[2021] FWC 2060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Smith
v
Bank of Queensland Ltd
(U2020/7223)

DEPUTY PRESIDENT ASBURY

BRISBANE, 19 APRIL 2021

Application for an unfair dismissal remedy – Remedy – Reinstatement is appropriate – Order for continuity of service and employment appropriate – Order for lost remuneration appropriate

Background

[1] In a Decision issued on 4 January 2021, 1 I found that Mrs Kylie Smith (the Applicant) had been unfairly dismissed by Bank of Queensland Ltd (the Respondent). The Applicant was dismissed because she inadvertently transferred some $37,500.00 to the account of a fraudster of which only $7,500.00 was able to be recovered, causing a loss to the Respondent of $30,000.00. In the 4 January Decision, I found that the Applicant ignored red flags and failed to take simple steps which would have prevented her from making the transfer. I also found that the Applicant engaged in a pattern of behaviour and conduct that came close, but did not cross the line, between carelessness and negligence. Notwithstanding these matters, I found that there were circumstances that mitigated the gravity of the Applicant’s conduct to the extent that dismissal was not a sound, valid and defensible response.

[2] In their submissions, the parties sought that I first determine whether the dismissal was unfair, and if necessary, determine remedy following further submissions. After the 4 January Decision was released, Directions were issued for filing of materials in relation to remedy. The Directions sought that the parties indicate whether a hearing was required or whether the matter of remedy should be determined on the papers. Neither party sought a further hearing and it was accepted that the question of remedy would be determined on the basis of material filed in accordance with the Directions.

[3] The Applicant filed written submissions and a signed statement made by the Applicant. The Respondent also filed written submissions and a signed statement made by Mr Tim Davey, Head of Workplace Support. Neither party objected to the Commission receiving the statements in the context of the matter being determined on the papers. The Applicant seeks reinstatement as the primary remedy and submitted that reinstatement was appropriate in all the circumstances. In the alternative, and if the Commission is not persuaded that reinstatement is appropriate, the Applicant seeks compensation.

Submissions

Applicant’s submissions

[4] The Applicant seeks reinstatement to the position in which she was employed immediately prior to her dismissal – Branch Manager of the Respondent’s Nambour Branch. In the alternative the Applicant seeks reinstatement to an alternative position within the bank, on terms and conditions no less favourable than those on which she was employed immediately prior to her dismissal. The Applicant submits that this may include appointment to a Branch Manager position in another branch operated by BOQ, in proximity to her former place of work.

[5] In seeking reinstatement to her former position at the Nambour Branch, the Applicant relies on my finding that there was no reasonable basis for Mr Holland to have concluded that he could no longer trust the Applicant to properly carry out her role as Branch Manager. 2 The Applicant submits that the Respondent’s contention that reinstatement would be inappropriate by reason of lost trust or confidence should be rejected.

[6] In the event reinstatement is ordered, the Applicant seeks that it include an order maintaining continuity of her employment and recognition of her continuous service with the Respondent for the period between her dismissal and reinstatement. The Applicant further seeks that an order be made for the amount of remuneration lost, or likely to have been lost, because of her dismissal. 3

[7] The Applicant states that she has earned $8,889.40 (before tax) plus superannuation in the sum of $844.49, being a total sum of $9,733.89 for the period since her dismissal until 27 January 2021. The Applicant also states that at the time of her dismissal, her annual income was $84,246.58 exclusive of superannuation and performance bonuses. Referring to the same period as used for the assessment of remuneration earned since her dismissal, the Applicant states that in the period between her dismissal on 8 May 2020 to 27 January 2021 (when her submissions in relation to remedy were made), she would have earned approximately $66,540.98 before tax in her former position with the bank calculated as follows: 84,246.58 plus superannuation of $8,003.00 = $92,250.00 x (246 days / 366 days) = $66,540.98. The Applicant submits that the total sum of lost pay is therefore in the amount of $56,807.09, subject to taxation.

[8] The Applicant also submits that her loss in income continues to accrue at a rate of approximately $585.70 per week, noting her current fortnightly wage is approximately $1,188.33 (including superannuation), calculated “on an average week of 47 hours” at a rate of $23.09 per hour, as compared to her former weekly salary in her position with the Respondent, being approximately $1,774.04. Although the Applicant states that the 47 hours is a weekly average I assume that this is an error and this is a fortnightly average.

