[2016] FWC 6036
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Clint Remmert
v
Broken Hill Operations Pty Ltd T/A Rasp Mine
(U2016/2151)

COMMISSIONER HAMPTON

ADELAIDE, 10 OCTOBER 2016

Application for relief from unfair dismissal – alleged bullying conduct via Facebook posts – whether relevant and in breach of policies – final warning already issued - whether conduct represented valid reason for dismissal – unreasonable conduct found but not knowingly in breach of social media policy – relevant allegations influential to employer’s findings not raised with applicant and not relied upon in proceedings – dismissal harsh and unreasonable – remedy – reinstatement not appropriate – compensation appropriate and awarded – order to be made following confirmation of post dismissal earnings.

1. Background and case outline

[1] Mr Clint Remmert has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Broken Hill Operations Pty Ltd T/A Rasp Mine (BHO). The Rasp Mine is an underground lead, zinc and silver mine.

[2] Mr Remmert commenced his employment with BHO, in July 2011, as a highly skilled Maintenance Fitter. His position primarily involved the service and repair of mobile equipment; being predominately trucks and loaders. In so doing, he worked undertaking various shifts located in an above ground workshop, and at times, repairing breakdowns underground.

[3] The BHO Rasp Mine site is one of two significant mine operations in Broken Hill. BHO is a wholly owned subsidiary of CBH Resources Limited (CBH). The other major mining operation is the separately owned and operated Perilya mine where Mr Remmert and some of the other employees connected with this matter had earlier worked.

[4] In June 2015, the applicant was disciplined in relation to some inappropriate conduct towards another employee and related matters. He was issued with a “final warning”, which also involved him undergoing mediation and being moved to the day shift for a period.

[5] Mr Remmert was at his home on 1 April 2016. At that time he was among several BHO employees who were parties to an incident involving a series of Facebook “posts”. These posts consisted of a photo of a BHO employee at work wearing a cap with an exceptionally large (very much exaggerated) peak and a number of comments made in response. The associated comments are outlined later in this decision but it is alleged by BHO that these posts were directed at another BHO employee who regularly wore a cap with a larger than normal peak in the workplace. It is common ground that Mr Remmert was not involved in the photo or the original post but did subsequently post two comments.

[6] The employee said to be the focus of the posts is a Fitter and Relief Maintenance Supervisor and it is clear from the evidence that he was earlier subject to conduct by a group of employees at BHO that would readily fall within the category of bullying behaviour. I will for convenience refer to that employee as the Relief Maintenance Supervisor.
[7] It has not been contended by BHO that Mr Remmert was responsible for that earlier conduct. It is however the case that the Relief Maintenance Supervisor concerned had advised employees, including Mr Remmert, that he had been the subject of unreasonable and inappropriate (bullying) conduct and that this must stop.

[8] BHO conducted an investigation into the Facebook incident and determined that the comments made by Mr Remmert were intended to belittle and ridicule the Relief Maintenance Supervisor and that this was in contravention of BHO’s policies and procedures. Mr Remmert was subsequently dismissed on 22 April 2016.

[9] Mr Remmert contends that the dismissal was unfair on the following grounds:

[10] In substance, Mr Remmert contends that there was no valid reason for the dismissal, he was not afforded procedural fairness, and the dismissal was harsh and unjust in all of the circumstances. He seeks reinstatement to his former position.

[11] BHO contends that the dismissal was not unfair on the following grounds:

[12] BHO seeks the dismissal of the application without remedy. This includes strong opposition to any consideration of reinstatement given the circumstances, including the potential impact upon the Relief Maintenance Supervisor, and the fact that the Commission should not “condone” Mr Remmert’s conduct.

[13] There is no dispute that Mr Remmert was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission.

[14] In the circumstances, and given the making of confidentiality orders by the Commission under s.594 of the FW Act concerning some of the BHO employees more indirectly involved in this matter, I have not identified some of them in this decision. The actual names of those employees have been provided separately to the representatives of the parties in conjunction with this decision. With the support of both parties, I have also not identified the Relief Maintenance Supervisor.

2. The witness evidence

[15] Mr Remmert provided a witness statement and gave evidence in the matter. He also relied on the witness statements of the following:

[16] BHO relied on the witness statements, and oral evidence of the following BHO employees:

[17] There are a number of major factual disputes in this matter. These include:

[18] I have assessed the disputed evidence of each of the witnesses having regard to my impression of their testimony and the consistency and probability of that evidence.

[19] I found that the evidence of Mr Remmert was, in general terms, given confidently and consistently. I do, however, have significant reservations about his denial that his posts in relation to the Facebook photo were intended, or would reasonably be taken, to refer to the Relief Maintenance Supervisor.

[20] I consider that the evidence of Mr Braes and Ms Treleven to be generally reliable and given in an open and honest manner. There are differences between their evidence on certain factors; however, these are largely matters of interpretation and degree and their recollections have been influenced to some extent by their representative involvement in the matter. It is also clear to me that Mr Treleven took exception to the allegations of bias raised about her by Mr Remmert and this has impacted upon the degree of subjectivity inherent in her evidence.

[21] My view about the evidence of Mr Quinn has been influenced by the fact that he was not completely open and honest about an issue that arose during his cross-examination. He was questioned about a “confidential report” he produced apparently concerning the conduct of Mr Remmert that was referenced in some material produced by BHO following a production order issued by the Commission. 1 The confidential report was not produced in response to the order or referenced in any of the BHO evidence provided to the Commission. Mr Quinn initially denied the existence of the report and then indicated that he could not recall the matter. Although Mr Quinn was in a difficult position given that the report had not been produced or disclosed, his lack of frankness about that issue causes me to treat his evidence more generally with some caution.

