[2011] FWA 4560

Download Word Document


FAIR WORK AUSTRALIA

DECISION

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

Mr Phillip John Andersen
v
Acquista Investments Pty Ltd and Veolia Environmental Services (Australia) Pty Ltd T/A Integrated Waste Services
(U2011/5578)

COMMISSIONER HAMPTON

ADELAIDE, 28 JULY 2011

Termination of employment - dismissal - whether harsh, unjust or unreasonable - alleged late attendance at work - whether demonstrated and valid reason for dismissal - whether warnings sound or led to unfairness - found dismissal harsh, unjust and unreasonable - remedy - reinstatement not sought and not appropriate - compensation ordered .

INTRODUCTION AND CASE OUTLINE

[1] This is an application by Mr Phillip Andersen (Mr Andersen or the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The applicant was dismissed from his role as a Weighbridge Attendant with Acquista Investments Pty Ltd and Veolia Environmental Services (Australia) Pty Ltd T/A Integrated Waste Services 1 (IWS or the respondent) in mid January 2011.

[2] IWS is a relatively large business operating waste management facilities at sites north of Adelaide including the Dublin facility where Mr Andersen was employed. In general terms, the role undertaken by Mr Andersen was to operate the weighbridge and undertake related administrative and operational functions.

[3] The applicant was employed in April 2010 on the basis of a 12 month fixed term contract. 2 According to the employer, the applicant was dismissed largely on the basis of his alleged inability to punctually attend for work. The applicant rejects the notion that he was habitually late. There are also other factors relied upon to support the decision to terminate Mr Andersen’s dismissal and these are also largely in contention.

[4] Having regard to the matters outlined in s.399 of the Act, I considered that it was appropriate to conduct a hearing in this matter. 3

[5] The applicant represented himself and the respondent was represented by its relatively recently appointed Business Projects Manager, Mr Pannuccio. 4

[6] Given the absence of professional representation, the parties were advised at the outset of the general nature of the statutory context and the manner in which the hearing would be conducted.

[7] The applicant contends his dismissal was harsh, unjust and unreasonable. In particular, he denies he was habitually late for work. He does however assert that he refused to attend 15 or 20 minutes earlier than his scheduled start time as allegedly sought by his Manager. Further, the applicant contends that he regularly stayed after his scheduled finishing time in order to complete work which was not recorded or paid for.

[8] Mr Andersen also argued that he was not aware that his employment was in jeopardy and rather considered that he was regarded as a valued employee with every expectation that his employment would continue after the end of the term of the contract.

[9] In effect, the applicant also contends the other issues relied upon to support the dismissal were either not valid or were known to and effectively condoned by IWS.

[10] The applicant did not seek reinstatement but rather compensation in lieu of reinstatement to cover the anticipated period of his fixed term contract.

[11] The respondent contends the applicant was not unfairly dismissed on the basis that he was regularly and persistently late for work. Further, it contends that punctuality was a key element of the applicant’s role and that Mr Andersen was warned on numerous occasions about the issue. This was said to include a formal warning on this and other matters.

[12] IWS argue that in the absence of improvement following a written warning, it was reasonable and fair to dismiss Mr Andersen by giving him a week’s pay in lieu of notice.

[13] The respondent also contends that other performance and conduct matters, including smoking in the weighbridge office, signing time-sheets on behalf of the manager, and using computer facilities inappropriately, were also factors supporting the decision to dismiss the applicant.

THE EVIDENCE

[14] Mr Andersen and his partner, Ms Kylie Murphy, gave evidence on his behalf.

[15] The following gave evidence for the respondent:

[16] In general terms I found each of the witnesses gave their evidence honestly. There are differences in their evidence, including factual conflicts, and these are largely the result of different perspectives and recollections. I did however find that each of the witnesses had a tendency to exaggerate or minimise the facts to suit their respective positions. There was also a distinct lack of recall about the detail of conversations and the sequence of events from all of the key witnesses and this has led me to be cautious about accepting elements of that evidence.

[17] Where there is conflict between the evidence of the applicant and Mr Spencer about matters where Mr Spencer was directly involved, I generally prefer the evidence of Mr Spencer. In particular, it is evident to me that Mr Andersen downplayed the importance of prompt attendance at the workstation in terms of the functioning of the business and the emphasis given to this by Mr Spencer.

[18] Subject to the caveats discussed above, I found the evidence of Ms Murphy, Ms Bell and Mr Macey to be generally reliable.