[9] The Applicant submits that the Commission is entitled to reasonably infer that, in light of her excellent work history and “glowing performance review immediately prior to her termination” in which she was rated “Superior”, that she would have received a pay increase and/or bonus payment in September 2020. According to the Applicant, a reasonable figure the Commission may place on such a payment is the sum of $5,000. The Applicant states that this is a conservative figure, nominated on the basis that in September 2018 she received a salary increase of approximately $5,000, and in September 2019 she received a salary increase of approximately $2,000 and a bonus of no less than $3,000. 4 The Applicant submits that a finding that a similar increase of approximately $5,000 would have occurred in September 2020, allows for:

(a) The fact that the Applicant will be reinstated without any increase in income for the 2020-2021 financial year, which would have otherwise occurred; and/or

(b) The fact that the Applicant has been deprived of the benefit of any bonus for the end of the 2020 financial year.

[10] In the event the Commission finds that reinstatement is inappropriate in all the circumstances, the Applicant submits that an order for payment of compensation would otherwise be appropriate. Having regard to the criteria under s.392(2) of the Act, the Applicant makes the following submissions. As to the effect of any order for compensation on the viability of the Respondent’s enterprise the Applicant submits that the Respondent is a large enterprise, with more than 160 branches across Australia and that an order for compensation, including up to the maximum amount allowed by the Act, is unlikely to have any meaningful effect on the viability of the Respondent’s enterprise.

[11] The Applicant states that she was employed by the Respondent for 11.5 years in two periods, from November 2005 to January 2009 and again from February 2012 to May 2020 and that this lengthy period of service weighs heavily against any reduction in compensation that may otherwise be assessed as warranted.

[12] As to the remuneration she would have received, or been likely to receive, if she had not been dismissed, the Applicant states that at the time of her dismissal, her annual income was $84,246.58 exclusive of superannuation and performance bonuses. With superannuation paid at the statutory rate of 9.5%, this is a gross amount of $92,250.00 exclusive of bonuses. The Applicant states that on the basis that 269 days had passed since her dismissal (at the time of filing her remedy submissions), she would have received $67,801.23 calculated on the basis of $92,250.00 x (269 days / 366 days)”.

[13] Having regard to the salary increase or bonus at the figure of $5,000 as outlined above, the Applicant states that the total amount is $72,801.23 before taxation. Regarding steps to mitigate her loss, the Applicant’s evidence is that she took some time to get over the shock of being dismissed and then very quickly began applying for a number of job opportunities. The Applicant tendered evidence of positions that she had applied for. The list of positions tendered evidences that the Applicant applied for a range of positions including food service, administration, picking and packing, customer service and room attendant at accommodation facilities.

[14] The Applicant also states that the COVID-19 pandemic had a large impact on her ability to gain alternative employment, and that she also experienced difficulties in light of the circumstances surrounding her dismissal. Further, a number of positions the Applicant applied for required her to disclose whether she had been previously dismissed for misconduct and in order to answer the questions truthfully the Applicant was required to indicate that she had been dismissed for this reason. Some positions the Applicant applied for were also subject to conduct checks with previous employers. In particular, the Applicant felt unable to apply for banking positions because she was not provided with a reference by the Respondent.

[15] The Applicant commenced employment at a Residential Aged care Facility on or about 5 October 2020, and is employed as an Assistant in Nursing, and paid $23.09 per hour as a base rate. In order to obtain this position, the Applicant was required to complete training including a Certificate III in Individual Support (Ageing, Home and Community) and a First Aid Course. The Certificate III qualification included 120 hours of unpaid placement which the Applicant said placed great strain on her and her family’s financial situation.

[16] The Applicant confirmed that she has earned a total sum of $9,733.89, inclusive of superannuation, for the period since her dismissal until 27 January 2021. The Applicant states that if her employment with her current employer continues, she is expected to earn remuneration in the sum of $1,188.33 per fortnight, including superannuation.

[17] The Applicant also states that her dismissal resulted in considerable hardship to her and her family. In addition to the 120 hours of unpaid work the Applicant was required to undertake in order to obtain employment, the Applicant’s family home loan borrowing capacity was approved based on the income she received as a bank manager, and the debt repayments remain the same despite her income now being halved. The Applicant states that home loan payments have been difficult to keep up with, and all of the income she has received from her current employment has been credited directly to her home loan.