[22] Much of the evidence of Mr Bukarica dealt with concerns advanced by the Relief Maintenance Supervisor about the support provided to him by the CFMEU. Whilst this was responsive to other evidence, it is not necessary to make findings on these matters.

[23] The final decision maker, BHO’s General Manager, was not called as a witness. He was in attendance when evidence was given in the hearing of this matter and the CFMEU, on behalf of Mr Remmert, sought that the Commission draw an adverse inference from the “failure” to lead that evidence. BHO contends that the General Manager, in terminating the applicant’s employment, was adopting a recommendation provided to him by Ms Treleven and others, that they had given evidence about the basis of that recommendation, and the reasons for decision were set out in written correspondence. In that light, BHO contends that no adverse inference should be drawn.

[24] The context for this issue is that there is an indication in some of the material provided by BHO that issues, other than those matters set out in the letter of dismissal, were taken into account and may have influenced both the recommendation and the final decision. This is disputed by BHO although it is clear that these matters were considered by the investigation panel that made the recommendations and included in the material provided to the General Manager.

[25] It is open for the Commission, but not necessary, to draw such a negative inference where there is an unexplained failure to call evidence.2 In this case, it is a reasonable presumption that the decision maker relied upon the information provided to him. It is clear from the evidence that this information included some of the materials that were not raised with Mr Remmert during the investigation. The recommendations made by the investigation panel included that Mr Remmert (and two others) be dismissed but also included reference to other matters including the confidential report.

[26] In these circumstances, it is not necessary to draw a negative inference from the absence of evidence from the General Manager.3 It does however remain the case that there is no evidence about the extent that the other factors were considered and relied upon by the General Manager. In these circumstances, the employer is also not entitled to any inference in that regard, positive or otherwise, which is not supported by reliable direct evidence.

3. The events leading to Mr Remmert’s dismissal

[27] Both Mr Remmert and the Relief Maintenance Supervisor had previously worked at the Perilya mine. The Relief Maintenance Supervisor was employed by BHO sometime after Mr Remmert commenced in July 2011.

[28] I note that there was some tension in the workplace surrounding the appointment of the Relief Maintenance Supervisor into that position. That is, others, including Mr Remmert, may have had an expectation that they would be considered for that role. Further, it is evident that there was tension between the Relief Maintenance Supervisor and DB, the Maintenance Supervisor, and this impacted upon working and personal relationships within the work group more generally.

[29] In June 2015, Mr Remmert was issued with a final written warning following a complaint made about comments he had made to a Trainee Drill Fitter and related matters. The various comments by Mr Remmert were that, in effect, the trainee was not pulling his weight and leaving work for others. When the complaint about those comments and other matters was raised with Mr Remmert, he recognised that his conduct had upset the Trainee and apologised. This was confirmed in a written statement which he provided in the following terms:

[30] Mr Remmert also participated in a mediation session with the Trainee Drill Fitter and two management personnel.

[31] The warning issued to Mr Remmert stated as follows:

…

[32] No steps were taken by BHO to organise the bullying and harassment training for Mr Remmert.

[33] In January 2016, Mr Remmert was moved from the day work back to undertake a shift roster.

[34] Over a period of time, particularly during 2015, there was what could be safely described as bullying conduct by a group of employees at BHO directed towards the Relief Maintenance Supervisor.

[35] The behaviour concerned included the Relief Maintenance Supervisor having:

[36] There is no evidence that Mr Remmert participated in these particular events and that has not been contended by BHO. Indeed, I note that during the investigations conducted by BHO into some of these events, unlike some others later involved in the Facebook incident, Mr Remmert’s name did not come up as being connected. 7 Mr Remmert was, however, aware that the Relief Maintenance Supervisor considered that he was being bullied at work and that this had to stop. This was confirmed during a pre-start meeting attended by Mr Remmert and others in December 2015.

[37] I note that the Relief Maintenance Supervisor considered that Mr Remmert had acted inappropriately toward him in a number of respects. He contends that Mr Remmert led the criticism of the manner in which the bullying allegations had been raised by him at the pre-start meeting. The evidence reveals that Mr Remmert did make a comment that if the Relief Maintenance Supervisor had issues he should “take this up with the Supervisor”. I note that this was not a constructive comment given the significant issues between the Relief Maintenance Supervisor and the Maintenance Supervisor which were evident at that time and the lack of measures undertaken by BHO to deal with the earlier complaints made by the Relief Maintenance Supervisor.

[38] It is apparent on the evidence that another BHO employee (DB) initially expressed the concerns about the manner in which the the Relief Maintenance Supervisor had raised his bullying allegations at the earlier meeting and that Mr Remmert did not lead the discussion. In addition, the Relief Maintenance Supervisor considered that Mr Remmert had not been available at one point to do a hand-over from an earlier shift and may have withheld some information. Further, he indicated that Mr Remmert may have been involved on one occasion when a tool went “missing” and was later “found” by the applicant. Mr Remmert satisfactorily explained the circumstances associated with the missing tool and I accept that explanation, which was not challenged by BHO at any time. However, I do note that during one of their earliest conversations around this time, the Relief Maintenance Supervisor when acting in that capacity considered that Mr Remmert was not being cooperative and he asked the applicant, “Why are you treating me like a c***”. Mr Remmert, rather disrespectfully, responded to the effect that he treated everyone that way.

