| [2017] FWC 4916 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shannon Green
v
Lincon Logistics Pty Ltd T/A Lincon Hire & Sales
(U2017/3305)
COMMISSIONER PLATT |
ADELAIDE, 20 SEPTEMBER 2017 |
Application for an unfair dismissal remedy – drug and alcohol policy – direction to undertake blood test not reasonable – no valid reason – dismissal harsh, unjust or unreasonable – compensation awarded.
Summary
[1] On 27 March 2017, Mr Shannon Green lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Lincon Logistics Pty Ltd T/A Lincon Hire & Sales (Lincon) on 7 March 2017.
[2] The matter was arbitrated on 24 July 2017. Mr Brian Austin of counsel represented Mr Green and Ms Kirsty Stewart of counsel represented Lincon. Permission was granted pursuant to s.596(2) of the Act.
[3] There was no dispute that Mr Green was protected from unfair dismissal at the relevant time pursuant to s.382 of the Act.
[4] Mr Green was employed as an Elevated Work Platform Operator at Lincon from 12 September 2011.
[5] On 7 March 2017, Lincon dismissed Mr Green as a result of his refusal to undergo a drug test.
[6] Mr Green contends that Lincon did not have a valid reason to dismiss him and in the alternative that the dismissal was harsh, unjust or unreasonable.
The Evidence
[7] Mr Green provided a witness statement1 and supplementary statement 2 and gave evidence, Mr Green also called Mr Matthew Moke who submitted a statement3 and gave evidence in support of Mr Green.
[8] Lincon provided witness statements and led evidence from the following employees:
● Mr Scott Blackwell – WA Regional Sales Manager
● Mr Craig Lindores – General Manager
● Ms Bridget Smith – Workplace Health and Safety Coordinator
[9] The position of Mr Green is summarised as follows:
● On 6 March 2017, whilst in Adelaide, Lincon requested him to submit to a random drug test by way of urine sample.
● Mr Green complied with that request, was advised he had passed the test, and was directed to return to Clare, South Australia so that he could resume work the following day.
● On 7 March 2017, Lincon directed him to submit to a further drug test at the Clare Medical Centre, due to further information it had received and the alleged dilution of the urine sample provided on 6 March 2017.
● Mr Green consented to provide a further urine sample but refused to submit to a blood test.
● Mr Green was then dismissed.
● Mr Green contends that he was denied an opportunity to explain himself.
● Mr Green submits that:
[10] The position of Lincon is summarised as follows:
● Mr Green was employed as an Elevated Work Platform Operator which required the operation of a truck mounted elevated work platform.
● Mr Green was working on a SA Power Networks (SAPN) Project in the Clare Valley Region.
● Lincon has a Drugs and Alcohol Policy which allows random drug tests and provides that a refusal to participate will be regarded as a positive test which will result in disciplinary action up to and including dismissal.
● On 1 March 2017, Lincon received anonymous information that Mr Green was using drugs. On 4 March 2017, further anonymous information was received which alleged Lincon employees were using drugs, Mr Green and Mr Moke were specifically referenced.
● On 6 March 2017, all Lincon employees were required to undertake a drug test in Adelaide.
● Mr Green complied with the request and provided a negative sample.
● After the test, Lincon received two further anonymous messages alleging that persons had provided substitute samples during the test.
● On 7 March 2017, Lincon advised Mr Green that he was required to submit to a further drug test.
● Mr Green did not attend the appointment.
● Mr Green was contacted by telephone and asked why he did not attend the appointment and said he did not see why he should complete another test.
● A Lincon representative subsequently met with Mr Green in person and requested him to submit to a test at 3.15pm on that day and advised that if he did not do so, he would be dismissed.
● Mr Green did not attend the appointment.
● At 7.00pm on 7 March 2017, Mr Green was dismissed.
● Lincon contends that it had a valid reason to dismiss Mr Green and that the dismissal was not harsh, unjust or unreasonable.