[18] Applying the formula set out in Sprigg v Paul Licensed Festival Supermarket 5 the Applicant submits that having regard to her length of service and work record, as well as the performance review prior to her dismissal, the Commission should find that but for her unfair dismissal, on the balance of probabilities, she would have remained in her position of employment to this day. In her statement filed in support of her submission in relation to remedy, the Applicant detailed various steps she had taken to upskill in her roles with the Respondent and said that she enjoyed her work and had planned to remain with the Bank and within the banking industry until she reached retirement age.6

[19] Adopting the approach as outlined above, the Applicant said that her lost remuneration is in the sum of $72,801.23 before taxation at the date of filing her remedy submissions. She submits that the amount continues to accrue at a rate of approximately $252.74 per day, independent of any bonus amount or assumed pay increase for September of last year.

[20] As to remuneration earned, the Applicant said that her earnings of $9,733.89, inclusive of superannuation, for the period since her dismissal until 27 January 2021 should be taken into account and that social security payments should not, consistent with the approach generally taken by the Commission. 7 The Applicant also submits that no discounts should be made for contingencies given that in the current circumstances there is no anticipated period of employment that is not actually known8 and the Commission is being asked to consider compensation for a period that has in most part passed. The Applicant also submits that her best estimate of the effect of the legislative cap in her case, is that the amount is approximately $42,000. Further, the Applicant submits that applying the Sprigg formula, does not yield an amount that is clearly excessive or clearly inadequate and there is no basis to reassess the assumptions made in reaching the above figures.9

[21] In summary, the Applicant submits that this an appropriate case for reinstatement, including an order for recognition of her past service and orders to restore lost pay. In the alternative, the Applicant seeks the maximum statutory amount payable, and relies on confirmation by the Respondent of its payroll records in confirming the relevant amount.

Respondent’s submissions

[22] The Respondent submits that s.390 provides that the Commission “may” order reinstatement, and has discretion in relation to the appropriate remedy, if any, to be granted. The term “inappropriate” in s. 390 imports broader considerations and might be taken as a lower bar to resist reinstatement as compared to the previous criterion that reinstatement will not be ordered if it is “impracticable”. 10 The Respondent also submits there is no overriding presumption in favour of reinstatement, once there has been a finding of unfairness.11 Reinstatement is positioned as the first port of call, and the appropriateness of it must be assessed before considering compensation can be awarded.

[23] Further, the Respondent submits that finding that a termination was unfair, by reference to the economic impact on the employee, does not support an order for reinstatement merely because capped compensation might not “make the employee whole”. 12 Whether compensation would be “inappropriate” in the employee’s circumstances is not a proper consideration in determining whether reinstatement is inappropriate, as the question of compensation does not arise until it has been determined whether reinstatement is inappropriate.

[24] While accepting that every case depends on its own circumstances, the Respondent submits that factors that have affected the question of whether reinstatement is inappropriate include:

a) Where the employee would be surplus to the employer’s requirements;

b) Where there has been a loss of trust and confidence, or a breakdown in the relationship between the employee and a manager or managers of the employer; and

c) The nature of the employment. 13

[25] The Respondent also submits that this is a case where the concept of trust and confidence legitimately arises. While the Commission has found there was insufficient basis for the Applicant’s Manager Mr Holland to lose trust and confidence in the Applicant as a basis for a valid reason for dismissal, the Respondent submits that this can nevertheless be left open in relation to the question of reinstatement.

[26] The Respondent further submits that this is a case where there has been a finding of misconduct, and while insufficient to constitute a valid reason for dismissal, the question of remedy does not necessarily rest on the same basis. In this regard, while the Decision of 4 January 2021 recognises that the Applicant was remorseful and expressed regret for the loss to the business, this finding does not equate with taking responsibility and accepting accountability for her actions.

[27] According to the Respondent, the absence of responsibility on the part of the Applicant is manifested in a number of ways. Firstly, the Applicant made an attack on Mr Holland’s integrity, alleging that his decision to terminate her employment was based on manufacturing a resignation without having to pay for it, which Mr Holland denied. There was no evidence to support this assertion, and the Applicant had no reasonable basis to insinuate some ulterior motive.