GENERAL FINDINGS OF FACT

[19] IWS conducts waste management facilities and this includes the handling of waste and recyclable materials that are delivered to its Dublin site where the applicant was employed. These deliveries are generally made by trucks and other vehicles that are weighed when coming into the site through a commercial weighbridge.

[20] The applicant was initially employed in connection with IWS by and through an employment agency in March 2010 and undertook some casual employment within the respondent’s operations. In April 2010, Mr Andersen was offered and accepted employment directly with IWS on the basis of a 12 month contract.

[21] The applicant and his family relocated to Lower Light which is only some five minutes drive from the Dublin site. Dublin is approximately 60 km north of Adelaide.

[22] Mr Andersen was engaged as a full-time Weighbridge Attendant and in that position was responsible for the operation of the weighbridge and the associated administrative systems. The weighbridge systems were upgraded during the applicant’s employment to utilise the computer system and although the broad concept was established by Mr Spencer, Mr Andersen undertook the programming and detailed system design. I find that the applicant’s expertise in that regard was recognised by IWS.

[23] In general terms, the applicant worked on each of the five week days and when required, on weekends. The weighbridge was open for use from 6.00am to 5.00pm on weekdays and this was covered by two ‘shifts’. Upon his employment in April 2010, Mr Andersen was generally engaged to open the weighbridge at 6.00am and was then generally relieved at 2.00pm or 2.30pm although the starting and finishing times did vary during his employment.

[24] On balance, I find that on occasions, Mr Andersen was late arriving at work from time to time in the period leading up to July 2010 when he was working with Ms Bell. This involved not being ready for a hand-over precisely at the scheduled time and on some limited occasions, being late enough to inconvenience and delay Ms Bell’s departure from work. I add that at least on some of those occasions the applicant’s lateness was associated with appointments about which he had little control and IWS was aware of the circumstances. 5

[25] In August 2010, an employee was engaged to work in the weighbridge who was an asthmatic and although smoking in the office had been tolerated up until that time, the applicant (and I presume all employees) were advised that they were not to smoke in the weighbridge office. On 17 August, in the context of an apparent complaint from another employee, Mr Andersen was again advised by Mr Spencer that he was not to smoke in that office.

[26] In early September, management became aware of a complaint that Mr Andersen was five minutes late in attending at the weighbridge. On that day, 6 September 2010, Mr Spencer warned the applicant that he needed to attend and be ready to commence work at or prior to his scheduled start time (6.00am). Further reports of lateness were also apparently made to management in the same week.

[27] On 10 September 2010, Mr Spencer gave a verbal warning to Mr Andersen about “not putting the health of a fellow employee at risk”, in connection with his apparently continuing to smoke in the weighbridge.

[28] On 18 October 2010, concerns about Mr Andersen’s timely attendance at work were directly raised with him by Mr Spencer. I find that Mr Andersen explained that his family circumstances made it difficult to attend early in the day. Mr Spencer advised the applicant that he should arrive early enough to ensure that he was always ready to commence work at the scheduled time and in effect that he should allow a 15 or 20 minute leeway on his arrival to ensure that this was the case. I also find that the importance of having the weighbridge operating at the scheduled time was emphasised to Mr Andersen and that this was in effect important to his continued employment.

[29] On 29 October 2010, Mr Spencer again spoke to the applicant about smoking in the weighbridge office and emphasised the importance of not doing so. I would add however that whilst this was a valid instruction, other employees, including Mr Macey, and in all probability, Mr Spencer also smoked in that office at times after the original instruction had been given. Mr Andersen did admit to smoking in the weighbridge office after the original instruction was given, but only on weekends when the other employee was not due to work. The applicant also gave evidence that he stopped smoking in the weighbridge completely, with some limited exceptions, after the written warning given later in December 2010. 6 There is insufficient evidence to form a contrary conclusion. This was however still not fully compliant with the instruction, albeit that the inconsistency of management behaviour in that regard does undermine the genuineness of the instruction and the warning.