[39] I would also observe that there were difficulties present for BHO in ascertaining which employees were responsible for the bullying conduct. However, it is clear to me that BHO’s response was inadequate and that it took insufficient steps to protect and support the Relief Maintenance Supervisor. This included conducting inadequate investigations into the conduct and not issuing specific directions or instructions that would reinforce the obligations of all staff, including the managers, to refrain from and prevent unreasonable conduct in the workshop environment. Further, noting the tensions surrounding the Relief Maintenance Supervisor that were evident, no real attempts were made to deal with the conflict beyond moving the Relief Maintenance Supervisor to another shift.

[40] On 1 April 2016, Mr Remmert commented on a Facebook post involving a photo depicting a BHO employee (TP) wearing a cap with an exceptionally large peak, with the comment “Guess who I am with (TP)”. This was posted by another BHO employee, (GL). Mr Remmert was among several other BHO employees that commented on and/or “liked” the post. Although there is some contest about whether Mr Remmert was aware of the earlier posts, for the purposes of this decision, it is best to set out the relevant comments as ultimately displayed on the Facebook page (with names removed):

[41] In total, over twelve BHO employees commented and/or liked the post and 5 other non-BHO employees also made contributions. I will deal with Mr Remmert’s conduct in detail later in this decision.

[42] An acquaintance of the Relief Maintenance Supervisor drew the Facebook posts to his attention and he considered that they were directed at him and part of the on-going bullying conduct. This caused further significant distress to the Relief Maintenance Supervisor.

[43] On 2 April 2016, the Relief Maintenance Supervisor notified Ms Treleven of the Facebook post and made a formal complaint. The following day he also sent an email attaching screenshots of the Facebook post.

[44] BHO commenced an investigation into the Facebook posts on 4 April 2016. A number of employees were identified as having commented on, or liked, the post and some were interviewed as a result. Those employees included BG, DB, GL, TP, and DB(2).

[45] In the case of Mr Remmert, he was notified on 8 April 2016 that he was being stood down with pay pending an investigation into a formal complaint that had been made about the Facebook posts. Three other employees were also stood down as part of the process conducted by BHO.

[46] A meeting to discuss the allegations against Mr Remmert was conducted on 14 April 2016. The meeting involved Mr Brett Anderson (the Mining Manager), Ms Treleven and Mr Quinn on behalf of BHO (the investigation panel). Mr Remmert attended with Mr Braes as his support person.

[47] Mr Remmert was informed at the outset that the meeting was to permit him to respond to a complaint that had been made regarding the Facebook posts.

[48] At the beginning of the meeting, Mr Remmert queried who would be conducting the investigation, to which Mr Anderson indicated that he, along with Ms Treleven and Mr Quinn would form the investigation panel. 8 Mr Remmert’s evidence was that he did not believe Ms Treleven or Mr Quinn would be able to conduct an impartial investigation. It is generally accepted by both parties that Mr Remmert raised this concern by saying, in effect, that he was entitled to an unbiased investigation and did not believe he would receive that from Ms Treleven or Mr Quinn.

[49] It is common ground that at this stage Ms Treleven left the room. Ms Treleven’s evidence was that she was upset by Mr Remmert’s tone and manner and left the meeting to compose herself. 9 There is some dispute over Mr Remmert’s demeanour in the meeting and the manner in which Ms Treleven left the room, including whether she was angry and slammed the meeting door shut. It is agreed that Ms Treleven left the room, returning briefly to retrieve her phone. The meeting resumed approximately 25 minutes later. It is apparent that during this break, Ms Treleven made a telephone call to obtain legal advice on whether she should continue with the meeting.

[50] I find that Mr Remmert raised his concerns in a very forceful and direct manner and that this had an emotional impact on Ms Treleven.

[51] After the meeting resumed, Mr Anderson indicated that the investigation panel considered that it could conduct an unbiased investigation and that the meeting would continue. Mr Remmert did not object to the meeting continuing at that stage and he informed the panel that this was done, in effect, on the basis that he wanted to obtain more information about the complaint.

[52] Mr Remmert’s position during the meeting, which has been maintained through these proceedings, was that the comments he posted were not made in relation to the Relief Maintenance Supervisor and that there were no other comments when he first posted his comment on the photo. While there is a dispute over who raised the issue initially, it is also accepted by both parties that during this meeting Mr Remmert queried the disciplinary action taken in relation to other employees involved in the incident and, in particular, why BG had not been stood down, given he had mentioned the Relief Maintenance Supervisor by name, in his Facebook comment.

[53] Ms Treleven’s evidence, which was not challenged and I accept, was that reference was made during the 14 April 2016 meeting to the CBH Social Media Policy (SMP). It is also probable that a copy of the SMP was provided at the time to Mr Remmert, or his representative, and that no comments were made at that time to object to its potential relevance.

[54] On 18 April 2016, BHO considered an email provided by Mr Remmert, which sought to cast doubt on the timing of comments posted on Facebook in relation to the photo. Ms Treleven considered that this was unconvincing and a deflection from the real issue.

[55] On 18 April 2016, Ms Treleven also produced a HR Summary 10 for senior management which outlined the findings of the investigation panel in relation to four of the employees involved in the Facebook incident, including Mr Remmert. The summary provided the context for the investigation, outlined the background circumstances of each of the four employees, and made the following recommendations:

[56] In addition to the confidential report, the HR Summary also referred to the “current matter pending involving Boom Gate tag time discrepancies” 12 in connection with Mr Remmert. Neither the confidential report nor the alleged boom gate issues were raised with Mr Remmert prior to his dismissal (or during the hearing of this matter) and no evidence about them was led by BHO.

[57] Mr Remmert later formalised his complaints about the involvement of Ms Treleven and Mr Quinn in the investigation given earlier alleged bias against him, and in the case of Mr Quinn, an alleged tendency not to be frank. These complaints were then also reviewed (and rejected) by BHO following an investigation that was completed subsequent to Mr Remmert’s dismissal.