Documentary Evidence
[11] Mr Green’s contract of employment dated 28 October 2015 and signed by him on 14 March 2016 required him to observe all company policies and procedures in addition to any obligations detailed in the contract of employment. 4 In addition, he was required to follow all reasonable and lawful directions.5
[12] Lincon has a Drugs and Alcohol Policy dated 13 November 2016. 6 Extracts of that policy most relevant to the issues in this matter are detailed below:
“Drug and Alcohol testing shall take place on a random basis and testing will take place onsite or through our engaged national medical provider. Should a worker be required to undertake a drug and alcohol test they will be required to undertake the provided test. At times, they may also be required to undertake laboratory testing.
…
Any refusal to participate in a drug and alcohol test when requested will be regarded as a ‘positive’ result and the employee…..will be subject to disciplinary action which may lead to instant dismissal.
…
The company also reserves the right to conduct drug and alcohol testing of those involved in a workplace incident or accident.”
The Witness Evidence
Shannon Green
[13] Mr Green provided a witness statement.7 His relevant evidence is summarised below.
[14] Mr Green was employed by Lincon as a full time permanent Elevated Work Platform Operator and commenced employment in 12 September 2011. Mr Green had a written contract of employment that required compliance with policies and expressly referred to random alcohol and drug testing. 8 Lincon had a documented Drugs and Alcohol Policy9 which Mr Green was aware of. Mr Green was aware that a refusal to undertake a drug test may lead to dismissal, but contends he did not refuse to take a drug test.10
[15] At the time of the dismissal, Mr Green was engaged on a SAPN project near Clare, South Australia. Mr Green accepts the work was dangerous. 11
[16] On 1 March 2017, there was a near miss incident involving a crane and work at the site ceased whilst the incident was investigated.
[17] On 5 March 2017, he was advised by Mr Scott Blackwell (SA State Operations Manager) to attend the Lincon premises in Adelaide for a meeting on 6 March 2017.
[18] On 6 March 2017, Mr Green attended the meeting with other Lincon employees. All employees were then advised that a compulsory drug and alcohol test would be conducted.
[19] Prior to the conduct of the urine test, Mr Green asked Ms Bridget Smith (Workplace Health and Safety Coordinator) why Lincon did not use swab tests, and was advised that swab tests were not as accurate as urine tests. The urine test was conducted by Ms Smith and Mr Blackwell. Mr Green provided a urine sample.
[20] Mr Green was advised he had passed the test and was directed to return to Clare so as to resume work on the following day.
[21] Mr Green attended the Clare Caravan Park.
[22] Mr Green consumed some beers and at about 7.46pm that evening had a heated telephone conversation with Mr Blackwell which included discussion concerning his desire for his father to work for Lincon. This conversation was covertly recorded and a transcript of the conversation was submitted. 12
[23] Mr Green attended work on 7 March 2017 and was undertaking the SAPN site induction.
[24] About halfway through the induction, Mr Green received a call from Mr Blackwell asking him to attend the Clare Medical Centre for further testing. 13 Mr Blackwell advised Mr Green that Lincon had received information that the previous tests had been ‘fudged’. Mr Green then discussed the request with Mr Moke and another employee. The other employees wanted to know how the sample would be taken. Mr Green rang Mr Blackwell back and asked what type of test would be used. Mr Green contends he was told it was going to be a blood test.14
[25] Mr Green was unhappy with Mr Blackwell’s response and rang Mr Lindores to let him know he was heading back to Adelaide, ‘it was over’. 15 Mr Green contended did not mean this comment as a resignation, but was disheartened by the allegations that had been made against him and did not want to be on site.16 The conversation with Mr Lindores was covertly recorded and a transcript of the conversation was submitted.17
[26] Mr Green did not attend the appointment that was made for him that morning at the Clare Medical Centre.
[27] Mr Blackwell and Ms Smith met with Mr Green at the Clare Caravan Park. Mr Blackwell played two voicemail messages left with Lincon by the anonymous caller. There was a discussion about the urine test process of the previous test. Mr Green contends that Mr Blackwell said “Well, you have to do a blood test”. Ms Smith also said it has to be a blood test. Mr Green said he could not remember all of the conversation but there was a discussion about how the employees pissed in the cup in the presence of an observer. Mr Blackwell said Mr Lindores wanted a re-test, he was asked if it is going to be urine, and he replied “No, it has to be blood.”
