DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Chadwick
v
Amber Traffic Design Group Pty Ltd T/A Amber Traffic Management
(U2017/6107)

Application for an unfair dismissal remedy.

[1] The following decision was disclosed in summary form to the Applicant in this matter at the conclusion of proceedings on 10 November 2017, at which there was no appearance for or on behalf of the Respondent.

[2] Stuart Chadwick has made an application for unfair dismissal remedy from his former employer, Amber Traffic Design Group Pty Ltd, trading as Amber Traffic Management (Amber Traffic Management).

[3] Mr Chadwick lodged his unfair dismissal application with the Commission on 7 June 2017. In accordance with usual practice, a telephone conciliation was listed to take place on 23 June 2017, however it was not possible for the conciliation to proceed due to the absence of Amber Traffic Management. At no time has Amber Traffic Management filed a response form with the Commission or provided any other submissions or material for consideration by the Commission about Mr Chadwick’s application.

[4] Following the inability of the conciliation to take place a Directions Hearing was listed before Deputy President Clancy on 11 August 2017, at which there was no appearance for Amber Traffic Management. The outcome of the Directions Hearing was that the matter was listed before Commissioner Ryan for determination of an extension of time matter which was required, given that it was apparent on the papers filed by Mr Chadwick that his dismissal had taken place more than 21 days prior to the filing of the application. Commissioner Ryan proceeded to determine that matter, again without any attendance or submissions on behalf of Amber Traffic Management, with the result of the Commissioner’s determination being a decision to extend the time for the filing of Mr Chadwick’s application. 1

[5] Following that determination, the matter was listed for a merits hearing with Directions being given to both parties for the filing of their respective materials. So far as is relevant to this matter the Applicant was given until 2 October 2017 to file material relating to his case, however communications with the Commission from Mr Chadwick’s mother, Ms Janet Chadwick indicated that he would rely upon submissions and witness statement filed at an earlier time, by mistake on 17 July 2017, pertaining to the merits of the matter. The Respondent was given until 23 October 2017 to file any material it wished to be considered by the Commission in respect of its case. No such material has been filed by the Respondent in response to these directions.

[6] Once the matter was allocated to me for the making of a determination upon the merits of the application, communication with the Respondent has been endeavoured on a number of occasions. On 10 and 17 October 2017 telephone calls were made by the Commission’s staff to the Respondent’s mobile phone number and voicemail messages were left asking him to return those calls about the programming of the matter. Amended Directions were issued to the parties on 19 October 2017 reducing the hearing to a single day hearing. Emails were sent to the Respondent from the Commission staff on 17, 24 and 27 October as well as on 2 and 9 November 2017. Letters from the Commission were sent to the Respondent on 25 and 30 October 2017.

[7] The last of the correspondences from the Commission by letter and email are in the same terms drawing to the Respondent’s attention that it was required to file submissions and that none had been received. Amber Traffic Management was advised that it should submit any submissions and documents upon which it sought to rely immediately and that “should there be a failure to provide submissions in this matter or attend proceedings, this will result in the matter continuing to progress and be heard in the Respondent’s absence.” The correspondence strongly advised the Respondent to provide a written response and comply with the Directions and to immediately seek legal advice on the matter and the Directions which had been given.

[8] As a result of the foregoing steps, I am satisfied that all reasonable steps have been taken to ensure that Amber Traffic Management is both aware of these proceedings and that it has been given an opportunity, on numerous occasions, to respond and put forward such evidence and materials as it desires the Commission to take into account. I was satisfied that in all the circumstances it was appropriate for the Commission to proceed to hear and determine Mr Chadwick’s application in the absence of any submissions or appearance on behalf of Amber Traffic Management.

[9] After discussion of the subject with the Applicant, the matter proceeded before me by way of hearing instead of conference, which, by virtue of s.398(2) of the Fair Work Act 2009 (the Act) must be conducted in private. The reason for making the recommendation to the Applicant that the matter proceed by way of hearing instead of conference was principally to ensure that the hearing room would be open and available to the Respondent in the event that they attended at some stage during course of proceedings.

