that even though he continued to be paid the
$80 per week throughout the period the supervisory duties were somewhat intermittent with
supervisory duties only being performed when the Depot Manager was away. Correspondence
sent to Mr Priest by the company in September 2017 withdrawing the Metro Supervisor
payment tells him that “the allowance you currently receive for the fill in supervisor position
will cease as of Wednesday 27th September 2017”. (underlining added)
[10] The parties agree that the $80 per week Metro Supervisor payment was made
continuously to Mr Priest between the commencement date in mid-2013 and when it ceased in
September 2017.
[11] Mr Priest was told in a conference call on 20 September 2017 with Rod McIntosh the
HR and Compliance Manager and Rick Brewer the Melbourne Depot Manager that he would
no longer receive the Metro Supervisor payment or otherwise be required to perform
supervisory duties or be accorded the status which came with that payment. Mr Priest was
told in the meeting that another person, newly employed by the company, would now
undertake the supervisory duties he had been performing. Mr Priest had been given advance
notice of the meeting but had not been told about its subject matter. While the parties do not
agree on the precise formulation of the discussion which ensued, they agree that in the course
of the conference call Mr Priest was informed that the payment would cease and that his
1 MA000038.
[2018] FWC 1810
3
duties would change from that point forward to that of a forklift operator/truck driver. Albury
Blue concede that an already determined decision was communicated to Mr Priest rather than
him being consulted about a proposed change.
[12] Mr Priest puts forward that after the meeting concluded he undertook his duties for a
short time but then left the depot before his shift finished because he was ill as a result of the
meeting. After leaving the depot he saw a medical practitioner and obtained a certificate for
his absence which was then provided to Albury Blue. This was the first of 5 medical
certificates provided by Mr Priest to his employer, with the certificates providing a basis for
his absence from employment continuously between the period between 20 September 2017
and 3 November 2017.
[13] On 11 October 2017 Mr Priest commenced an unfair dismissal action in the Fair Work
Commission against Albury Blue. The Employer Response in the matter was filed on 24
October 2017 which included an objection on the part of Albury Blue to the matter
proceeding on the basis that the Applicant was not dismissed. The matter proceeded in the
usual course to a conciliation before a Fair Work Commission conciliator on 2 November
2017, with Albury Blue agreeing to participate in the conciliation, notwithstanding its
objection to the jurisdictional base of the application. While not strictly relevant to the
determination of this matter it should also be noted that Mr Priest’s application was the
subject of a jurisdictional decision by Deputy President Clancy on 5 January 2018 which
found that there had been no concluded settlement achieved in the conciliation or afterwards
and that there was no prohibition on the matter proceeding to determination.2
[14] In summary the parties’ cases involve the following considerations;
Mr Priest puts forward that the Metro Supervisor payment became part of his
contract of employment and that the change made to that arrangement is a
dismissal;
Albury Blue put forward that there never was a promotion to Metro Supervisor on
a permanent basis and that the supervisory duties were a temporary position with
an allowance being paid accordingly, albeit continuously, with it following that any
decision to remove the allowance was not and could not be a dismissal;
Mr Priest puts forward that he was never consulted about the prospect of change
and was not given an opportunity to respond to the reasons held by Albury Blue for
making the change and that the actions of his employer left him embarrassed,
demeaned and insulted in having the role taken away without discussion.
Albury Blue put forward that in making the change to Mr Priest’s employment it
was prepared to continue with him being an employee, albeit as a forklift
operator/truck driver.
LEGISLATION
[15] The first matter which requires determination in this decision is whether Mr Priest has
been dismissed. That term is defined within s.386 of the Act in the following way;
2 [2018] FWC 105.
[2018] FWC 1810
4
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified season,
and the employment has terminated at the end of the period, on completion
of the task, or at the end of the season;
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for
any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training
arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the
person under a contract of that kind is, or was at the time of the person’s
employment, to avoid the employer’s obligations under this Part.”
[16] If Mr Priest is found to have been dismissed, the Commission will then be required to
consider the provisions of s.387 of the Act, which provides;
“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:
[2018] FWC 1810
5
(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
CONSIDERATION
[17] The first matter which requires determination in this decision is whether Mr Priest has
been dismissed.
[18] The scheme of s.386 of the Act makes it clear that a demotion in employment which
does not involve a significant reduction in an employee’s remuneration or duties is not a
dismissal within the meaning of the Act. Inferentially, a demotion which involves a
significant reduction in remuneration or duties may be a dismissal if it meets one of the
criterion within s.386(1).
[19] The decision by Albury Blue to change Mr Priest’s employment arrangements are
capable of being found to be a demotion. The circumstances of his engagement since at least
mid-2013 were that in return for being paid a further amount of $80 per week to the Metro
Supervisor, Mr Priest would make himself available either indefinitely or intermittently to
perform supervisory and administrative tasks. The evidence does not support a finding that
this was a payment or arrangement only for those occasions when the need arose. Instead the
evidence before the Commission is that the payment and the attendant readiness to perform
supervisory duties extended throughout the whole period for which the payment was made. I
am satisfied both that Mr Priest took the arrangement to be an ongoing, permanent part of his
employment and that objectively a disinterested observer would form the same conclusion.