[28] Mr Blackwell told Mr Green that an appointment had been made at 3.30pm at the Clare Medical Centre.
[29] Mr Blackwell advised him to think about it and said he really needed to do this test.
[30] Mr Green said he did not attend the afternoon appointment at the Clare Medical Centre because he “wanted a blood sample from us”. 18
[31] Mr Green’s partner arrived at 2.00pm and he left the Clare Caravan Park without attending the Clare Medical Centre.
[32] Later that day, on 7 March 2017, Mr Blackwell advised Mr Green that he had been dismissed. This was confirmed in writing on 8 March 2017.
[33] At about 6.40pm on 8 March 2017, Mr Green had a conversation with Mr Blackwell. This conversation was covertly recorded and a transcript of the conversation was submitted. 19
[34] At about 12.23pm on 10 March 2017, Mr Green had a conversation with Ms Smith. This conversation was covertly recorded and a transcript of the conversation was submitted. 20
[35] The parties agreed the following salary information. Mr Green’s base hourly rate was $33.00 per hour and whilst working from the Adelaide depot (based on 40 hours per week and $125 travelling allowance) he would earn $1,445.00 per week. Whilst he was based at the SAPN site in Clare, South Australia he received additional allowances. Mr Green’s weekly salary inclusive of average FY2016/17 overtime but excluding site allowances was $2,359.17 per week.
[36] Mr Green obtained casual employment about two to three weeks after the dismissal in a similar role at the rate of $32.00 per hour. 21 His total earnings for the period from his dismissal to 16 July 2017 were $31,895.60 which was an average of $2,126.37 per week. Mr Green’s present average weekly wage including overtime but excluding allowances is $1,737.12.
Matthew Moke
[37] Mr Moke provided a witness statement. 22 His relevant evidence is summarised below.
[38] Mr Moke was employed by Lincon on the Clare Project as an Elevated Work Platform Driver.
[39] On 6 March 2017, he attended a tool box meeting at Lincon’s Adelaide premises with Mr Green as a result of the near miss incident on site.
[40] During the meeting Mr Blackwell advised the attendees that a drug test would be administered.
[41] Ms Smith took the samples and Mr Moke was the first to undertake the test.
[42] Mr Moke was advised he had passed the test.
[43] Mr Moke then returned to Clare, South Australia.
[44] On 7 March 2017, Mr Green told Mr Moke that Mr Blackwell had contacted him and advised the tests on 6 March 2017 had been ‘smudged’ and the urine samples were diluted and that they were required to undertake a further test.
[45] During his evidence, Mr Green attributed some statements to Mr Blackwell but in cross-examination Mr Moke conceded that he could not clearly hear what was said during the telephone conversation and relied on Mr Green’s account of what was said. 23
[46] Mr Green, Mr Moke and another discussed Mr Blackwell’s request and collectively decided that requiring a blood test was an invasion of their privacy and they returned to their accommodation in Clare, South Australia.
[47] At about lunchtime on that day, Mr Blackwell and Ms Smith met with the group and Mr Blackwell advised that a blood test was required and played the telephone message which Lincon had received that had raised the suspicion that the 6 March 2017 samples may not have been reliable.
[48] Mr Blackwell or Ms Smith said they could book an appointment that afternoon at 3.30pm for the blood test.
[49] Mr Blackwell then spoke to Mr Moke individually.
[50] Mr Moke does not recall being advised that a failure to attend the appointment would result in his dismissal.
[51] Mr Green and Mr Moke drove to his house and did not attend the appointment.
[52] On 8 March 2017, Mr Moke was advised that his employment had been terminated.
Craig Lindores
[53] Mr Lindores provided a witness statement.24 His relevant evidence is summarised below.
[54] Mr Lindores is Lincon’s General Manager.
[55] Mr Lindores contends that safety is paramount at Lincon.