[28] Secondly, the Applicant made assertions that the Respondent should have assumed responsibility for what occurred and had failed to provide sufficient resources. However, the Commission found that any one of a number of very easy steps would have avoided the issue, noting a one minute phone call is a reasonable step to take. While the Commission’s findings are not flattering to the Applicant, the Applicant has not conceded the matters and has attempted to “blame-shift”. The Respondent submits that a further indication of the Applicant’s lack of insight is reflected in her submissions on remedy. In this regard, reference was made to the Applicant’s submission that the Commission should assume she would have received a pay rise or bonus during the period between her dismissal and reinstatement. These matters are not entitlements under any instrument and are only based on a discretion exercised by the Respondent when reviewing pay periodically.

[29] As a result, the Applicant’s submission that she would have received a pay increase or bonus is based on a belief that the Respondent would not have withheld such amounts. The Respondent submits that the relevant event was sufficiently serious that it believed termination of employment was warranted, and the only rational assumption is that this would have excluded any pay increase or bonus, and the Applicant would have been placed on a final warning. While the Decision of 4 January 2021 indicates that the termination of the Applicant’s employment was a bridge too far, there was no conclusion by the Commission that the Applicant did nothing wrong.

[30] As to the Applicant’s previous role as Branch Manager, the Respondent submits that this role made her the most senior employee at the branch and was therefore a role of significant accountability. The Applicant’s role meant that she was able to authorise the payment of a substantial sum, the subject of the unfair dismissal application. Therefore, the Respondent submits that this is not a case where the employee performs administrative tasks under the supervision of others; and it is less common for the Commission to consider management roles as able to be restored where there has been a loss of trust and confidence. Further, the Respondent submits that in her role, the Applicant would need to work functionally with other managers, including Mr Holland who remains employed and who was criticised by the Applicant in the proceedings. The Respondent’s submissions on remedy were accompanied by a statement of Mr Tim Davey, Head of Workplace Support, which states that although Mr Holland’s position title has changed since the Applicant’s dismissal the reporting line under the BOQ model remains unchanged. Therefore, the Nambour branch reports directly to Mr Holland. 14

[31] In response to the Applicant’s submissions regarding her service record, the Respondent submits that the Applicant commenced employment with the Respondent in 2012, and her earlier employment, which commenced in November 2005, was for an owner-managed branch at Coolum Beach. This is an independent franchise. Accordingly, the Applicant did not have 11.5 years service with the Respondent.

[32] In response to the Applicant’s belief that she was on track for a further pay increase or bonus in September 2020, BOQ submits that this belief is not evidence, rather it is self-serving speculation. While the Applicant states she was rated as “superior” in her performance review prior to dismissal, the Applicant was rated an overall score of 3.8 rather than a rating of 4 which would be required in order for the Applicant to have been rated as she claimed. Regardless, the Respondent relies on the Applicant’s performance and events leading to her dismissal and contends that by September 2020, any assessment of her performance would have taken place under the shadow of the events which lead to her dismissal. Further, the Respondent said that if the Applicant had not been dismissed, she would have been on a final warning. The Respondent submits that even in the event an order is made for reinstatement of the Applicant, she will be placed on a final warning “reflecting the strong censure recognised as appropriate by the FWC”.

[33] In response to the Applicant’s mitigation attempts, the Respondent submits that it is typical for employers not to offer a reference and therefore any submissions by the Applicant in this regard should be disregarded. While the Applicant has made submissions inviting reinstatement to an alternate position, the Respondent submits that no such position has been identified by the Applicant and it is unclear whether the Applicant is suggesting there is a position to which she could be reinstated. The Respondent declines to comment further as to the appropriateness of a hypothetical position and submits that an order for reinstatement without identifying such a position would not be in accordance with s.390(1)(b) of the Act.

[34] While the Respondent acknowledges that an order for continuity of service would be usual on reinstatement, it submits that the Applicant has calculated her lost pay without taking into account that she was paid 5 weeks’ in lieu of notice on termination and accrued annual leave entitlements. Accordingly, any lost pay should be reduced by these amounts, given the payment in lieu of notice compensated the Applicant for 5 weeks following termination, and that her annual leave balance would be restored as part of an order for continuity of service. BOQ confirms the relevant payments were:

• $8,870 gross in lieu of notice; and

• $1,068 gross in lieu of accrued annual leave.