There is no documentary evidence or persuasive oral evidence before the Commission which
supports Albury Blue’s contention that this was to be a temporary arrangement only until such
time as a permanent solution might be found. The finding may therefore be made that the
discussion with Mr Priest on 20 September 2017 amounted to his demotion in employment.
[2018] FWC 1810
6
[20] I am also satisfied that the demotion involves a significant reduction in Mr Priest’s
remuneration or duties. Mr Priest was a low wage worker who at the time of the change to his
employment earned $857.86 per week for a 38 hour week. The removal of the $80 per week
allowance amounted to a reduction in his weekly wage by slightly more than 9%. Objectively
considered, this is a significant reduction to his remuneration. While the evidence does not
lead compellingly to the view that the change in his employment arrangements would lead to
a significant reduction in his duties, because the evidence is those supervisory duties he
performed were somewhat intermittent, it is not necessary that I find both that there was a
significant reduction in his remuneration and duties since the section casts the test as the
consideration of alternatives.
[21] It is then necessary to consider whether, in all the circumstances what occurred to Mr
Priest is a dismissal within the meaning of s.386(1) of the Act which requires consideration of
whether there has been termination at the employer’s initiative or whether there has been a
forced resignation. In relation to the latter element there is no evidence before the
Commission that there has been a resignation of any type and so that element does not require
further consideration.
[22] There is sufficient evidence to make a finding that Mr Priest’s employment with
Albury Blue was terminated on the employer’s initiative. Firstly, I am persuaded for the
reasons set out above, that the Metro Supervisor arrangement had become part of Mr Priest
contract of employment by the time of September 2017. He regarded the arrangement as part
of his overall employment and up to September 2017 was reasonably entitled to expect that
the arrangement would continue into the future. Secondly, the decision by Albury Blue to
make a change to Mr Priest’s employment arrangements in September 2017 was a unilateral
change to the substantial nature of his contract. The Full Bench in Ayub v NSW Trains noted
that s.386(1) is concerned with termination of the employment relationship and that the High
Court in Visscher v Giudice observed that the termination of an employment relationship and
the termination of an employment contract are different concepts, and a wrongful dismissal
from employment may not be effective in discharging the contract if the employee elects not
to accept the employer’s repudiatory breach.3
[23] In considering a matter in which an employee provided a resignation letter, later
withdrawn, Commissioner Cambridge observed that the “overt action of dismissal” may not
be confined yet may still be held to be termination of employment on the employer’s
initiative:
“[33] The legislative terminology that has been used in various unfair
dismissal/termination of employment provisions has been applied with varying levels
of success, to circumstances that involved the absence of an overt dismissal. Both the
Full Bench Decision and the first instance Decision of Riordan C refer to most of the
significant decided cases that have dealt with unfair dismissal claims in circumstances
where there was an absence of overt action of dismissal by the employer. Some of the
difficulties associated with the construction that has been provided for the particular
legislative terminology have arisen from the identification of the distinction that can be
made between termination of the contract of employment, and termination of the
3 [2016] FWCFB 5500, (2016) 262 IR 60, [24], with reference to Visscher v Giudice [2009] HCA 34, 239 CLR 361 at [53]
per Heydon, Crennan, Kiefel and Bell JJ, and Byrne v Australian Airlines Ltd [1995] HCA 24, 185 CLR 410 [ 24], per
Brennan CJ, Dawson and Toohey JJ
[2018] FWC 1810
7
employment relationship. The distinction between the contract of employment and the
employment relationship appears to have been resolved for the purposes of s. 386 of
the Act, as confirmed by the Full Bench decision in Khayam v Navitas.4
[34] The Full Bench Decision in this matter has provided authoritative guidance on
what it described as “the bifurcation in the definition of “dismissal” established in
s.386(1) of the FW Act.”5 Interestingly, the Full Bench has provided some clarification
of a question that has been identified by the authors of the frequently quoted
book, Macken’s Law of Employment6 and the following passage from that book is
relevant:
“The statutory enhancement in s 386(1)(b) requires that the person was “forced
to” resign. What of the situation where the employee resigns as a result of the
conduct, or a course of conduct of the employer, but the employee cannot be
said to have been “forced” to resign for the purposes of s 386(1)(b)? Can the
termination be said to be at the employer’s initiative?”7
[35] Notwithstanding the guidance that has been provided by the Full Bench Decision,
I believe it is important to recognise that a dismissal within what the Full Bench
described as the “first limb” of the definition in s. 386 (1) (a) of the Act, without overt
action of dismissal by the employer, would not be confined to a resignation that was
given in the “heat of the moment” and/or which involved other factors that rendered
the resignation as legally ineffective. In my view, there are numerous different
circumstances which involve the absence of overt action of dismissal by the employer
but which nevertheless, when properly analysed, may be held to have been termination
of employment on the employer’s initiative.
[36] There are many circumstances where employment comes to an end without any
overt action of dismissal by the employer. Putting to one side the end of employment
circumstances that arise from uncontested resignation, mutual agreement, frustration,
specific contract or task, bankruptcy, et cetera, there are other instances which involve
a resignation provided by the employee either verbally or in writing, and which is
alleged to have been “forced” because of conduct of the employer. These “forced”
resignation circumstances, which are clearly comprehended by s. 386 (1) (b) of the
Act, are often described as a “constructive dismissal.” As mentioned in the Full Bench
Decision8 the term “constructive dismissal” is not clearly defined either in statute or
under common law and it can create confusion.