[56] On 1 March 2017, he received information which raised concerns about the use of drugs by Lincon employees. Mr Green was a person identified in the information he received.
[57] On 2 March 2017, Mr Lindores instructed Mr Blackwell to conduct a random test of South Australian employees.
[58] On 5 March 2017, he received further information about alleged drug use by Lincon employees on the SAPN work site.
[59] At about 1.00pm on 6 March 2017, Ms Smith advised him that the drug tests had been conducted and the results were negative but some of the tests were diluted in colour.
[60] On 7 March 2017, he received information about an anonymous complaint in relation to the tests conducted on 6 March 2017 being ‘faked’ and the sample integrity.
[61] Mr Lindores was concerned that the drug tests performed on 6 March 2017 were not reliable, contacted Mr Blackwell and requested that an additional test be conducted using a third party.
[62] At about 10.00am on 7 March 2017, he received a telephone call from Mr Green. This conversation was covertly recorded by Mr Green. Mr Lindores said:
“At approximately 10:00am on 7 March 2017, I received a phone call from Shannon Green and we had a conversation to the following effect
I said: It's part of our company policy, it's part of the contract you sign.
Shannon said: Yup, and I thought I signed up for random drug tests, which I'm fine with, I'll piss in the cup again, I don't care, but this is just, mate, I, I just can't handle this shit, mate, this has just been an ongoing issue
I said: Mate, if your test's clear then there's nothing to worry about.” 25
[63] At about 11.30am on 7 March 2017, Mr Blackwell advised him that Mr Green did not attend a medical appointment.
[64] At about 1.30pm on 7 March 2017, Mr Lindores was contacted by Mr Blackwell who said:
“On Tuesday 7 March, at approximately 1:30pm, Scott telephoned me again and we had a conversation to the following effect:
Scott: Daniel has left and they are all headed back to Adelaide.
Craig: We have a zero tolerance and they have been provided with two opportunities to conduct the test which they have failed. I will back you either way.” 26
Scott Blackwell
[65] Mr Blackwell provided a witness statement.27 His relevant evidence is summarised below.
[66] Mr Blackwell is Lincon’s SA Operations Manager and WA Regional Sales Manager based in Adelaide.
[67] On or about 28 February 2017, there was an incident on the SAPN Clare, South Australia site with another subcontractor that involved a mechanical failure on a crane which led to a major safety breach and as a result the site was closed whilst the incident was investigated by SAPN and Electronet (sic).
[68] On 2 March 2017, SAPN advised Lincon that no further work on that site would be required until 6 March 2017. Lincon had three employees on the Clare, South Australia site - Mr Green, Mr Moke and Mr Ford, who were stood down for that period.
[69] On 2 March 2017, Mr Blackwell received information from Mr Lindores that a Lincon employee had informed him that drugs were or had been taken at the SAPN site in Clare, South Australia.
[70] On 3 March 2017, a decision was made to conduct a random drug and alcohol test of all South Australian Lincon employees after a tool box meeting which would be held on 6 March 2017.
[71] On 5 March 2017, Lincon received an anonymous telephone message which alleged that persons employed on the SAPN project were taking drugs.
[72] On 6 March 2017, a meeting was held at Lincon’s Adelaide premises. At the conclusion of the meeting, the employees (including Mr Green) were advised of the random drug and alcohol test which was conducted by Mr Blackwell and Ms Smith.
[73] None of the urine samples tested positive for drugs and the employees returned to Clare, South Australia.
[74] At about 7.40pm that day, Mr Green telephoned Mr Blackwell questioning why they were not warned of the random test and discussed a range of other issues including Mr Green’s dislocation from his family. 28 Mr Green advised Mr Blackwell he felt that he had let him down as his Manager, and was disappointed he had employed someone else instead of his father.
[75] On 7 March 2017, Mr Lindores advised Mr Blackwell that a further anonymous message had been received which indicated the caller was aware of the test which had been conducted and suggested that the samples had been tampered with. Mr Lindores required the employees be booked into the Medical Centre in Clare, South Australia for ‘full laboratory tests.’
[76] Mr Blackwell and Ms Smith then drove from Adelaide to Clare, South Australia.