[58] On 22 April 2016, Mr Remmert was advised of his dismissal which was confirmed in the following terms in a letter from the General Manager:

[59] Disciplinary action was taken against some of the other BHO employees who posted on Facebook. This included the dismissal of two employees who were more directly involved with the Facebook incident and potentially other matters associated with the Relief Maintenance Supervisor.

[60] I will return to the comparative nature of the disciplinary action as part of my later consideration in this matter.

[61] There are a number of policies that are potentially relevant in this matter. BHO relies upon its SMP and Code of Conduct (Code). Both of these have been issued in the name of CBH (rather than BHO) although the Code expressly states that it applies to BHO. Although Mr Remmert contended otherwise, I have dealt with this aspect on the basis that the parent company’s policies apply to BHO and its employees given that CBH and BHO identities are sometimes used interchangeably and the SMP has been introduced into the BHO workplace and its managers have received training in relation to the policy.

[62] It is also relevant to note that at the time of his dismissal, Mr Remmert’s employment was subject to the terms of the Broken Hill Operations Pty Ltd (Rasp Mine) Enterprise Agreement 2015. Clause 27.1(b) of that instrument provides as follows:

[63] The SMP relevantly provides as follows:

[64] The SMP was introduced in mid-2015 (after Mr Remmert’s final warning) and whilst managers have been trained, Mr Remmert and other employees have not be trained or briefed on the policy and it is apparent that at the time of the events leading to this application, the policy was not widely understood in the workplace. In so finding, I note that the introduction of the SMP was apparently the subject of email advice to employees and that Mr Remmert had access to the computer system through aspects of his work. He denied that he was aware of the SMP and he was not challenged on that aspect by BHO.

[65] The Code was clearly known to Mr Remmert and relevantly provides as follows:

[66] The relevant Disciplinary Policy also applies to CBH and its subsidiaries and provides a framework for the taking of disciplinary action including establishing three categories of behaviour (misconduct). Those categories include minor, more serious and serious breaches of the Code and treats harassing or discriminatory behaviour as category 3 behaviour. The policy also establishes various levels of discipline ranging from counselling through to termination. Further, there is a process set out for dealing with various categories of behaviour with category 3 matters subject to a somewhat expedited warning/termination process.

5. Was Mr Remmert’s dismissal unfair within the meaning of the FW Act?

[67] Section 385 of the FW Act provides as follows:

[68] Mr Remmert was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[69] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[70] The FW Act relevantly provides as follows:

[71] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[72] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Remmert’s capacity or conduct (including its effect on the safety and welfare of other employees).

[73] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.16

[74] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment.17 It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.18 Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.19

[75] In Woolworths Limited (t/as Safeway) v Cameron Brown20 a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,21 considered when a failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:

[76] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,23 Deegan C determined that:

[77] Although also dealing with considerations beyond the existence of a valid reason, in Bostik (Australia) Pty Ltd v Gorgevski (No 1) 25 the Court observed:

[78] The conduct of Mr Remmert took place outside of working hours. In Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining, 27 Saunders C conveniently summarised the approach of the Commission to out of hours conduct in the following terms:

[79] In this case, I am satisfied that there is a relevant and sufficient connection between the out of working hours conduct and the employment relationship for the conduct to be considered in the present context. That connection includes the fact that many of the applicant’s Facebook friends are also employees of BHO, but other non-employees from the Broken Hill Community were also included, and the posts were undertaken in the context of a photo of a BHO employee taken at the workplace and uploaded by another BHO employee. Further, in the context of a regional community where the conduct of employees associated with the mine is capable of impacting upon the reputation of BHO as an employer of choice and more broadly, conduct of the kind alleged here is capable of damaging the employer’s legitimate interests. 29

During the hearing of this matter, I raised with the parties whether the advent of the Anti-bullying provisions of the FW Act 30 meant that the Commission’s approach to the relevance of out of working hours conduct should be further considered for present purposes. In particular, the concept that conduct outside of work by an individual (including an employee) that impacted upon a worker whilst at work could be relevant to a finding of workplace bullying.31 This has been considered by a Full Bench of the Commission in Bowker and Others v DP World Melbourne Limited T/A DP World and Others.32 In this case, I have not found it necessary to further explore these particular issues and I have applied the approach outlined above.

[80] Against that background, I turn to consider the actual conduct of Mr Remmert.

[81] Mr Remmert stated that he received an alert that something had been posted on Facebook and simply looked at the photo and responded without giving it much thought. Mr Remmert’s conduct involved the making of two comments. The first comment was that he had “seen fuckwits with bigger peaks on their hats”. Mr Remmert contends that he had not seen (it was not posted) the earlier comment by another employee specifically referring to the Relief Maintenance Supervisor’s nickname. He also stated that without giving it any real thought what he was referring to was that at some stage a group of New Zealand shearers had worked on his farm and they dressed like “rappers” with big peaks on their hats. Mr Remmert apparently had some payment issues with them.

[82] This explanation is not convincing. Although the Relief Maintenance Supervisor wore a number of different hats at work, it was notorious in the workplace that he wore a hat with a very pronounced peak. This had already been the subject of the offensive depiction on the toilet door and the hat was known in the workplace in reference to the Relief Maintenance Supervisor. More importantly, in terms of Mr Remmert’s understanding, the photo was of a BHO employee at work and the accompanying comment referred to a BHO employee and the only reasonable inference was that the photo itself was intended to refer to a BHO employee. The reference to the New Zealand rappers was not something that the group on Facebook would have understood and the explanation appears to me to be at best, an afterthought, given the subsequent complaint.