[35] As the Respondent has submitted that no increase in pay should be assumed, it states that the correct calculation of lost pay should therefore be in the sum of $585.70 per week since 8 May 2020, less $9,938.

[36] Further, the Respondent submits that the Commission has a discretion to reduce any back pay due to the Applicant’s conduct 15 and the matters raised in opposition to reinstatement may also be considered relevant to a discount of the back pay ordered. In relation to the Applicant’s submissions regarding an order for compensation in the alternative, the Respondent submits that it does not take issue with her assessment of the compensation capped at 6 months. The cap, in the circumstances, is what the Applicant received or was entitled to receive for the 26 weeks prior to termination and does not include any bonuses.

Legislation

[37] Section 390 of the Act provides:

“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.”

[38] As to any order for reinstatement, s.391 provides:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[39] The matters to be considered in determining any order for compensation are provided at s.392 as follows:

“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.”

Consideration

[40] Given that I have found that the Applicant’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that the Applicant was protected from unfair dismissal and that she has been unfairly dismissed. The Applicant has made an application under s. 394 of the FW Act and in my view the Applicant should have a remedy for her unfair dismissal.

[41] Reinstatement is the primary remedy for unfair dismissal. In Ngyuen v Vietnamese Community in Australia 16 a Full Bench of the Commission said (citations omitted):

“[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.”

[42] In the present case I am satisfied that reinstatement is an appropriate remedy, for the following reasons. Firstly, the Applicant expressed regret and remorse for the loss suffered by the Respondent. Although the Applicant did not accept full responsibility, she conceded that she should have taken steps to avoid the mistake and did not do so. I do not accept that the manner in which the Applicant’s case was conducted before the Commission establishes a bar to reinstatement. It is difficult for a person to prosecute an unfair dismissal case while at the same time accepting total culpability for the error that led to the dismissal. In prosecuting her case for unfair dismissal, the Applicant was entitled to draw attention to what she perceived as failings on the part of the Respondent’s managers to support her and to deficiencies in the training she was provided with in the course of her employment. The Applicant did not press these points to the extent that the employment relationship could reasonably be viewed as damaged to the extent that this is a basis for finding that reinstatement is inappropriate. I also note the Applicant’s preparedness to undertake any training that the Respondent deems necessary to prevent the same error from reoccurring.

[43] Secondly, I do not accept that the assertion in the Applicant’s evidence that the Respondent dismissed the Applicant for misconduct in order to avoid paying her a redundancy payment because of a downturn associated with the COVID-19 Pandemic, is a barrier to reinstatement. While the allegation was not made out at hearing, there was evidence that the Applicant’s position had not been replaced and the Branch was being run by a Manager from another Branch who was splitting his time between two branches. It was open to the Applicant to assert that in putting this arrangement into place after dismissing her, the Respondent was not required to make the redundancy payments to her that it would have been required to make if her employment had been terminated to allow for this arrangement to be implemented.

[44] Thirdly, I do not accept that there is a reasonable basis for Mr Holland to assert a loss of trust and confidence in the Applicant. The Applicant’s conduct was careless and not wilful. The Applicant is remorseful for her part in the loss sustained by the Bank and maintained that if faced with the same circumstances in future she would have conducted herself differently by taking proper steps to verify the authenticity of the transfer request. The Applicant’s carelessness was in part, a result of a lack of training and this can be rectified upon reinstatement. It is also the case that some of the grounds upon which Mr Holland based his asserted lack of trust and confidence, were not matters that could reasonably support the assertion. For example, Mr Holland believed that characteristics and technical matters relating to the emails which caused the Applicant to make the transfer should have been apparent to her in circumstances where these matters could only have been apparent with the benefit of hindsight and following analysis which the Applicant was not qualified or trained to undertake.