[77] On the way, Mr Blackwell telephoned Mr Green and advised him of the information he had received and that Mr Lindores had instructed that a further test of the three Clare, South Australia based employees would be conducted at the Clare Medical Centre at 11.15am.
[78] In his examination in chief Mr Blackwell said:
“Ms Stewart: Mr Blackwell, the events that led to Shannon Green being dismissed all took place on Tuesday 7 March of this year. I want to ask you, do you recall Shannon ever saying to you at any point during that day that he was willing to take a lab test that you were asking him to?
Mr Blackwell: On the day that, obviously, everything happened, the request was for a full laboratory third party test and, in my opinion, I would assume that that would have been a blood test involved in that. Obviously, whether it was or not, I can't answer that now. So, obviously, the three guys were quite adamant that they didn't want to go to do a test on the basis that I thought it would be a blood test on the basis of being a full laboratory, so my response in saying that was, "I believe you need to be doing a blood test", which the guys were upset about doing, so there was a question, if I remember, Shannon saying that he - he wasn't going to do the blood test, so, yes.” 29
[79] In cross-examination Mr Blackwell said:
“Mr Austin It was your understanding that it would be a full laboratory third party test?
Mr Blackwell: Correct.
Mr Austin: And that would encompass a blood test?
Mr Blackwell: Yes.
Mr Austin: And that's what you conveyed to Mr Green?
Mr Blackwell: Yes.
Mr Austin: It is the case, isn't it, that Mr Green said that he would undertake a urine test but wouldn't undertake a blood test?
Mr Blackwell: On the basis of the blood test being the test, yes.” 30
[80] When Mr Blackwell attended the Clare Medical Centre he was advised no one had attended for the test.
[81] He tried to ring each of the three employees but Mr Green’s and Mr Moke’s call was unanswered.
[82] Mr Ford answered his telephone and when asked why they had not attended the Clare Medical Centre he stated words to the effect ‘We are sticking together on this as we do not see why we should complete another test so we are not showing up’.
[83] When Mr Blackwell arrived at the Clare Caravan Park, Mr Green said to him “I don’t want to look at you otherwise I’m going to smack you in the face.” Mr Blackwell asked him to calm down and discussed with him why Mr Lindores had requested the second test. The anonymous voice recordings received by Lincon were played.
[84] Mr Green said he understood why Mr Lindores requested the test but said words to the effect ‘We are sticking together on this and not giving a blood test’.
[85] Mr Blackwell reminded Mr Green that a failure to complete a drug and alcohol test could lead to termination of employment and said he did not understand why he did not do the second test.
[86] Mr Blackwell advised Mr Green that he was booked in for a test at 3.15pm and that he was required to attend.
[87] Mr Blackwell and Ms Smith then left to attend the SAPN site in relation to other matters.
[88] At about 1.29pm on 7 March 2017, Mr Green sent a text message which read “Sory bro my missus is in tarlee bout half hour away im just gona go sory mate i really want to sort this out but i just want to get out of here just feeling to dis heartened to stick around.” (sic)
[89] Mr Green did not attend the Clare Medical Centre.
[90] Upon return to Adelaide, Mr Blackwell rang and spoke with Mr Green. Mr Blackwell said ‘I am sorry to do this but as you have refused to go to the Medical Centre to complete a drug and alcohol test we have to terminate your employment immediately’.
[91] On 8 March 2017, a written termination letter was provided.
Findings of Fact
[92] Much of the evidence is not in dispute. The key matter in dispute involves the direction given to Mr Green and the basis upon which he refused the further test.
[93] Mr Green was an Elevated Work Platform Operator and worked in a ‘live’ environment on the SAPN Power Line project. I find that the work environment was high risk.
[94] Mr Green’s contract of employment required him to comply with the Lincon Drugs and Alcohol Policy (the Policy) and reasonable lawful directions.
[95] The term ‘random testing’ used in the Policy appears to have been generally understood as testing without prior warning. This is an unusual interpretation of the word ‘random’.
