FWA 2915
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Johannes Robat
Iveco Trucks Australia Ltd
MELBOURNE, 16 MAY 2011
Unfair dismissal - jurisdiction - resignation - employer conduct -dismissal - harsh, unjust and/or unreasonable - remedy - mitigation - contributory misconduct
 This decision concerns an application by Mr Johannes Robat, pursuant to s.394 of the Fair Work Act 2009 (the Act), for relief in relation to the termination of his employment with Iveco Trucks Australia (Iveco), alleging that the termination of the employment was harsh, unjust and/or unreasonable.
 Mr Robat commenced employment with Iveco from 8 January 1996 and tendered his resignation on 4 October 2010, the employment relationship came to an end on 18 October 2010. Mr Robat was 59 years of age, employed as a Supply Manager in Customer Service/ Spare Parts earning $92,300 per annum plus employer superannuation contributions of 16.4% of his salary at the time of termination of his employment. Iveco is an Australian subsidiary of Fiat and is a supplier of trucks to the transport industry.
 On 22 October 2010 the application was listed for conciliation by telephone before a conciliator of the Fair Work Australia Unfair Dismissals Team on 4 November 2010. On 29 October 2010 Iveco filed a Form 3 - Employer’s Response to the Application for Unfair Dismissal Remedy objecting to the conciliation on the grounds that Mr Robat resigned from his employment with Iveco. The matter was subsequently allocated by the Unfair Dismissals team to be heard by me on 7 March 2011.
Jurisdiction - Statutory provisions
 Before proceeding to deal with an application made under s.394 of the Act the Tribunal must first determine whether or not the applicant is a person who is protected from unfair dismissal. In order to be a person protected from unfair dismissal an applicant must be a person who has been dismissed from the employment of the employer who is respondent to the application. Section 386 of the Act sets out the meaning of “dismissed” for the purposes of the operation of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
 It is conceded that Mr Robat wrote a letter of resignation from his employment. Mr Robat submitted that the Tribunal should find that Iveco had initiated the termination of his employment or in the alternative he was forced to resign by a course of conduct by Iveco.
 In the course of the submissions for Mr Robat, concerning the operating of s.386(1), it was put that, notwithstanding the extant resignation, the Tribunal should consider the provisions of subparagraphs (a) and (b) of s.386(1) as discrete and alternative criteria for the purpose of determining whether not Mr Robat had been dismissed.
 Iveco on the other hand submits that I should approach the meaning of the relevant statutory language such that while there may be syntactical differences between the formulation used in the Act and the predecessor provisions of the Workplace Relations Act (1996) respectively, the semantic effects of the two statutory formulations are fundamentally similar.
 When one considers the extrinsic materials 1 which are pertinent to the relevant provisions of the Act this view is corroborated. A consequence of the decisions of the Australian Industrial Relations Commission in relation to the predecessor provisions of the Workplace Relations Act provide relevant guidance to the application of the provisions of the Act to a situation where an employee has tendered a written resignation and claims that this was done because a course of conduct of the employer forced the resignation. If this is correct, the intention of an employer’s conduct which can be connected to the event of the employee’s resignation will be highly relevant and, arguably at least, definitive,2 where a course of conduct is intentionally followed by an employer in order to achieve the termination of an employee’s employment by resignation.
 Having considered the submission of Mr Robat in relation to s.386(1) it is difficult to accept that where an employee has resigned their employment the test of whether or not the employee has been dismissed is anything other than a question of whether or not the employee was forced to resign by the employers’ conduct. The history of the legislation and its predecessor, I consider, fortifies this approach.
 In my view, in the factual circumstances of this case, the correct approach is to consider and determine whether Mr Robat was dismissed by Iveco exclusively by reference to s.386(1)(b) of the Act.
Was Mr Robat forced to resign?
 The employment relationship is embedded in a hierarchy of authority and control. The capacity of the employer to exercise a necessary force of direction, required, in order to control the incidents of the relationship, is an orthodox presumption of Australian employment law. This is sometimes referred to as managerial prerogative. The employment relationship will have interactions which involve the effect of the employer pushing, urging or compelling action in a particular direction. Force can therefore be relevantly understood as behaviour by the employer which will put something in or of the employment relationship in motion, toward a particular direction or outcome. In this case the exercise or conduct of the inherently dominant position of the employer to do so in the relevant transactions which lead to Mr Robat’s resignation will come under consideration.