[83] Accordingly, on the balance of probabilities, I find that the first post by Mr Remmert was either knowingly directed at the Relief Maintenance Supervisor, or at best, he was aware that others would take the comment to be such a reference. In making this finding I have taken into account the fact that some of the employees who also posted comments acknowledged that their posts were directed at the Relief Maintenance Supervisor and this tends to confirm the notoriety of the hat within the workplace. Further, a number of other employees who also posted, and denied any intended reference to the Relief Maintenance Supervisor, had that denial accepted by BHO. This included CH (who also commented after the nickname had been posted) and MC (who admitted to later realising the connection). However, this in my view is more a reflection of the tendency by BHO to treat Mr Remmert’s position more seriously than was the case with some others.

[84] It is also the case that it should have been readily apparent to Mr Remmert at the time of the investigation that his first comment, when considered in context, would reasonably be understood as applying, and causing offence and distress, to the Relief Maintenance Supervisor.

[85] The second comment was: “Next you’ll be running the denim pants with reflective tape”. Mr Remmert contends that this was a reference to the fact that persons acting in management roles, particularly at the Perilya mine, tended to wear jeans with reflective stripes rather than the more traditional work pants and that this post was directed at TP. Whilst the Relief Maintenance Supervisor may also have worn such jeans, Mr Remmert’s explanation on this count is more credible and I accept it.

[86] For reasons outlined earlier, Mr Remmert did not knowingly breach the SMP. The Code is relevant and its terms and the importance of compliance were known to Mr Remmert. However, the application of the Code to conduct involving something like a Facebook post outside of work is less clear in the absence of an understanding of the SMP. Importantly, Mr Remmert was under notice that he should not be making comments that could cause distress to another employee and his actions directly contributed to such a course of action. He was also not completely open with the investigation panel about his conduct during that process.

[87] On balance, I find that there was a valid reason for Mr Remmert’s dismissal.

Section 387(b) – whether Mr Remmert was notified of the reasons for dismissal.

[88] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 33

[89] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.

[90] In general terms, Mr Remmert was notified of the reasons for dismissal. This occurred through the letter standing him down and the investigation meeting. The principal reasons were also confirmed in the dismissal letter.

[91] However, there were other factors that influenced the recommendations of the investigation panel and by implication, the decision maker, and these matters were not notified to Mr Remmert at any relevant time. These matters have been outlined earlier in the decision.

Section 387(c) – whether Mr Remmert was given an opportunity to respond to any reason related to his capacity or conduct.

[92] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[93] This process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Mr Remmert was aware of the nature of the employer’s concern about his conduct and had a full opportunity to respond to these concerns. 34

[94] Given my findings about factors beyond the principal reasons not being notified to Mr Remmert, it is evident that he was not given an opportunity to respond to those matters. I will return the significance of this omission as part of my broader consideration of the fairness of the dismissal.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Remmert a support person.

[95] Mr Remmert was accompanied by a representative of the CFMEU during the discussions leading to the decision to terminate his employment.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Remmert– whether he has been warned about that unsatisfactory performance before the dismissal.

[96] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 35

[97] This consideration does not arise in this matter.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[98] BHO is a large business and has dedicated Human Resources expertise.

Section 387(h) - other matters considered to be relevant

[99] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 36

[100] Further, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed. 37

[101] There are competing considerations in this regard. These include the nature of the conduct, including its relative seriousness, and the context in which it took place. In addition, Mr Remmert was already on a final warning for related conduct.

[102] It is apparent that given the prior conduct of employees towards the Relief Maintenance Supervisor, some disciplinary action was appropriate in connection with most, if not all, of the BHO employees who posted the relevant Facebook comments. That disciplinary action needed to have regard to the actual conduct of the individuals concerned and other relevant factors pertaining to each employee.

[103] The dismissal had a significant impact upon Mr Remmert. Given the nature of the community in which he lives and BHO conducts its business, dismissal on the stated grounds has had, and will have, a significant negative impact on his capacity to secure future employment of the nature that he has held for almost five years at BHO, and earlier at the Perilya mine.

[104] In Sexton, John v Pacific National (ACT) Pty Ltd, 38 (Sexton) Lawler VP dealt with the issue of differential disciplinary outcomes in the following manner:

[105] Although applying an earlier statutory regime, 39 this approach remains apposite as part of the Commission’s overall assessment of whether a dismissal is unfair within the meaning of the FW Act.

[106] I will not detail all of the circumstances and disciplinary action taken in relation to the other BHO employees involved in the Facebook incident. However, some of the differential outcomes are not readily explained. For instance, no disciplinary action was taken against someone (BG) who directly identified the employee concerned in his post and confirmed that he was “taking the piss out” of the Relief Maintenance Supervisor. Further, no action was taken in relation to two employees (SH and JR) who had actually worn the hat around in the workplace and at least one employee (TP) who was directly involved, and did not take any responsibility for the comments and also had a standing written warning, was given a final warning but not dismissed. Of course, significant disciplinary action, including dismissal, was taken in relation to some of the other employees who were involved.

[107] As in all such matters, there are no identical cases here, and the fact the Mr Remmert was on a final warning for related conduct is a significant differentiation. Further, for reasons outlined in Sexton, considerable caution is required in this regard, including by reason that subjective considerations operate and at least two of the employees who were disciplined did not accept the fairness of that action.

[108] On balance, I do not consider that the differential disciplinary action taken in this matter is decisive. However, some of the other disciplinary decisions are more consistent with the view that BHO took into account other factors in reaching its decision on Mr Remmert. These other factors are likely to include some further allegations referenced in the HR Summary, but as outlined earlier, these were not relied upon in this case, and there is no evidence to support whatever those other concerns were.