[96] The Policy does not specify what method of drug and alcohol testing could be used. The Policy also referred to ‘laboratory testing’, it is not clear to me if this is a reference to the sample collection process or the sample analysis process. There is no express provision concerning the provision of a blood sample.
[97] Lincon received anonymous information on drug use by its employees which I accept formed an appropriate basis to require its employees, including Mr Green, to be subjected to a drug test on 6 March 2017 (the first test) at its Adelaide premises.
[98] After that test, Lincon received further information which appeared to have come from a person with some knowledge of the conduct of the first test. I accept that this information provided a reasonable basis to require employees, including Mr Green, to participate in a second drug test on 7 March 2017.
[99] I find that Mr Blackwell and Mr Lindores in their conversations with Mr Green represented to him that the test method that would be used for the test on 7 March 2017 would be a blood test.
[100] I find that Mr Green was entitled to reply on that representation and genuinely believed that he would be required to provide a blood sample for laboratory analysis.
[101] I find that Mr Green refused to participate in a blood test but offered to undertake a urine test.
[102] Lincon had previously used urine tests to administer the Policy including during the first test, and appears to have departed from that process. The evidence before me is that the urine collection process used on the first test was closely monitored. That is not to say that it was impossible for sample substitution to occur. I note that whilst the person who administered the tests believed that sample colour was such that she thought it was a diluted sample, there was no suggestion that the sample was beyond the applicable temperature range or creatinine level, which could suggest it was not genuine.
[103] No satisfactory explanation has been provided as to why a blood test, as opposed to a less invasive test, was required.
[104] I need to be satisfied that the request for a blood test was a reasonable one. In the absence of an express policy provision permitting blood testing, and the availability of other testing options which were not of such an invasive nature, I find that the request to undertake a blood test for the purpose of testing for the presence of drugs was not a reasonable request.
[105] It does not appear that Mr Green was paid notice, this is consistent with the termination letter.
Was the dismissal harsh, unjust or unreasonable?
[106] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
“387 Criteria for considering harshness etc.
(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.”
Valid reason - s.387(a)
[107] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd31 which requires the reason for termination to be “sound, defensible or well founded.”
[108] I have found the request made of Mr Green to subject himself to a blood test was not expressly permitted by the Policy and was not a reasonable direction. I therefore find that there was no valid reason for the dismissal.
Notification of valid reason - s.387(b)
[109] Mr Green was advised of the reason for his dismissal.
Opportunity to respond - s.387(c)
[110] Although the parties were well aware of their respective positions as a result of conversations prior to the dismissal, Mr Green was not provided with the opportunity to respond.
Any unreasonable refusal by the employer to allow Mr Green to have a support person present to assist at any discussions relating to dismissal - s.387(d)
[111] Mr Green did not seek a support person, but the nature of the telephone dismissal meeting prevented him from seeking the same.
Warnings relative to unsatisfactory performance - s.387(e)
[112] It is not alleged that Mr Green’s performance was unsatisfactory.
Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)
[113] Lincon has an internal human resources function.
Other matters considered relevant - s.387(h)
[114] The covert recording of Mr Green’s conversations with Mr Blackwell, Mr Lindores and Ms Smith was inappropriate and falls within the meaning of misconduct. It is a factor which weighs against a finding that the dismissal was harsh, unjust or unreasonable.
Conclusion
[115] The Explanatory Memorandum to the Act32 explains the approach of the Commission in considering the elements of section 387:
“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”
[116] In Byrne and Frew v Australian Airlines Pty Ltd,33 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[117] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Green’s employment was harsh, unjust or unreasonable.
Remedy
[118] The relevant provisions of Division 4 of Part 3-2 of the Act state:
“Division 4—Remedies for unfair dismissal
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) the FWC may make the order only if the person has made an application under section 394.
(3) the FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
…
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
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[119] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.
[120] Mr Green did not seek reinstatement and I am satisfied that it is not appropriate in this case.
[121] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.
[122] I now turn to whether compensation in lieu of reinstatement is appropriate.
[123] A Full Bench in McCulloch v Calvary Health Care Adelaide34 confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licensed Festival Supermarket35 remains appropriate.