 The evidence I think is sufficient, on the balance of probabilities, to support a finding that Iveco conducted itself with the intention that the outcome of a meeting held on 30 September 2010 between Mr Giorgio Gallia, who is the Italian expatriate managing director of Iveco’s Australian operation, and Mr Robat would be that Mr Robat’s employment would end. If a finding of this kind is all that is required to meet the test of what will constitute termination at the initiative of the employer where an employee resigns consequentially, in accordance with the relevant authority previously mentioned, then the Tribunal has jurisdiction to hear and determine Mr Robat’s application.
 However, as I understand Mr McLaughlin’s submissions for Iveco, the intention or the wish of an employer that an employee resigns, together with some conduct for the purposes of having an employee bring their employment to an end by resignation, are not sufficient to meet the relevant statutory requirements. In Mr McLaughlin’s submissions the intention and conduct of the employer must also be forceful in effect.
 In Mr McLaughlin’s submission the Tribunal must be satisfied not only of the employer’s intention and the factual existence of a course of conduct directed at the employee’s employment coming to an end but also that the conduct involved a force which caused the resignation. What will constitute force for the purpose of the statutory provisions and judgement in a particular case is a question which must be addressed in order to deal with this submission.
 It seems to me that to address Mr McLaughlin’s submission it is necessary to consider the particular factual circumstances of the termination of Mr Robat’s employment and to do so in the manner often described in various unfair dismissal jurisdictions as “all round”. In other words, in the full relevant factual context in which the employment came to an end, rather than simply determining the effect of the employer’s conduct and intention by linguistic analysis only.
 It is unexceptional that an employer and an employee could arrive at a mutual intention to bring an employment relationship to an end as an act of free will by both parties, without any conduct of a forceful nature by either.
 Following this approach it is necessary to consider whether there is anything in the whole of the factual matrix of an employment relationship to indicate that an employee, who produces a resignation in the context of conduct or a course of conduct initiated and followed by their employer, the objective of which is to bring the employment to an end, might otherwise have left the employment at that time, of their own free will, absent that conduct.
 One can then well ask, was Iveco the creator of the force or direction which initiated Mr Robat’s resignation? How did the conduct of Iveco interact with Mr Robat’s will or volition, in relation to the continuation of his employment with Iveco at the relevant time, in light of all of the facts and circumstances?
 The relevant circumstances which lead to the termination of Mr Robat’s employment were that in the course of his relationships with a company which supplies reconditioned engines to Iveco he was informed by the proprietor of that business that a customer had failed to collect a reconditioned engine for a Chrysler Valiant, which had been left and remained at that company’s premises for some time and which had been paid for long ago by the customer. Mr Robat was informed that he was welcome to have the reconditioned engine free of charge if he would remove it. The proprietor made this offer to Mr Robat because he was aware that Mr Robat was a car restoration hobbyist and had restored the model of car for which the engine had been produced. Iveco considered that this action, together with Mr Robat’s use of company transportation and storage facilities for the purpose of transferring the engine to his home, made his position with Iveco untenable and this is what Mr Gallia expressly and essentially said to Mr Robat at the meeting on 30 September 2010.
 Mr Robat was called to the meeting with Mr Gallia. The meeting followed an investigation of the acceptance of the engine and a disciplinary warning in relation thereto having previously been issued to Mr Robat as a result of consideration of the event by Iveco’s Human Resources Department.
 When considering the free exercise of Mr Robat’s will or volition in the relevant circumstances an aspect of Mr Robat’s verbal interaction with Mr Gallia in the meeting of 30 September 2011 is a statement made by My Robat, as follows: “If you ask me to leave, you’re doing me a favour”.
 It is submitted by Iveco that this is evidence of free will and an expression of volition on Mr Robat’s part in the subsequent act of resignation, devoid of any influence by the conduct of Iveco and Mr Gallia. I think, the statement is capable of some such interpretation, if taken in isolation. However, that statement cannot be extracted from the broader historical and immediate factual context of the dealings between Iveco and Mr Robat, in relation to the reason for which the employment came to an end. Moreover, interpretation of these words without regard to the history of the issue which gave rise to the meeting with Mr Gallia and the whole of the verbal interaction between Mr Robat and Mr Gallia at the meeting would fail to take all relevant considerations into account. In my view, this utterance is part of a piece in the mosaic of all the relevant facts and circumstances which must be weighed for the purposes of the required judgement. I consider it an emotional and spontaneous reaction by Mr Robat to a threatening situation, an act of bravado, in the face of a turn for the worse in the situation affecting the security of his employment arising from the receipt of the engine.