[45] Fourthly, it is open to the Respondent to adjust the Applicant’s duties and responsibilities subsequent to reinstatement, as part of a process of addressing any shortfalls in her training or skills. Fifthly, an order for reinstatement places the Applicant in the same position she would have been in had she not been dismissed. In the present case, for reasons set out in the 4 January Decision, the Applicant’s conduct was careless, caused loss to the Respondent and was deserving of censure. The Respondent has foreshadowed that it will subject the Applicant to a warning if she is reinstated. That is a step that could have been taken instead of dismissing the Applicant and is no barrier to reinstatement.

[46] In finding that it is appropriate to reinstate the Applicant I accept as valid the Respondent’s submission that the Applicant’s assertion that she would have received a pay increase and/or a bonus had she remained in employment, is indicative of a lack of insight on her part. However, on balance, that lack of insight is not fatal to reinstatement in all the circumstances. I also note that the Respondent has withdrawn an earlier submission that the Applicant’s position is surplus to requirements because the Nambour Branch is being managed by the Coolum Branch. There is no other evidence of any practical impediment to reinstatement.

[47] Accordingly, I have concluded, pursuant to s. 391(1) that it is appropriate for the Applicant to be reinstated to her former position as Manager of the Respondent’s Nambour Branch and that an Order to that effect should issue requiring reinstatement from 27 April 2021. I am also satisfied, pursuant to s. 391(2) that it is appropriate for an Order in respect of continuity of the Applicant’s employment and her period of continuous service be made. Such an Order is appropriate on the basis that the Applicant has been unfairly dismissed after some eight years of service with the Respondent.

[48] I consider it appropriate, pursuant to s. 391(3) to make an order to cause the Respondent to pay the Applicant an amount for the remuneration lost on account of the dismissal. I reject the submission of the Applicant that it could be reasonably inferred that the Applicant would have received a wage increase or a bonus in September 2020 had she remained in employment. The Applicant’s carelessness was a significant contributor to a $30,000.00 loss to the Bank. Had the Applicant remained in employment it is improbable that she would have received either a bonus or a salary increase. To the contrary, the Respondent would have been entitled to issue the Applicant with a final warning in relation to her conduct.

[49] Adopting the Applicant’s calculation method, I accept that she would have earned an amount of $66,540.98 inclusive of superannuation, for the period from 8 May 2020 when the Applicant was dismissed until 27 January 2021 when her compensation submission was prepared. On the basis that superannuation is 9.5% of that amount, lost remuneration comprises salary of $60,219.58 and superannuation contributions in the amount of $6,321.40. On termination of her employment the Applicant was paid an amount of $8,870.00 which should be deducted from the salary component leaving an amount of $51,349.58. The Respondent also paid the Applicant an amount of $1,068.00 in annual leave. I deduct that amount on the basis that the Respondent’s position is that the period of leave the amount relates to will be restored as part of an order for continuous service. This leaves an amount of $50,281.58.

[50] In the period from 8 May 2020 to 27 January 2021, the Applicant earned an amount of $8,889.40 in wages and $844.49 in superannuation. The deduction of these amounts results in lost remuneration for the period from 8 May 2020 to 27 January 2021, of $41,392.18 in wages and $5,476.91 in superannuation contributions. The parties agree, and I accept that the total loss for each week from 27 January 2021 is $585.70 per week comprising $530.05 in lost wages and $55.65 in superannuation contributions (on the basis that super contributions are calculated at 9.5%). Multiplied over the 13 weeks between 27 January and 27 April 2021 (when the Order for reinstatement is required to be complied with) this equates to a loss of $6,890.65 in wages and $723.45 in superannuation.

[51] Therefore the total amount of lost remuneration in the period from the date of dismissal to the date of reinstatement is $54,482.28 comprising $48,282.83 in wages and $ 6,200.36 in superannuation. The Order will require the amount of lost wages to be paid to the Applicant less taxation deductions according to law and superannuation contributions to be paid into the Applicant’s nominated superannuation fund.

[52] I have also determined that I will not make a deduction from the amount awarded for lost remuneration, on the basis that the Applicant suffered loss from the termination of her employment which will not be completely recovered through an Order for lost remuneration. The Applicant has expended considerable effort to obtain alternative employment including undertaking retraining to obtain a position in aged care. I accept that the Applicant faced additional difficulty in circumstances where a number of positions she applied for required her to declare whether she had been dismissed from her previous employment for misconduct.

[53] An Order 17 to give effect to this Decision will issue.