[37] In my view, the term “constructive dismissal” has become something of a generic
description which broadly encompasses any contested circumstance where
employment has come to an end without overt action of dismissal by an employer, and
excluding other end of employment circumstances that arise from mutual agreement,
frustration, specific contract or task, bankruptcy, et cetera. Consequently the term
“constructive dismissal” has tended to comprehend a variety of circumstances all of
4 Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162, see in particular, paragraph [75].
5 [2017] FWCFB 3941, [47].
6 Macken’s Law of Employment , [Sappideen et al,] Eighth edition, Lawbook Co. 2016.
7 Ibid at [13.110] page 525.
8 Ibid at paragraphs [49] and [50].
http://www.fwc.gov.au/decisionssigned/html/2017fwcfb3941.htm
http://www.fwc.gov.au/decisionssigned/html/2017fwcfb5162.htm
[2018] FWC 1810
8
which have the common characteristic of there being an absence of overt action of
dismissal by the employer, and many of which, but by no means all, involve an alleged
“forced” resignation.
[38] If the term “constructive dismissal” is disregarded, I find it helpful to firstly
conceptualise contested termination of employment circumstances into two primary
categories; those that involve overt dismissal, and those that do not display any overt
dismissal action on the part of the employer. Obviously, the first category involving
overt dismissal action requires no further examination, and the circumstances
undeniably represent termination of employment on the employer’s initiative, and in
satisfaction of the terms of s. 386 (1) (a) of the Act.
[39] The second category, termination of employment circumstances without any
overt dismissal action on the part of the employer, can encompass a wide variety of
circumstances. Once again, putting aside end of employment circumstances that arise
from mutual agreement, frustration, specific contract or task, bankruptcy, et cetera, the
most commonly encountered circumstances in this category are those that involve
what is described as a “forced” resignation. As mentioned above, the “forced”
resignation circumstance is clearly contemplated by s. 386 (1) (b) of the Act.
[40] There are two other frequently encountered circumstances which fall within the
second category of termination of employment without any overt dismissal action on
the part of the employer, but which nevertheless may be found to have been
termination of employment on the employer’s initiative.
[41] One such circumstance is that of a “heat of the moment” resignation whereby
because of special circumstances and/or a combination of other factors, it was
unreasonable for the employer to assume that the resignation was genuinely intended.
In these circumstances, if an employer accepts the resignation forthwith, and acts upon
it, it may be held to be have been a legally ineffective resignation and the actions of
accepting the resignation establish that the employment was terminated on the
employee’s initiative, and in satisfaction of the terms of s. 386 (1) (a) of the Act.
[42] Another frequently encountered termination of employment circumstance which
is absent any overt dismissal action on the part of the employer, but which
nevertheless may be found to have been termination of employment on the employer’s
initiative, involves what may be referred to as repudiatory conduct. Circumstances in
this category involve the unilateral imposition of a term or terms which are
inconsistent with continuation of the employment as was reasonably comprehended by
the employment. For instance, if an employer imposed a significant reduction in the
number of shifts that had regularly and systematically been part of the employment,
the employee could refuse to accept such a significant change as it represented a
repudiation of the established terms of the employment.”9 (references in original)”
[24] I concur with these observations. In Mr Priest’s case, he was faced with unilateral
action on the part of Albury Blue that, reasonably considered, allowed him to consider that his
employment (of Metro Supervisor) was being terminated on the employer’s initiative. What
9 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2018] FWC 1074.
[2018] FWC 1810
9
was being offered instead of the Metro Supervisor employment was demotion involving a
significant reduction in remuneration, if not duties.
[25] As result I find that Mr Priest was dismissed within the meaning of s.386 of the Act. It
is therefore necessary to consider whether in all the circumstances he was unfairly dismissed
for reason of a dismissal having been harsh, unjust or unreasonable.
[26] Determination of whether Mr Priest’s dismissal was harsh, unjust or unreasonable
requires each of the matters specified in s.387 to be taken into account.
[27] The Full Bench has summarised the approach that should be taken by the Commission
to the criteria within s.387 in the following way;10
“[28] The following propositions concerning consideration as to whether there is a valid
reason for dismissal for the purpose of s.387 are well established:
a valid reason is one which is sound, defensible and well-founded, and not
capricious, fanciful, spiteful or prejudiced;11
a reason would be valid because the conduct occurred and justified termination;
conversely the reason might not be valid because the conduct did not occur or it did
occur but did not justify termination (because, for example, it involved a trivial
misdemeanour);12
it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently
serious to justify summary dismissal in order to establish a valid reason for
dismissal;13
the existence of a valid reason to dismiss is not assessed by reference to a legal right
to dismiss14 (so that, for example, where summary dismissal has occurred, it is not
necessary to determine whether the right of summary dismissal was legally
available); and
the criterion for a valid reason is not whether serious misconduct as defined in
reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a
finding that misconduct of the type described might well ground a conclusion that
there is a valid reason for dismissal based on the employee’s conduct).15” (original
references)”
[28] I will deal with each of the criteria within s.387 in turn.