 It is also submitted by Iveco that Mr Robat’s resignation was an act of free will, as part of a transaction which involved Mr Robat resigning in return for Mr Gallia securing an apology from a co-worker for personal conduct toward Mr Robat which Mr Robat considered offensive. I should say I reject this construction of the facts. In my view, the evidence does not support a finding consistent with this construction. To the extent necessary for the purposes of this conclusion I accept the evidence of Mr Robat where it, relevantly, conflicts with that of Mr Gallia.
 The events leading up to the meeting between Mr Robat and Mr Gallia on 30 September 2011 form part of the course of conduct relevant to the reason for which the employment of Mr Robat came to an end.
 The action of Mr Robat in accepting the gift of the engine from an Iveco supplier of reconditioned engines had been the subject of disciplinary proceedings against Mr Robat prior to the meeting of 30 September 2011. When it became aware of the situation concerning the receipt of the engine by Mr Robat, Iveco reached the conclusion that, but for an important consideration, which will be dealt with further below, the act of accepting the engine, as well as using Iveco resources to transport, store and transfer the engine to his home, was reason to terminate Mr Robat’s employment. Iveco concluded that the act of accepting the engine was a breach of a written company policy.
 The reason for Iveco not terminating Mr Robat’s employment, prior to the meeting with Mr Gallia on 30 September 2011, was the discovery by Iveco that while such the actions of Mr Robat were contrary to the company’s policy or code of conduct it appeared that Mr Robat had not at any time been notified of or provided with the relevant policy or code of conduct which Iveco considered had been breached.
 In such circumstances Iveco considered that termination of Mr Robat’s employment could be viewed as unreasonable and would likely result in an unfair dismissal application. As a result of these considerations Iveco decided that rather than terminate Mr Robat’s employment it would be appropriate to issue a disciplinary warning.
 Subsequently, a management employee of Iveco was engaged in a lengthy communication with Fiat management in Turin, Italy. Italian management officers were dissatisfied with the outcome of the investigation and the disciplinary action decided upon by Iveco management in Australia. The evidence shows that Fiat management in Turin persistently sought a revision of the decision not to terminate Mr Robat’s employment. Subsequently, it is in this context that Mr Gallia called the meeting of 30 September 2011 with Mr Robat.
 At the meeting Mr Gallia informed Mr Robat Fiat management had reached the conclusion that Mr Robat’s position with Iveco was untenable. When asked by Mr Robat whether Mr Gallia was seeking his resignation Mr Gallia replied “that is your option”.
 What should be made of the evidence of the words uttered by Mr Gallia and Mr Robat at the meeting of 30 September 2011 in the relevant context? It seems to me that the meaning attributed to those words must be found not only in the formulations chosen by the two participants but also the context in which the words were spoken including the events preceding the meeting. An investigation of the circumstances of Mr Robat’s receipt of the engine had been conducted. Mr Robat knew well that the issue had given rise to dissatisfaction. He had, however, he thought, been dealt a warning as the appropriate disciplinary outcome.
 A one on one meeting with the Chief Executive Officer of Iveco to discuss the viability of his continued employment, in light of the known facts and existing disciplinary action, would no doubt have been alarming and unusual for Mr Robat.
 To be informed that, while Australian management had decided that his employment would not be terminated but rather a warning would be issued as the appropriate response, but that Italy had decided that his position was untenable, would no doubt have been confronting and threatening. To be told this and then to be informed that in light of this his “option” was to resign, in my view, could only be received by Mr Robat in one way. That is, his position with the company could not continue and he was being given the “option” of resigning. The logical construction which any person being told this would be most likely to arrive at was that Fiat management had decided that the decision of the Australian management was inadequate and that his employment could not continue. Accordingly, the most inherently likely construction of Mr Gallia’s conduct at the meeting of 30 September by Mr Robat was that he could either exercise his “option” to resign or it was likely that steps would be taken by Iveco to conform to the requirements of Fiat management in Turin, to bring the employment to an end. In these circumstances I consider that the course of conduct of Iveco in relation to the reason for the termination was directly related to, and sufficiently forceful to induce, Mr Robat’s resignation. Mr Robat was therefore a person protected from unfair dismissal.