[30] On 1 November 2010, Mr Spencer conducted a performance appraisal of Mr Andersen with the assistance of the respondent’s human resources officer. The appraisal was largely positive with 4 out of a possible 5 given in relation to job performance, 3 out of 5 in relation to attendance (with “some lateness noted”), and 3-4 out of 5 in relation to OHS (with smoking in the weighbridge noted). The overall comments included that the applicant was very skilled with computers and a reliable worker. 7

[31] On Saturday 6 November 2010, the applicant was not on duty at 6.00am as expected and Mr Spencer attempted to contact the applicant at his home. The applicant subsequently attended at 6.15am. Mr Andersen contended that he had mistaken who was to work the overtime shift in question and immediately attended when he became aware of Mr Spencer’s attempts to contact him. Mr Spencer contended that the applicant sent a text message at approximately 6.10am indicating that he was on his way, that he had agreed with the earlier proposal to move to later starting times and admitted that he had slept in later than required. On balance, I find that this is a summary of Mr Spencer’s views as to the intention of the applicant rather than an accurate description of the communication. I also note that the applicant did not commence the revised starting time until early December. 8

[32] On 12 November 2010, Mr Spencer conducted what he described as a formal grievance meeting with Mr Andersen. This took place in the context of some further reports of the weighbridge not being open on time and in particular the events of 6 November 2010. Mr Spencer explained his concerns with lateness and the need to ensure that if the applicant was not able to attend for work he was to report the circumstances directly to him. The issue of smoking in the office was again raised. The applicant accepted the criticisms made, indicated that they would be addressed and discussed having a later starting time.

[33] On 2 December 2010, Mr Spencer met with the applicant in a follow-up of the formal grievance meeting. The outcomes of the meeting included:

[34] These matters were confirmed in a written report provided to Mr Andersen and acknowledged by him at the time.

[35] On 22 December 2010, Mr Macey read a “chat window” on the weighbridge computer during the applicant’s shift. This involved a “conversation” with an operator apparently from an internet gambling site. I interpose that there is no evidence that Mr Andersen used the work computer to gamble however it is clear from his own evidence that he did use the work computer at times to play games and make communications during times when there was no activity at the weighbridge and at lunch times when the circumstances meant that he remained at his work station.

[36] There is no indication of any policy or instruction concerning the use of the computer facility for private purposes although some reasonable limitation would no doubt be implied. It is also the case that any concerns arising from this issue were not raised with the applicant at any time prior to the dismissal.

[37] The extent to which the applicant was late for work after receiving the first written warning is not clear on the evidence. The evidence of Mr Macey and Mr Spencer was that it had continued, however that evidence was lacking in detail. No examples or concerns were raised with Mr Andersen after the warning and none were put to him during the hearing, with the exception of his late attendance on 20 January 2011. 9

[38] Mr Andersen was on leave from 24 December 2010 until 10 January 2011. During that time, a casual employee who is related to some of the other employees at the Dublin site took over from the applicant. I add that this employee was moved into the Mr Andersen’s role after the dismissal, however I am on balance not persuaded that this was the motivation for that dismissal.

[39] On 20 January 2011, the applicant arrived five minutes late for work. Mr Andersen had brought his son with him on the day and indicated that he would only be there for half an hour. At 11.00am, the applicant’s son was still at the weighbridge and later in the day, the whole of the applicant’s family were there. I interpose that Mr Andersen had permission to have his family there at lunch times and that one or more of them were present at other times. Despite what might be considered to be self-evident OHS and productivity concerns with that practice, there is no indication that Mr Spencer advised the applicant that this was not appropriate or that he took objection at any time.

[40] During the course of 20 January 2011, Mr Spencer in consultation with other senior management decided to dismiss the applicant. In so doing, it is apparent that the primary concern of IWS was the applicant’s capacity or willingness to attend ready for work on time, however it is also apparent that other concerns were taken into account. I will return to this aspect shortly.

[41] At 4.50pm on 20 January 2011, Mr Spencer and Mr Macey presented Mr Andersen with a pre-prepared letter of termination and advised that he was being dismissed. When pressed for a reason, Mr Spencer advised the applicant that it was because he was continually late. The applicant was also advised in effect that he would be given a week’s pay in lieu of notice and that he should retrieve his personal belongings from the weighbridge and leave the premises. The applicant did retrieve his property and also deleted his personal profile from the computer and some games software and family photos that he had loaded onto the system. Mr Andersen also changed the system administrator role in the computer system to another employee, which I infer was necessary given that he was previously in that role and had deleted his profile. I add that there is no evidence to suggest that any company information was lost from the computer or that the applicant undermined the computer system or the integrity of the information stored.

[42] The applicant was paid a week’s pay in lieu of notice and his outstanding leave entitlements. Given the loss of employment and the limited employment prospects in the area, the applicant and his family moved back to the metropolitan area. It is also the case that the applicant defaulted on his rental payments and this has led to difficulties in securing further accommodation.