(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)
10 Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.
11 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
12 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].
13 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233
at [9]-[10].
14 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137
FCR 266 at [15].
15 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat
Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].
[2018] FWC 1810
10
[29] Mr Priest was dismissed from a position that included him being Metro Supervisor at
the Laverton North premises in addition to his wider or original role of forklift operator/truck
driver. The reasons advanced by Albury Blue for the dismissal related to how it perceived Mr
Priest performance as a supervisor, rather than how he performed the other duties.
[30] Albury Blue do not put forward that the need for a supervisor was no longer there,
conceding that part of the reasoning for its change to Mr Priest’s employment arrangements
was that it wanted a newly engaged employee to take over the supervisory duties that had
previously been undertaken by Mr Priest.
[31] The decision to make a change to Mr Priest’s employment arrangements had been
made by the management group about four or five days before it was communicated to Mr
Priest. There had been a discussion amongst the management group about the need to make
changes in the Melbourne depot and what the company needed in the way of management
support in the future. At the time Albury Blue came to make the change Mr Brewer saw Mr
Priest as someone who was substantially out in the warehouse, mostly operating a forklift,
with the odd occasion of him jumping into and driving a truck. Mr Brewer held the view that
he was undertaking much of the administrative work at the time with Mr Priest only providing
some administrative support, especially in relation to a particular software package used by
one customer.
[32] The company’s managers had also formed the view about Mr Priest over an
indeterminate period of time that he did not relate to customers as well as he could and that
there had been some circumstances in which Mr Priest had been involved in confrontations
with other employees or not handled them as well as he could. Feedback had also been
received from customers about Mr Priest’s willingness to engage in or follow training they
had provided him about their systems or needs. The Albury Blue managers also relied upon
criticisms they had of Mr Priest about his lack of leadership qualities as well as concerns held,
especially by Mr Brewer, about Mr Priest’s timekeeping and preparedness to start work on
time. When relating their concerns about a confrontation in which Mr Priest was alleged to
have been involved, the company managers put forward that its concerns were regarding his
ability to control and supervise the staff group and its belief that because the circumstance had
not been controlled as well as it should have that it was their realisation they needed a skilled
person in the Laverton North supervisory role.
[33] Despite his employer holding these criticisms of Mr Priest, they were not discussed
with him or identified to him as being a motivator for the change in September 2017. Even so,
Albury Blue submitted that some elements of its concerns had been the subject of general
discussion with Mr Priest over an unidentified period of time. For example, it was submitted
that there had been discussion with Mr Priest about the length of time taken with particular
tasks or how things in the depot could be located or run. Although there had been general
discussion with Mr Priest on these matters, as well as only general identification of the issues
in the proceedings before the Commission, the finding is not able to be made either that Mr
Priest had been counselled or warned about the implication of the matters. Further, the matters
were not identified to him as reasons for its decision in the meeting on 20 September 2017,
with him only being informed that the company was entitled to make change to his allowance
for the reason that the Metro Supervisor role was not actually part of Mr Priest’s ongoing
employment arrangements.
[2018] FWC 1810
11
[34] The factors relied upon by Albury Blue for removing the Metro Supervisor position
from Mr Priest’s employment are generalised, non-specific and ultimately not a valid reason
for having made the change.
[35] While it may, of course, be said that criticisms of the type advanced by Albury Blue
might motivate a change to a person’s employment arrangements those criticisms need to be
cogent and particularised for a finding that they were a valid reason for what has been found
to be a dismissal. Determination of a valid reason involves an examination of whether the
reason given is “sound, defensible or well founded”, within the overall context of the
employment relationship;
“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,
common sense way to ensure that’’ the employer and employee are each treated fairly,
see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when
considering the construction and application of s 170DC.”16
[36] The context of this employment relationship is of a very small depot of a wider
business which likely has little industrial or human resources sophistication. The original
Metro Supervisor arrangement may not have been documented as well as it could have; and
the decision to remove it may not have followed the practices of what may be expected in
larger businesses. In these regards, Albury Blue may have been following what it perceived to
be the practical processes of a practical business. While that motivation, as well as the
realisation they needed a supervisor with greater skill may be reasons of sorts for change, they
fail to amount to a gap analysis of the skills required versus the skills delivered by Mr Priest.
In that respect the reasons relied upon by Albury Blue for its decision-making were not sound,
defensible or well-founded.
[37] As a result there was not a valid reason for Mr Priest’s dismissal.
(b) whether the person was notified of that reason
[38] The reasons given to Mr Priest for the change in his employment were basic and did
not amount to him being notified of the reasons held by Albury Blue for the changes it made.
Instead of being told that the motivation for the changes included perceptions by Albury Blue
about his inadequate performance as Metro Supervisor, Mr Priest was told in the meeting on
20 September 2017 merely that Albury Blue were to appoint a Depot Supervisor on a
permanent basis and that he would not be required to fill in as a Supervisor going forward.
Such was confirmed in the company’s correspondence to Mr Priest on 21 September 2017.
[39] Accordingly, the finding must be made that Mr Priest was not notified of the reasons
held by Albury Blue about his dismissal from the position of Metro Supervisor.