[10] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. They are:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[11] The first of these matters has already been determined by the Commission, with Commissioner Ryan extending the time period for the making of Mr Chadwick’s application. It is also apparent from the evidence that Mr Chadwick was a person protected from unfair dismissal, having completed the minimum employment period by working for the Respondent since March 2016. The evidence does not disclose anything which would require a consideration of whether the dismissal was a case of genuine redundancy.

[12] The evidence of Mr Chadwick is that he worked in a small office with the owner of the business, Mr Carpenter, and one other employee. However, that there were at any time up to 15 to 20 other employees of the business undertaking traffic management activities externally to the graphic design section in which Mr Chadwick worked. I accept that evidence about the size of the business and relatedly find that there is nothing before the Commission that would cause me to find that Amber Traffic Management was at the time Mr Chadwick was dismissed, a small business within the meaning of the Act. As a result of that finding, it is unnecessary for me to consider whether Mr Chadwick's dismissal was consistent with the Small Business Fair Dismissal Code.

[13] Because of the evidence in the matter about the circumstances by which Mr Chadwick left Amber Traffic Management’s employment, it is relevant for the Commission to consider whether he was “dismissed” within the meaning of s.386 of the Act.

BACKGROUND

[14] Before turning to consideration of those matters, I take the opportunity to set out the essential facts of the matter.

[15] According to Mr Chadwick’s evidence, he was first employed by Amber Traffic Management from a date in March 2016, although he is not certain of the exact commencement date. Mr Chadwick was employed by Amber Traffic Management as a graphic designer, with the company and was involved in various road traffic management activities which called for graphic design work, both to bid for and undertake the traffic management activities. Mr Chadwick’s particular role was to develop a library of Victorian road and street maps and to mark-up certain features on the completed maps so that the marked-up maps may be used to bid for or undertake work for clients. Once marked-up, the maps would be used to guide how the traffic management activities would actually be undertaken in the field.

[16] This was Mr Chadwick’s first full-time position in the graphic design industry since completing a Diploma of Graphic Design from Swinburne University. He is presently 24 years of age.

[17] Mr Chadwick’s evidence includes that while working for Amber Traffic Management he worked full-time between Monday and Friday, generally starting work at about 8 AM and finishing at 5 PM. In that time he was paid $21 per hour. Mr Chadwick’s evidence includes that having commenced employment in March 2016 the owner of the business, Scott Carpenter, was often critical about the work he had completed as well as his abilities. This included Mr Chadwick repeatedly being “threatened with dismissal” when he made mistakes, without a dismissal actually occurring. He puts forward that this behaviour was unreasonable and bullying and that during this time he was never offered additional training and that had any been offered to him he would have willingly participated in it. Mr Chadwick puts forward that the criticisms about his work commenced around seven or eight months into the job, that is from about late 2016.

[18] By May 2017 Mr Chadwick was looking for a new job and went about doing so by including in a folio for prospective employers samples of the work he had produced for Amber Traffic Management. The reasons he was looking for alternative employment included not only his dissatisfaction with the work environment and Mr Carpenter in particular, but also that he understood the company was in the process of relocating from Truganina in Melbourne’s west to Richmond in the inner-east, potentially in June or July 2017. Given that Mr Chadwick was living in Werribee at the time he did not want to have to travel each day across the city to Richmond.

[19] On Mr Chadwick’s account, in early to mid April 2017 he raised with Mr Carpenter that he was looking to develop an employment folio so that he could obtain other employment and that part of the folio included making copies of work he had done for Amber traffic management and emailing them to himself. Mr Carpenter was most concerned about the circumstance and apparently reminded Mr Chadwick of the provision within his employment contract which identified that the product of Mr Chadwick’s work for the company was confidential and that the work could not be distributed to anyone else. A copy of the employment contract is not before the Commission. Mr Chadwick’s evidence is that he was not directly instructed to delete the emails but did so anyway.