Conclusions on the dismissal

[109] I have weighed all of the factors and circumstances of this application.

[110] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,40 the Full Bench observed:

[111] I have found, on balance, a valid reason for dismissal.

[112] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position. 41The Commission is also directed to ensure a “fair go all round”. This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:

[113] I have found significant procedural unfairness in the decision making process and given my findings about the basis for the valid reason for dismissal, that injustice is likely to have made a difference to the fairness of the dismissal. In that regard, I note that Ms Treleven described the confidential report as being very relevant 42 to the investigation and that its contents relied upon issues apparently being raised by another employee (or employees) who were not at the time formally interviewed about those matters. It is probable that this information, along with the earlier warning given to Mr Remmert, contributed to the view expressed in the HR Summary that Mr Remmert was part of a group of four whose “behaviour is having a negative affect across other crews”.43

[114] On balance, having regard to the provisions of s.387 of the FW Act as applied to my findings in this case, I am persuaded that Mr Remmert’s dismissal was harsh and unreasonable. The dismissal was therefore unfair within the meaning of the FW Act.

6. Remedy

[115] Mr Remmert seeks reinstatement to his former position with associated orders. In the alternative, he seeks compensation. This is strongly opposed by BHO.

[116] Division 4 of Part 3-2 of the Act provides as follows:

[117] The prerequisites of ss.390(1) and (2) have been met in this case.

[118] Mr Remmert primarily seeks reinstatement to his former position with the maintenance of continuity of service. Amongst other factors, he relies upon the contentions that he was a long-standing employee with relatively limited employment prospects in the local region and that reinstatement provides an appropriate remedial benefit in that context.

[119] Mr Remmert has not secured any significant or on-going work since his dismissal and has taken some steps to seek alternative employment.

[120] BHO is opposed to that outcome on a number of grounds including that, in effect, it has lost trust and confidence in Mr Remmert.

[121] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, it is proper to firstly consider whether reinstatement is appropriate.

[122] In Australia Meat Holdings Pty Ltd v McLauchlan44 a Full Bench of the AIRC, having considered the language of the Act, which is comparable to the present provision, said:

[123] More recently, a Full Bench of the Commission further considered the statutory scheme surrounding the remedy provisions including the role played by an alleged loss of trust and confidence felt by the employer. In Colson v Barwon Heath,45 the Full Bench found as follows:

[124] The Full Bench further observed that consideration of reinstatement involved a balancing of the relevant considerations based upon evidence,46 and that the approach outlined in Perkins remains sound and requires consideration of the “rationality” of the basis of the employer’s concerns.47

[125] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter48 the Full Bench conveniently summarised the approach required as follows:

[126] Given the potential remedial benefit of reinstatement in the circumstances of Mr Remmert, it is appropriate to assess the basis upon which that course of action is opposed within the framework provided by the decisions outlined above, along with other considerations bearing upon this discretionary judgment.

[127] BHO’s position is that reinstatement is not an appropriate remedy in this matter and contends the following in relation to that position:

[128] In addition, BHO contends that any reinstatement would, in effect, condone Mr Remmert’s conduct. In that regard, the present consideration must be undertaken in the context of the findings about the conduct as found by the Commission, rather than the subjective views of the employer at the time of the dismissal.

[129] I note that BHO also contended in final submissions that reinstatement would be inappropriate as Mr Remmert has engaged in other work since his termination. 53

[130] The suggestion by BHO that the boom gate tag discrepancies allegation would militate against an order for reinstatement is without merit. That allegation has never been put to Mr Remmert and there is no evidence as to what it means, let alone any evidence to support whatever the allegations are about. This is not a proper suggestion in the present context and I place no weight upon it.

[131] The same might be said for the suggestion by BHO that the work picked up by Mr Remmert following his dismissal should weigh against reinstatement. Given the intermittent nature of that work and its level, and the obligation upon an applicant in these circumstances to mitigate their losses, I do not consider that this work should bear upon whether reinstatement is appropriate in this case.

[132] During the course of his evidence, Mr Remmert indicated as follows in relation to the Relief Maintenance Supervisor:

[133] Although submissions were made on his behalf that Mr Remmert had shown contrition and the above comments are important, this was not evident in the investigation meeting and there was no genuine acceptance of any responsibility in his evidence before the Commission.

[134] Mr Remmert maintained that his initial comment was not directed at the Relief Maintenance Supervisor. Although this was said in the context of proceedings where the applicant was contesting, amongst other matters, whether there was a valid reason for his dismissal, this is not consistent with any sense of responsibility or contrition. This is also a post-dismissal factor that should be taken into account in terms of remedy.

[135] In this case, I have also found that the taking of significant disciplinary action in connection with the Facebook incident was warranted and, in effect, the maintenance of appropriate discipline within BHO in that regard was particularly important given the treatment of the Relief Maintenance Supervisor. The impact of a potential reinstatement, 55 together with any associated orders (which could include an order for only some or no lost pay),56 and actions that might reasonably be taken by the employer in consequence of a reinstatement, are also important. This includes the consequences of having Mr Remmert return to the workplace to work, at least at times, with the Relief Maintenance Supervisor.

[136] Those factors concerning harshness and the procedural unfairness that have led to the finding that the dismissal itself was unfair are however also important considerations reinforcing the remedial benefit of reinstatement in the circumstances of Mr Remmert. These include his service and the impact of the dismissal and his circumstances more generally.

[137] I have found that a valid reason for dismissal existed but, on balance, termination was unfair given all of the circumstances including the extent of procedural unfairness. In some such situations, an order for reinstatement might be appropriate as it is capable of directly addressing the impact of the dismissal.