16 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
[2018] FWC 1810
12
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person
[40] For the Commission to have regard to whether an employee has been given an
opportunity to respond to the reason for dismissal there needs to be a finding that there is a
valid reason for dismissal.17 I have not found there was a valid reason for Mr Priest's
dismissal.
[41] Albury Blue conceded in the determinative conference that when it came to speak with
Mr Priest in the meeting on 20 September 2017 the decision to remove him as Metro
Supervisor had already been made by the company.
[42] Mr Priest was not given an opportunity to respond to the reasons held by Albury Blue
for his dismissal relating to his capacity or conduct.
(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
[43] Mr Priest was advised on 19 September 2017 that he was required in a meeting with
the company’s managers on 20 September 2017, but he was not informed of the subject
matter to be discussed in the meeting. There was neither an offer by Albury Blue to him to
have a support person in attendance or a request by him for the same.
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal
[44] Mr Priest had not been warned about the company’s perceptions of his unsatisfactory
performance as Metro Supervisor before it communicated his dismissal.
(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
[45] Albury Blue indicated in its Employer Response Form that at the time of Mr Priest’s
dismissal it employed 105 employees. There is nothing before the Commission which would
lead to a finding that its size impacted upon the procedures it followed in effecting the
dismissal.
(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;
[46] One of the managers who communicated the decision to Mr Priest was Mr McIntosh
whose title is “HR and Compliance Manager” who attended the Commission proceedings on
behalf of the company. There is nothing before the Commission which would lead to a
finding that the absence of dedicated human resource management specialists or expertise in
Albury Blue was likely to impact on the procedures it followed in effecting Mr Priest’s
dismissal.
17 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, 2 February 2000) Print S2679 [41].
[2018] FWC 1810
13
(h) any other matters that the FWC considers relevant
[47] Relevant for consideration in this matter is that Albury Blue did not consider it was
dismissing Mr Priest from employment but rather that it was removing an allowance from him
because it no longer required him to undertake the duties otherwise performed by the Metro
Supervisor. That much is made clear in the letter provided to Mr Priest on 21 September
2017. The correspondence informed him that he would no longer be required to act as a
supervisor in addition to his duties as a forklift operator/local delivery driver. While he would
no longer receive the supervisor allowance all other entitlements would remain the same as
previously the case.
[48] While I have found that the removal of the $80 per week Metro Supervisor payment
amounted to a significant reduction in his remuneration, it is self-evident that Albury Blue
had no intention to deprive Mr Priest of the far more significant and ongoing benefit of
employment at the rate of $777.86 per week.
[49] The significance of the remunerative aspect of the demotion which took place means
that there has been a dismissal, however the question also rises whether, because of the offer
of ongoing employment at the lower rate means what occurred was not an unfair dismissal.
Such question is a highly contextual one requiring resolution within the special circumstances
of the case before the Commission.
[50] In this particular case the demotion would have involved a significant reduction in
remuneration brought about through unilateral conduct on the part of Albury Blue which, by
his conduct, Mr Priest has chosen not to accept. Even had Mr Priest chosen to accept the
unilateral change to his employment conditions I consider that it would be a significant
unfairness to him to not make a finding, within the overall facts of his case, that his dismissal
was itself unfair. The fact that Mr Priest did not accept the unilateral change neither adds to
nor detracts from that situation.
[51] In the overall circumstances of Mr Priest’s matter I find that he was unfairly dismissed
from the position of Metro Supervisor with that dismissal being unjust because the reasons
held by Albury Blue for making the change had not been identified to him prior to the
decision being made and because he did not have an opportunity to make correction to the
behaviour the company was concerned about.
REMEDY
[52] The sections of the Act dealing with remedy once a finding of unfair dismissal has
been made are as follows;
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
[2018] FWC 1810
14
(2) The FWC may make the order only if the person has made an application under
section 394.
(2) 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:
(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
[2018] FWC 1810
15
(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
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), 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.”
“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
(b) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
[2018] FWC 1810
16
(c) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(d) 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
(e) 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
have been received by the employee for the period of leave in accordance with
the regulations.”
[2018] FWC 1810
17
[53] Pursuant to subsection 390(3) of the Act an order for the payment of compensation to
a person must not be made unless the Fair Work Commission “is satisfied that reinstatement
of a person is inappropriate” and also that the Commission “considers an order for payment
of compensation is appropriate in all the circumstances of the case.”
[54] Mr Priest’s submissions on the subject of the appropriateness of reinstatement in the
event that the Commission found his dismissal was unfair are somewhat limited although he
did say that the prospect of reinstatement was difficult to consider and that he would be
against something like that. The overall context of Mr Priest’s submissions to the
Commission, written and oral, lead to the view that he considers the requisite trust and
confidence would be lacking in a renewed employment relationship.
[55] Albury Blue put forward that they still consider Mr Priest to be an employee of the
company and that his position is still there.