[20] At around the same time, in May 2017, Mr Carpenter was also apparently concerned about Mr Chadwick’s use of the company’s PC, his smart phone and a music player during working hours, for private purposes. These concerns had apparently been the subject of some agitation on the part of Mr Carpenter for some time. Mr Chadwick related numerous conversations in which he had been told by Mr Carpenter that he thought use of the technology was a distraction and that he should not use the devices when at work. Mr Chadwick concedes that Mr Carpenter asked him to stop using the company computer and his phone for personal matters during working hours and that he generally complied with that request, and that by May 2016 while he was still listening to music while at work he was not using the work PC or his own smart phone for email or social media purposes to any appreciable extent.

[21] Mr Chadwick also related numerous circumstances in which Mr Carpenter had told him to go home for the day over some concern or another that Mr Carpenter held about Mr Chadwick’s work or demeanour. These occasions are not particularised and do not appear to be occasions of dismissal, such as where there may have been a stated end to the relationship, but later recanted. Although these occasions were never actually dismissals, Mr Chadwick concedes that there were numerous occasions on which Mr Carpenter said things to the effect that if he repeated the matters about which Mr Carpenter was concerned it would be his last day. While that is so, and other than on the last day of employment, there does not appear to be any occasions on which Mr Chadwick was actually told his employment had ended.

[22] Matters came to a head on 16 May 2017 when Mr Carpenter confronted Mr Chadwick at about 8 AM after he had arrived at work and told him to stop taking his music player to the bathroom. Mr Chadwick’s evidence is that Mr Carpenter then required Mr Chadwick to show him all his emails, including his personal and private emails. Apparently this included examination of deleted emails, with Mr Chadwick putting forward that he understood Mr Carpenter did not believe he had deleted the intellectual property he had saved for his employment folio.

[23] Mr Chadwick’s evidence is that he showed Mr Carpenter all of his emails and that Mr Carpenter also examined his deleted messages which showed he had deleted the files in question. Mr Chadwick says that he then asked Mr Carpenter “are you happy with invading my privacy?” to which Mr Carpenter said “if you do not like it you can pack up and go”. Mr Chadwick indeed left the premises, by about 8.30 AM, making the assumption that he had been given a choice and that he had resigned. Later that day however, Mr Carpenter received a text message from Mr Carpenter which included a statement that he had been dismissed and which referred to some of the reasons for dismissal.

[24] About two weeks after Mr Chadwick’s last day of employment, on 16 May 2017, he received an email in letter form from Mr Carpenter on 30 May 2017 which detailed his termination of employment. The email confirmed that Mr Chadwick had been terminated effective immediately on Tuesday, 16 May 2017 at 8 AM; that this was as a result of “your serious misconduct and continuous failure to perform to expected standards, along with wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment”. The email referred to three particular factors as being relevant to the reasons for termination, each postulated as having been the subject of previous conversations;

• Continuous use of a phone and company PC for personal matters during work hours.

• Failure to improve his standards of work after repeated mistakes.

• Infringement of Intellectual Property (IP) by duplicating and communicating Amber Traffic IP without permission.

[25] In the same correspondence Mr Chadwick was instructed to immediately destroy all hard copies of the company’s documents protected by intellectual property rights; delete all design and PDF files of the same content; and contact all recipients of any correspondence from Mr Chadwick with the content in question and require them to delete the emails.

[26] The evidence discloses that Mr Chadwick has not worked for Amber Traffic Management in any capacity since 16 May 2017.

[27] Mr Chadwick concedes that prior to leaving Amber Traffic Management’s employment he had applied for some positions, but without success. Since leaving employment in May Mr Chadwick has not had any income from employment or engagement as a contractor, but has received payments of the Commonwealth’s “Newstart” payment from a date in July. His evidence includes that he has applied for about 80 employment positions since being dismissed and has also obtained an Australian Business Number and set up a page-profile on Airtasker, in order to be engaged as a contractor.