[43] The respondent has also raised the allegation that the applicant submitted the majority of time sheets without Mr Spencer’s signature and that in some cases he had signed his name as the approving supervisor. The applicant accepted both matters however he indicated that he was simply following procedure and that he was advised to sign the time-sheets by head office and that they would be checked at that end. Based upon the evidence before Fair Work Australia, I accept that proposition and there is no indication that the applicant sought to mislead IWS in any manner on that count.

[44] It is also the case that the times displayed on the time-sheets are only a general indication of hours worked. That is, they do not record the actual time of commencement or completion of work, but rather the general time. This includes the fact that on some days, the applicant worked beyond the scheduled conclusion of work by up to 15 minutes which was not recorded or claimed.

[45] In reaching the decision to dismiss the applicant, it is clear to me that in addition to the lateness, IWS did have regard to the alleged breach of its non-smoking rule and annoyance at the presence of Mr Andersen’s family at the workplace. It is also likely that perceived concerns over the applicant’s performance more generally were also factors.

CONSIDERATION - WAS THE APPLICANT UNFAIRLY DISMISSED?

[46] Section 385 of the Act provides as follows:

[47] There is no doubt that Mr Andersen was dismissed at the initiative of IWS as the employer. The respondent is a not small business within the meaning of the Act and there is no suggestion that the applicant’s dismissal was a genuine redundancy.

[48] As a result, I must consider whether the dismissal was harsh, unjust or unreasonable.

[49] The Act relevantly provides as follows:

[50] I have earlier set out the general contentions of the parties and although I have considered the full positions advanced by the parties, I will not repeat them for present purposes.

[51] It is clear that s.387 contemplates that an overall assessment as to the nature of the dismissal must be made by Fair Work Australia. In so doing, the Act sets out a number of considerations that are to be taken into account.

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

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

[53] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 10

[54] I have found that there were genuine concerns regarding the inability of Mr Andersen to consistently attend for work on time ready to commence the operation of the weighbridge. Although the extent of that concern is difficult to objectively determine in light of the rather generalised evidence, I am satisfied that it was and remained an issue particularly up until the written warning was issued on 2 December 2010. After that time, the applicant was late on at least one occasion, being the day of the dismissal, and possibly on other occasions however whether that occurred has not been demonstrated by the evidence before Fair Work Australia.

[55] I have considered the reasonableness of the requirements for prompt attendance at work as explained by Mr Spencer. There is no doubt that the requirement to have the weighbridge operational at opening time was itself reasonable given the operational requirements of the business. I have also carefully considered the import of the apparent dispute between Mr Andersen and Mr Spencer as to precise requirements in that regard. It is evident to me that Mr Spencer was requiring the applicant to always be ready to commence the operation of the weighbridge at the scheduled time. The reference to arriving fifteen or so minutes earlier was a suggestion that this leeway should be planned in order to deal with eventualities and was not a direction that he actually commence work at that time as suggested by Mr Andersen.

[56] In the absence of a contractual and award term dealing with the issue, this expectation was not unreasonable, however the flexibility needed to apply consistently. That is, it was not appropriate to apply a rigid approach to starting times if there was to be no recognition of the flexibility provided by the applicant to cessation times. This is particularly so as he was not paid any preparation time or paid for any minor additional work at the end of the scheduled day.

[57] The lack of clear requirements in this regard is also a factor.

[58] The non-compliance with the smoking instruction could have been a valid reason. However, the instruction was very loosely applied and given that it was not consistently followed or enforced by those in management who had given the instruction, could not be considered to be sound or defensible.

[59] There is insufficient evidence to support the notion that any other performance and conduct concerns held by management were significant or such as to form a valid reason in their own right.

[60] When the circumstances are considered as a whole, I find on balance that valid concerns were held by the respondent particularly with respect to the timely attendance at work but these did not extend to a valid reason to dismiss at that point.

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

[61] The applicant was not formally notified of the reasons for his dismissal as part of the immediate process however when clarification was sought on the day in question, Mr Andersen was advised that it was his punctuality that was the basis of the decision.

[62] More importantly in the present context, Mr Andersen was advised in the written warning that his punctuality was a problem to be addressed. The alleged misuse of the computer system, which was known to the respondent at the time and I have found formed part of the reasons for dismissal, was not raised with him at any time.

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

[63] The applicant was spoken to about the issue of punctuality on numerous occasions and was formally warned in the “first” written warning. He did therefore have an opportunity to respond to those matters in the lead up to that written warning but not in relation to any alleged conduct concerns after that time.