[56] The issue of when reinstatement is inappropriate and the related question of the need
for trust and confidence between the parties was considered at length by the Full Bench of the
Commission in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese
Community Ethnic School South Australia Chapter.18 In its decision, the Full Bench held
that;
‘trust and confidence’ in this context it that which is essential to make an
employment relationship workable, which is “not to be confused with an implied
term in a contract of employment of mutual trust and confidence, the existence of
which was recently eschewed by the High Court in Commonwealth Bank of
Australia v Barker”; and
While “trust and confidence is a necessary ingredient in any employment
relationship, it would be wrong to assume that it is the sole criterion or even a
necessary one to determine whether or not reinstatement is appropriate”.19
(references omitted)’
[57] The Full Bench summarised the relevant principles to be followed in assessments of
trust and confidence 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
18 [2014] FWCFB 7198
19 Ibid, at [23] - [24]
[2018] FWC 1810
18
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.
[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.”20 (references omitted)
[58] Self evidently Albury Blue did not set out to terminate Mr Priest’s employment in
total. It does not put forward anything which would suggest that it lacks trust or confidence in
Mr Priest’s ability to perform the work that would require of him into the future. Despite that
the criticism is advanced by the company against Mr Priest in the performance of his
supervisory duties would need to be regarded as still live in the event of a reinstatement.
Perhaps those criticisms, if cogent and particularised, would be accepted by Mr Priest and
acted upon; perhaps they would not come with the likelihood of disciplinary action against Mr
Priest then ensuing.
[59] The question of whether it is appropriate to reinstate Mr Priest is something which is
finely balanced. As a low-wage employee against whom no substantial criticisms are made in
relation to his substantive employment, on one view, and especially from the economic
perspective, the best and most compelling remedy for Mr Priest would be to order his
reinstatement. Such would secure his economic interests at least for the medium term. Yet
demonstrated through his conduct after September 2017, through to the proceedings before
the Commission, he plainly does not want reinstatement. Immediately after the conversation
on the 20 September 2017 he went to a medical practitioner and obtained medical certificates
which authorised, mechanistically at least and to the lowest possible standard of proof, his
absence from work until 3 November 2017. The underlying medical condition has never been
identified either to his former employer or to the Commission and it is unknown whether the
condition identified by the medical practitioner remains extant and an impediment to his
reinstatement. Surprise must be expressed that a person who was once employed at the rate of
$857.86 per week and who has been continuously unemployed since 3 November 2017 to the
20 Ibid, at [ 27] - [28]
[2018] FWC 1810
19
date of proceedings before the Commission on 13 March 2018 would not seriously consider
the alternative of continuous employment albeit at the lower rate of $777.86 per week while
perhaps at the same time maintaining these proceedings. The only explanation must be that
Mr Priest simply does not want to return.
[60] While that is likely the case, the question before the Commission is whether
reinstatement is appropriate.
[61] In the context of this matter I think it is not. While it may be in Mr Priest’s best
economic interests, it is doubted that Mr Priest would return even if an order were made,
although even that likelihood does not dispose of the question. Mr Priest plainly does not trust
Albury Blue to any appreciable extent and expects that what he regards as inappropriate
conduct on the part of the company would continue were he to return. There is only slight
evidence in this regard and that evidence which is before the Commission stems largely from
the conduct of Albury Blue’s managers in forming a decision about Mr Priest’s future based
largely on its impressionistic or anecdotal perspective of his performance. They then made a
decision about his future and communicated it to him as one that had already been made
without an opportunity for him to respond or reason with them. They did not even tell him
why the motivating factors to the decision. It is to be noted that while Albury Blue readily
conceded in these proceedings the reasons for its decisions and that the decision had been
made prior to its communication to Mr Priest, it did not then put forward that a lesson had
been learned and that such conduct would not be repeated in the future.
[62] In the context of Mr Priest’s case, stemming partly from Mr Priest’s beliefs about
Albury Blue as well as the possibility that its poor decision-making processes may be
repeated into the future, the Commission is not satisfied in this case that there would be a
sufficient level of trust and confidence restored to make the employment relationship viable
and productive.
[63] I am satisfied in all the circumstances that it would be inappropriate to reinstate Mr
Priest and that instead consideration should be given to an order the payment of
compensation.
(a) the effect of the order on the viability of the employer’s enterprise
[64] Albury Blue makes no submission that an order of the Commission for compensation
may affect the viability of its enterprise. Accordingly, this matter is a neutral consideration in
determination of an order for compensation.
(b) the length of the person’s service with the employer
[65] Mr Priest’s period of employment with Albury Blue was from about November 2011,
meaning that he worked for the business for a total period of slightly less than six years by the
time his employment ended in September 2017. The length of Mr Priest’s service with Albury
Blue does not require an adjustment to be made to the proposed compensation order.
(c) the remuneration that the person would have received, or would have been likely to
receive, if the person had not been dismissed
[2018] FWC 1810
20
[66] In matters in which compensation is a consideration, the Commission ordinarily makes
an assessment of remuneration the employee lost through dismissal, which in turn requires a
finding in relation to “anticipated period of employment”. The Full Bench of the Australian
Industrial Relations Commission has observed the following in relation to these matters;
“[33] The first step in this process - the assessment of remuneration lost - is a necessary
element in determining an amount to be ordered in lieu of reinstatement. Such an
assessment is often difficult, but it must be done. As the Full Bench observed in
Sprigg:
". . . we acknowledge that there is a speculative element involved in all such
assessments. We believe it is a necessary step by virtue of the requirement of
s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most
assessments of compensation or damages in courts of law."