CONSIDERATION

[28] Section 386 of the Act sets out the meaning of the term “dismissed” providing relevantly that a person is dismissed if their employment has been terminated on the employer’s initiative (s.386(1)), or, in the case of resignation, that they were forced to resign because of conduct, or a course of conduct engaged in by their employer (s.386(1)(b)).

[29] I am satisfied that Mr Chadwick came to leave Amber Traffic Management’s employment as a result of being dismissed. The evidence discloses that, at the very least, Mr Chadwick came to leave after a confrontation with Mr Carpenter which led him to the view that if he was not prepared to disclose his emails to his employer, including those dealing with his private affairs, then he could resign. In the circumstances and in the absence of any cogent evidence that it was reasonable for Mr Carpenter to insist on seeing those things, I am satisfied that this was a circumstance in which, if there was a resignation on the part of Mr Chadwick that it came about because he was forced to do so because of conduct, or course of conduct, engaged in by his employer, Amber Traffic Management.

[30] The course of conduct to which Mr Chadwick responded to was an ongoing unreasonable set of demands and criticisms directed to him by Mr Carpenter, and which could be said to be increasingly unreasonable. The confrontation on 16 May 2017 was not precipitated by any reasonably apparent set of concerns, and the movement by Mr Carpenter from a directive about not using a music player at work to a demand that he be shown Mr Chadwick’s private and personal emails is, on the face of it, capricious and irrational. That this was a new and higher level of demand was not lost on Mr Chadwick and his decision to resign at that point was plainly motivated by his employer’s capricious and irrational conduct.

[31] The legislative provisions which are relevant to a consideration of whether Mr Chadwick’s dismissal was unfair in particular whether it was harsh, unjust or unreasonable, are set out in s.387 of the Act. I consider each of the criteria within the section in turn.

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

[32] The letter of termination provided by Mr Carpenter to Mr Cahdwick on 30 May 2017 is in the following terms;

“Dear Stuart

Termination of your employment

This message confirms our discussion today that your employment with Amber Traffic Management is terminated effective immediately (Tuesday 16/05/2017 @ 8:00am) as a result of your serious misconduct and continuous failure to perform to expected standards, along with wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment.

I refer to our previous conversations about:

> Continuous use of your phone and company PC for personal matters during work hours.

> Failure to improve your standards of work after repeated mistakes.

> Infringement of Intellectual Property (IP) by duplicating and communicating Amber Traffic IP without permission.

We consider that your actions constitute serious misconduct warranting summary dismissal.

It is noted that you may have stored or distributed such IP company documents. You are to IMMEDIATELY:

> destroy all hard copies.

> delete all design and PDF files.

> contact all recipients to delete existing documents.

Yours sincerely,

Scott Carpenter

Amber Traffic Management”

[33] As best as it may be discerned on the limited evidence before the Commission, the reasons given by Mr Carpenter to Mr Chadwick for his dismissal are the three broad categories about which Mr Chadwick referred to in the termination letter. The three categories are Mr Chadwick’s use of his phone and company computer for personal matters during work hours; his failure to improve his standards of work after repeated mistakes; and the allegation that Mr Chadwick duplicated and allegedly communicated Amber Traffic Management’s intellectual property without permission to persons outside of the company.

[34] It is to be noted that the termination letter stated that the termination of employment was “as a result of your serious misconduct and continuous failure to perform to expected standards” (underlining added). That is, both matters of serious misconduct as well as unsatisfactory work performance are relied upon by Amber Traffic Management for Mr Chadwick’s dismissal.

[35] The first two of those categories set out in the letter, pertaining to the use of the phone and computer during work hours and Mr Chadwick’s alleged failure to improve his standards of work after repeated mistakes is a complaint about Mr Chadwick’s overall work performance and would not reasonably rise to the level of serious misconduct.