[64] General performance matters were discussed during the grievance meeting however he was not given any opportunity to respond to allegations about his conduct in relation to the use of the computer and having his family at the workplace.

Section 387(d) – any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to his dismissal.

[65] There were discussions relating to the applicant’s dismissal as contemplated by this provision. However, the applicant did not seek to have a person assist him and the issue of unreasonable refusal does not therefore arise.

Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether the person has been warned about that unsatisfactory performance before the dismissal

[66] The applicant was warned about his performance deficiencies concerning his attendance on time and the smoking requirements.

[67] The warning in relation to smoking was duplicitous for reasons outlined earlier in this decision.

[68] The warnings in relation to Mr Andersen’s attendance were relevant but somewhat inconsistent. The indication of seriousness given on 18 October 2010, was not matched by the feedback given at the appraisal on 11 November, and the first warning given on 2 December 2010 failed to emphasise the importance of the matter now sought to be placed by IWS. I also note that the outcome of the grievance meeting and the associated follow-up discussion in December 2010 included that performance management in relation to that issue would commence. 11 This lack of consistency is particularly relevant as these was no further discussion of the issues with Mr Andersen until after he was advised of his dismissal.

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

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

[69] There are elements of the manner in which the dismissal of Mr Andersen was carried out that would normally attract this form of consideration. These include the almost total absence of policies concerning disciplinary action, time recording, the use of the computer facilities and the warning and dismissal process actually adopted in this matter. The lack of clarity in relation to the work requirements and the inconsistency in the approach to warnings are hallmarks of more informal small businesses.

[70] However, the respondent is not a small employer and it did at the time of the dismissal have access to internal human resources advice. It is perhaps unfortunate that it did not rely upon that expertise in the handling of issues with Mr Andersen. However, the relevant considerations are those established by the Act and it is the objective and practical fairness of the dismissal having regard to those considerations that is paramount.

Section 387(h) – any other matters that FWA considers relevant

[71] The applicant had a relatively short period of service with IWS and it was in the context of a fixed term contract.

[72] This and the associated consideration of whether the dismissal was harsh, that is, disproportionate to the conduct given all of the circumstances, including the impact upon the employee, are also clearly relevant considerations. 12 Indeed, I have carefully considered this aspect in light of the personal circumstances of the applicant including the effect of the dismissal given his relocation near to the work site where other employment was somewhat limited.

Conclusion as to the nature of the dismissal

[73] Having regard to, and weighing up, all of the considerations established by s.387 of the Act, I find on balance that the dismissal of the applicant was harsh, unjust and unreasonable in all of the circumstances of this matter. As a result, I find that the applicant was unfairly dismissed within the meaning of the Act.

REMEDY

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

[75] The prerequisites of ss.390(1) and (2) have been met.

[76] Section 390 makes it clear that compensation is only to be awarded as a remedy where I am satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, I must consider firstly whether reinstatement is inappropriate.

[77] The applicant does not seek reinstatement and given the overall circumstances of this matter, I am satisfied that reinstatement under the Act is not appropriate.

[78] Accordingly, I must, having regard to the considerations established by the Act, determine whether compensation in lieu of reinstatement is appropriate and if so, to what extent.

[79] Section 392(2) requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). These factors include in ss.(g) any other relevant considerations. Without detracting from the overall assessment required by the Act, 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 enterprise

[80] The respondent does not contend that the nature of the compensation sought by the applicant would impact upon the viability of the business. 13

The length of the person’s service with the employer

[81] The applicant was employed with the respondent for less than 10 months. This is a relatively short period and subject to the consideration of the other circumstances impacting upon the nature of that service, must be taken into account including in relation to the assessment of the other considerations established by s.392(2)(c) of the Act.

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

[82] This involves in part a consideration of the likely duration of the applicant’s employment in the absence of what I found to have been an unfair dismissal. His average gross remuneration at the time was $1034.88 per week. 14

[83] The applicant had completed approximately 41 of the 52 week fixed term contract and it is clear to me that he would not have continued employment beyond that term. Indeed, given all of the circumstances and the applicant’s apparent lack of appreciation of the importance of timely attendance at work, a reasonable inference is that the employment would have only continued for no more than a further eight weeks.

[84] The remuneration that the applicant would have received but for the termination was therefore $8,279.

