[2011] FWAFB 5944 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT DRAKE |
|
Appeal against decision [[2011] FWA 1504] of Commissioner Ryan at Melbourne on 29 March 2011 in matter number U2010/5284.
[1] This Full Bench handed down a decision 1 on 11 August 2011.
[2] On 19 August 2011, after an unsuccessful conciliation, I heard submissions on behalf of the Full Bench regarding remedy. The Full Bench has considered those submissions.
[3] We have determined that reinstatement is not an appropriate remedy in all the circumstances of this case. We have not come to this conclusion because of any adverse finding regarding the prospective conduct of Father Bellia or the Board of Assisi Centre Incorporated, trading as Assisi Centre Aged Care (Assisi).
[4] We have drawn this conclusion for two reasons. Firstly, we have concluded that this is one of those cases where the relationship between parties has broken down and cannot be mended. Father Bellia wants to be restored to his previous position and tend to the residents. He also wants to be able to return and demonstrate the reversal of the injustice occasioned to himself by Assisi. Assisi want to get on with the business of providing care, including pastoral care, to its residents without any further stress and conflict. If the task performed by Father Bellia was not a pastoral role we may have been persuaded that successful reinstatement could be successfully achieved. However, this role is pastoral, both in the broad and the narrow sense, and we are satisfied that a happy and continuing reconciliation cannot be achieved. One party wants redress and one wants it over. We are satisfied that reinstatement in the context of this relationship is inappropriate.
[5] Secondly, we have concluded that reinstatement is not appropriate because we are satisfied that Father Bellia cannot perform the Roman Catholic rite except, arguably, through the special exception outlined by Commissioner Ryan, that is, that Father Bellia could minister to the sick when no Roman Catholic priest was available. This would not allow Father Bellia to minister to all residents of Assisi. They are all old. They are not all sick. This basis for the performance of the religious pastoral role is not now sufficient to satisfy Assisi and the Roman Catholic Church has, in any event, confirmed that Father Bellia cannot administer its rites. We do not consider it appropriate to look behind that confirmation and, in any event, in the performance of religious roles we have decided that Assisi are entitled to have what they prefer for their residents.
[6] Ms O’Brien submitted that Assisi had deliberately sought a negative answer from the Roman Catholic Church that would suit its purpose. It wanted a negative answer. It is true that Assisi sought an answer and that the answer was negative. Despite this, we don’t consider it appropriate to ignore the Roman Catholic Church’s answer simply because it is the answer that Assisi preferred. In the face of that negative we consider reinstatement to be inappropriate.
[7] We consider compensation is appropriate in the circumstances of this case.
[8] We have taken into account all those matters which are outlined in s392 of the Fair Work Act 2009 (the Act) as criteria to be taken into account when determining the amount of compensation payable. We do not believe that there should be any reduction as a result of any failure to mitigate. We do consider that the amount of compensation should reflect the injustice to Father Bellia arising out of his dismissal without a valid reason. All other factors were neutral in our consideration.
[9] The parties agreed on transcript that the maximum compensation payable to Father Bellia pursuant to the Act is $47,500. We have decided that the maximum compensation should be paid by Assisi to Father Bellia.
[10] We note that the parties have agreed that his entitlement to other benefits shall be continued to an agreed date pursuant to a settlement of separate proceedings.
[11] An order shall issue in conjunction with this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
F O’Brien Senior Counsel for Father Bellia
M McDonald Senior Counsel with R Millar of Counsel for the Assisi Centre Inc. T/A Assisi Centre Aged Care
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