[36] The third of the categories, relating to the alleged duplication and communication of intellectual property is an allegation of serious misconduct. In this regard, it is noted that the termination letter refers to the words of the Fair Work Regulations 2009 which define the meaning of “serious misconduct” when it states that Mr Chadwick’s behaviour was “wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment” (compare with r.1.07(2)(a)).

[37] I consider each question in turn.

[38] In relation to the matter of Mr Chadwick’s work performance, including his allegedly inappropriate use of technology, there is no evidence before the Commission about specific or identifiable poor performance or warnings having been given to Mr Chadwick about his poor work performance. While the evidence allows a finding that Mr Carpenter was generally critical of Mr Chadwick and especially when he made mistakes, and repeatedly so, there is nothing before me which would allow a finding that there is an identifiable reason for Mr Chadwick’s termination of employment relating to his work performance. In fact, the evidence points to a finding that Mr Carpenter put up with the performance defects he perceived on the part of Mr Chadwick, and did so over an extended period of time. If that is the case, the claimed errors or poor work performance can hardly be such; instead, they appear to validate one of the arguments made by Mr Chadwick – that the claimed poor work performance was either not rationally based, or was manufactured for the purpose of driving Mr Chadwick out.

[39] At the time Mr Chadwick left employment on 16 May 2017 the evidence would suggest that had the particular confrontation not occurred, his employment may well have continued for some time, albeit with the criticisms that apparently were made somewhat frequently to Mr Chadwick about his performance and Mr Chadwick’s general disinclination to relocate to Richmond in the event that the company relocated its office there.

[40] In relation to the question of whether there are grounds for Mr Chadwick’s termination of employment for reason of misconduct, it is to be noted in relation to dismissals for serious misconduct that the Commission is obliged to determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. 2

[41] The allegation about the duplication and communication of intellectual property is that Mr Carpenter became aware that Mr Chadwick had stored or distributed copies of things which he had developed in the course of his employment. The evidence before the Commission includes a concession by Mr Chadwick that he had copied some of the things he has developed at work. He puts forward that he was looking for a new job and needed samples of his work for his employment folio. Due to his inexperience as an employee he did not realise that he could not use his work from Amber Traffic Management in that way. Mr Chadwick’s evidence is that the emails were sent from his private email account to the same address, and not to anyone else. Mr Chadwick also puts forward that when Mr Carpenter pointed that out to him, he deleted the emails in question and, crucially, his evidence is that he never communicated elsewhere the material he had copied.

[42] Mr Chadwick’s evidence also includes that the emails in question were Adobe Illustrator PDF files.

[43] In all, there is no evidence before the Commission to the effect that the files were distributed to anyone else and there is no evidence to the effect that even if they were that their distribution would have caused significant or irreparable detriment to the Respondent. There is nothing before the Commission that would allow a finding that Mr Chadwick’s copying or distribution of the files in question was wilful or deliberate behaviour by him that is inconsistent with the continuation of his contract of employment.

[44] Mr Carpenter was entitled to draw his concerns to Mr Chadwick's attention and expect action upon them; and the evidence is that those concerns were indeed acted upon with Mr Chadwick deleting the emails in question. The mere fact of Mr Chadwick having endeavoured to prepare a work folio for consideration by prospective future employers, in and of itself is not a reasonable ground for his immediate dismissal. There is nothing before the Commission would which would indicate that Mr Carpenter in his consideration of the matter went beyond ascertaining that Mr Chadwick had copied some material. That is, there is no evidence before the Commission that there was an investigation beyond that ascertainment, or which would support findings that Mr Chadwick's conduct was somehow more egregious than merely copying the files in question.

[45] I am unable to be satisfied that there was a valid reason for Mr Chadwick’s termination of employment either to the extent that Mr Chadwick’s work performance in all the circumstances or his use of technology at work warranted his termination, or that he committed a breach of serious misconduct in the form of his copying and alleged distribution of designs he had created while employed by Amber Traffic Management.

[46] No finding can be made by the Commission on the evidence before it to the effect that any reason that was advanced by the Respondent in its letter of termination to Mr Chadwick for his dismissal was sound, defensible or well founded within the overall context of the employment relationship.