[34] Lost remuneration is usually calculated by estimating how long the employee
would have remained in the relevant employment but for the termination of their
employment. We refer to this period as the "anticipated period of employment". This
amount is then reduced by deducting monies earned since termination. Only monies
earned during the period from termination until the end of the "anticipated period of
employment" are deducted. An example may assist to illustrate the approach to be
taken.” 21 (endnotes omitted)”
[67] In the circumstances Albury Blue failed to recognise that the decision it communicated
to Mr Priest was a dismissal and failed to have a valid reason for its decision, being one that
was sound, defensible or well founded. It also failed to allow Mr Priest an opportunity to
respond to the reasons it held.
[68] The company could have relatively easily ascertained through some basic research or
seeking of advice that what it proposed to do to Mr Priest most likely amounted to a
dismissal. Similarly, it could have researched or received advice on what was required there
to be a valid reason for the decision or procedural fairness in implementing it. Neither are
especially difficult or time-consuming matters. Albury Blue could have sought and received
pointed advice on the matters which likely would have then charged the managers with
further developing their otherwise impressionistic and anecdotal views of Mr Priest into more
substantive as well as substantiated criticisms of his performance. The same advice would
have given Albury Blue a pathway to put those matters to Mr Priest as considerations for
potential change and, failing sufficient change, action upon what may have been by that time
a valid reason for the decision.
[69] The timeframe for obtaining and acting upon such advice would, in the scheme of this
particular matter, be relatively short, perhaps two to three weeks at most. Given that Albury
Blue put forward that the decision Mr Priest would no longer be its Metro Supervisor was
made only four or five days before it was communicated to him, it follows that the process of
obtaining and acting upon advice would have extended into early or mid-October 2017.
[70] Having considered all of the material before the Commission, together with the
demeanour of all parties, and especially that of Mr Priest, it is likely that, even with better
21 Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].
[2018] FWC 1810
21
justification for the decision as well as better communication of what was intended, Mr Priest
would likely not have taken well to what was communicated to him. The assessment is made
that, in all probability, Mr Priest would have responded in the same way as he actually did in
September 2017 even if the criticisms of his performance or an eventual proposal for
demotion were better formed and communicated. That is, Mr Priest would likely not take well
to what was put to him and responded both by absenting himself from the workplace on
personal leave and then initially neither accepting or rejecting the offer of alternative
employment at a lower rate of pay, followed by the ultimate rejection of the proposal at some
later date.
[71] In the overall context of this matter the anticipated further period of employment for
Mr Priest from 20 September 2017 would likely only be four to six weeks. Given the
uncertainties that would be caused by Mr Priest’s reaction to the things put to him, the
likelihood that he would absent himself from the workplace without firm acceptance or
rejection of the company’s criticisms and demotion proposal leads to the conclusion that this
may be a slightly longer than shorter period. As a result the anticipated period of employment
is set at six weeks.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of
the dismissal
[72] Two matters are relevant to the question of mitigation of Mr Priest loss following his
dismissal; the efforts by him to obtain employment since November 2017 as well as the offer
made by Albury Blue of continuing employment with the company at a lower rate of pay.
[73] The date of effect of Mr Priest’s termination of employment is Wednesday, 27
September 2017, which is the date set out within the correspondence from the company to Mr
Priest, dated 21 September 2017. While that is the case, it is to be noted that Mr Priest sought
and obtained medical certificates indicating that he was unfit for work in the period up to 3
November 2017. On this basis, it is the period after that time which is relevant for
consideration in respect of Mr Priest’s efforts to mitigate his loss following his dismissal. In
the proceedings before the Commission Mr Priest put forward that those efforts consisted of
establishing and maintaining a profile on a jobs website with him submitting his name from
employment to about 44 jobs. Those applications had progressed to an interview by the date
of proceedings before the Commission. Mr Priest confirmed that the application is the made
included non-supervisory positions as well as those requiring supervisory skills. I am satisfied
that Mr Priest has, in respect of this consideration at least, taken appropriate steps to mitigate
the loss she has suffered following dismissal.
[74] While that is the case, I cannot say the same about the consideration by Mr Priest of
the company’s offer of continuing employment as a forklift operator’s/truck driver at a lower
rate of pay that he once enjoyed. Mr Priest asks the Commission to accept that since he has
not had any income from any source since 3 November 2017 to the date of the proceedings, a
period of 18 weeks, Albury Blue should be accountable for the concomitant loss of income
that would have been otherwise received, an amount of over $15,000.
[75] As referred to earlier in this decision Mr Priest went to a medical practitioner on 20
September 2017 shortly after the conversation about the future of his employment. He then
provided that medical certificate and other certificates on later dates, the combined effect of
which supported his contention that he was unfit for work at least until 3 November 2017.
[2018] FWC 1810
22
However there is no clear evidence before the Commission either about the condition that
prevented Mr Priest from working at Albury Blue before 3 November 2017 or whether it was
that the same or another condition which impeded him from working with them after that
date. Account is also taken of the fact that Albury Blue endeavoured to communicate with Mr
Priest on several occasions by email and phone about his potential return to work and that Mr
Priest did not respond to those contacts from the company.