 Having determined that Mr Robat was a person protected from unfair dismissal at the time of the termination of his employment. I now turn to consider the merits of the application.
 The Act sets out the considerations which must be taken into account when determining an application for an unfair dismissal remedy.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
 I must first determine whether or not there was a valid reason for the termination of Mr Robat’s employment. It is uncontroversial that the reason for termination of Mr Robat’s employment was comprised of him accepting the reconditioned engine and using Iveco resources to transport and store the engine for the purposes of transfer to his address. But for the conclusion reached by Fiat management about this and the meeting with Mr Gallia there is no other discernable reason for the employment of Mr Robat to have come to an end when and in the circumstances it did.
 It has already been noted that Iveco concedes that there is no evidence of Mr Robat having been notified of or provided with information of the company policy which prohibits the action which comprised the reason for the termination of the employment. Nevertheless, Iveco submits that the reason for the termination of Mr Robat’s employment is a valid reason. It is submitted that such actions, regardless of Mr Robat’s awareness or otherwise of the company policy, are intrinsically wrong and inappropriate when taken by an employee with responsibility for supply chain management. In particular, it is submitted that, as Mr Robat had responsibility in relation to the supplier who offered the reconditioned engine to Mr Robat, and as the value of the gift was greater than appropriate for the acceptance of a gift from a supplier, as provided for by company policy, an obvious conflict with the proper exercise of the responsibilities of Mr Robat’s position with Iveco arose, which Mr Robat should have recognised. The monetary value of the engine is estimated at somewhere between $1,500 to $2,000 to a person with the relevant interest.
 Mr Robat submits that as he was unaware of any policy prohibiting his acceptance of the engine and as the gift and the circumstances in which it was offered were unusual, and because of the nature of the gift, and it’s limited and somewhat unique nominal value, the combination of these circumstances means that the reason for the termination of his employment lacked validity.
 The validity of a reason for the termination of an employee’s employment must be considered in the particular factual circumstances of each case but must be sound, defensible and well founded. In this case there is no doubt that had Mr Robat been aware of the company’s policy concerning the receipt of gifts, the reason for the termination of Mr Robat’s employment would be a sound, defensible and well founded one.
 While I think that, objectively, the termination of the employment of an employee in Mr Robat’s circumstances, in particular with Mr Robat’s responsibility for the relationship between a supplier and the company could be judged as having some validity, it would nevertheless be compromised by the fact that the employee had not been prohibited from doing so by the express terms of the employment. With that qualification I find that Iveco’s reason for the termination of the employment, and looked at somewhat abstractly from the problematic factual context, had validity.
 In my view, Mr Robat should have had some concerns accepting a gift of the value of the reconditioned engine from a supplier having regard to his responsibility for the management of the relationship between the supplier of the reconditioned engines and Iveco. Looked at objectively, it does not automatically follow that because a particular action by an employee in their professional dealings on behalf of their employer is not expressly prohibited by a written policy, the action cannot constitute a valid reason for the termination of an employee’s employment. On reflection it soon becomes clear that, if the contrary were to be accepted, then the only valid reasons for the termination of an employee’s employment would be reasons which have been specifically and expressly prohibited by the employer, either at engagement or during the course of the employment. I doubt that such a strict and cumbersome principle can be applied in this jurisdiction. However, the validity of such a reason will have to be viewed and weighed in the particular factual context when considering whether or not looked at “all round” the termination of an employee’s employment would be harsh, unjust or unreasonable in any individual case.
 I find that Mr Robat had been notified of the reason for the termination of his employment. I have no doubt but that when he attended the meeting with Mr Gallia on 30 September 2011 Mr Robat knew of the issues which comprised the reason for what Mr Gallia was referring to as his position being “untenable” and which transpired to be the reason for the termination of his employment.