[47] As a result, I find that there was not a valid reason for Mr Chadwick’s dismissal relating to his capacity or conduct.

(b) whether the person was notified of that reason

[48] The evidence discloses that Mr Chadwick was notified of the reasons held by Mr Carpenter for his dismissal and in particular that there were three reasons set out within the termination letter. Namely, that there had been a continuous use of his phone and the company PC for personal matters during work hours; that he had failed to improve his standard of work after repeated mistakes; and that he had duplicated and communicated Amber Traffic Management intellectual property without permission.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[49] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 3 I have not found there was a valid reason for Mr Chadwick’s dismissal. In any event there was no opportunity for Mr Chadwick to respond to any of the reasons held by Mr Carpenter for his dismissal.

(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

[50] There was no refusal by Amber Traffic Management for Mr Chadwick to have a support person in any discussions that were had about the future of his employment. Accordingly, this factor is a neutral consideration in my decision.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[51] While the termination letter from Mr Carpenter to Mr Chadwick identifies a claim that there had been repeated unsatisfactory work performance by Mr Chadwick with the inference that there had been discussions between the two about those circumstances, there is insufficient evidence before the Commission to make a finding that Mr Chadwick had been warned about the consequences. Although Mr Chadwick concedes that he was told he would be fired if he did not stop making mistakes, the evidence discloses that these references were throughout the period of employment, and not related to a specific circumstance or event and that there was not a specific or directed warning about the consequences of repeated error. The evidence also discloses that despite being told on numerous occasions to leave, the only occasion on which this became something beyond leaving for the day was the day of dismissal itself.

(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

[52] In all the circumstances is likely that the size of Amber Traffic Management has impacted upon the procedures it followed in effecting Mr Chadwick’s dismissal.

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

[53] In all the circumstances is likely that the absence of dedicated human resource and specialists or expertise in the Respondent’s enterprise has impacted upon the procedures it followed in effecting Mr Chadwick’s dismissal.

(h) any other matters that the FWC considers relevant

[54] I do not find there are any other matters relevant for consideration of whether Mr Chadwick’s dismissal was harsh, unjust or unreasonable.

[55] Having considered all the evidence in the matter I find that Mr Chadwick’s dismissal by Amber Traffic Management was harsh as well as unjust and unreasonable because there was insufficient grounds for him to be dismissed.

REMEDY

[56] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made set out in ss.390 – 393 allow for orders for reinstatement or compensation. While compensation may only be considered in the event that the Commission considers reinstatement of an Applicant is inappropriate (s.390(3)).

[57] I consider in the circumstances that reinstatement is inappropriate. In this regard I note that Mr Chadwick does not seek reinstatement and in any event I consider on the basis both of his oral evidence on the other material before me that reinstatement would, indeed, be inappropriate.

[58] I am satisfied in all circumstances that instead I should give consideration to an order for the payment of compensation.

(a) the effect of the order on the viability of the employer’s enterprise

[59] There is no evidence before the Commission of any kind about the viability of the employer’s enterprise. The fact that the Respondent has failed entirely to engage with the application made by Mr Chadwick or the Commission’s processes to hear and determine the application means that it has stepped away from any capacity for the Commission to discharge the obligation it has under s.392(2)(a) of the Act to consider the effect of an order for compensation on the viability of its enterprise.

(b) the length of the person’s service with the employer

[60] The length of Mr Chadwick's service with Amber Traffic Management is somewhat short. He commenced employment at some stage during March 2016 and finished on 16 May 2017, a period of around 14 months. In the circumstances both of the size of the employer and Mr Chadwick’s age and experience in the industry, this can be regarded as a not insubstantial period of employment. While it was demonstrably not a long period, it was also not short as would often be the case with first periods of employment. The fact that Mr Chadwick had been continuously employed for the 14 month period, despite frequent criticisms of his performance and threats of dismissal, is a factor to be considered in Mr Chadwick’s credit.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[61] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”.