[138] However, each case must be considered on its own facts and there is no automatic relationship between the findings on merit and remedy.57 In this case, I have found that the maintenance of appropriate discipline within BHO is very important. Further, the fact that Mr Remmert has not shown any real appreciation of his conduct or contrition, including during the hearing of this matter, leads to genuine concerns about whether reinstatement is appropriate. That is, there is some rational basis for the loss of trust and confidence given all of the evidence now before the Commission. This includes the circumstances leading to the final warning. All of this must be considered along with the broader circumstances to ensure a fair go all around.58

[139] Despite the remedial benefit of reinstatement to Mr Remmert, I am on balance satisfied that an order of that nature is inappropriate in this case.

[140] As set out above, under the FW Act, it is then necessary to consider whether compensation in lieu of reinstatement is appropriate.

[141] The Full Bench in McCulloch v Calvary Health Care Adelaide59 (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg60 remains appropriate in that regard.

[142] Section 392(2) of the FW Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act,61 it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of BHO

[143] Nothing has been put to the Commission on this issue.

The length of Mr Remmert’s service with BHO

[144] Mr Remmert has been employed with BHO for between four and five years. This consideration is supportive of an award of compensation being made. The period of service is also to be taken into account in determining the level compensation, including when making an assessment of the remuneration that would likely have been received if not for the termination.

The remuneration Mr Remmert would have received, or would have been likely to receive, if he had not been dismissed

[145] This involves, in part, a consideration of the likely duration of Mr Remmert’s employment in the absence of what I have found to be an unfair dismissal.

[146] The Full Bench in McCulloch also confirmed that when assessing likely lost remuneration, cogent evidence is required for any assumption that a short period of likely future employment would have occurred where the Commission had not found a valid reason for dismissal.62

[147] In this case, I have on balance found a valid reason for dismissal. The employment relationship was on foot for some years and Mr Remmert’s circumstances were such that he would have intended to stay at BHO for at least the medium term. However, there were some significant issues in the employment relationship and Mr Remmert was on a final warning. If the dismissal had not taken place when it did, some additional significant disciplinary action would have still been warranted in the context of the Facebook posts and the impact of this upon the longevity of the employment must also be taken into account.

[148] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of 8 months which I have taken to be 35 weeks for this purpose. This arises from the length and nature of Mr Remmert’s employment, the nature of the conduct, the nature and timing of the earlier final warning, and the circumstances of the applicant and the workplace more generally. That assessment is also subject to the later consideration of contingencies.

[149] Mr Remmert’s wage at the time of his dismissal was approximately $107,664 per annum. This equates to $2,070.46 per week.

[150] Mr Remmert’s projected remuneration loss for present purposes is therefore $72,466 ($2070.46 x 35).

The efforts of Mr Remmert to mitigate the loss suffered by him because of the dismissal

[151] Mr Remmert has obtained some work since his dismissal. However, I have some reservations about the extent that Mr Remmert has made reasonable efforts to fully mitigate his losses. In cross-examination, Ms Mansini for BHO raised four separate advertisements for a maintenance fitter that Mr Remmert acknowledged he hadn’t either seen or applied for. 63 Although the actual advertisements are not in evidence, much of the detail of those advertisements was put to Mr Remmert and the fact that he was not aware of such does lead to the above reservations.

[152] A discount of 10% to the projected remuneration loss is warranted based upon this consideration.

The amount of any remuneration earned by Mr Remmert from employment or other work during the period between the dismissal and the making of the order for compensation

The amount of any income reasonably likely to be so earned by Mr Remmert during the period between the making of the order for compensation and the actual compensation

[153] Mr Remmert has earned something in the order of $6,000 64 from the alternative work discussed above. He was also paid 3 weeks pay in lieu of notice.65 These amounts are to be taken into account however the actual amount of earnings and notice is not confirmed in the evidence before the Commission. At the time of the hearing Mr Remmert was not employed in any on-going capacity. His circumstances may have changed in that regard and the application of s.392(2)(e) and (f) of the FW Act is best undertaken based upon actual amounts.

[154] Accordingly, the compensation figures outlined below refer to approximate figures. I will also establish a process to confirm the actual figures prior to the finalisation of the orders in this matter.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[155] I have projected the anticipated loss of remuneration over a relatively short period (s.392(2)(c)) and will take into account the actual remuneration from the new employment (s.392(2)(e)). In that light, and given the circumstances of this case, it is appropriate to make a further allowance for contingencies associated with the future projected remuneration loss and to do so before making other deductions.66 Having regard to the normal factors touching upon such an assessment, and in this case, the prospect that another relevant incident could have taken place in the workplace, a discount of 50% is appropriate to the losses projected after the time of the hearing of this matter (the last 11 weeks of that period).67

[156] There is demonstrated misconduct that should be taken into account as provided by s.392(3) of the FW Act. That is, there is misconduct that contributed to the decision and in the circumstances it is appropriate to make a significant deduction on the amount of compensation otherwise due. In the circumstances, a further deduction of 30% of the amount otherwise contemplated is appropriate.

[157] In accordance with s.392(4) of the FW Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[158] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration ($53,832) or $68,350.68 The amount of compensation that arises from my findings is less than that limit.

[159] Taxation is to be paid by Mr Remmert (deducted by BHO) on the amount determined.

[160] The compensation confirmed below is also appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.69

Conclusions on remedy

[161] After taking into account each of the relevant considerations, I find that compensation is appropriate in this matter. Further, I find that the compensation should be assessed having regard to the factors outlined above.