[124] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the Act,36 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 the employer - s.392(a)
[125] There was no submission that any order of compensation would impact the viability of Lincon.
The length of Mr Green’s service with the employer - s.392(b)
[126] Mr Green was employed for a period of five and a half years.
The remuneration Mr Green would have received, or would have been likely to receive, if he had not been dismissed - s.392(c)
[127] It appears to me that Mr Green was disaffected with his employment at Lincon. It appears from the transcript of the recording of the telephone conversation with Mr Blackwell at 7.46pm on 6 March 2017 37 that Mr Green was unhappy that he was working away from his partner and family, had sought that his father be employed and was disaffected by Lincon’s failure to engage his father. Mr Green made a number of comments in subsequent conversations which I interpret as him expressing dissatisfaction with his job, a lack of respect for Mr Blackwell and at various times was considering or had decided to, leave the employ of Lincon. In my view, it would be reasonable to assume that Mr Green would have remained in employment for a further 8 weeks.
The efforts of Mr Green to mitigate the loss suffered by him because of the dismissal - s.392(d)
[128] Mr Green secured alternative employment about two to three weeks after the dismissal. 38
Remuneration earned by Mr Green during the period between the dismissal and the making of the order for compensation and the amount of any income likely to be earned by Mr Green during the period between the making of the order for compensation and the actual compensation - ss.392(e) and (f)
[129] I accept that Mr Green gained alternative employment about two to three weeks after his dismissal and had earned $31,895 up to 16 July 2017. Mr Green and Lincon agree that his wage (inclusive of overtime but excluding allowances) in his new employment was $622.05 per week less than the comparable Lincon wage.
Any other matter that the Commission considers relevant and the remaining statutory parameters - s.392(g)
[130] As a result of Mr Green’s misconduct in covertly recording the telephone conversations with Mr Blackwell, Mr Lindores and Ms Smith, I will discount the amount awarded by 20%. This approach was adopted in Evered v AHG Services (Vic) Pty Ltd T/A Coffey Ford. 39
[131] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.
[132] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or half the high income threshold immediately before the dismissal.40 The amount of compensation awarded is less than this limit.
[133] Taxation is to be paid on the amount determined.
[134] I believe that the compensation detailed below is appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.41
[135] I award compensation in the amount of $8,150.21, which represents the amount Mr Green would have been paid if he had continued to work at Lincon for a period of 8 weeks (including any notice obligation) following the dismissal subtracting 20% for misconduct.
[136] An Order 42 reflecting this decision will be issued.
COMMISSIONER
Appearances:
B.Austin of counsel on behalf of the Applicant.
K.Stewart of counsel on behalf of the Respondent.
Hearing details:
2017.
Adelaide:
24 July.
1 Exhibit A1
2 Exhibit A2
3 Exhibit A10
4 Exhibit R1, clause 3.2
5 Exhibit R1, clause 7.1(c)
6 Exhibit R2
7 Exhibit A1 and A2
8 Exhibit R1
9 Exhibit R2
10 Transcript PN468
11 Transcript PN427
12 Exhibit A3, Transcript PN205
13 Transcript PN351
14 Transcript PN356
15 Transcript PN365
16 Transcript PN367
17 Exhibit A4, Transcript PN206
18 Transcript PN389
19 Exhibit A5, Transcript PN213
20 Exhibit A6, Transcript PN216
21 Transcript PN263-266
22 Exhibit R10
23 Transcript PN741-PN745
24 Exhibit R13
25 Exhibit R13, paragraph 19
26 Exhibit R13, paragraph 22
27 Exhibit R11
28 A transcript of this conversation is contained in Exhibit A4
29 Transcript PN814
30 Transcript PN877-PN880
31 (1995) 62 IR 371 at 373
32 Explanatory Memorandum to the Fair Work Bill 2008
33 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24
35 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431
36 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446
37 Exhibit A3
38 Transcript PN266
39 [2013] FWC 9609, albeit that the discount in that case was assessed at 15%
40 Section 392(5) of the Act
41 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32]
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