Opportunity to respond
 On my view of the evidence, it is more probable than not that Fiat and Mr Gallia had decided that if Mr Robat did not exercise the option of resignation his employment would have to be terminated and had done so before the meeting of 30 September 2011. The purpose of the meeting was to inform Mr Robat of the conclusion which had been reached in Turin upon which Mr Gallia was acting. While there was a meeting and Mr Robat could have said something in relation to the subject of the meeting, any opportunity to respond in the particular factual matrix of this case was insubstantial. The purpose of the meeting was to communicate the decision of the untenable nature of Mr Robat’s position and the “option”, which was effectively offered to Mr Robat, of resignation.
 There was no refusal of an opportunity for Mr Robat to have a support person present at the meeting of 30 September 2011.
Warned of unsatisfactory performance
 The termination of Mr Robat’s employment was not for reason of unsatisfactory performance but rather because of his conduct receiving the engine. Accordingly, there is no warning within the meaning of the relevant statutory provision. However, I note elsewhere and consider the disciplinary warning given in relation to the conduct and receipt of the engine.
Size of employer
 Iveco is not a small employer and is a substantial enterprise which is part of a large multi-national business. This had a particular effect upon the procedures which were adopted in relation to the termination of Mr Robat’s employment, which I have dealt with elsewhere and will take into account when considering whether or not the termination of Mr Robat’s employment was harsh, unjust or unreasonable.
Absence of human resource management expertise
 There was no absence of human resource management expertise.
Other relevant matters
 I consider the fact that Mr Robat had not been notified of, provided with or informed about the company policy which Iveco considered was breached by Mr Robat’s conduct is a relevant matter.
 I consider Mr Robat’s length of satisfactory service with Iveco and his age at the time of the termination of the employment are relevant. In the latter case it is a notorious fact that older workers experience greater difficulty in finding employment. The considerations combine to be relevant when considering whether or not the termination Mr Robat’s employment was harsh.
Harsh, unjust or unreasonable
 Having made findings in relation to the matter which must be taken into account for the purposes of determining whether or not the termination of Mr Robat’s employment was harsh, unjust or unreasonable I must now weigh those findings in order to determine the application.
 I conclude that there were elements of harshness, injustice and unreasonableness involved in the termination of Mr Robat’s employment. I consider that, very much on balanced discretionary judgement, it was harsh to terminate Mr Robat’s employment in the particular circumstances where he was unaware of and had not agreed to the policy prohibiting his actions, as a term of his employment. Some consideration of this fact was relevant and some forgiveness in all the circumstances in the way the breach of the relevant policy was dealt with by Iveco was appropriate, in particular having regard to the length of Mr Robat’s otherwise satisfactory service and the likely effect upon Mr Robat’s personal circumstances. The sanction of termination, in my judgement, was too great.
 I consider there to be elements of injustice and unreasonableness in Mr Robat having been subject to different and escalating sanctions for his single act of wrong doing, based on the same facts. In my view, the decision of local management was appropriate when the warning was issued. That was a carefully considered and measured response to the situation in the relevant context in Australia. In an employment context and in the particular factual circumstances of this case, the revision of this decision to a much harsher sanction of termination without any different or additional factual basis, in my view, was unreasonable. If the original decision was ill considered, misconceived or plainly disproportionate to all the facts and circumstances I may have come to a different conclusion. Likewise, if additional facts or new information which would justify a revision of the original decision had come to light subsequent to the issuance of the warning my view may have been different. These considerations do not arise to mitigate the double jeopardy imposed in this case upon Mr Robat.
 For those reasons I am satisfied that the termination of Mr Robat’s employment was harsh, unjust and unreasonable.
 Having decided that the termination of Mr Robat’s employment in the particular circumstances of this case I now turn to consider whether not to award a remedy and if so what an appropriate remedy should be. The relevant statutory provisions are set out below:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA 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) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA 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.
391 Remedy—reinstatement etc.
(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.
(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:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(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 FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA 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 FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA 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), FWA 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.
(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), FWA 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 FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA 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 FWA 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.
(5) The amount ordered by FWA 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.”
 Having regard to the considerations identified above, to arrive at an appropriate remedy it is necessary to make a judgement concerning the likely duration of the employment of Mr Robat with Iveco but for the termination in the circumstances of the case.
 I consider that some of the evidence indicates that Mr Robat was not resolved to continue his employment with Iveco indefinitely and accordingly I consider it would be inappropriate to assume that Mr Robat would not have left the employment at a time of his own choosing in the near to medium term. On what is before me, I consider that it would be unsound to conclude that Mr Robat would have remained in the employment for any longer than 1 June 2011.