[76] In finality it is likely that Mr Priest was simply unwilling to work for Albury Blue
again under any circumstances. The evidence before the Commission does not lead to the
view that such unwillingness after 3 November 2017 was reasonably held other than it being
connected with a view on his part that the company could not be trusted to not act against him
again in the future in the way that it had in September.
[77] Mr Priest could, and should, have given serious consideration to what proposed by
Albury Blue, and his failure to reasonably engage with their proposal is a failure on his part to
mitigate his actual and future loss suffered because of his dismissal. While it has been
observed that is more often the case that while the dismissed employee must seek other
employment he or she is not required to accept a position of lower pay or status with the same
employer,22 the circumstances of Mr Priest’s case may be distinguished. Until the meeting on
20 September 2017, there were no major wrinkles in the employment relationship. He has not
put forward cogent reasons why he can no longer trust Albury Blue, or why consideration
should not be given to an alternative position, and he concedes it is work he can do.
[78] It is appropriate in the circumstances because of Mr Priest’s failure to mitigate his loss
by seriously engaging with the proposal put forward by Albury Blue to make an adjustment to
the order for compensation which is made to him. While critical of Mr Priest’s actions in this
regard, such adjustment should not be punitive or crushing. It is considered appropriate to
reduce by $500 the compensation otherwise to be ordered.
(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
[79] Mr Priest has had no employment or income from any sources since leaving Albury
Blue.
(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
[80] Mr Priest is not presently in employment or receiving income from any sources.
(g) any other matter that the FWC considers relevant.
[81] Albury Blue requests the Commission to take account of the fact that Mr Priest was
contacted on several occasions about a return to the company at the lower position and that he
made no endeavours to make contact with the company about the matter. That matter has
already been taken into account in relation to the consideration of Mr Priest's efforts to to
mitigate his losses following dismissal. The subject does not require further consideration.
22 Biviano v Suji Kim Collection (2002), unreported, Print PR915963, [46] – [52].
[2018] FWC 1810
23
[82] Since the dismissal does not relate to misconduct there is no requirement to make an
adjustment to the compensation order for reason of misconduct (s.392 (3))
CONCLUSION AND ORDERS
[83] After consideration of the foregoing issues, I find that Mr Priest was dismissed and
that his dismissal was unfair within the meaning of the Act.
[84] I find that reinstatement is not an appropriate remedy in this case.
[85] I find that compensation is appropriate.
[86] The approach by the Fair Work Commission in these matters, and which is followed
here, is to estimate the remuneration the employee would have received if they had not been
dismissed (usually calculated by estimating how long the employee would have remained in
the relevant employment but for the termination of their employment); deduct any
remuneration earned by the employee since their dismissal until the end of the anticipated
period of employment; deduct an amount for contingencies; consider the impact of taxation
and adjust the figure accordingly; and assess the figure against the compensation cap set by
s.392(5).23 Noting that all of the projected period of continued employment has passed, there
is no need to make a deduction for contingencies.24
[87] I accept that Mr Priest's remuneration at the time the dismissal was $857.86 per week
and that in addition to this amount he was entitled to receive a further payment of 9.5%
superannuation calculated on the total weekly amount. The Commission’s order for
compensation will be for a payment of 6 weeks compensation at the rate of $857.86 per week,
with a further amount of 9.5% for the purposes of superannuation, from which a deduction
will be made in relation to the efforts made by him to mitigate his losses. Calculation of the
amount payable is set out in the following table;
1. Estimate the amount the
employee would have received or
would have been likely to receive if
the employment had not been
terminated,
6 weeks projected lost
income at the rate of
$857.86 per week25
$5,147
9.5% Employer
superannuation
contribution on above
+ $489
Deduction relating to
efforts to mitigate losses
- $500
2. Deduct monies earned since
termination,
$0
3. Deductions for contingencies, $0
TOTAL $5,136
4. Calculate any impact of To be taxed according to
23 See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation
(unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].
24 Bowden v Ottrey Homes Ibid, at [54]
[2018] FWC 1810
24
taxation, law
5. Apply the legislative cap.” Does not exceed the
compensation cap.
[88] The total amount of $5,136 does not exceed the compensation cap applying at the time
of dismissal.
[89] An order requiring Albury Blue Logistics to pay Mr Priest the total amount $5136
taxed according to law, is issued in conjunction with this decision. The total will be ordered to
be split between a payment directly to him, and a payment to his superannuation account, on
his behalf.
[90] In accordance with this decision, and after recalculation to take account of the effect of
the deduction for mitigation, the total of $5,136 is to be paid it two amounts. Because of the
deduction made in relation to the matter of mitigation, both the amount to be paid directly to
Mr Priest and the amount to be paid to his superannuation account differ from the headline
amounts shown in the above table. As a result, and after adjustment, a total of $5,136 is to be
paid by Albury Blue, comprising of $4,691, less taxation, to be paid directly to Mr Priest, and
$445 to be paid to his superannuation account. The order will require the payments to be
made within 14 days of the date of this decision.
COMMISSIONER
Appearances:
Mr Leigh Priest on his own behalf.
Mr Rodney McIntosh for the Respondent.
Hearing details:
2018,
Melbourne:
13 March.
Printed by authority of the Commonwealth Government Printer
PR601544
OF THE FAIR WORK C AUSTRALIA MMISSION THE SEAL