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

[85] The applicant provided some evidence about his efforts to mitigate (reduce) the loss suffered as a result of his dismissal. Mr Andersen did need to relocate his family and this must be considered. However, I have some reservations as to the extent of efforts made in seeking other employment after that immediate period. The applicant’s approach to potential employers was not in my view overly dedicated in that regard and he declined to pursue certain apparent employment opportunities. 15

[86] In the circumstances and particularly given the need to relocate, a discount of only ten percent on the final compensation is warranted on this count.

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

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

[87] The applicant was paid a week in lieu of notice ($957.60) upon his dismissal. 16 This must be taken into account and should be deducted from the projected remuneration amount.

[88] The applicant did earn some income from employment in a family business commencing in late February 2011. Based upon the evidence before Fair Work Australia that income amounted to 20 to 25 days at $80.00 a day commencing in late February 2011. Given the onus was on the applicant to provide such evidence and he was on notice about that requirement 17, it is appropriate to take the higher end of the estimation provided by Mr Andersen in evidence. The means that Mr Andersen also earned some $2,000.00 from post-dismissal employment for present purposes.

[89] Deduction of the pay in lieu of notice and the other post-dismissal amount is appropriate in this case. This totals $2,958.00 (using whole dollars).

[90] Based upon the information before Fair Work Australia it is not reasonable to infer that any remuneration would be received between the making of the order and the actual compensation being paid.

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

[91] Given the short period over which I have projected the probable duration of employment and the related circumstances of this case, no further discount for general contingencies is warranted. 18

[92] There is no relevant misconduct that should reduce the amount otherwise payable as compensation, as provided by s.392(3) of the Act.

[93] 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 manner of the dismissal.

[94] The amount of compensation that I assess as appropriate is far less than the maximum prescribed by s.392(5) of the Act as applied in this matter.

COnCLUSIONS AND ORDERS

[95] I find that the dismissal of Mr Andersen by IWS was unfair within the meaning of the Act.

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

[97] Having regard to all of the circumstances of this matter, including the considerations established by s.392 of the Act, I find that compensation is appropriate and should comprise a payment by IWS to Mr Andersen calculated as follows: 19

    • The projected amount of income in the absence of dismissal

$8,279

    • Deduct income paid on termination

($2,958)

    • Provisional compensation amount

$5,321

    • Less a discount for mitigation efforts and related matters (10%)

($ 532)

    • Total compensation payment

$4,789

[98] The compensation payment of $4,789, less any required deduction of taxation, is to be made within 14 days of this decision.

[99] An order 20 to the above effect has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

P Anderson, the applicant in person.

D Panuccio for the respondent, Acquista Investments Pty Ltd and Veolia Environmental Services (Australia) Pty Ltd T/A Integrated Waste Services.

Hearing details:

2011

Adelaide

July 14

 1   The two companies conduct the business of IWS as a partnership.

 2   Although the contract was for a fixed 12 month term, it expressly provided for its termination during that period and the dismissal took place during that term. As a result, s.386(2) of the Act, which deals with the issue of when the termination of an employee on a fixed term contract is not considered to be a dismissal, does not operate in this case.

 3   The matter involved multiple witnesses and issues of credit are considerations.

 4   Mr Pannuccio was not employed by the respondent at the time of the applicant’s employment and dismissal.

 5   These included Family Court attendances.

 6   Transcript PN76 and PN77.

 7   Appraisal report attached to exhibit R3.

 8   The move to regular 9.00am starts appears to have commenced from 2 December 2010 according to the time sheets (part of exhibit A1).

 9   The respondent’s representative was invited to put any specific allegations of lateness or misconduct occurring after the first warning to the applicant during cross-examination- transcript PN258.

 10   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, per Ross VP, Williams SDP, Foggo C PR948009, 15 June 2004 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

 11   Record of meeting as attached to Mr Spencer’s witness statement - exhibit R3.

 12   Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465; Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 19 April 2011.

 13   This matter was raised with the respondent at the commencement of proceedings.

 14   This is the average figure calculated by the respondent and declared on the employment separation certificate. Both parties were given an opportunity to dispute that figure during the hearing.

 15   Transcript PN83 and PN84.

 16   Taken from the applicant’s last pay slip.

 17   The applicant was expressly advised of the requirement to provide details of his post dismissal employment related income and evidence as to his mitigation efforts.

 18   See the discussion of contingencies in Ellawala v Australian Postal Corporation AIRC Print S5109, 17 April 2000 per Ross VP, Williams SDP and Gay C and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, 31 October 2001 per Williams SDP, Acton SDP and Gay C.

 19   I have used only whole dollars.

 20   PR512550



Printed by authority of the Commonwealth Government Printer


<Price code C, PR511596>