 At the time of the hearing I was informed that Mr Robat had been attempting to establish a consultancy subsequent to the termination of his employment. He had also commenced a dietary supplement product distributorship on a small scale.
 I do not consider reinstatement appropriate for various reasons. The remedy is not sought and is opposed. Moreover, there has clearly been an issue of trust arising between Iveco and Mr Robat, whatever the validity of the views of Iveco may be in the circumstances. Moreover, as observed above, I am doubtful of how long Mr Robat would have remained in the employment of Iveco without the circumstances which gave rise to his resignation having occurred when they did. I am inclined to think that Mr Robat was contemplating retirement although he had not settled upon the timing of it with any certainty. His efforts at mitigation post termination are indicative of this.
 In my view, no order within jurisdiction in this matter would affect the viability of Iveco.
 The length of Mr Robat’s satisfactory service weighs in favour of a remedy.
 In my view, there is some doubt about Mr Robat’s intention to remain indefinitely employed by Iveco. I am inclined to the view that the continuation of Mr Robat’s employment in the absence of all the circumstances which gave rise to its termination should be reckoned at up to no later than 1 June 2011.
 I consider Mr Robat did not commence substantial efforts to mitigate the losses arising from the termination of his employment until late January 2011.
 On what is before me at the time of the hearing Mr Robat had earned minimal income between 29 October 2010 and 7 March 2011.
 Section 392(2)(f) requires consideration of contributory misconduct and is of relevance in this matter.
 In this case as I have expressed acceptance of a degree of error in the relevant conduct of Mr Robat in my reason for concluding that the reason for the termination of Mr Robat’s employment was not entirely without validity. I consider there to have been an element of negligent culpability on Mr Robat’s part in failing to carefully consider the appropriateness of accepting the engine.
 Considering all of the above I have decided that the provision of a remedy of compensation is appropriate.
 I have decided upon the following as the approach to the calculation of an appropriate remedy which I believe to be consistent with statutory requirements and principles 3 which have been historically applied, within the jurisdiction:
1. I calculate Mr Robat’s weekly remuneration at $2,066.10 ($92,300 per annum + 16.4% superannuation).
2. Mr Robat was paid his salary until 29 October 2010.
3. Between 29 October 2010 and 31 January 2011 I consider Mr Robat’s evidence of his efforts at mitigation is limited and does not in my view amount to proof of adequate mitigation of his loss in this time. I exclude losses during this period for this reason.
4. Between 1 February 2011 and the date of the hearing, 7 March 2011, Mr Robat’s losses amount to $9,541.25 (4.86 weeks pay less $500 earned).
5. Between 7 March 2011 and 1 June 2011 Mr Robat’s ongoing loss amounts to $25,392.37 (12.29 weeks pay).
6. The total additional losses of points 4 and 5 above are $ 34,933.62
7. From the amount derived from point 5 above I deduct a contingency of 35% ($8,887.33) on account of an estimate for income likely to have been earned between 7 March and 1 June 2011 of $16,505.04. The revised calculation of total additional losses is therefore $26,046.29.
8. From this amount I deduct 50% on account of contributory misconduct equalling $13,023.15
9. The jurisdictional cap on the remedy available in relation to the termination of Mr Robat’s employment worked out in the manner described by ss392(5) and (6) of the Act is $53,718.60
10. I have reviewed the amount of $13,023.15 to consider whether or not the amount is inadequate or excessive in all of the circumstances of the case. I consider it appropriate, subject to deduction of prescribed taxation in accordance with the relevant legislation and rulings of the Australian Tax Office.
 An order will issue accordingly.
Mr Jim McKenna of Counsel, for the Applicant.
Mr David McLaughlin, Solicitor, for the Respondent.
1 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at paras 1529-30.
2 O’Meara v Stanley Works Pty Ltd, PR973462 (11 August 2006, Giudice J, Watson VP, Cribb C).
3 Sprigg v Paul’s Licensed Festival Supermarket, Print R0235 (24 December 1998, Munro J, Duncan DP, Jones C) and Tabro Meat Pty Ltd v Heffernan  FWAFB 1080 (16 March 2011, Acton SDP, Hamilton DP, Cribb C).
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<Price code C, PR509511>