[162] Accordingly, and subject to the confirmation of the deduction for notice and earnings, the compensation that arises is calculated as follows:

Projected earnings lost

$72,466

Deduction for mitigation (10% of projected loss)

($7,247)

Deduction for contingencies (50% of the losses in the period beyond the hearing)

($11,388)

   

Sub-total

$53,831

   

Deduction for misconduct (30% of sub-total)

($16,149)

Deduction for notice and earnings (estimate only)

($9,211)

   

Total

$28,471

7. Conclusions and the process to make the appropriate orders

[163] I have found that the Mr Remmert’s dismissal was harsh and unreasonable, and therefore unfair within the meaning of the Act.

[164] I have found that reinstatement is inappropriate but that compensation in lieu of reinstatement as determined above is appropriate in all of the circumstances.

[165] Mr Remmert is, within 7 days of this decision, to supply to the Commission and BHO, a sworn statement and associated documentation confirming the extent of notice payments and any earnings relevant to the considerations established by s.392(2)(e) and (f) of the FW Act (notice payments and updated earnings from other employment). Should BHO seek to make further submissions dealing with this updated information, the Commission and Mr Remmert are to be advised upon receipt of that material.

[166] The payment of compensation as ultimately determined by the Commission is to be made to Mr Remmert by BHO within 14 days of the making of the final orders in this matter.

[167] Orders to give effect to this decision will be confirmed and issued following receipt to the additional evidence set out above.


COMMISSIONER

Appearances:

A Kentish of the Construction, Forestry, Mining and Energy Union for Mr Clint Remmert.

A Mansini of the Australian Mines and Metals Association for Broken Hill Operations Pty Ltd T/A Rasp Mine.

Hearing details:

2016

Broken Hill

August 23.

Sydney

September 14.

Final written submissions:

19 and 20 September 2016.

 1   Exhibit A8 – which included a HR Summary concerning the investigation into the Facebook incident and the recommendation to dismiss Mr Remmert.

2 Jones v Dunkel (1959) 101 CLR 298. See also The Herran Building Group Pty Ltd v Edward Anneveldt [2013] FWCFB 4744.

3 See Cross on Evidence, Fifth Edition at [1215].

 4   Exhibit R1.

 5   Exhibit R2.

 6   Statement of Mr Cox at par 11 – Exhibit R3 and later oral evidence given in this matter.

 7   Exhibit A8.

 8   Statement of Mr Remmert at par 20 – Exhibit A5.

 9   Statement of Ms Treleven at par 25 – Exhibit R6.

 10   HR Summary dated 18 April 2016 – Exhibit A8.

 11   Ibid.

 12   Ibid at page 3.

 13   See also Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 at 49 to 61 in relation to potential status of workplace policies.

 14   Attachment LT4 to the Statement of Ms Treleven – Exhibit R6.

 15   Attachment LT5 to the Statement of Ms Treleven – Exhibit R6.

16 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].

17 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.

18 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.

19 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

20 PR963023 (26 September 2005) (footnotes omitted).

21 PR928970 (19 March 2003) at [14].

22 PR963023 (26 September 2005) at [34]. See also B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [48], [65] and [67].

23 [2009] AIRC 893 (16 October 2009).

24 Ibid at [54].

 25   (1992) 41 IR 452 per Sheppard and Heerey JJ.

 26   Ibid at p 460.

 27   [2016] FWC 6018, citing Applicant v Respondent (1999) 89 IR 407 at 416 and Rose v Telstra Corporation Ltd AIRC Print Q9292 (4 December 1998) per Ross VP.

 28   Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining [2016] FWC 6018.

 29   See also Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097 at [25] and Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157.

 30   Part 6-4B of the FW Act.

 31   S.789FD(1) of the FW Act.

 32   [2014] FWCFB 9227.

 33   See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

 34   RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

 35   See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

 36   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 37   See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 38   PR931440 (14 May 2003).

 39   s.170CE of the Workplace Relations Act 1996 (Cth).

40 [2011] FWAFB 1166.

 41   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]; Miller v University of New South Wales (2003) 132 FCR 147 at [13].

 42   Transcript PN1388-1400 and reflected in the HR Summary itself – Exhibit A8.

 43   HR Summary dated 18 April 2016 – Exhibit A8.

44 AIRC Print Q1625, per Ross VP, Polites SDP and Hoffman C, 5 June 1998.

45 [2014] FWCFB 1949.

46 Ibid at [49] to [51].

47 Ibid at [60].

48 [2014] FWCFB 7198. See also JBS Australia Pty Ltd v Mr Scott Challinger [2015] FWCFB 520.

 49   Respondent Final Submissions at par 1(f).

 50   Transcript PN1918.

 51   Transcript PN1919.

 52   Ibid.

 53   Transcript PN1906.

 54   Transcript PN610.

 55   S.391 of the FW Act requires that any reinstatement be to the applicant’s former position or to another position on terms and conditions that are no less favourable.

 56   S.391(3) of the FW Act.

57 See JBS Australia Pty Ltd v Mr Scott Challinger [2015] FWCFB 520 at [22].

58 s.381 of the FW Act.

59 [2015] FWCFB 873.

60 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.

61 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

62 McCulloch at [27].

 63   Transcript PN587-597.

 64   Transcript PN313-315.

 65   Based upon the Enterprise Agreement and consistent with the National Employment Standards.

66 See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109 (17 April 2000) per Ross VP, Williams SDP and Gay C and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779 (31 October 2001) per Williams SDP, Acton SDP and Gay C.

67 Applying the approach taken in McCulloch at [21].

68 s.392(5) of the FW Act.

69 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].

Printed by authority of the Commonwealth Government Printer

<Price code G, PR584655>