[62] At the time Mr Chadwick left Amber Traffic Management’s employment he was actively looking for other employment. He had applied for some positions and expected to apply for others. The copying of the files that led to the confrontation between him and Mr Carpenter was for the purpose of assisting him gain employment elsewhere.

[63] In all the circumstances, largely because of the criticisms being received by him and his dissatisfaction with Mr Carpenter, it can be inferred that Mr Chadwick would likely have left employment with Amber Traffic Management within a few months of May 2017, and perhaps as early as June or July 2017 when Mr Chadwick understood Amber Traffic Management may be considering relocating to Richmond, or soon after. The evidence leads to the conclusion that, within reasonable bounds, it would be unlikely that Mr Chadwick would have left employment at Amber Traffic Management without a job to go to. Being a relatively junior and inexperienced graphic designer, that period could be expected to be longer than a fully proficient worker.

[64] The outer bounds of the future period of employment would likely therefore be somewhere between two and six months. In all the circumstances I consider it appropriate to set the anticipated period of employment at three months.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[65] Since being dismissed, Mr Chadwick has undertaken considerable efforts to obtain further employment. In particular, Mr Chadwick has referred to making more than 80 job applications since being dismissed through various mechanisms. His evidence includes that he has sought employment in industries other than graphic design. He has also obtained an Australian Business Number and created a work profile on Airtasker. To date none of these efforts have led to offers of employment or engagement.

[66] As a result, I do not consider it appropriate in all the circumstances to adjust the amount of compensation to be awarded because of Mr Chadwick’s loss mitigation efforts.

(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

[67] Mr Chadwick has not had any income since leaving employment and so this criterion is a neutral factor in my overall consideration of compensation to be awarded.

(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

[68] Mr Chadwick is not presently in employment and so this criterion is a neutral factor in my overall consideration of compensation to be awarded.

(g) any other matter that the FWC considers relevant.

[69] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

[70] Section 392(3) of the Act requires that if the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the FWC must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[71] Although Amber Traffic Management’s letter of termination characterises Mr Chadwick's’s behaviour as misconduct, I am not satisfied in all circumstances that it was misconduct and accordingly I do not discount the amount of compensation for that factor.

CONCLUSION AND ORDERS

[72] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[73] I find that reinstatement is not an appropriate remedy in this case.

[74] I find that compensation is appropriate.

[75] The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5) of the Act. 4

[76] In relation to the matter of contingencies, I find there are none that ought be taken into account in this matter.

[77] I accept that Mr Chadwick was employed on a full-time basis being paid $21 per hour or $798 per week and that in addition to his weekly payments he was entitled to a payment of 9.5% superannuation. The Commission’s order of compensation will therefore be a payment of 13 weeks compensation for wages at the rate of $798 per week, with a further amount of 9.5% for the purposes of superannuation. My calculation of the amount payable is set out in the following table;

[78] The total amount of $11,360 does not exceed the compensation cap applying at the time of dismissal.

[79] An order requiring Amber Traffic Design Group Pty Ltd to pay to Mr Chadwick the total amount, taxed according to law, is issued in conjunction with this decision. The total will be ordered to be split between a payment directly to him, and a payment to his superannuation account, on his behalf.

[80] In accordance with this decision, $10,374, less taxation, is to be paid directly to Mr Chadwick, and $986 is to be paid to his superannuation account. The order will require the payments to be made within 14 days of the date of this decision.

COMMISSIONER

Appearances:

Mr Stuart Chadwick on his own behalf.

Hearing details:

2017.

Melbourne;

10 November

 1   [2017] FWC 4578.

 2   Edwards v Giudice & Others, [1999] FCA 1836, (1999) 94 FCR 561, 169 ALR 89, [4].

 3   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, 2000) Print S2679 [41].

 4   See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, 2000) Print S5109 [33].

 5  

 6  

Printed by authority of the Commonwealth Government Printer

<Price code C, PR597652>